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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-17385
Non-Argument Calendar
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D.C. Docket No. 5:13-cv-00222-WTH-PRL
JOSEPH BRADFIELD,
PATRICIA BRADFIELD,
Plaintiffs-Appellees,
versus
MID-CONTINENT CASUALTY COMPANY,
a foreign corporation,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(June 7, 2017)
Before HULL, WILSON and WILLIAM PRYOR, Circuit Judges.
PER CURIAM:
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Mid-Continent Casualty Company appeals the denial of its motion for
attorney’s fees based on its unaccepted offer of judgment. Fla. Stat. § 768.79
(2006); Fla. R. Civ. P. 1.442. The district court ruled that Mid-Continent could not
recover attorney’s fees because its joint offer of judgment was invalid. We affirm.
I. BACKGROUND
Mid-Continent issued commercial general liability insurance policies to
Winfree Homes, Inc., and Horgo Enterprises, Inc. A third entity, Horgo Signature
Homes, Inc., used Winfree and Horgo Enterprises as contractors, which Horgo
Signature failed to disclose in its contract to build a home for Joseph and Patricia
Bradfield. The Bradfields’ home was rife with construction defects, the majority of
which were attributable to work performed by subcontractors used by Winfree and
Horgo Enterprises.
After the Bradfields sued Winfree and Horgo Signature in a Florida court,
Winfree and Horgo Signature notified Mid-Continent of the action, but it denied
coverage and refused to provide a defense. The parties settled the action. The
Bradfields agreed to release all claims against Winfree, Horgo Signature, and
Horgo Enterprises, and Winfree and Horgo Signature, in exchange, agreed to be
held jointly and severally liable for $696,108 and to assign their putative claims
against Mid-Continent to the Bradfields.
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The Bradfields filed a complaint in a Florida court against Mid-Continent,
which removed the action to the district court. Mid-Continent served the Bradfields
with a joint offer of judgment to “resolve[] all claims that the Bradfields asserted
or could have asserted against [Mid-Continent] in connection with the complaint,
and under the Horgo Enterprises, Inc. (“Horgo Enterprises”) and Winfree Homes,
Inc. (“Winfree”) policies of insurance issued by [Mid-Continent].” See Fla. Stat.
§ 768.79. Mid-Continent offered to pay $7,500 that could “be split equally by the
Bradfields or in any other matter [sic] they see fit.” In exchange, Mid-Continent
demanded “a full and complete release of all claims that the Bradfields had, have,
or that they could have asserted against Horgo Enterprises, Winfree, and/or [Mid-
Continent]” and “a full and complete satisfaction of any and all Final
Judgment(s)/Consent Judgments they jointly obtained against Horgo Signature
Homes, Inc. and/or Winfree.”
The Bradfields did not respond to the offer and moved for partial summary
judgment. Later, Mid-Continent moved for summary judgment. The district court
granted the motion of Mid-Continent and denied the Bradfields’ motion.
Mid-Continent filed a motion for attorney’s fees based on its unaccepted
offer of judgment, see id., which the district court denied. The district court ruled
that the offer of judgment was invalid and unenforceable because “neither [of the
Bradfields] could independently accept the offer without the other joining the
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release and agreeing to the terms of the settlement.” See Attorneys’ Title Insurance
Fund, Inc. v. Gorka, 36 So.3d 646 (Fla. 2010).
II. STANDARD OF REVIEW
We review the denial of attorney’s fees for abuse of discretion. Menchise v.
Akerman Senterfitt, 532 F.3d 1146, 1149 (11th Cir. 2008). “To the extent that the
district court’s conclusion implicates a question of law, we review de novo.” Id.
(quoting Barnes v. Broward Cty. Sheriff’s Office, 190 F.3d 1274, 1276–77 (11th
Cir. 1999)).
III. DISCUSSION
Under Florida law, which the parties agree applies, a defendant who prevails
in a civil action can recover attorney’s fees when the defendant made “an offer of
judgment which [was] not accepted by the plaintiff within 30 days,” Fla. Stat.
§ 768.79(1), if that offer complied with Florida Rule of Civil Procedure 1.442. See
Gorka, 36 So. 3d at 649. Rule 1.442 requires that an offer of judgment identify the
benefits to and obligations of an offeree. Fed. R. Civ. P. 1.442(c). When an offer is
made “by or to any combination of parties,” the offer “shall state the amount and
terms attributable to each [plaintiff].” Fla. R. Civ. P. 1.442(c)(3).
The Supreme Court of Florida has ruled that a defendant is not entitled to
attorney’s fees based on a joint offer of judgment conditioned on the mutual
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acceptance of all the offerees. Gorka, 36 So. 3d at 647. “[T]hat . . . type of joint
offer is invalid and unenforceable,” the Gorka court reasoned, because it “violates
the[] principles” of Rule 1.442(c)(3), which requires an independent offer for each
offeree. Id. at 649–51. Unless an offer enables “each party [to] unilaterally settle
the action,” the court explained, it “is really a phantom offer that would never
produce a settlement.” Id. at 651. Gorka affirmed the denial of attorney’s fees to an
insurer that made an offer of judgment to a couple who jointly owned a policy of
insurance “conditioned upon the offer being accepted by both” spouses. Id. at 648,
652.
The district court did not abuse its discretion when it denied Mid-Continent
attorney’s fees because its offer of judgment was unenforceable. As in Gorka,
Mid-Continent conditioned its offer of settlement on the Bradfields’ mutual
acceptance of $7,500 and a joint release of all their claims. Mid-Continent argues
that it could make a “single offer” because the Bradfields sought to recover on a
“jointly-held consent judgment,” but Gorka established a bright line rule under
Rule 1.442(c)(3). The rule that an offeror make independent offers of judgment to
multiple offerees, the supreme court stated, “equally applies” whether the “case
involves only two plaintiffs with a personal relationship” or “multiple parties
absent a close personal or financial relationship.” Gorka, 36 So. 3d 652; see also
Graham v. The Peter K. Yeskel 1996 Irrevocable Trust, 928 So. 2d 371, 372 (Fla.
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Dist. Ct. App. 2006) (concluding the “bright line rule requiring apportionment
under Rule 1.442(c)(3)” applied to a “single unified claim” by a couple “for
settlement as tenants by the entireties”). The bright line rule established in Gorka
governs this issue.
IV. CONCLUSION
We AFFIRM the denial of attorney’s fees to Mid-Continent.
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