Florida/Georgia Personal Injury & Workers Compensation

...The joint proposal of settlement was for $95,001.00 and did not specify the amounts and terms each plaintiff was requesting. The trial court granted the plaintiffs' subsequent motion for attorney's fees and costs because the ultimate total of the recoveries was more than 25% greater than the proposed settlement amount. See § 768.79(1), Fla....

...So.2d at 1116, both of which held that the lack of apportionment in offerors' proposal for settlement did not render the proposal invalid. Willis Shaw Express, Inc., and Edward McAlpine now petition this Court to quash the district court's decision. Section 768.79, Florida Statutes (1999) ("Offer of judgment and demand for judgment"), provides a sanction against a party who unreasonably rejects a settlement offer. Section 768.79 provides in pertinent part: If a plaintiff files a demand for judgment which is not accepted by the defendant within 30 days and the plaintiff recovers a judgment in an amount at least 25 percent greater than the offer, she or he shall...

...The statute further provides that an offer must: (a) Be in writing and state that it is being made pursuant to this section. (b) Name the party making it and the party to whom it is being made. (c) State with particularity the amount offered to settle a claim for punitive damages, if any. (d) State its total amount. § 768.79(2), Fla. Stat. Section 768.79 is implemented by Florida Rule of Civil Procedure 1.442 ("Proposals for Settlement")....

...claim. At trial, the jury found that Nichols unreasonably refused to submit to a medical examination, which meant she was not entitled to any recovery. State Farm therefore requested attorney's fees and costs under the offer of judgment statute. See § 768.79, Fla....

...asking whether the offer of judgment statute applies to PIP suits. The Fifth District answered yes. Nichols, 851 So.2d at 744. Applying the statute's plain language, which encompasses "any civil action for damages filed in the courts of this state," § 768.79(1), Fla....

...While acknowledging "thoughtful policy arguments" for the opposite result, the district court advised that they would be "more appropriately addressed to the Legislature." Id. Judge Sawaya dissented in part. He argued that "the Legislature never intended a suit to recover PIP benefits to be an action for damages under section 768.79." Id. at 747 (Sawaya, J., concurring in part and dissenting in part). The purpose of the PIP system, he wrote, was to guarantee swift payment to insureds without regard to fault. In his view, "application of section 768.79 to PIP cases, with its inherent uncertainties and risks, has completely abrogated the security and the assurance that injured insureds were promised by the Legislature through the No-Fault Act." Id. at 750. He joined the majority, however, in certifying to us a question of great public importance: "May an insurer recover attorney's fees under rule 1.442, Florida Rules of Civil Procedure, and section 768.79, Florida Statutes, in an action by its insured to recover under a personal injury protection policy?" Id....

...im . . . from the date of filing of the offer if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than such offer, and the court shall set off such costs and attorney's fees against the award. § 768.79(1), Fla....

...compensation for loss or injury"). As one court has said, "[t]he right to damages may arise under tort law; it may arise under contract law; it may arise under property law. If the party seeks damages from another party, then the claim is covered by section 768.79's broad phrase, `civil action for damages.'" Beyel Bros....

...Id. (citing DeSalvo, 748 So.2d at 944 n. 3). We explained that "[a]lthough Danis and [ DeSalvo ] involved an award of attorneys' fees under section 627.428, we see no reason why this rationale should not apply equally to offers or demands made under section 768.79(6)." Id....

...Because I agree with the dissenting opinion of Judge Sawaya on this issue, I quote that opinion here and endorse its analysis: I concur with the majority that the order awarding attorney's fees must be reversed. However, I respectfully disagree that the offer of judgment statute found in section 768.79, Florida Statutes, applies to PIP cases. In my view, application of section 768.79 to PIP cases would completely thwart and circumvent the purposes of the Florida Motor Vehicle No-Fault Law [n. 1] (the No-Fault Act) and PIP benefits. Moreover, I believe that the Legislature never intended a suit to recover PIP benefits to be an action for damages under section 768.79....

...hat the question certified should be rephrased as follows to reflect the true nature of a suit to recover *1081 PIP benefits and answered in the negative: May an insurer recover attorney's fees under rule 1.442, Florida Rules of Civil Procedure, and section 768.79, Florida Statutes, in an action brought by its insured to recover personal injury protection benefits under the insurance policy issued to the insured? [n. 1] §§ 627.730-.7405, Fla. Stat. (2001). Application of the Offer of Judgment Statute Would Circumvent the Purposes of the No-Fault Law and Pip Benefits In order to properly determine whether the offer of judgment statute found in section 768.79, Florida Statutes (2001), applies to PIP cases, it is necessary to start with the firmly established rule that "[l]egislative intent, as always, is the polestar that guides a court's inquiry under the Florida No-Fault Law...." United Auto. Ins. Co. v. Rodriguez, 808 So.2d 82, 85 (Fla.2001). In my view, application of section 768.79 to PIP cases would completely circumvent and thwart the purposes of the No-Fault Act and the specific provisions relating to PIP benefits found in section 627.736. Therefore, it is clear to me that the Legislature certainly did not intend for section 768.79 to apply to PIP cases....

...h leverage over the insureds, who are dependent on the fair and speedy payment of their necessary medical bills from their insurance carrier so they will continue to have access to necessary medical care. Hence, an award of fees to the insurer under section 768.79 would circumvent the purposes of assuring swift and virtually automatic payment of benefits and, instead of discouraging insurers from contesting valid claims, it would have the effect of encouraging the contest of valid claims. Furthermore, an award of fees to the insurer under section 768.79 would completely vitiate the purpose of imposing a penalty on the insurer under section 627.428. Moreover, because section 768.79 is punitive in nature, [n. 3] an award of fees to the insurer would actually impose a penalty on the insured. I do not believe that the Legislature intended this result in enacting the No-Fault Act or section 768.79....

...1st DCA 2002) ("Moreover, the offer of judgment statute and rule should be strictly construed because the procedure is in derogation of the common law and is penal in nature."), approved, 849 So.2d 276 (Fla.2003); Schussel v. Ladd Hairdressers, Inc., 736 So.2d 776, 778 (Fla. 4th DCA 1999) (noting that "section 768.79 and Florida Rule of Civil Procedure 1.442 are punitive in nature ....") (citing TGI Friday's, Inc. v. Dvorak, 663 So.2d 606, 614 (Fla.1995); Loy v. Leone, 546 So.2d 1187, 1189 (Fla. 5th DCA 1989)). I also believe that imposition of attorney's fees on the insureds pursuant to section 768.79 could totally offset the insureds' benefit awards for these essential medical costs and leave the insureds with unpaid medical bills that could potentially cause a cessation of their medical care....

...Surely, the Legislature did not intend for such calamities to occur to insureds who were, according to the court in Lasky, given "an assurance that [they] would receive some economic aid in meeting medical expenses and the like ...." Imposition of fees pursuant to section 768.79 would, in my view, constitute a breach of that assurance and could potentially place many injured insureds in "dire financial circumstances with the possibility of swelling the public relief rolls"—a circumstance the court in Lasky indicated should not occur....

...rovided in the statute. Payment of the injured insureds' necessarily-incurred medical bills and continuation of their medical care is far too important to be subjected to the uncertainties of the offer of judgment statute. In my view, application of section 768.79 to PIP cases, with its inherent uncertainties and risks, has completely abrogated the security and the assurance that injured insureds were promised by the Legislature through the No-Fault Act....

...The Florida Supreme Court recognized that section 627.428(1) is a "one-way street offering the potential for attorneys' fees only to the insured or beneficiary." Danis Indus. Corp. v. Ground Improvement Techniques, Inc., 645 So.2d 420, 421 (Fla.1994). Because of the imposition of fees pursuant to section 768.79, instead of traveling down an unobstructed one-way street to recovery as intended by the Legislature, many injured insureds may find themselves stuck in front of a toll booth erected and maintained by their insurance companies without sufficient funds for passage through. This certainly is not the intention of the Legislature. *1085 Section 768.79 is part of Chapter 768, Florida Statutes, wherein the Legislature included section 768.71(3), which provides that "[i]f a provision of this part is in conflict with any other provision of the Florida Statutes, such other provision shal...

...This provision is significant because section 627.428 would apply to PIP cases regardless of the provisions of section 627.736(8). In my view, the Legislature intended that the specific provisions of section 627.428 should apply over the general provisions of section 768.79....

...Snow, 35 F.3d 1494, 1504 (11th Cir.1994) (en banc) (Carnes, J., dissenting). The disappearing ink here is that which we used in our previous opinion in this case to express our holding about whether the *1080 Florida Supreme Court would apply its offer of judgment statute, Fla. Stat. § 768.79 , in a case tried in Florida but for which the substantive law of another state governed....

...State, 596 So.2d 665, 666 (Fla.1992) (quoting Stanfill v. State, 384 So.2d 141, 143 (Fla.1980)). There is no persuasive indication that the Florida Supreme Court would not follow the Fourth District Court of Appeal’s BDO Seidman decision on whether its offer of judgment statute, Fla. Stat. § 768.79 , applies when the case is governed by the substantive law of another state....

...The case is still before us and we can correct our missed guess about Florida law. In light of the EDO Seidman decision, we rescind Part II.D of our prior decision, 256 F.3d at 1130, and in its place we hold that Florida’s offer of judgment statute, Fla. Stat. § 768.79 , is applicable to cases, like this one, that are tried in the State of Florida even though the substantive law that governs the case is that of another state. 1 We turn now to the contentions raised by MBM and McMahan in this appeal that we did not reach in our previous opinion because of our no longer viable holding that Fla. Stat. § 768.79 was inapplicable in this case....

...Toto’s offer of judgment provided as follows: Defendant, WILLIAM A. TOTO, hereby offers pursuant to Fla. Stat. § 45.061 to settle this case for the amount of $100.00 (One Hundred Dollars) upon a stipulation for dismissal, or, alternatively, pursuant to Fla. Stat. § 768.79 , at Plaintiffs election, to allow judgment to be taken against him in the total sum of $100.00 (One Hundred Dollars), in full and final resolution of all claims made in this action....

...Florida Rule of Civil Procedure 1.442 governs settlements and provides that a settlement proposal must “state the total amount of the proposal ... [and] state whether the proposal includes attorney’s fees.” Fla. R. Civ. P. 1.442(c)(2)(D) and (F). That rule applies to offers made pursuant to § 768.79....

...Therefore, the offer of judgment was not invalid for failure to cover costs and attorney’s fees. Second, MBM and McMahan contend that Toto’s offer was invalid because it failed to state with particularity the amount, if any, applicable to the claim for punitive damages. Both § 768.79 and Rule 1.442 provide that an offer must state with particularity the amount, if any, offered to settle a claim for punitive damages. Fla. Stat. § 768.79 (2)(c); Fla....

...Toto’s offer did not specifically mention punitive damages, but it did state that, if accepted, it would be “in full and final resolution of all claims made in this action.” Florida courts have not addressed whether an offer that does not specifically address punitive damages can be valid under § 768.79 and Rule 1.442, but their approach to the attorney’s fees requirement of Rule 1.442 is instructive....

...cluded in offers where they are not mentioned as long as they are not specifically excluded. See Unicare Health Facilities, 553 So.2d at 161 ; Northcraft, 476 So.2d at 759 . Extending that logic to the context of the punitive damages requirements of § 768.79(2)(c) and Rule 1.442(c)(2)(E)— and there is no apparent reason we should not — we conclude that Toto’s offer satisfied those requirements because it did not explicitly exclude punitive damages from *1083 its coverage. If simple omission were not enough, the “final resolution” language of the offer is. The offer was not invalid under § 768.79 and Rule 1.442. B. WHETHER THE OFFER WAS MADE IN BAD FAITH If an offer satisfies the requirements of § 768.79(l)-(6), as this one did, “[t]he sole basis on which a court can disallow an entitlement to an award of fees is if it determines that [the] offer was not made in good faith.” Levine v. Harris, 791 So.2d 1175, 1177 (Fla. 4th DCA 2001); see also § 768.79(7)(a) (“If a party is entitled to costs and fees pursuant to the provisions of this section, the court may, in its discretion, determine that, an offer was not made in good faith....

...McCaw Cellulcur Communications of Fla., Inc., 745 So.2d 330, 332 (Fla. 4th DCA 1998), they can be valid if the offerors have “a reasonable basis at the time of the offer to conclude that their exposure was nominal.” Id. at 333 . The good faith requirement of § 768.79(7)(a) does not “demand that an offeror necessarily possess, at the time he makes an offer or demand under the statute, the kind or quantum of evidence needed to support a judgment....

...atute’s purpose would not be furthered by permitting the award of attorney’s fees incurred in litigating the amount of them due. Id. (internal quotation marks and citation omitted). In this case we deal with attorney’s fees awarded pursuant to § 768.79, the purpose of which is “to ‘terminate all claims, end disputes, and obviate the need for further intervention of the judicial process’ by encouraging parties to exercise their ‘organic right ......

...t yet been incurred. See Pizzarelli, 704 So.2d at 633. The district court reversed and instructed the trial court on remand to reinstate the jury's verdict for the full amount of future damages and to award reasonable costs and attorney's fees under section 768.79, Florida Statutes (1991)....

...pain and suffering, and $48 in lost earnings), after the trial court set off the remaining $524.78 in available PIP benefits, the total judgment became $24,523.22. The Pizzarellis had made a demand for judgment in the case for $20,000. According to section 768.79, Florida Statutes (1991), if the plaintiff makes a demand which is not accepted by the defendant and the plaintiff recovers a judgment in an amount at least 25% greater than the demand, he or she shall be entitled to recover reasonable costs and attorney's fees incurred from the date of the filing of the demand. Thus, after setting off the available PIP benefits, the judgment was no longer 25% greater than the demand and the trial court found the Pizzarellis were no longer entitled to reasonable costs and attorney's fees under section 768.79....

...1 ("Because of our reversal for a new trial, we do not reach the issue raised by appellant/cross-appellee Allstate Insurance Company as to whether the trial court improperly failed to award attorney's fees pursuant to the offer of judgment statute, section 768.79, Florida Statutes (1993).").

...of Osborne, McNatt, Shaw, O'Hara, Brown & Obringer, Jacksonville, amicus curiae for Florida Defense Lawyers Association. OVERTON, Justice. We have for review Dvorak v. TGI Friday's, Inc., 639 So.2d 58 (Fla. 4th DCA 1994), in which the district court approved the constitutionality of the offer of judgment statute, section 768.79, Florida Statutes (1987), and held that the statute expressly provides for the award of attorney's fees regardless of the reasonableness of an offeree's rejection of an offer of judgment....

...For the reasons expressed in this opinion, we approve the decision of the district court. At the outset, it is important to understand that this case concerns two statutes and one rule of civil procedure, all of which employ different language governing offers of judgment: sections 45.061 and 768.79, Florida Statutes (1987), and Florida Rule of Civil Procedure 1.442 (1990)....

...(5) Sanctions authorized under this section may be imposed notwithstanding any limitation on recovery of costs or expenses which may be provided by contract or in *608 other provisions of Florida law. This section shall not be construed to waive the limits of sovereign immunity set forth in s. 768.28. (Emphasis added.) Section 768.79 reads as follows: (1)(a) In any action to which this part applies, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorne...

...for injuries she suffered in a slip and fall incident at a TGI Friday's restaurant in 1987. Prior to trial, Dvorak made three different offers of judgment. The first offer of judgment was based on the authority of section 45.061, the second was based on section 768.79, and the third was based on rule *610 1.442....

...gment. TGI Friday's filed a motion to strike the offers of judgment and a motion to determine Dvorak's entitlement to attorney's fees. The trial judge granted TGI Friday's motion to strike the first two offers on the grounds that sections 45.061 and 768.79 were unconstitutional....

...udgment. Dvorak appealed to the Fourth District Court of Appeal. The district court affirmed the trial court's denial of attorney's fees under section 45.061 and Rule of Civil Procedure 1.442, but reversed the trial court on its denial of fees under section 768.79. The district court's opinion sets forth four distinct holdings. First, the district court determined that the trial judge erred in finding that sections 45.061 and 768.79 were unconstitutional....

...Milton, 595 So.2d 12 (Fla. 1992), when it made its ruling. In Leapai, this Court upheld the constitutionality of section 45.061 and found that the statute did not infringe on the rule-making authority of the Court. Finding no relevant distinction between section 45.061 and section 768.79, the district court ruled that section 768.79 was likewise constitutional....

...'s offer after rule 1.442 became effective. Third, the district court held that the issue of whether TGI Friday's had unreasonably rejected Dvorak's offer of judgment had no bearing on whether Dvorak was entitled to an award of attorney's fees under section 768.79. The district court held that, unlike section 45.061 and rule 1.442, section 768.79 does not require that an offeree's rejection be unreasonable as a prerequisite to an award of fees. The court stated: "[S]ection 768.79 does not give the trial court discretion to deny attorney's fees, once the prerequisites of the statute have been fulfilled, except if the court determines under section 768.79([2])(a) that `an offer was not made in good faith.'" Dvorak, 639 So.2d at 59....

...visions in such a manner that neither branch encroaches on the other's constitutional powers. The Legislature has modified the American rule, in which each party pays its own attorney's fees, and has created a substantive right to attorney's fees in section 768.79 on the occurrence of certain specified conditions. To the extent section 768.79 creates substantive rights, we find the statute constitutional. The procedural portions of the statute were superseded by Rule of Civil Procedure 1.442. [1] See Florida Bar re Amend. to R.Civ. P., Rule 1.442. We also find that the district court correctly held that section 768.79 provides for the award of attorney's fees regardless of the reasonableness of an offeree's rejection of an offer of judgment. In making this determination, the district court referred to its earlier decision in Schmidt v. Fortner, 629 So.2d 1036 (Fla. 4th DCA 1993). In Schmidt, the district court explained the application of section 768.79 as follows: Turning to the substance of section 768.79 itself, we conclude that the legislature has created a mandatory right to attorney's fees, if the statutory prerequisites have been met....

...No other factor is relevant in determining the question of entitlement. The court is faced with a simple, arithmetic, calculation. How that entitlement gets translated into tangible attorney's fees is covered by the process of an "award." Subsection (6)(b) of section 768.79 (in pertinent part) provides as follows: "(6) Upon motion made by the offeror within 30 days after the entry of judgment or after voluntary or involuntary dismissal, the court shall determine the following: (a) If a defendant serves an...

...To repeat, these two provisions together create an entitlement which qualifies a party to an award of attorney's fees where the party has served an offer that is more or less than the ultimate judgment, if the motion therefor has been timely made. It is under subsection (7) of section 768.79 that Fortner says he finds his support for the trial judge's denial of fees in this case....

...hat a qualifying offer "was not made in good faith." That is the sole basis on which the court can disallow an entitlement to an award of fees. In that circumstance, however, a "not in good faith" offeror — though prima facie entitled to fees under section 768.79(7) — has lost that entitlement because the offeree has succeeded in persuading the trial judge that the offeror acted without good faith....

...es awarded; and that discretion is informed, at least partially, by the 6 factors thereafter listed in that subsection. In Bridges v. Newton, 556 So.2d 1170 (Fla. 3d DCA 1990)], the Third District construed this subsection as follows: "... paragraph 768.79(2)(b) also applies in determining `the reasonableness of an award of attorney's fees pursuant to this section......

...We thus view the third district's entirely separate conclusion on reasonableness to be unnecessary to the decision in Bridges. To the extent that it is not dicta, we expressly disagree with it and certify conflict. Schmidt, 629 So.2d at 1040-42 (footnotes omitted). We agree with this construction of the statute. [2] Clearly, section 768.79 as written by the Legislature does not require that an offer be unreasonably rejected before a court may award attorney's fees. While it seems clear that at least some of the factors enumerated in subsection (2)(b) of section 768.79, Florida Statutes (1987), bear on the question of whether the offer or demand for judgment was unreasonably rejected, the wording of the statute as a whole leaves no doubt that the reasonableness of the rejection is irrelevant to the question of entitlement....

...y exceeded the offer by more than twenty-five percent. It is also clear that the Legislature understands how to write a reasonable test requirement because such a requirement is included in section 45.061. It chose not to include such a provision in section 768.79. We find that the district court correctly held that Dvorak was entitled to attorney's fees pursuant to section 768.79. Accordingly, we approve the decision of the district court. We approve the opinion in Schmidt and disapprove the opinion in Bridges to the extent it held that section 768.79 requires an unreasonable rejection of an offer....

...*614 WELLS, J., concurs in part and dissents in part with an opinion. ANSTEAD, J., recused. WELLS, Justice, concurring in part and dissenting in part. I concur with the majority's approval of the district court's decision upholding the constitutionality of sections 45.061 and 768.79, Florida Statutes (1987), [3] holding that Florida Rule of Civil Procedure 1.442 may be applied retroactively and finding that defendant did not unreasonably reject the plaintiff's demands for judgment under rule 1.442 and section 45.061. I dissent from the majority's approval of the district court's holding that section 768.79 provides for an award of attorney fees regardless of the reasonableness of an offeree's rejection of an offer of judgment. I disagree for several reasons with the majority's approval of the construction of section 768.79, Florida Statutes (1991), provided in Schmidt v. Fortner, 629 So.2d 1036 (Fla. 4th DCA 1993). First, I find that as a result of the 1990 amendments to the statute, there is a significant difference between section 768.79, Florida Statutes (1987), the provision applicable in this case, and section 768.79, Florida Statutes (1991), which was interpreted in Schmidt....

...[4] In approving Schmidt with regard to the 1987 version of the statute, the majority fails to recognize the material distinctions between the two versions of the statute. Furthermore, I find that Schmidt and, consequently, the majority erroneously interpreted section 768.79, Florida Statutes (1991), so as to eliminate any discretion of the trial court in awarding attorney fees. An initial analysis of section 768.79 reveals that the statute should be strictly construed....

...[5] See P.A.G. v. A.F., 602 So.2d 1259, *615 1260 (Fla. 1992); Rowe, 472 So.2d at 1147-48; Main v. Benjamin Foster Co., 141 Fla. 91, 192 So. 602, 604 (1939); Brite v. Orange Belt Securities Co., 133 Fla. 266, 182 So. 892 (1938). Accordingly, statutes such as section 768.79, which authorize an award of attorney fees, must be strictly construed....

...Co., 749 F.2d 694, 700 (11th Cir.1985). The rules of statutory construction require all parts of a statute to be read together in order to achieve a consistent whole. Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla. 1992). In reading section 768.79 as a whole, I conclude that it first creates statutory authority for awarding attorney fees if the twenty-five percent condition in paragraph (1)(a) is fulfilled....

...However, subsection (6) was not included in the 1987 version of the statute and therefore is not applicable to this case. Because subsection (6) was not a part of the 1987 version of the statute, under the majority's decision in this case, it must be subsection (2) of section 768.79, Florida Statutes (1987), that mandates an award of attorney fees....

...offer of judgment was reasonably rejected. The criteria simply do not fit logically into the assessment of the reasonableness of the amount of an award of *616 attorney fees, nor does the plain language of subsection (2) mandate an award of fees. If section 768.79 is to be read as a consistent whole in compliance with our Forsythe decision, paragraphs (2)(a) and (2)(b) must be read collectively....

...n of liability on the part of the defendant. By reading the statute in this way, all subsections of the statute are made compatible. I would therefore quash the district court's decision reversing the trial court's denial of attorney fees based upon section 768.79, Florida Statutes (1987). I do agree with the Schmidt court's conclusion that subsection (6) of the 1991 version of section 768.79 concerns how the "entitlement" to an award of attorney fees is to be translated into a tangible award....

...Paragraphs (6)(a) and (6)(b) state that if the twenty-five percent condition is fulfilled, the party entitled to an award of fees pursuant to subsection (1) of the statute "shall be awarded ... attorney's fees calculated in accordance with the guidelines promulgated by the Supreme Court." § 768.79, Fla....

...have been redundant because subsection (6) already provides criteria for determining the reasonableness of the fee amount. I do not agree, however, with the Schmidt court's conclusion that paragraph (7)(b) obviously relates back to subsection (6) of section 768.79, Florida Statutes (1991), and thereby makes an award of fees mandatory....

...Newton, 556 So.2d 1170 (Fla. 3d DCA 1990), to the extent that it conforms with this opinion. NOTES [1] It is the 1990 version of rule 1.442 that is at issue here. In 1992, this Court changed rule 1.442 to simply reference the procedure set forth in section 768.79, Florida Statutes (1991). [2] We note that the district court in Schmidt construed the 1991 version of section 768.79 rather than the 1987 version at issue in the instant case. There is no pertinent distinction between the two versions, and we find the reasoning of the Schmidt court is equally applicable to both versions. [3] Subsequent references to section 768.79 are to the 1987 version unless otherwise indicated....

...shall be entitled to recover reasonable costs and attorney's fees incurred from the date of the filing of the demand. If rejected, neither an offer nor demand is admissible in subsequent litigation, except for pursuing the penalties of this section. § 768.79, Fla....

...amount of the offer, the plaintiff shall be awarded reasonable costs, including investigative expenses, and attorney's fees, calculated in accordance with the guidelines promulgated by the Supreme Court, incurred from the date the offer was served. § 768.79, Fla....

...v. Quanstrom, 555 So.2d 828 (Fla. 1990), but that exception is not applicable here. [6] The statute specifically provides that the defendant or plaintiff "shall be entitled to recover ... attorney's fees" if the twenty-five percent condition is met. § 768.79, Fla....

...Whether the suit was in the nature of a test case presenting questions of far-reaching importance affecting nonparties. 6. The amount of the additional delay cost and expense that the offeror reasonably would be expected to incur if the litigation should be prolonged. § 768.79, Fla....

...Chang timely appealed the district court’s order granting the Bank’s motion to dismiss and denying his motion to amend.4 After the district court dismissed Chang’s claims with prejudice, the Bank moved to recover its attorney’s fees from Chang under Florida’s offer-of-judgment statute. See Fla. Stat. § 768.79....

...However, there should be no setoff for noneconomic damages. We also review D'Angelo for certified conflict with Spruce Creek Development Co. v. Drew, 746 So.2d 1109 (Fla. 5th DCA 1999), and Flight Express, Inc. v. Robinson, 736 So.2d 796 (Fla. 3d DCA 1999), on an attorney's fees and cost question under section 768.79, Florida Statutes (1997)....

...and Mrs. Fitzmaurice's claims. The offer did not specify the amount each spouse was willing to accept to settle his or her individual claims. Dr. D'Angelo rejected the offer. After trial, the Fitzmaurices requested an award of attorney's fees pursuant to section 768.79, Florida Statutes (1997)....

...and Spruce Creek. This Court held in Willis Shaw that a joint proposal of settlement which did not specifically apportion damages between plaintiffs was invalid and that the plaintiffs were, therefore, not entitled to attorney's fees and costs under section 768.79, Florida Statutes....

...Snow, 35 F.3d 1494, 1504 (11th Cir.1994) (en banc) (Carnes, J., dissenting). The disappearing ink here is that which we used in our previous opinion in this case to express our holding about whether the Florida Supreme Court would apply its offer of judgment statute, Fla. Stat. § 768.79 , in a case tried in Florida but for which the substantive law of another state governed....

...State, 596 So.2d 665, 666 (Fla.1992) (quoting Stanfill v. State, 384 So.2d 141, 143 (Fla.1980)). 4 There is no persuasive indication that the Florida Supreme Court would not follow the Fourth District Court of Appeal's BDO Seidman decision on whether its offer of judgment statute, Fla. Stat. § 768.79 , applies when the case is governed by the substantive law of another state....

...The case is still before us and we can correct our missed guess about Florida law. 6 In light of the BDO Seidman decision, we rescind Part II.D of our prior decision, 256 F.3d at 1130, and in its place we hold that Florida's offer of judgment statute, Fla. Stat. § 768.79 , is applicable to cases, like this one, that are tried in the State of Florida even though the substantive law that governs the case is that of another state. 1 7 We turn now to the contentions raised by MBM and McMahan in this appeal that we did not reach in our previous opinion because of our no longer viable holding that Fla. Stat. § 768.79 was inapplicable in this case....

...Toto's offer of judgment provided as follows: 10 Defendant, WILLIAM A. TOTO, hereby offers pursuant to Fla. Stat. § 45.061 to settle this case for the amount of $100.00 (One Hundred Dollars) upon a stipulation for dismissal, or, alternatively, pursuant to Fla. Stat. § 768.79 , at Plaintiff's election, to allow judgment to be taken against him in the total sum of $100.00 (One Hundred Dollars), in full and final resolution of all claims made in this action....

...13 Florida Rule of Civil Procedure 1.442 governs settlements and provides that a settlement proposal must "state the total amount of the proposal ... [and] state whether the proposal includes attorney's fees." Fla. R. Civ. P. 1.442(c)(2)(D) and (F). That rule applies to offers made pursuant to § 768.79....

...Therefore, the offer of judgment was not invalid for failure to cover costs and attorney's fees. 15 Second, MBM and McMahan contend that Toto's offer was invalid because it failed to state with particularity the amount, if any, applicable to the claim for punitive damages. Both § 768.79 and Rule 1.442 provide that an offer must state with particularity the amount, if any, offered to settle a claim for punitive damages. Fla. Stat. § 768.79 (2)(c); Fla....

...Toto's offer did not specifically mention punitive damages, but it did state that, if accepted, it would be "in full and final resolution of all claims made in this action." 16 Florida courts have not addressed whether an offer that does not specifically address punitive damages can be valid under § 768.79 and Rule 1.442, but their approach to the attorney's fees requirement of Rule 1.442 is instructive....

...ded in offers where they are not mentioned as long as they are not specifically excluded. See Unicare Health Facilities, 553 So.2d at 161 ; Northcraft, 476 So.2d at 759 . 17 Extending that logic to the context of the punitive damages requirements of § 768.79(2)(c) and Rule 1.442(c)(2)(E) — and there is no apparent reason we should not — we conclude that Toto's offer satisfied those requirements because it did not explicitly exclude punitive damages from its coverage. If simple omission were not enough, the "final resolution" language of the offer is. The offer was not invalid under § 768.79 and Rule 1.442. B. WHETHER THE OFFER WAS MADE IN BAD FAITH 18 If an offer satisfies the requirements of § 768.79(1)-(6), as this one did, "[t]he sole basis on which a court can disallow an entitlement to an award of fees is if it determines that [the] offer was not made in good faith." Levine v. Harris, 791 So.2d 1175, 1177 (Fla. 4th DCA 2001); see also § 768.79(7)(a) ("If a party is entitled to costs and fees pursuant to the provisions of this section, the court may, in its discretion, determine that an offer was not made in good faith....

...McCaw Cellular Communications of Fla., Inc., 745 So.2d 330, 332 (Fla. 4th DCA 1998), they can be valid if the offerors have "a reasonable basis at the time of the offer to conclude that their exposure was nominal." Id. at 333 . The good faith requirement of § 768.79(7)(a) does not "demand that an offeror necessarily possess, at the time he makes an offer or demand under the statute, the kind or quantum of evidence needed to support a judgment....

...statute's purpose would not be furthered by permitting the award of attorney's fees incurred in litigating the amount of them due. Id. (internal quotation marks and citation omitted). 36 In this case we deal with attorney's fees awarded pursuant to § 768.79, the purpose of which is "to `terminate all claims, end disputes, and obviate the need for further intervention of the judicial process' by encouraging parties to exercise their `organic right ......

...asserting both federal and state employment discrimination claims. USA removed the case to federal court and eventually won summary judgment on all counts. This court affirmed the judgment, and USA sought attorneys’ fees under Florida’s offer-of-judgment statute, Fla. Stat. Ann. § 768.79. The district court denied attorneys’ fees, finding that Federal Rule of Civil Procedure 68 (“Rule 68”) preempted the state law and on the alternative ground that § 768.79 is preempted by a federal attorneys’ fee statute, 42 U.S.C. § 1988. For the reasons that follow, we conclude that controlling Florida caselaw prevents USA’s recovery of attorneys’ fees under § 768.79, and we therefore affirm the district court’s order. I....

...orney’s fees” from the date of the offer “if 2 the judgment is one of no liability or the judgment obtained by the plaintiff is at least twenty-five percent less” than the offer. Fla. Stat. Ann. § 768.79. Jones did not accept the offer of $2,500, and USA was later awarded summary judgment on all counts.1 USA moved for attorneys’ fees under § 768.79, but the district court dismissed the motion without prejudice pending Jones’s appeal before this court. After this court affirmed the judgment,2 USA again moved for attorneys’ fees, arguing that they were mandatory under § 768.79 and that Rule 68 did not “impermissibly conflict” with § 768.79.3 1 Jones v....

.... from the date of filing of the offer if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than such offer, and the court shall set off such costs and attorney's fees against the award. Fla. Stat. Ann. § 768.79(1) (West 2006) (emphasis added). 3  The district court denied USA’s motion. The court adopted a magistrate’s report in another case before it, finding that Rule 68 preempts § 768.79.4 The report held that Rule 68 “directly collides” with § 768.79 because the defendant would be entitled to attorneys’ fees under § 768.79 but not under the Federal Rule. The report further found that both Rule 68 and § 768.69 were designed to accomplish the same goal of early settlement to avoid litigation and so Rule 68 was broad enough to “control the issue.” The di...

...Delta Air Lines, Inc. v. August, 450 U.S. 346, 352, 101 S. Ct. 1146, 1150 (1981) (holding that Rule 68 is inapplicable to cases where the defendant obtained judgment). The district court also accepted the magistrate’s recommendation that § 768.79 conflicts with and is preempted by 42 U.S.C. § 1988 because § 768.79 cannot be applied if it violates Christiansburg Garment Co....

...Toto, 311 F.3d 1077, 1081 (11th Cir. 2002). III. DISCUSSION This case presents two issues of first impression in this circuit. The first issue is whether Florida courts apply Christiansburg to limit the application § 768.79 in cases under the FCRA. The second issue is whether Rule 68 preempts the application of § 768.79 in cases where the defendant receives judgment. Because we interpret Florida caselaw to limit the application of § 768.79 in state civil rights cases, we need not reach the merits of the Rule 68 preemption issue. Jones brought his federal and state employment discrimination claims in state court, and USA subsequently removed them to federal court....

...��s offer-of-judgment statute is substantive for Erie purposes. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817 (1938); see also United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S. Ct. 1130, 1139 (1966). This circuit has found § 768.79 to be substantive law for Erie purposes. See McMahan v. Toto, 256 F.3d 1120, 1132 (11th Cir. 2001), modified in part by 311 F.3d 1077 (11th Cir. 2002) (holding that § 768.79 is substantive for Erie purposes); see also All Underwriters v....

...Brunson, 918 F.2d 1524, 1528-29 (11th Cir. 1990) (examining a different Florida attorneys’ fee provision and affirming the district court’s award of attorneys’ fees under the relevant state statute). Therefore, we look to Florida law to determine whether § 768.79 should be applied in this case. Because the FCRA is modeled on Title VII, Florida courts apply Title VII caselaw when they interpret the FCRA....

...Humane Soc'y of Broward County, Inc. v. Fla. Humane Soc’y, 951 So. 2d 966, 970 n.1 (Fla. Dist. Ct. App. 2007). Although the Florida Supreme Court has not ruled that Christiansburg prevents defendants from recovering attorneys’ fees under § 768.79, several intermediate courts of appeal have so held, and we are bound by those decisions. Galindo v....

...a trial courts.’”) (quoting Pardo v. State, 596 So. 2d 665, 666 (Fla. 1992)) (internal citation omitted). In Moran v. City of Lakeland, the Second District Court of Appeal ruled that a defendant could not recover attorneys’ fees under § 768.79 even though he had filed an otherwise valid offer of judgment because the underlying civil rights action limited attorneys’ fees to frivolous suits....

...foundation”) (citing Christiansburg, 434 U.S. at 421, 98 S. Ct. at 700). Florida’s Third District Court of Appeal followed Moran in Chapman v. Laitner, 809 So. 2d 51, 52 (Fla. Dist. Ct. App. 2002). Importantly, the Fifth District Court of Appeal, in a case applying § 768.79 to a suit brought under the Magnuson-Moss Warranty Act, 15 U.S.C....

...2d 781, 786-87 (Fla. Dist. Ct. App. 2006); see also Talbot v. Am. Isuzu Motors, Inc., 934 So. 2d 643 (Fla. Dist. Ct. App. 2006) (agreeing with Marcy); but see Clayton v. Bryan, 753 So. 2d 632 (Fla. Dist. Ct. App. 2000) (following Moran and finding that § 768.79 does not apply to a case brought under 8 the Federal Fair Debt Collection Protection Act, 15 U.S.C. § 1692). Notably, there have been no Florida appeals cases providing attorneys’ fees under § 768.79 for a prevailing defendant under the FCRA where Christiansburg would have barred recovery. Because (1) Florida courts have limited the application of § 768.79 in federal civil rights cases under § 1988 to those that are “frivolous, unreasonable, or without foundation,” see Moran, 694 So....

...standard, see Hensley, 461 U.S. at 433 n.7, 103 S. Ct. at 1339 n.7, and; (3) the FCRA is to be interpreted consistently with Title VII, see Harper, 139 F.3d at 1387, we hold that Florida’s FCRA prevents the recovery of attorneys’ fees under § 768.79 by the appellant USA.6 IV....

...to the Florida Supreme Court, * Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by designation. seeking guidance as to the application of Florida’s offer of judgment statute, Fla. Stat. § 768.79, Florida Rule of Civil Procedure 1.442, and the fee-shifting provision of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”), Fla....

...Costa Crociere, S.P.A., 289 F.3d 1300, 1307 (11th Cir. 2002) (quoting Gasperini v. Ctr. for Humanities, Inc., 518 7 U.S. 415, 428, 116 S. Ct. 2211, 2220, 135 L. Ed. 2d 659 (1996)). “This circuit has found [Fla. Stat.] § 768.79”—which is the offer of judgment statute—“to be substantive law for Erie purposes.” Jones v....

...y that the offer was being made under the offer of judgment statute. The Florida Supreme Court noted that the offer of judgment statute itself requires that a settlement offer “state that it is being made pursuant to this section,” Fla. Stat. § 768.79(2)(c), and that Rule 1.442(c)(1) also requires that a settlement offer “shall identify the applicable Florida law under which it is being made.” Campbell, 959 So. 2d at 226. Significantly, the failure to identify § 768.79 was a purely technical error: at the time of Campbell, § 768.79 14 was the only applicable offer of judgment statute implemented by Rule 1.442, Campbell, 959 So....

...other party with respect to its ability to evaluate the terms of the offer. The Florida Supreme Court nonetheless held that fee-shifting was in derogation of the common law, that both the rule and statute must be strictly construed, and that the failure of the offer to identify § 768.79 therefore invalidated the offer....

...t statute and Rule 1.442 should be applied in this situation, the recent Campbell decision has cast doubt on our earlier McMahan decision. Accordingly, we respectfully certify to the Florida Supreme Court the following question: UNDER FLA. STAT. § 768.79 AND RULE 1.442, IS A DEFENDANT’S OFFER OF JUDGMENT VALID IF, IN A CASE IN WHICH THE PLAINTIFF DEMANDS ATTORNEY’S FEES, THE OFFER PURPORTS TO SATISFY ALL CLAIMS BUT FAILS TO SPECIFY WHETHER ATTORNEY’S FEES ARE INCLUDED AND FAILS TO...

...on-economic relief as well as for damages, the offeree would be forced either to accept the proposal and continue to litigate the request for injunctive and non-economic relief or to give up their non-damage claims. The purposes of section 768.79 include the early termination of litigation....

...of the Virginia Commercial Code). In light of the lack of controlling Florida law, and because we are in any event certifying the offer of judgment issue discussed above, in Section III.A, we certify the following question: DOES FLA. STAT. § 768.79 APPLY TO CASES THAT SEEK EQUITABLE RELIEF IN THE ALTERNATIVE TO MONEY DAMAGES; AND, EVEN IF IT DOES NOT GENERALLY APPLY TO SUCH CASES, IS THERE ANY EXCEPTION FOR CIRCUMSTANCES IN WHICH THE CLAIM FOR EQUITABLE RELIEF IS SERIOUSLY LACKING IN MERIT? C....

...Caruso, P.A., West Palm Beach, for appellants. Cathy L. Kasten of Adams, Coogler, Watson & Merkel, P.A., West Palm Beach, for appellees. FARMER, Judge. In this case, we review a trial court's decision to deny a motion for offer-of-judgment attorney's fees under sections 45.061 and 768.79, Florida Statutes (1991)....

...egligence and any losses sustained by the estates or their beneficiaries. Four months after suit was filed, plaintiffs served a demand for judgment in the amount of $500,000 under rule 1.442, Florida Rules of Civil Procedure, and sections 45.061 and 768.79. Fortner did not respond to the offer in any way. More importantly, although he later claimed that the 30-day period provided under section 768.79 was too short to allow for consideration of the reasonableness of the demand, he did not seek an enlargement of time under rule 1.090(b) [3] to respond to the demand....

...He simply did nothing, and the 30-day period passed without a response. Upon trial on the merits, the jury returned a verdict of $644,000 in favor of plaintiffs. After the entry of judgment, plaintiffs moved for an award of costs and attorney's fees under sections 45.061 and 768.79....

...Under these circumstances the Court does not believe an award of attorney's fees is justified." The trial court's analysis is properly understood as a finding that Fortner's de facto rejection was reasonable under the circumstances. Plaintiffs' demand for judgment was made under both sections 45.061 and 768.79. [4] The finding that plaintiffs were not entitled to fees as a sanction under section 45.061(2) did not, however, dispose of the issue of their entitlement to an award of fees under section 768.79, as to which the issues were different. Subsection (1) of section 768.79 provides in pertinent part as follows: "If a plaintiff files a demand for judgment which is not accepted by the defendant within 30 days and the plaintiff recovers a judgment in an amount at least 25 percent greater than the offer, he...

...om the court's explanation, its basis for denying attorney's fees was that the plaintiffs lacked "reasonably reliable" evidence to support the amount of damages sought in their demand for judgement. We do not understand the good faith requirement of section 768.79(7)(a), however, to demand that an offeror necessarily possess, at the time he makes an offer or demand under the statute, the kind or quantum of evidence needed to support a judgment....

...The single fact that Fortner had liability insurance coverage equal to the amount of the demand does not establish that the demand was not made in good faith. After all, it would make little sense to demand a judgment that no one could collect. Turning to the substance of section 768.79 itself, we conclude that the legislature has created a mandatory right to attorney's fees, if the statutory prerequisites have been met....

...No other factor is relevant in determining the question of entitlement. The court is faced with a simple, arithmetic, calculation. How that entitlement gets translated into tangible attorney's fees is covered by the process of an "award." Subsection (6)(b) of section 768.79 (in pertinent part) provides as follows: "(6) Upon motion made by the offeror within 30 days after the entry of judgment or after voluntary or involuntary dismissal, the court shall determine the following: *1041 (a) If a defendant ser...

...To repeat, these two provisions together create an entitlement which qualifies a party to an award of attorney's fees where the party has served an offer that is more or less than the ultimate judgment, if the motion therefor has been timely made. It is under subsection (7) of section 768.79 that Fortner says he finds his support for the trial judge's denial of fees in this case....

...at a qualifying offer "was not made in good faith. " That is the sole basis on which the court can disallow an entitlement to an award of fees. In that circumstance, however, a "not in good faith" offeror — though prima facie entitled to fees under section 768.79(7) — has lost that entitlement because the offeree has succeeded in persuading the trial judge that the offeror acted without good faith....

...mining the reasonability of the amount of fees awarded; and that discretion is informed, at least partially, by the 6 factors thereafter listed in that subsection. In Bridges, the Third District construed this subsection as follows: "* * * paragraph 768.79(2)(b) also applies in determining `the reasonableness of an award of attorney's fees pursuant to this section * * *.' Among the factors expressly to be considered is the `number and nature of offers made by the parties.' * * * It would be enti...

...e unnecessary to the decision in Bridges. To the extent that it is not dicta, we expressly disagree with it and certify conflict. *1043 In light of the construction of the text, it was error to deny these plaintiffs an award of attorney's fees under section 768.79, even if the trial judge's decision was arguably correct under section 45.061....

...) with or without notice, may order the period enlarged if request therefor is made before the expiration of the period originally prescribed * * *."). In Timmons v. Combs, 608 So.2d 1 (Fla. 1992), the supreme court adopted the procedural aspects of section 768.79 as part of rule 1.442. Because the time for responding to an offer of judgment under section 768.79 is now governed by rule 1.442, there is no reason why rule 1.090(b) would not authorize the enlargement of the prescribed period of time to respond to an offer or demand for judgment....

...competent evidence in the record to support the trial judge's conclusion that Fortner's rejection of the demand was not unreasonable and did not result in unnecessary delay and needless increase in the cost of litigation. [5] As we shall see later, section 768.79(7)(a), Florida Statutes (1991), allows the court to deny fees and costs when an offer was "not made in good faith." We agree with the Bridges conclusion that there is no difference under this subsection between an offer of judgment and a demand for judgment....

...t so widely inconsistent with the known facts of the case as to suggest on its face the sole purpose of creating a right to fees if it is not accepted. As will become apparent later in this opinion, we also disagree with the Bridges implication that section 768.79(7)(b) can fairly be read to authorize a court to exercise discretion to deny all fees to a qualifying good faith offeror. As we shall see later, section 768.79(7)(a), Florida Statutes (1991), allows the court to deny fees and costs when an offer was "not made in good faith." We agree with the Bridges conclusion that there is no difference under this subsection between an offer of judgment and a demand for judgment....

...t so widely inconsistent with the known facts of the case as to suggest on its face the sole purpose of creating a right to fees if it is not accepted. As will become apparent later in this opinion, we also disagree with the Bridges implication that section 768.79(7)(b) can fairly be read to authorize a court to exercise discretion to deny all fees to a qualifying good faith offeror....

...inconsistent with a construction that an offeror then possess admissible evidence to support a judgment in the amount offered. Such a conclusion would construe the word "apparent" out of the text. [8] The Bridges court construed the 1987 version of section 768.79. Subsection (2)(b) of the 1987 statute appears in subsection (7)(b) of the 1991 statute. Compare § 768.79(2)(b), Fla. Stat. (1987), with § 768.79(7)(b), Fla....

...t on August 13, 1999, and again on November 17, 2003. The proposal was never accepted, nor was it filed with the trial court. More notably, the proposal made reference to Florida Rule of Civil Procedure 1.442 but did not cite the applicable statute, section 768.79, Florida Statutes (2003)....

...4th DCA 2006). Goldman filed a motion for attorney fees and costs after recovering the net verdict and judgment, and the trial court denied the motion. On appeal, the Fourth District noted, "An offer of settlement must comply with both rule 1.442 and section 768.79." Goldman, 920 So.2d at 1265. [1] *225 The district court indicated, citing to Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276, 278 (Fla.2003), that both rule 1.442 and section 768.79 are in derogation of the common law rule that parties are responsible for their own attorney's fees....

...The question before this Court is one of law subject to the de novo standard of review. See S. Baptist Hosp. of Fla. v. Welker, 908 So.2d 317 (Fla.2005). The issue here involves the settlement *226 proposal and whether it was valid even though it did not reference section 768.79....

...Rule 1.442(c), entitled "Form and Content of Proposal for Settlement," provides in pertinent part: "(1) A proposal shall be in writing and shall identify the applicable Florida law under which it is being made. " (Emphasis added.) In addition to rule 1.442, offers to settle are addressed by statute in section 768.79, Florida Statutes (2006). Section 768.79 is entitled "Offer of judgment and demand for judgment" and reads in relevant part as follows: (1) In any civil action for damages filed in the courts of this state, ....

...o recover reasonable costs and attorney's fees incurred from the date of the filing of the demand. . . . (2) . . . An offer must: (a) Be in writing and state that it is being made pursuant to this section. (Emphasis added.) Thus, both rule 1.442 and section 768.79 require an offer to settle to be in writing and to include a citation to the statute, i.e., the applicable Florida law. As the Fourth District noted, both rule 1.442 and section 768.79 are in derogation of the common law rule that parties are responsible for their own attorney's fees, and thus the statute and rule must be strictly construed....

...Nonetheless, the Fourth District adopted the reasoning in Spruce Creek and found the omission of reference to the statute to be a mere technical violation. The district court erred in so holding. Recently in Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276 (Fla.2003), this Court addressed rule 1.442 and section 768.79 in the context of whether an offer of settlement to multiple parties must apportion the amounts applicable to each. In answering the question presented, we examined section 768.79 in its entirety and noted that this section was implemented by rule 1.442....

...Matetzschk, 906 So.2d 1037 (Fla.2005) (reaffirming a strict construction of rule 1.442). We find that the holding in Willis Shaw and Lamb regarding strict construction of the language in the offer of judgment statute and rule at issue in those cases is equally as applicable to the language from rule 1.442 and section *227 768.79 concerning the requirements of citing authority....

...Contrary to Goldman's assertions, strict construction is applicable to both the substantive and procedural portions of the rule and statute. When read together the rule and statute provide parties with an unambiguous method for obtaining attorney fees. Section 768.79 provides a sanction against a party who unreasonably rejects a settlement offer....

...Because the overall subject is in derogation of the common law, all portions must be strictly construed. The district court erred in failing to strictly construe the plain language of the rule and statute. CONCLUSION Based on the plain language of section 768.79, an offer of settlement must state the statute on which it is based....

...LEWIS, C.J., and WELLS and CANTERO, JJ., concur. PARIENTE, J., specially concurs with an opinion, in which ANSTEAD, J., concurs. BELL, J., concurs in result only with an opinion. PARIENTE, J., specially concurring. I reluctantly agree with the majority that the plain language of section 768.79, Florida Statutes (2006), and Florida Rule of Civil Procedure 1.442(c) requires that an offer of settlement cite the Florida law on which it is based. Thus, a party submitting a proposal for settlement under the statute and rule is on clear notice that reference must be made to section 768.79....

...he rule and statute. ANSTEAD, J., concurs. BELL, J., concurring in result only. I agree with the determination to quash the Fourth District's opinion in Goldman v. Campbell, 920 So.2d 1264 (Fla. 4th DCA 2006). I also agree that the plain language of section 768.79, Florida Statutes (1999), and Florida Rule of Civil Procedure 1.442 require an offer of settlement to reference the statute upon which the offer is based....

...ch of it left unaffected by statutes."); see also Jefferson B. Fordham & J. Russell Leach, Interpretation of Statutes in Derogation of the Common Law, 3 Vand. L.Rev. 438 (1950) (examining the questionable reasons for employing the derogation canon). Section 768.79 is very clear and unambiguous in expressing the requirements of a settlement offer. The applicable portion of section 768.79 provides that a settlement offer must "[b]e in writing and state that it is being made pursuant to this section. " § 768.79(2)(a), Fla....

...As Judge Farmer noted below, "the derogation canon—created for statutory changes in substantive common law—has no logical purpose or use in the interpretation of mere rules of procedure." Goldman, 920 So.2d at 1270 (Farmer, J., concurring specially). Accordingly, because the language of section 768.79 and rule 1.442 is clear and does not require construction, I concur in result only....

...NOTES [1] The district court noted that rule 1.442(c)(1) states: "A proposal [for settlement] shall be in writing and shall identify the applicable Florida law under which it is being made." Goldman, 920 So.2d at 1265 (quoting rule 1.442(c)). Additionally, the district court also noted that section 768.79(6)(b) reads: If a plaintiff serves an offer which is not accepted by the defendant, and if the judgment obtained by the plaintiff is at least 25 percent more than the amount of the offer, the plaintiff shall be awarded reasonable costs, including investigative expenses, and attorney's fees, calculated in accordance with the guidelines promulgated by the Supreme Court, incurred from the date the offer was served. Id. (quoting § 768.79(6)(b))....

...it is being made pursuant to this section. (b) Name the party making it and the party to whom it is being made. (c) State with particularity the amount offered to settle a claim for punitive damages, if any. (d) State its total amount. Id. (quoting § 768.79(2)).

...IGATION UP TO THE POINT THAT THE DISTRICT COURT HELD THAT THE PLAINTIFF COULD NOT PURSUE THE FDUTPA CLAIM BECAUSE FLORIDA LAW DID NOT APPLY TO HIS UNFAIR TRADE PRACTICES CLAIM, OR DOES IT APPLY TO *365 THE ENTIRETY OF THE LITIGATION? DOES FLA. STAT. § 768.79 APPLY TO CASES THAT SEEK EQUITABLE RELIEF IN THE ALTERNATIVE TO MONEY DAMAGES; AND, EVEN IF IT DOES NOT GENERALLY APPLY TO SUCH CASES, IS THERE ANY EXCEPTION FOR CIRCUMSTANCES IN WHICH THE CLAIM FOR EQUITABLE RELIEF IS SERIOUSLY LACKING IN MERIT? UNDER FLA. STAT. § 768.79 AND RULE 1.442, IS A DEFENDANT’S OFFER OF JUDGMENT VALID IF, IN A CASE IN WHICH THE PLAINTIFF DEMANDS ATTORNEY’S FEES, THE OFFER PURPORTS TO SATISFY ALL CLAIMS BUT FAILS TO SPECIFY WHETHER ATTORNEY’S FEES ARE INCLUDED AND FAILS TO SPECIFY WHETHER ATTORNEY’S FEES ARE PART OF THE LEGAL CLAIM? Horowitch v....

...fair dealing; and (4) deceptive trade practices under the Florida Deceptive and Unfair Trade Practices Act (FDUTPA). Horow-itch demanded attorney’s fees pursuant to a prevailing party attorney’s fees provision provided under FDUTPA. Pursuant to section 768.79, Florida Statutes (2011), Diamond Aircraft served Ho-rowitch with an offer of judgment for $40,000....

...The condition of this offer is that Plaintiff will dismiss his pending claims against Diamond Aircraft, with prejudice to re-file. 3. This offer shall remain open for thirty (30) days from the date hereof. Failure to accept this offer within thirty (30) days shall be deemed a *366 rejection of this offer under Fla. Stat. § 768.79 (1). 4. This offer shall be accepted by filing a written acceptance with the Court within 30 days after service. Fla. Stat. § 768.79 (4)....

...st Ho-rowitch on the deceptive trade practices claim. After the final judgment had been entered, Diamond Aircraft moved for attorney’s fees. It claimed entitlement to fees (1) pursuant to the offer of judgment it previously served on Horowitch and section 768.79, Florida Statutes; and (2) pursuant to the prevailing party attorney’s fee provision provided in FDUTPA (section 501.2105, Florida Statutes (2006))....

...Diamond Aircraft contended that by asserting and seeking recovery under FDUTPA, Horowitch had invoked the application of FDUTPA’s attorney’s fees provision, even if he did not prevail under that statutory provision. The district court denied the motion for attorney’s fees. The court held that section 768.79 was inapplicable because Ho-rowitch asserted both an equitable claim for non-monetary relief (specific performance) and, in the alternative, a claim for damages based on either breach of contract, breach of implied covenants, or a deceptive trade practice by Diamond Aircraft....

...A was not applicable to Horowitch’s claim. OFFER OF JUDGMENT CERTIFIED QUESTIONS Impact of Southeast Floating Docks, Inc. v. Auto-Owners Insurance Co. The next two certified questions concern Florida’s offer of judgment statute, as delineated in section 768.79, Florida Statutes (2006). The specific matters we must address are (1) whether section 768.79 is inapplicable because Horowitch’s action concerned both monetary (damages) and nonmonetary (equitable) relief, and (2) whether section 768.79 applies when the offer of judgment Diamond Aircraft served on Horowitch did not satisfy the specific requirements of Florida Rule of Civil Procedure 1.442(c)(2)....

...We recently decided Southeast Floating Docks, Inc. v. Auto-Owners Insurance Co., 82 So.3d 73 (Fla.2012), which is instructive here. In Southeast Floating Docks, the Eleventh Circuit certified three questions to this Court regarding the applicability of section 768.79. Id. at 76 . One of the questions inquired whether a federal court sitting in Florida should apply section 768.79when a contract stipulates that the substantive law of another jurisdiction is applicable. See id. We held that section 768.79is substantive for both constitutional and conflict of law purposes. Id. at 80 . We then held that when parties agree to be bound by the substantive law of another forum, absent a sufficient public policy concern, section 768.79 has no application. See id. This led to our conclusion that an award of attorney’s fees under section 768.79was not proper in that case because the parties’ agreement to be bound by the substantive law of another state rendered section 768.79 with no application....

...The district court applied the substantive law of Florida to three of Horowitch’s four claims. Florida’s offer of judgment statute applies in this case. We now address the certified questions before us regarding Florida’s offer of judgment statute. First Certified Offer of Judgment Question DOES FLA. STAT. § 768.79 APPLY TO CASES THAT SEEK EQUITABLE RELIEF IN THE ALTERNATIVE TO MONEY DAMAGES; AND, EVEN IF IT DOES NOT GENERALLY APPLY TO SUCH CASES, IS THERE ANY EXCEPTION FOR CIRCUMSTANCES IN WHICH THE CLAIM FOR EQUITABLE RELIEF IS SERIOUSLY LACKING IN MERIT? We answer both parts of this certified question in the negative and conclude that section 768.79 does not apply to cases that seek both equitable relief and damages, and that section 768.79 does not provide an exception to this rule for equitable claims that lack serious merit....

...ction that we review de novo. See Borden, 921 So.2d at 591 . When the language of a statute is free from ambiguity, this Court applies its plain meaning. See State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So.2d 1067, 1073 (Fla.2006). The language of section 768.79, as well as Florida Rule of Civil Procedure 1.442, must be strictly construed because those provisions are in derogation of the common law rule that a party is responsible for its own attorney’s fees, and because they are penal in nature. See Campbell v. Goldman, 959 So.2d 223, 226 (Fla.2007); TGI Friday’s, Inc. v. Dvorak, 663 So.2d 606, 615 (Fla.1995). Section 768.79 and Applicable Case Law As we recently stated in Southeast Floating Docks, the Florida Legislature enacted section 768.79 to deter individuals from rejecting purportedly reasonable settlement offers through the imposition of the sanctions of costs and attorney’s fees. See Southeast Floating Docks, 82 So.3d at 79 . The relevant portion of section 768.79 provides: (1) In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable cos...

...t from the date of filing of the offer if the *373 judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than such offer, and the court shall set off such costs and attorney’s fees against the award. § 768.79(1), Fla. Stat. (2011) (emphasis added). Courts have routinely held that the phrase in section 768.79(1) which states “in any civil action for damages” is applicable to a claim in a civil action in which a party seeks only damages, i.e., monetary relief....

...nd, therefore, the plaintiff was not liable to the defendant for moneys owed under that contract. The plaintiff served an offer of judgment on the defendant, ultimately prevailed in the litigation, and then sought recovery of attorney’s fees under section 768.79. See id. at 18 . The trial court denied the motion for attorney’s fees. See id. On appeal, the Fourth District reversed the trial court’s denial and held that section 768.79 applied....

...The district court concluded that the plaintiffs claim was in actuality an action for damages because the real issue before the court was whether the plaintiff owed money to the defendant. See id. In contrast, when a plaintiff seeks only nonmonetary relief — i.e., a purely equitable remedy — courts have held that section 768.79 does not apply....

...ect on the day of an underlying tort action. See id. at 406 . In the action, the plaintiff did not request payment of money or damages. See id. at 408 . The trial court determined that the action was not a civil action for damages as contemplated by section 768.79....

...No money damages or payment of money is directly requested in this suit, as it was in Nelson , and we conclude that the trial court’s ruling was correct.” Id. Courts have also held that when a plaintiff seeks both monetary and nonmonetary relief, and a party makes a general offer of settlement, section 768.79 is not applicable....

...Based on three separate proposals for settlement submitted by the defendant to the plaintiff, each of which presented a general offer of settlement that proposed to resolve all of the plaintiffs claims in the action, the defendant moved for attorney’s fees pursuant to section 768.79. See id. The trial court found that the plaintiffs cause of action was an action for damages — thus falling within the scope of section 768.79 — and awarded the defendant attorney’s fees. See id. The Fourth District reversed. See id. at 145 . In strictly construing section 768.79, the district court concluded that in a civil action for both monetary and nonmonetary relief, in which a party has made a general offer to settle “all claims,” the fact that a party sought damages in addition to nonmonetary relief...

...tary amount in settlement of all of the plaintiffs claims against that particular defendant. See id. at 338 . The plaintiff rejected the offers and the defendants prevailed. See id. The defendants then filed motions for attorneys’ fees pursuant to section 768.79 and the trial court denied those motions. See id. The Fifth District agreed with the prior holding in Palm Beach Polo and held that strict construction of section 768.79 renders that statute “inapplicable where a party’s general offer of settlement is directed to a claim in which both damages and non-monetary relief is sought.” Winter Park, 66 So.3d at 341-42 . The district court bolstered its analysis by noting that section 768.79 makes no provision for a court to determine the value of nonmonetary relief and, thereby, further evinces a legislative intent that the statute apply only to monetary claims. See id. at 340 . The district court also noted in Winter Park that Florida courts have not decided whether a party may utilize section 768.79 when he or she has asserted separate claims for monetary and nonmonetary relief in the same pleading and the opposing party has served an offer directed specifically to the monetary claim. See id. at 341 . However, in this case, the Court need not decide whether section 768.79 applies under such circumstances because the offer in this case was clearly a general settlement offer, i.e., Diamond Aircraft intended and stated that the offer “resolve all claims that were or could have been asserted by Plaintiff against Diamond Aircraft in the Amended Complaint filed March 15, 2007.” Horowitch, 645 F.3d at 1257 (emphasis added). This Case We hold that section 768.79 does not apply to an action in which a plaintiff seeks both damages and equitable relief, and in which the defendant has served a general offer of judgment that seeks release of all claims. We further conclude that there is no basis to establish an exception for instances in which the equitable claim lacks serious merit. As exemplified in Palm Beach Polo and Winter Park, *375 strict construction of section 768.79 compels this result. More specifically, section 768.79(1) explicitly states that the offer of judgment statute applies to “any civil action for damages.” (Emphasis added.) The statute does not state that it applies to actions in equity, or in an action, such as in this case, where a plaintiff seeks both monetary and nonmonetary relief. If the Legislature intended to authorize the recovery of attorney’s fees under those circumstances, it could have and would have explicitly provided for them in section 768.79. Furthermore, Winter Park demonstrates that the statutory framework of section 768.79 supports this result. More specifically, the only method of calculation that the Legislature provided in the statute pertained to the “amount of the offer” as compared to the “judgment obtained.” § 768.79(6)(a) (emphasis added). To calculate the amount of the judgment obtained in comparison to an offer, logic dictates the use of a monetary number that a court could use in calculating a mathematical formula which exists in a cause of action for damages. See id. § 768.79(6) (“For purposes of the determination required by paragraph (a), the term ‘judgment obtained’ means the amount of the net judgment entered, plus any postoffer collateral source payments received or due as of the date of the judgment, plus any postoffer settlement amounts by which the verdict was reduced.”). Comparatively, section 768.79 does not provide a method by which this or any other court is to evaluate the amount of a nonmonetary judgment obtained against the amount provided in an offer of judgment. This further reflects a legislative intent that section 768.79 does not apply to nonmonetary claims. Diamond Aircraft contends that because Horowitch pled for specific performance and, in the alternative, damages, its offer of judgment was distinguishable from the offer provided in Palm Beach Polo and fell within the parameters of section 768.79....

...Simply, when a party pleads an action in the alternative, the party is merely electing different claims or remedies that stem from the same cause of action. See id. Thus, an equitable claim in the alternative to a monetary claim is still part of the same civil action. In addition, we reject a possible exception under section 768.79 for equitable claims that lack serious merit. Notably, subsection 768.79(7)(b) requires a court to consider a claim’s lack of merit in determining the reasonableness of attorney’s fees. See § 768.79(7)(b)(l), Fla....

...(stating that when “determining the reasonableness of an award of attorney’s fees pursuant to this section,” a court shall consider, among other relevant factors listed, “[t]he then apparent merit or lack of merit in the claim”). However, this factor of subsection 768.79(7) does not apply to a determination as to whether section 768.79 applies to a cause of action. Instead, this factor applies only after a determination that section 768.79 is applicable and a court has moved forward to determine the reasonableness of the fees. See id. § 768.79(7)(a) (applying when “a party is entitled to costs and fees pursuant to the provisions of [section 768.79]”). Furthermore, if the Legislature had intended that section 768.79 contain an exception where an equitable claim lacks serious merit, it would have explicitly provided for such an exception. Thus, section 768.79 does not contain an exception and upon strict construction of that section, we reject the assertion that an exception exists. *376 We hold that section 768.79 does not apply to an action for both damages and equitable relief and no exception for a meritless equitable claim exists. Accordingly, we answer both parts of this certified question in the negative. Second Offer of Judgment Certified Question UNDER FLA. STAT. § 768.79 AND RULE 1.442, IS A DEFENDANT’S OFFER OF JUDGMENT VALID IF, IN A CASE IN WHICH THE PLAINTIFF DEMANDS ATTORNEY’S FEES, THE OFFER PURPORTS TO SATISFY ALL CLAIMS BUT FAILS TO SPECIFY WHETHER ATTORNEY’S FEES ARE INCLUDED AND FAILS TO SPECIFY WHETHER ATTORNEY’S FEES ARE PART OF THE LEGAL CLAIM? Due to the strict construction required of Florida Rule of Civil Procedure 1.442, we answer this certified question in the negative. Rule 1.442 and Section 768.79 Florida Rule of Civil Procedure 1.442 implements section 768.79. See Willis Shaw Express, 849 So.2d at 278 . In 1996, we amended rule 1.442 to require greater detail in an offer of settlement under section 768.79....

...). Fla. R. Civ. P. 1.442(c)(2) (emphasis added); compare Fla. R. Civ. P. 1.442 (1996), and, Fla. R. Civ. P. 1.442 (1997) (stating that rule 1.442 was amended on Oct. 31, 1996, but that this amendment did not became effective until Jan. 1,1997). Both section 768.79 and rule 1.442 are in derogation of the common law rule that each party is responsible for its own attorney’s fees which requires that we strictly construe both the statute and the rule. See Willis Shaw Express, 849 So.2d at 278 . For example, in Campbell v. Goldman, 959 So.2d 223, 225-26 (Fla.2007), we decided whether an offer of settlement under rule 1.442 must explicitly provide a citation to section 768.79. We stated that both section 768.79 and rule 1.442 require that an offer of settlement be in writing and include a citation to the applicable section of the Florida Statutes (section 768.79)....

...rms of the offer and any conditions. See id The district court concluded that because no such ambiguity existed in the offer before the court, the proposed offer was valid and enforceable. See id at 988-89. The Instant Case We conclude that, even if section 768.79 applied in this case, Diamond Aircraft would not be entitled to attorney’s fees under that section because Diamond Aircraft’s offer of settlement did not strictly comply with rule 1.442, as it did not state that the proposal included attorney’s fees and attorney’s fees are part of the legal claim....

...rney’s fees. See Bennett, 857 So.2d at 988 . However, the Fourth District decided Bennett in 2003, which was approximately four years before this Court’s 2007 decision in Campbell . In Campbell , this Court stated that “all portions” of both section 768.79 and rule 1.442 must be strictly construed, which draws the continuing validity of Bennett into question....

...nt include a provi *378 sion with regard to attorney’s fees, and whether such fees were a part of Horow-itch’s legal claim. The offer of settlement here failed to include such a statement, and the offer would be invalid and unenforceable even if section 768.79 applied....

...t point, the parties were asserting and defending actions clearly beyond the scope of a FDUT-PA proceeding. We answer both certified questions that concern Florida’s offer of judgment statute in the negative because (1) pursuant to the language of section 768.79, that statutory section does not apply to an action that involves both an equitable claim and a claim for damages, and does not provide an exception for equitable claims that lack serious merit; and (2) in accordance with our prior pre...

...The First District Court of Appeal affirmed on the premise that a defendant may not recover under section 45.061 where no judgment was rendered in favor of the plaintiff. This case cannot be decided without considering the interplay between section 45.061 and section 768.79, Florida Statutes (1989)....

...On the other hand, if the plaintiff recovered a judgment more than twenty-five percent greater than his or her rejected offer, he or she could recover costs and attorney's fees. Because the statute in each instance referred to the recovery of a judgment by the plaintiff, the courts have consistently construed section 768.79 to preclude the recovery of costs and attorney's fees by a defendant when the defendant obtained a judgment....

...e offer. An offer is presumed to have been unreasonably rejected by the plaintiff if the judgment entered is at least twenty-five percent less than the offer. The court below construed section 45.061 in the same manner as the courts have interpreted section 768.79....

...ct Court of Appeal in Gross, 591 So.2d 311, have permitted the defendant to recover costs and attorney's fees under section 45.061 because of a rejected offer even though the defendant obtained a judgment. As explained in Memorial Sales, Inc., while section 768.79 requires the offer to be measured against the "judgment obtained by the plaintiff," section 45.061 refers only to "the judgment entered." Section 45.061 does not specify in whose favor the judgment must be entered....

...Civil Procedure 1.442 also covers the subject of offers of judgment. This rule was substantially amended by this Court in The Florida Bar re Amendment to Rules, 550 So.2d 442 (Fla. 1989), in an attempt to reconcile conflicting procedural aspects of section 768.79 and section 45.061....

...aspects. As written, rule 1.442 measures a defendant's settlement offer against "the damages awarded in favor of the offeree and against the offeror." This wording appears to be the equivalent of the "judgment obtained by the plaintiff" language of section 768.79 prior to its 1990 amendment. However, in adopting this wording we did not consciously choose between the language of section 768.79 and section 45.061 because that issue was not before us....

...cedural matters. Therefore, the current rule 1.442 does not affect the outcome of this case. The legislature has now repealed section 45.061 with respect to causes of action accruing after October 1, 1990. Ch. 90-119, § 22, Laws of Fla. This leaves section 768.79 as the only statute on the subject for new causes of action. Because the statute does contain procedural aspects which are subject to our rule-making authority, we hereby adopt the procedural portion of section 768.79 as a rule of this Court effective as of the date of this opinion....

...BARKETT, C.J. and McDONALD, SHAW, KOGAN and HARDING, JJ., concur. OVERTON, J., concurs with an opinion, in which McDONALD, J., concurs. OVERTON, Justice, concurring. I believe it would be more helpful to the bar if we incorporated the appropriate provisions of section 768.79, Florida Statutes (1991), in a new Florida Rule of Civil Procedure 1.442....

...tem. McDONALD, J., concurs. SUPPLEMENTAL ORDER PER CURIAM. In response to this Court's invitation, a number of persons have filed comments directed to our repeal of Florida Rule of Civil Procedure 1.442 and the adoption of the procedural portions of section 768.79, Florida Statutes (1991). Some of the comments lament the fact that the scope of section 768.79 is limited to "civil actions for damages" and others point to perceived imperfections in the statute....

...this matter, and we authorize the committee to submit a proposed rule on the subject, if it so chooses to do so, outside the four-year cycle. BARKETT, C.J., and OVERTON, McDONALD, SHAW, CRIMES, KOGAN and HARDING, JJ., concur. NOTES [1] We note that section 768.79 was amended in 1990 so as to make clear that a defendant may now collect under that statute if his or her offer was rejected and the judgment is "one of no liability." Ch....

...1st DCA 2016).1 As explained below, we approve the First District’s decision and hold that the ambiguous Additional Payments section of the insurance policy must be construed in favor of coverage for the costs and attorneys’ fees awarded against the insured pursuant to section 768.79, Florida Statutes, the offer of judgment statute. 1....

...$50,000, which was not accepted. The case proceeded to trial, and the jury returned a verdict in favor of Macedo in the amount of $243,954.55.2 “Macedo then joined GEICO to the judgment, see § 627.4136(4), Fla. Stat., and sought taxable fees and costs pursuant to section 768.79, which the trial court awarded against GEICO jointly and severally with its insured.” Macedo, 190 So....

...3d at 242-43. Ultimately, Kuhajda prevailed on her negligence claim against Borden Dairy and Greenrock, and the jury awarded her damages sufficiently in excess of the amount contained in her offers of judgment to trigger the payment of fees under section 768.79(1), Florida Statutes. Following entry of judgment in her favor, the trial court granted Kuhajda’s motion to tax attorney’s fees and costs in accordance with section 768.79 and Florida Rule of Civil Procedure 1.442....

...ANALYSIS “The certified conflict issue involves the interpretation of the Court’s rules and is a question of law subject to de novo review.” Saia Motor Freight Line, Inc. v. Reid, 930 So. 2d 598, 599 (Fla. 2006). “The eligibility to receive attorney’s fees and costs pursuant to section 768.79 and rule 1.442 is reviewed de novo.” Pratt v. Weiss, 161 So. 3d 1268, 1271 (Fla. 2015). -3-  Section 768.79 and Rule 1.442 “The Legislature has modified the American rule, in which each party pays its own attorney’s fees, and has created a substantive right to attorney’s fees in section 768.79 on the occurrence of certain specified conditions.” TGI Friday’s, Inc. v. Dvorak, 663 So. 2d 606, 611 (Fla. 1995). Florida Rule of Civil Procedure 1.442 implements section 768.79. See Willis Shaw Exp., Inc. v. Hilyer Sod, Inc., 849 So. 2d 276, 278 (Fla. 2003). In 1996, we amended rule 1.442 to require greater detail in an offer of settlement under section 768.79....

...�� fees and whether attorneys’ fee are part of the legal claim; and (G) include a certificate of service in the form required by rule 1.080. Fla. R. Civ. P. 1.442(c)(2) (emphasis added). This Court has held that section 768.79 and rule 1.442 must be strictly construed because they are in derogation of the common law rule that each party should pay its own fees....

...Arnold, 161 So. 3d 1274, 1279 (Fla. 2015) (analyzing an offer of settlement “[u]nder the required strict construction of the rule and the statute”); Pratt, 161 So. 3d at 1273 (analyzing an offer of settlement “under a strict construction of section 768.79 and rule 1.442”); Attorneys’ Title Ins....

...2007) (“[S]trict construction is applicable to both the substantive and procedural portions -5- of the rule and statute.”); Lamb v. Matetzschk, 906 So. 2d 1037, 1040 (Fla. 2005) (reaffirming a strict construction of rule 1.442); Willis Shaw, 849 So. 2d at 278 (stating that section 768.79 and rule 1.442 were to be strictly construed because they are in derogation of the common law rule that each party should pay its own fees). This Court required a strict construction of rule 1.442—and thus a strict enforcement of the rule’s requirements—in Audiffred, Pratt, Gorka, Campbell, Lamb, and Willis Shaw in contexts in which the provisions of the rule implemented the substantive requirements of section 768.79. Notably, none of those cases explicitly addresses whether a provision of rule 1.442 must be strictly enforced when the provision is a requirement that does not implement a substantive requirement of section 768.79. Diamond Aircraft In Diamond Aircraft, this Court considered four questions of Florida law certified by the United States Court of Appeals for the Eleventh Circuit....

...ates [a] settlement of all claims[.]” Id. The Instant Case Here, we consider a circumstance in which rule 1.442(c)(2)(F) contains a requirement to include in a settlement proposal a specific element that section 768.79 does not require. The purpose of section 768.79 is to “reduce litigation costs and conserve judicial resources by encouraging the settlement of legal actions.” Gorka, 36 So....

...2d 159, 161 (Fla. 1989) (explaining that rule 1.442 “was implemented solely to encourage settlements in order to eliminate trials if possible”). The only purpose of rule 1.442 is to provide a procedural framework to implement the substantive requirements of section 768.79 regarding settlement proposals....

...Rule 1.442(c)(2)(F)’s requirements relating to attorney’s fees are totally irrelevant to the settlement of a case in which attorney’s fees are not sought. We decline to invalidate Kuhajda’s offers of judgment solely for violating a requirement in rule 1.442 that section 768.79 does not require....

...The procedural rule should no more be allowed to trump the statute here than the tail should be allowed to wag the dog. A procedural rule should not be strictly construed to defeat a statute it is designed to implement. -8-  Kuhajda is entitled to attorney’s fees under section 768.79 because the offers of judgment at issue in this case are not ambiguous....

...ttorney’s fees in her complaint. Id. at 243. Neither Borden Dairy nor Greenrock argues to the contrary, and it is indisputable that Kuhajda fully complied with the relevant requirements of the rule that implement the substantive requirements of section 768.79. We agree with Bennett that “[i]t would make no sense to require a defendant to state in its offer of judgment that the offer does not include attorney’s fees, when plaintiff did not claim an entitlement to them and could...

...ed to attorney's fees, and then later award so little as to make the fee award a victory for the spouse having to pay it, perhaps obviating any appeal. The court can also award less than a full reasonable fee after a rejected offer of judgment under section 768.79(7)(b), Florida Statutes....

...red damages. Sarkis brought an action against her insurer, respondent Allstate Insurance Company (Allstate), requesting compensation based on her uninsured motorist coverage. Prior to trial, Sarkis filed an offer of judgment for $10,000, pursuant to section 768.79, Florida Statutes (1997), and Florida Rule of Civil Procedure 1.442....

...Sarkis therefore moved for an award of attorney fees and costs. The trial court found that the jury verdict returned on behalf of Sarkis was twenty-five percent greater than the offer of judgment, thereby entitling Sarkis to an award of attorney fees pursuant to section 768.79 and rule 1.442....

...Allstate appealed the trial court's award of attorney fees to the Fifth District Court of Appeal. The district court, sitting en banc, reversed the trial court's order, holding as a matter of law that contingency risk multipliers are not to be used to compute attorney fees under section 768.79, Florida Statutes....

...The court adopted the dissenting view of Judge Casanueva in Pirelli Armstrong Tire, 752 So.2d at 1277 (Casanueva, J., concurring in part and dissenting in part), that neither Standard Guaranty Insurance Co. v. Quanstrom, 555 So.2d 828 (Fla. 1990), nor section 768.79 authorizes the use of contingency risk multipliers in calculating attorney fees awarded under the offer of judgment statute....

...Figueroa, 781 So.2d 1117 (Fla. 5th DCA 2001). The district court further acknowledged conflict with Pirelli and Collins. The issue of the use of a multiplier to calculate the amount of an award of reasonable attorney fees on the basis of the authority of section 768.79 and rule 1.442 has been the subject of a multiplicity of opinions in the district courts....

...In a brief opinion, the district court stated: The statute provides: When determining the reasonableness of an award of attorney's fees pursuant to this section, the court shall consider, along with all other relevant criteria, the following additional factors: § 768.79(7)(b), Fla....

...The statute follows with enumerated additional factors for the court to consider. However, these are not exclusive but, as the statute says, must be considered with the other relevant criteria. Since the statute also refers the court to the guidelines promulgated by the supreme court in determining a reasonable fee, see section 768.79(6)(a), (b), Florida Statutes (1993), we look to the Rules of Professional Conduct, Rule 4-1.5, Fees for Legal Services, for the factors to be considered in determining a reasonable fee....

...only the time and rate factors." Rule 4-1.5(c). Therefore, we conclude that the legislature authorized a trial court to consider the application of a contingency risk factor as one criterion which may be applied in determining a reasonable fee under section 768.79....

...ns v. Wilkins, 664 So.2d 14 (Fla. 4th DCA 1995).... [W]e concluded that the legislature had authorized a trial court to consider the application of a contingency risk factor as one criterion which may be applied in determining a reasonable fee under section 768.79....

...sly admits in his dissenting opinion, "[B]y referring to the fees for legal services rule, the Fourth ... assert[s] that the legislature statutorily authorized trial courts to apply a contingency risk multiplier in determining a reasonable fee under section 768.79 ......

...As such, the multiplier was established, to serve as an incentive of sorts, for attorneys to undertake representation where a risk of nonpayment was established. Although an attorney contemplating representation of a particular client can never "know" for certain whether or not entitlement to a fee award under 768.79 will ultimately be established, surely skilled counsel can, contrary to the words of Chief Judge Schwartz in Gonzalez, "anticipate" such....

...Offers of judgment, as well as requests to apply multipliers, have clearly become part and parcel of litigation in the state of Florida; this court need only look to any monthly docket to recognize such. We find no inconsistency in holding competent counsel can "anticipate" the eventual filing of a 768.79 offer of judgment, "anticipate" the possible entitlement to fees if the statutory prerequisites are met, and "anticipate" the possibility said fee award will be multiplied....

...Accordingly, we find no logical inconsistency in application of the Quanstrom requirements to the offer of judgment context, and move to consider the application of said requirements to the instant case. Island Hoppers, 820 So.2d at 973-75 (footnote omitted). The use of a multiplier in section 768.79 circumstances has also been both denied and questioned in the district courts....

...'s then existing decision in Garrett, and approved the use of a multiplier of 2.5 to increase the lodestar figure of $414,000 to over $1 million. [2] In a dissent, Judge Casanueva found that the use of a contingency risk multiplier in the context of section 768.79 violated the constitutional principle of equal protection because only one side in a civil action—the plaintiff—is eligible under a rule 4-1.5 analysis to receive a contingency risk multiplier since it is the plaintiff that is taking the risk of commencing the action. Judge Casanueva concluded that this Court's decisions in Quanstrom and Rowe did not justify the multiplier's use in this manner. As a second basis for his dissent, Judge Casanueva concluded that the statutory language of section 768.79 does not expressly provide judicial authority to use a multiplier....

...wrote a concurring opinion. Judge Altenbernd stated that "if this panel were writing on a clean slate and if the issue were not already before the supreme court, I would vote to prohibit the use of a multiplier in determining a reasonable fee under section 768.79, Florida Statutes (2001)." Doyle-Vallery, 838 So.2d at 1198 (Altenbernd, J., concurring). [3] Judge Altenbernd stated that he would hold that the multiplier was not applicable on the basis that the use of a multiplier to enhance fees awarded pursuant to section 768.79 would be contrary to legislative intent....

...tended purpose and only that purpose. The legislature created this statute to reduce the costs and the length of litigation while maintaining a neutral playing field. When the legislature inserted the phrase, "along with all relevant criteria," into section 768.79(7)(b), it intended to incorporate those criteria relevant to these goals....

...Thus, the multiplier is designed to achieve a public policy that is separate and distinct from the policy of encouraging early settlement of lawsuits. If anything, by encouraging the filing of more lawsuits, the multiplier creates congestion in the judicial system that makes it more difficult for section 768.79 to achieve the goal of quicker, less expensive litigation....

...As a result, the existing rules would rarely, if ever, permit the defendant to recover a fee that included a multiplier. This may not violate equal protection, but it does affect the workings of this statute. Because the multiplier benefits only the plaintiff, if it applies to the fees imposed under section 768.79, that statute will necessarily shift the value of lawsuits in favor of the plaintiff....

...Doyle-Vallery, 838 So.2d at 1198-99 (Altenbernd, J., concurring) (footnote omitted). In 1999, the Third District Court of Appeal, in Gonzalez v. Veloso, 731 So.2d 63 (Fla. 3d DCA 1999), affirmed a trial court's denial of a multiplier in a case in which the plaintiff's offer of judgment exceeded the section 768.79 twenty-five-percent requirement....

...Susan Feuer Interior Design, Inc., 563 So.2d 752, 754 (Fla. 3d DCA 1990)). Judge Schwartz further questioned [w]hether any such showing can ever be made, and thus whether a multiplier is ever appropriate when fees are awardable only when a reasonable offer is not accepted under § 768.79, an eventuality which obviously cannot be anticipated when counsel is obtained. Gonzalez, 731 So.2d at 64 n. 2. In Amisub (American Hospital), Inc. v. Hernandez, 817 So.2d 870 (Fla. 3d DCA 2002), the Third District Court of Appeal again reviewed the application of a multiplier in a section 768.79 situation. The court wrote: Our inquiry in this case, based on the Quanstrom criteria, is "whether the relevant market requires a contingency fee multiplier to obtain competent counsel" when fees are awarded for failure to accept an offer under Section 768.79....

...ltiplier to the attorney's fees award. See Gonzalez v. Veloso, 731 So.2d at 64. Id. at 873. The First District Court of Appeal has held that a trial court should have considered the applicability of a contingency risk multiplier in connection with a section 768.79 attorney fee award in Lewis v....

...In Lewis, the court aligned with the majority in Pirelli Armstrong Tire, but did not set forth independent analysis. However, in Brown & Williamson Tobacco Corp. v. Carter, 848 So.2d 365 (Fla. 1st DCA 2003), [4] the court reversed the trial court's application of the multiplier in a section 768.79 attorney fee award. Finally, prior to its decision in the present case, the Fifth District Court of Appeal had also held that a multiplier was applicable under section 768.79....

...See Tetrault v. Fairchild, 799 So.2d 226 (Fla. 5th DCA 2001). We find, however, that Judge Harris's concurring opinion in this case is noteworthy. In his opinion, Judge Harris wrote an extensive analysis concerning the application of a multiplier in a section 768.79 attorney fee award....

...Jensen, 752 So.2d 1275 (Fla. 2d DCA 2000). Judge Casanueva based his opinion on equal protection guarantees. It can just as well be argued that to apply the multiplier in offer of judgment cases is contrary to clear legislative intent. The legislature in section 768.79 carefully crafted a party neutral fee provision to encourage settlement by assessing identical risks against each party if an offer is improperly rejected....

...onably evaluating the case. Tetrault, 799 So.2d at 235 (Harris, J., concurring and concurring specially). ANALYSIS We approve the Fifth District Court of Appeal's decision. We hold that the use of a multiplier in awarding attorney fees authorized by section 768.79, Florida Statutes, is error....

...by the adverse party was not more favorable than the offer of judgment, the adverse party had to pay the costs incurred after making the offer. [5] Thereafter, the Legislature enacted two offer of judgment statutes. In 1986, the Legislature enacted section 768.79, and in 1987, the Legislature enacted section 45.061, Florida Statutes (1987). [6] In 1988, we requested the Civil Procedure Rules Committee to examine any conflict between sections 45.061 and 768.79 and rule 1.442....

...ifteen percent of an unaccepted offer to pay. The Committee contended that the then existing sanction, consisting only of costs, was inadequate to deter unnecessary litigation. The Committee also urged this Court to declare unconstitutional sections 768.79 and 45.061, Florida Statutes....

...As noted in our statement of facts, the offer and rejection of the offer occurred after the act had been adopted by the legislature. Leapai v. Milton, 595 So.2d 12, 15 (Fla. 1992) (emphasis added). Later, in 1992, we considered the interplay between sections 45.061 and 768.79 in Timmons v. Combs, 608 So.2d 1 (Fla.1992). We noted that the Legislature had repealed section 45.061 with respect to causes of action accruing after October 1, 1990, [8] and had amended section 768.79 in 1990. [9] We then found that section 768.79 contained procedural aspects which were subject to this Court's rule-making authority. We therefore repealed the then existing rule 1.442 and adopted the procedural portions of section 768.79 as a rule of this Court, effective as of the date of the Timmons opinion....

...y approved. Id. at 611. We stated: In Leapai, this Court upheld the constitutionality of section 45.061 and found that the statute did not infringe on the rule-making authority of the Court. Finding no relevant distinction between section 45.061 and section 768.79, the district court ruled that section 768.79 was likewise constitutional....

...jected the offer of judgment had no bearing on whether Dvorak was entitled to an award of attorney fees. We noted that while the reasonableness of the rejection of an offer had no bearing on the issue of entitlement to fees, the factors set forth in section 768.79(2)(b), [11] which had been incorporated into rule 1.442, would have a bearing on the amount of attorney fees awarded by the court....

...Subdivision (a) also expressly provides that the rule superseded all other provisions of rules and statutes inconsistent with the new rule that we adopted by the opinion. The new rule was therefore made applicable to an award of attorney fees pursuant to section 768.79....

...sal to accept a proposal for settlement. [13] As noted at the beginning of this analysis, the detailed history of our cases construing the offer of judgment statutes and the adoption of rule 1.442 reflect that an award of attorney fees authorized by section 768.79 is a sanction against the rejecting party for the refusal to accept what is presumed to be a reasonable offer. This is a sanction levied against the rejecting party for unnecessarily continuing the litigation. The statute specifically limits the attorney fees to fees incurred after the date the offer was served upon the rejecting party. § 768.79(6)(a)-(b), Fla....

...See Doyle-Vallery, 838 So.2d at 1198-99 (Altenbernd, J., concurring). We agree with the Third District Court of Appeal's analysis in Amisub that Quanstrom specifically refers to obtaining counsel in the first instance. Amisub, 817 So.2d at 872-73. It is self-evident that attorney fees awarded as a sanction under section 768.79 and rule 1.442 are awarded after an attorney has already been obtained and agreed to undertake *223 the case, and thus the use of a multiplier is not consistent with the purpose of the fee-authorizing statute. Quanstrom and Rowe do not justify the use of a multiplier in awards of attorney fees authorized by section 768.79 and made in compliance with rule 1.442....

...We have also recognized that a statute imposing a penalty must be strictly construed in favor of the one against whom the penalty is imposed and is never extended by construction. Hotel & Restaurant Comm'n v. Sunny Seas No. One, Inc., 104 So.2d 570, 571 (Fla.1958). We have recently applied this rule of strict construction to section 768.79. See Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276 (Fla.2003). Throughout the statutory and rule history of offers of judgment, the use of a multiplier has never been expressly authorized. Neither section 768.79 nor rule 1.442 authorizes the use of a multiplier in determining the amount of attorney fees as a sanction for the rejection of an offer. Applying a strict construction of the statute and rule, a multiplier therefore cannot be applied under section 768.79 or rule 1.442, and the trial court's application of a multiplier in this case was error....

...This was the basis upon which this Court distinguished the denial of the use of a fee multiplier in Sun Bank of Ocala v. Ford, 564 So.2d 1078 (Fla.1990). In offer of judgment cases, since counsel is already obtained, Bell does not apply. (2) The fees authorized by section 768.79, Florida Statutes, and rule 1.442 are expressly authorized as sanctions against the party who rejects a reasonable offer of judgment, not as an inducement to obtain counsel. This fact is plain because section 768.79(1), Florida Statutes, expressly states that the attorney fees are "penalties." Rule 1.442(g) expressly states that the fees are "sanctions," and this Court has recognized that the fees are "sanctions" as set forth by the majority in the detailed history of the statute and rule. Moreover, the statute clearly authorizes attorney fees for only those fees incurred after the date the offer was served upon the rejecting party, not from the date the offering party's counsel agreed to undertake the representation. § 768.79(6)(a), (b), Fla....

...It is an unreasonable construction to read into the statute and rule an authorization for a fee multiplier as an inducement to obtaining counsel to undertake the representation in the first place. Again, the statute only authorizes fees "incurred from the date the offer was served." § 768.79(6)(a), (b), Fla....

...ermine a reasonable fee. BELL, J., concurs. PARIENTE, J., dissenting. I respectfully dissent. In my view, the contingent nature of the representation is an appropriate consideration in an award of attorney's fees under the offer of judgment statute, section 768.79, Florida Statutes (2002). A contingent fee arrangement comes within the plain language of "all relevant criteria" in section 768.79(7)(b), and is not contrary to the underlying policy of the statute, which is to promote settlements. Section 768.79(7)(b) of the offer of judgment statute provides that a trial court shall consider six "additional" factors and "all other relevant criteria " in determining the reasonableness of an award of attorney's fees to a party whose recovery exceeds a rejected offer of judgment by at least twenty-five percent....

...As such, the multiplier was established, to serve as an incentive of sorts, for attorneys to undertake representation where a risk of nonpayment was established. Although an attorney contemplating representation of a particular client can never know for certain whether or not entitlement to a fee award under 768.79 will ultimately be established, surely skilled counsel can ......

...Offers of judgment, as well as requests to apply multipliers, have clearly become part and parcel of litigation in the state of Florida; this court need only look at any monthly docket to recognize such. We find no inconsistency in holding competent counsel can "anticipate" the eventual filing of a 768.79 offer of judgment, "anticipate" the possible entitlement to fees if the statutory prerequisites are met, and "anticipate" the possibility said fee award will be multiplied....

...that there will be a reward at taking the risk on a contingency fee. Allstate Ins. Co. v. Sarkis, 809 So.2d 6, 7-8 (Fla. 5th DCA 2001). In my view, the fee awarded was consistent with the offer of judgment statute. [17] Paragraphs (6)(a) and (b) of section 768.79 both state that in awarding attorney's fees, the trial court should calculate the fee award in accordance with the guidelines promulgated by the Supreme Court....

...Further, the Court has adopted a forced, rather than a strict, construction of an unambiguous statute in rejecting the contingent nature of the representation as one of the "relevant criteria" in determining the reasonableness of a fee award under section 768.79(7)(b)....

...ent "shall state the amount and terms attributable to each party," "an offer from multiple plaintiffs must apportion the offer among the plaintiffs." Id. at 279 (emphasis supplied). As in Willis Shaw Express, there is no ambiguity in the language of section 768.79(7)(b) that requires a construction different from simply applying the plain language of the statute....

...prevailing party in a malpractice action against any physician, podiatrist, hospital, or health maintenance organization. Unlike the list of specific entities in the statute discussed in Finkelstein, the inclusion of "all other relevant criteria" in section 768.79(7)(b) does not imply the exclusion of a contingency fee multiplier....

...include the contingency fee multiplier. As the Second District held in Pirelli Armstrong Tire Corp. v. Jensen, 752 So.2d 1275 (Fla. 2nd DCA 2000), review dismissed, 777 So.2d 973 (Fla.2001), in agreeing with the Fourth District's opinion in Collins: Section 768.79(7)(b) directs the trial court to consider, in determining the reasonableness of the fee, certain enumerated factors "along with all other relevant criteria" (emphasis ours). The statute also refers the trial court to the guidelines promulgated by the supreme court. See § 768.79(6)(a), (b)....

...igher or lower than that which would result from application of only the time and rate factors." Thus, it is clear that the legislature authorized trial courts to consider and apply a contingency risk multiplier when awarding an attorneys' fee under section 768.79....

...Nor can I find a foundation for the Court's exclusion of a contingency risk multiplier in the history of the offer of judgment statute. Although the Court has detailed the lengthy history of the offer of judgment statute, it is noteworthy that the term "all other relevant criteria" has been part of section 768.79 since its enactment in 1986....

...ng a reasonable attorney's fee award. Instead, it granted trial courts broad discretion to consider "all other relevant criteria" in addition to the six factors specifically enumerated. This language remained intact through a substantial revision of section 768.79 in 1990. See ch. 90-119, § 48, Laws of Fla. Further, the Legislature has not abrogated Collins, the first appellate decision applying the multiplier to section 768.79....

...the new version). In Collins, the Fourth District expressly concluded "that the legislature authorized a trial court to consider the application of a contingency risk factor as one criterion which may be applied in determining a reasonable fee under section 768.79." 664 So.2d at 15....

...obtained, and the type of fee arrangement between the attorney and his client. Quanstrom, 555 So.2d at 834; see also Rowe, 472 So.2d at 1150-52. [2] This figure was ultimately reduced by twenty-five percent to take into account the other criteria in section 768.79(7)(b), resulting in a total fee award of $777,695.95....

...This rule was changed immaterially for present purposes in 1980. The Florida Bar, 391 So.2d 165 (Fla. 1980). [6] Section 45.061 was a similar offer-of-judgment statute, which was repealed with respect to actions accruing after October 1, 1990. Ch. 90-119, § 22, Laws of Fla. Section 768.79 was therefore left as the only statute applicable to actions accruing after that date....

...(3) No sanction under this rule shall be imposed in any class action or shareholder derivative suit, nor in any proceeding involving dissolution of marriage, alimony, nonsupport, child custody or eminent domain. (Footnotes omitted.) [8] See supra note 6. [9] Ch. 90-119, § 48, Laws of Fla. [10] This case was decided under section 768.79 as it existed prior to its 1990 amendments, and under rule 1.442 as it existed in 1990, prior to this Court's repeal of the rule in Timmons. [11] TGI Friday's was decided under the 1987 version of section 768.79....

...considered in respect to the award of attorney fees. This Court rejected that recommendation, reasoning that such a consideration was inconsistent with this Court's opinion in TGI Friday's, in which this Court noted that the Legislature, by enacting section 768.79, did not give judges the discretion to determine whether it is reasonable to reject an offer of judgment....

...of judgment. The statute only authorized the fees from the date the offer of judgment was made. [16] The first trial resulted in a mistrial in October 1998, through no fault of the parties. [17] Although, as Justice Wells points out, an award under section 768.79 applies only to fees incurred from the date the offer was served, this limitation does not preclude the trial court from considering, in determining whether to apply a multiplier to those fees, the circumstances that led counsel to agr...

...Rood of Rood & Associates, Tampa, for Appellant. Michael S. Rywant and M.C. Collins Guyton of Rywant Alvarez Jones Russo & Guyton, Tampa, for Appellees. CASANUEVA, Judge. Kristopher D. Lucas challenges the trial court's determination that his proposal for settlement pursuant to section 768.79, Florida Statutes (1999), and Florida Rule of Civil Procedure 1.442(c)(2) was legally insufficient for failure to comply with the procedural rule....

...Mr. Matetzschk for $6,000, and this offer expired without acceptance. At trial, Lamb was awarded $73,108. Since this verdict exceeded any of the settlement proposals by more than twenty-five percent, Lamb was entitled to attorney's fees pursuant to section 768.79, Florida Statutes (1999)....

...nce it did not apportion the settlement amount between the two plaintiffs. The First District agreed with the defendant and reversed the trial court. We approved the First District's holding. In approving the First District's holding, we stated that section 768.79 and rule 1.442 were to be strictly construed because they are in derogation of the common law rule that each party should pay its own fees....

...le to each party in order to make a further determination of whether the judgment against only one of the parties was at least twenty-five percent more or less than the offer (depending on which party made the offer). Moreover, the plain language of section 768.79 supports the C & S court's holding....

...live insects. Barnes, 846 So.2d at 569. From the inception of this litigation, both defendants were represented by the same attorney. The attorney submitted a proposal for settlement on behalf of both defendants to Barnes pursuant to rule 1.442 and section 768.79, Florida Statutes (1999), in the amount of $95,000....

...gment, regardless of whether the offer emanates from or is directed to joint parties who have a common interest. I write to express my concern whether this interpretation of rule 1.442(c)(3) will in fact foster *1043 the primary goal of the rule and section 768.79, Florida Statutes (2004), which is to "encourage settlements in order to eliminate trials if possible." Unicare Health Facilities, Inc. v. Mort, 553 So.2d 159, 161 (Fla.1989); see also Nat'l Healthcorp Ltd. P'ship v. Close, 787 So.2d 22, 26 (Fla. 2d DCA 2001) ("The legislative purpose of section 768.79 is to encourage the early settlement and termination of litigation in civil cases generally.")....

...ly distinguishable cases cited therein should require the result that we must produce today. The result, in my view, is purely the product of the technical language of the rule, not logic or proper legal reasoning. NOTES [1] The relevant portions of section 768.79, Florida Statutes (1999), are as follows: (1) In any civil action for damages filed in the courts of this state ....

...(1999); Sencer v. Carl's Mkts., Inc., 45 So.2d 671 (Fla.1950); Wagner v. Mars, Inc., 166 So.2d 673 (Fla. 2d DCA 1964). Barnes, 846 So.2d at 569-70. [7] At that time the rule provided only that "[p]arties shall comply with the procedures set forth in section 768.79, Florida Statutes (1991)." Id. at 1382 (quoting Fla. R. Civ. P. 1.442 (1992)). Section 768.79 creates a substantive right to recover attorney's fees where an offer of judgment is rejected, see Sarkis v....

...We conclude that this award is duplicative of the other two sanctions, and, when considered in light of the other sanctions, results in the imposition of sanctions which are too severe. VI. THE CROSS APPEAL In its cross appeal, FMHS argues that it is entitled to attorney fees and costs pursuant to sections 44.102, 45.061 and 768.79, Florida Statutes (1991), all of which concern offers or demands of judgment or of settlement....

...Although we concede that this case presents an excellent example of the chaos created by the legislature's activities in this area, we conclude that the trial court correctly denied FMHS's motions. None of the demands for judgment served by FMHS on Nordyne referred to section 44.102. They referred to sections 45.061 and 768.79, and to Florida Rule of Civil Procedure 1.442....

...as entitled to attorney fees and costs pursuant to section 44.102. Section 44.102(5)(b), which was added to a statute dealing with court-ordered mediation effective October 1, 1990 (ch. 90-188, § 2, at 853, Laws of Fla.), reads: Sections 45.061 and 768.79 notwithstanding, an offer of settlement or an offer or demand for judgment may be made at any time after an impasse has been declared by the mediator, or the mediator has reported that no agreement was reached....

...According to FMHS, because the judgment ultimately recovered was more than twice the amount of the demands for judgment, it is entitled to recover attorney fees and costs. We disagree. To the extent that section 44.102(5)(b) purports to amend both section 45.061 and section 768.79, it may best be described as a trap set by the legislature for those not fortunate enough previously to have stumbled across it....

...In our opinion, because FMHS did not inform Nordyne at the time it served its demands for judgment that it intended to rely upon section 44.102(5)(b), it is precluded from doing so after the fact. Moreover, we note that, recognizing that sections 45.061 and 768.79 contained conflicting terms, and that both statutes included procedural provisions which intruded upon the powers granted by our constitution to the judicial branch, the supreme court recently adopted the procedural portions of section 768.79 as a court rule. Timmons v. Combs, 608 So.2d 1 (Fla. 1992). We believe that section 44.102(5)(b) likewise intrudes upon the rulemaking power of the judicial branch. Accordingly, in our opinion, the provisions of section 44.102(5)(b) must yield to those of section 768.79, which have been adopted as a court rule....

...th all other relevant criteria, the following factors: (Emphasis added). The recommendation also has as factor (A): "whether the proposal was reasonably rejected." This recommendation, by including the words "the entitlement to," is at variance with section 768.79, Florida Statutes (1995), which states in subdivision (7)(b): When determining the reasonableness of an award of attorney's fees pursuant to this section, the court shall consider, along with all other relevant criteria, the following...

...However, we recognize and respect the logic of the recommendation. We believe that it would advance the goals of justice and fairness to empower the trial court with the discretion to decide the entitlement to attorney fees based upon the criteria set forth in section 768.79 plus the recommended factor (A) in addition to the discretion to decide the reasonableness of the amount of an award of attorney fees. Therefore, though we do not adopt the recommendation to include "the entitlement to" in subdivision (h)(2) of the rule, we do endorse the recommendation and by this opinion expressly recommend that the legislature amend section 768.79(7)(b) to read: When determining the entitlement to and reasonableness of an award of attorney fees pursuant to this section, the court shall consider, along with all other relevant criteria, the following additional factors: We also re...

...Board of Governors would have the effect of amending the statute based upon the interpretation of the statute by the majority in TGI Friday's, Inc. v. Dvorak, 663 So.2d 606 (Fla.1995). I write to state my continuing view that the construction given section 768.79, Florida Statutes, in Dvorak, which necessitates this rejection, is erroneous....

...is adverse to the proper administration of civil justice. What I believe we should do in the interests of the proper administration of civil justice is recede from Dvorak, construe the statute so that it is recognized that the statutory criteria in section 768.79 are for use in determining both entitlement to fees and amount of fees, and adopt the rule as proposed by the Committee and the Board of Governors....

...or use of subpoenas. For example, a notice of taking the deposition must be filed and served before a subpoena for deposition may be issued. RULE 1.442. OFFER OF JUDGMENT PROPOSALS FOR SETTLEMENT Parties shall comply with the procedure set forth in section 768.79, Florida Statutes (1991). Court Commentary 1992 Amendment. This rule was repealed in Timmons v. Combs, 608 So.2d 1 (Fla. 1992), in which the supreme court adopted the procedural portion of section 768.79, Florida Statutes (1991), as a rule....

...Mediation shall have no effect on the dates during which parties are permitted to make or accept a proposal for settlement under the terms of the rule. Committee Notes 1996 Amendment. This rule was amended to reconcile, where possible, sections 44.102(6) (formerly 44.102(5)(b)), 45.061, *126 73.032, and 768.79, Florida Statutes, and the decisions of the Florida Supreme Court in Knealing v....

...Thereafter, Carey-All served a "Motion for Entitlement to Fees and Costs" on the basis that both the verdict and judgment [1] were at least 25% less than the proposal for settlement amount offered by Carey-All in May 2007 and hence that Carey-All was entitled to recover its fees and costs under section 768.79, Florida Statutes (2007)....

...In a detailed order, the trial court agreed with Newby's arguments and denied Carey-All's motion. We reverse because the court incorrectly interpreted the law based upon the facts of this case. Our resolution of the issue turns on a straightforward application of the language contained in rule 1.442(c)(3), which implements section 768.79....

...e and the offer of judgment statute are in derogation of common law, Willis Shaw Express, Inc., 849 So.2d at 278, we cannot *1205 conclude that an entity or individual who has been dismissed from a lawsuit is a "party" for purposes of rule 1.442 and section 768.79....

...DuPont De Nemours & Co., 761 So.2d 306 (Fla.2000)). The goal of most settlement proposals is finality. Parties would be discouraged from making reasonable settlement proposals if they knew that minor or nonsubstantive objections— whether real or imagined—could defeat the application of section 768.79's fee-shifting provisions....

...reasonable fees and costs to be awarded to Carey-All. Reversed and remanded with instructions. FULMER and CANADY, JJ., Concur. NOTES [1] The offer of judgment statute defines the term "judgment obtained" as "the amount of the net judgment entered." § 768.79(6)(b), Fla....

...]he "judgment obtained" should not be equated with the jury's verdict.'" Frosti v. Creel, 979 So.2d 912, 916 (Fla.2008) (quoting Anderson v. King, 817 So.2d 1102, 1104 (Fla. 2d DCA 2002)). [2] It is not necessary to engage in any further analysis of section 768.79's fee-shifting factors as Newby does not dispute that those prerequisites were satisfied in this case.

...egard to the property, the respondents filed an action against the company seeking declaratory relief and damages for breach of contract. See id. at 1212. Before trial, Attorneys' Title served a proposal for settlement on the respondents pursuant to section 768.79, Florida Statutes (2004), and Florida Rule of Civil Procedure 1.442, which offered a payment of $12,500 to each party in full settlement of all claimed damages, attorneys' fees, and costs....

...his or her respective claim by accepting the proposal. If one wished to accept but the other elected not to accept, the acceptance would not be effective. In this scenario, the offeree who wished to accept would be exposed to the fee sanction under section 768.79 and rule 1.442 due to the conduct of the other offeree rather than as a result of his or her independent decision to reject the proposal....

...r respective claim by accepting the proposal. The conditional nature of the offer divests each party of independent control of the decision to settle, thereby rendering the offer of judgment invalid and unenforceable. As background to this analysis, section 768.79 generally creates a right to recover reasonable costs and attorney fees when a party has satisfied the terms of the statute and rule....

...to evaluate the offer as it pertains to him or her." Id. at 199 (quoting C & S Chemicals, Inc. v. McDougald, 754 So.2d 795, 797-98 (Fla. 2d DCA 2000)). Reading the plain language of the statute, we recognized that the reference to "party" in the singular in section 768.79(2)(b) indicated the intent of the Legislature that an offer must specify the amount attributable to each party....

...ombination of parties properly identified in the proposal. A joint proposal shall state the amount and terms attributable to each party." There is no prohibition against offers to multiple parties conditioned on joint acceptance within rule 1.442 or section 768.79, Florida Statutes. Rule 1.442 implements section 768.79, which was enacted by the Legislature for the purpose of encouraging settlements....

...not, then the willing offeree could be forced to pay the opposing side's costs and fees. See Gorka, 989 So.2d at 1213; majority op. at 651. But a proper interpretation of how the rule and statute function demonstrates that this concern is misplaced. Section 768.79(4) provides: "An offer shall be accepted by filing a written acceptance with the court within 30 days after service....

...Because under the terms of the offer, both acceptances must be filed to constitute an enforceable agreement, the court would not have jurisdiction to enforce a settlement agreement under the statute. However, how the co-plaintiffs are treated for costs recovery is controlled by the statute. Section 768.79(6)(a) provides for an award of reasonable costs "[i]f a defendant serves an offer which is not accepted by the plaintiff, and if the judgment obtained by the plaintiff is at least 25 percent less than the amount of the offer." In the *...

...resented. Therefore, the law in this respect remains substantively unchanged. [2] Gorka v. Attorneys' Title Ins. Fund, Inc., 944 So.2d 991 (Fla. 2d DCA 2006) (table decision) (affirming final judgment in favor of Attorneys' Title). [3] Specifically, section 768.79 provides in part as follows: (1) In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to rec...

...An offer must: (a) Be in writing and state that it is being made pursuant to this section. (b) Name the party making it and the party to whom it is being made. (c) State with particularity the amount offered to settle a claim for punitive damages, if any. (d) State its total amount. § 768.79(1)-(2), Fla....

...s EMBASSY SUITES ORLANDO AT INTERNATIONAL DRIVE AND JAMAICAN COURT, also doing business as HILTON WORLDWIDE, and states in support thereof as follows: 1. This Proposal for Settlement is made pursuant to Florida Statute §768.79, and is extended in accordance with the provisions of Rule 1.442....

...EMBASSY SUITES pursuant to the Verdict form agreed to by Plaintiff and all Defendants” in the amount of $1,225,487.52, and against SecurAmerica in the amount of $476,578.48. -5-  Anderson then sought attorneys’ fees pursuant to section 768.79, Florida Statutes, and Florida Rule of Civil Procedure 1.442....

...The Fifth District consolidated the appeals and affirmed the decisions of the trial court; however, the district court’s opinion only addressed Anderson’s appeal of the denial of attorneys’ fees. Id. Anderson argued that he was entitled to attorneys’ fees pursuant to section 768.79 and Rule 1.442 because his offers of settlement satisfied the requirements of the statute and rule....

...es treated as one by the jury, and given that the judgment obtained against the “Embassy Suites” defendants was actually less than the sum of the demands for judgment made against them, the purpose behind the enactment of section 768.79 (i.e., to sanction a party for rejecting a presumptively reasonable proposal for settlement) would be ill-served by assessing attorney’s fees against Hilton, W2007, and Interstate. Id....

...at 416-17. This review follows. ANALYSIS Whether Anderson’s Proposed Offer of Settlement Was Ambiguous -7-  Attorneys’ fees under offers of judgment are governed by section 768.79, Florida Statutes (2011), and Florida Rule of Civil Procedure 1.442. In relevant part, section 768.79 reads: (1) In any civil action for damages filed in the courts of this state ....

.... . . For purposes of the determination required by paragraph (b), the term “judgment obtained” means the amount of the net judgment entered, plus any postoffer settlement amounts by which the verdict was reduced. § 768.79, Fla....

...2015) (citing Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So. 2d 276, 278 (Fla. 2003); Gershuny v. Martin McFall Messenger Anesthesia Prof’l Ass’n, 539 So. 2d 1131, 1132 (Fla. 1989)). This Court reviews a party’s entitlement to attorneys’ fees pursuant to section 768.79 and Rule 1.442 de novo. E.g., id....

...atute and rule, or their purpose, which is to promote prompt and good-faith efforts to settle claims. See, e.g., id. (“Proposals for settlement are intended to end judicial labor, not create more.”) (citing Lucas, 813 So. 2d at 973); see also § 768.79(7), Fla....

...section 768.69(1). In affirming the trial court’s denial of Anderson’s motion for attorneys’ fees, the Fifth District stated that Anderson’s offer was unenforceable to recover attorneys’ fees because “the purpose behind the enactment of section 768.79 (i.e., to sanction a party for rejecting a presumptively reasonable proposal for settlement) would be ill-served....

... This Court has explained that the offer of judgment statute creates an entitlement to attorneys’ fees when the statutory and procedural requirements have been satisfied. Attorneys’ Title Ins. Fund, Inc. v. Gorka, 36 So. 3d 646, 649 (Fla. 2010). The mandatory language of section 768.79 reinforces the notion that a proper offer automatically creates that entitlement, unless the offer is made in bad faith. See § 768.79(1), Fla....

...entitled to recover reasonable costs and attorney’s fees . . . . If a plaintiff files a demand for judgment which is not accepted by the defendant within 30 days . . . she or he shall be entitled to recover reasonable costs and attorney’s fees . . . .”) (emphasis supplied); § 768.79(7)(a) (granting courts discretion to withhold fees to which a party is otherwise entitled if the court determines the offer was not made in good faith). Thus, an offer that complies with section 768.79 and Rule 1.442 creates a “mandatory right” to collect attorneys’ fees....

...2d 606, 611 (Fla. 1995) (citing Schmidt v. Fortner, 629 So. 2d 1036 (Fla. 4th DCA 1993)). Further, it is clear that this entitlement to attorneys’ fees hinges on the “judgment obtained,” as opposed to a verdict form returned by the jury. § 768.79(6), Fla....

...- 19 - verdict was reduced”); Frosti, 979 So. 2d at 916; White v. Steak & Ale of Fla., Inc., 816 So. 2d 546, 549-50 (Fla. 2002) (citing Perez v. Circuit City Stores, Inc., 721 So. 2d 409, 412 (Fla. 3d DCA 1998)). However, neither section 768.79 nor Rule 1.442 specifies that a plaintiff must obtain a judgment from a designated party to be entitled to attorneys’ fees....

...entered was at least 25% greater than Walton’s offer to FOI for $15,000. Id. - 20 -  The Second District subsequently rejected FOI’s appeal regarding the award of attorneys’ fees. Id. at 1048. The court first explained that section 768.79 and Rule 1.442 were neither ambiguous nor vague; thus, under a strict construction of the statute and rule, the award against FOI was mandated....

...entry of judgment against SecurAmerica: Anderson proposed to settle his claims against SecurAmerica for $300,000 and obtained a judgment against SecurAmerica for $476,578.48, which is approximately 159% of Anderson’s offer—well above the 25% threshold in section 768.79(6)(b). Moreover, Troy Anderson is also entitled to attorneys’ fees based on his separate offers to Hilton, W2007, and Interstate....

...ffer made to W2007. The only way that these offers could not satisfy the statutory requirement would be if the offers were to be aggregated, which cannot be tolerated under a strict - 22 - construction of section 768.79. See id.; see also Pratt, 161 So. 3d at 1271 (explaining that the offer of judgment statute must be strictly construed). Thus, Troy Anderson’s offers to Hilton, W2007, and Interstate complied with the requirements of section 768.79 and Rule 1.442; upon obtaining a judgment that was at least 25% greater than any one of these offers, Troy Anderson became entitled to attorneys’ fees....

...As explained above, nothing in the offer of judgment statute or rule requires a plaintiff to obtain a judgment against a specific defendant where there are multiple parties to the action; the plaintiff must simply obtain a judgment that is at least 25% greater than the offer. § 768.79(6)(b), Fla....

...The “nitpicking” of these offers by the courts below to find otherwise unnecessarily injected ambiguity into these proceedings and created more judicial labor, not less. Cf. Nichols, 932 So. 2d at 1079. Furthermore, the plain language of both section 768.79 and Florida Rule of Civil Procedure 1.442 indicates that Troy Anderson’s entitlement to attorneys’ fees was actualized after he submitted sufficient offers and obtained satisfactory judgments in his favor....

...On September 18, 2009, more than 45 days before the November 9, 2009 start of the trial on the question of bad faith, Auto-Owners offered to settle the case for $1-million. Auto-Owners made the offer and settlement proposal as authorized by Rule 69 of the Federal Rules of Civil Procedure, Florida Statute § 768.79, and Rule 1.442 of the Florida Rules of Civil Procedure....

...("Valenti, Campbell"), based in Lakeland, Florida. Burr & Forman billed $219,499.50 for 1,183.10 hours of work, and Valenti, Campbell billed $39,384 for 384 hours of work. ANALYSIS I. AUTO-OWNERS IS ENTITLED TO ATTORNEY'S FEES UNDER FLORIDA STATUTE § 768.79 FOR A 64-DAY PERIOD STARTING SEPTEMBER 18, 2009 In the American legal system, each party generally must pay its own attorney's fees and expenses. [2] However, in order to advance a variety of public policy goals, Congress and the states have enacted hundreds of laws that shift attorney's fees to an opposing party. [3] One of these laws, Florida Statute § 768.79, shifts fees to encourage parties to settle cases without a trial and to sanction parties who unreasonably reject settlement offers....

...If at trial, the plaintiff wins a judgment worth less than 25 percent of the settlement offer, or the judgment states that the defendant had no liability, then the plaintiff must pay defendant's attorney's fees beginning from the date of the offer. Because Florida Statute § 768.79 exists to implement the state's public policy, the Eleventh Circuit found in Menchise v. Akerman Senterfitt [7] that the statute serves as substantive, rather than procedural, law. Therefore, federal courts in Florida, when adjudicating Florida law claims, must apply Florida Statute § 768.79, rather than federal law, to determine whether to award attorney's fees. Applying Florida law, the Court agrees that Auto-Owners is entitled to attorney's fees and expenses under Florida Statute § 768.79 because Auto-Owners properly filed an offer of judgment that complied with the statute's strict requirements and that Kearney did not accept before trial....

...Federal courts, when applying the lodestar method to a federal statute, determine what constitutes a lawyer's reasonable hourly rate by looking at "`the prevailing market rates in the relevant community.'" [12] By contrast, when awarding fees under Florida Statute § 768.79(7)(b), the Florida Supreme Court reaffirmed in Sarkis v....

...follow Florida law to the extent that state law differs. B. Process for Determining Reasonable Attorney's Fees Unlike federal statutes that shift attorney's fees in order to promote public policy or empower private attorney generals, Florida Statute § 768.79 operates as a sanction to punish parties who unreasonably reject settlement offers and clog the courts with cases....

...Other entries are simply so vague that the Court, even if it construes how much time was spent on the task, cannot determine the nature of the work done. Auto-Owners also failed to provide a summary of its fees or calculate subtotals that group fees by the category of work. Because Florida Statute § 768.79 "must be strictly construed in favor of the one against whom the penalty is imposed," [21] the Court will not award Auto-Owners attorney's fees where it has failed to meet its burden to present "specific and detailed evidence from which the...

...50 -------------------------------------------------------------------------------------------------------------- III. AUTO-OWNERS' REQUEST FOR COSTS IS DENIED WITHOUT PREJUDICE In addition to authorizing an award of attorney's fees, Florida Statute § 768.79 authorizes a court to award a defendant "reasonable costs, including investigative expenses." The statute, however, does not define "reasonable costs." Under § 768.79, though, the Court can only award costs for the 64-day period beginning on September 18, 2009....

...In a separate order, the Court has reviewed the costs taxed by the Clerk in this case and determined under § 1920 that Auto-Owners should receive $32,77.85 of the $221,049.27 it requested. However, the costs awarded under § 1920 may not be the same costs that Auto-Owners could receive under § 768.79. Florida law may be more generous than federal law, and authorize payment of certain costs (such as part of Auto-Owners' $163,230 in expert witness fees) that federal law would not allow. However, although Auto-Owners seeks costs under § 768.79, it offers no legal analysis and no case citations for why the Court should treat the "reasonable costs" provision of Florida Statute § 768.79 as substantive law that federal courts must follow in a diversity case. Normally, costs are considered procedural law, even in diversity cases such as this one. [39] However, the Court recognizes that the Eleventh Circuit in Menchise v. Akerman Senterfitt treated Florida Statute § 768.79 as substantive law for purposes of deciding one's entitlement to attorney's fees....

...easonable amount of attorney's fees, especially where Florida law on contingency fees and multipliers departs from federal law. In addition, this Court in Arnoul v. Busch Entertainment Corp. recently awarded expert witness fees under Florida Statute § 768.79 as a "reasonable cost" even though expert witness fees would not be permitted under federal law....

...$167,612.08 that the Clerk taxed. The Court will not pour through these records again to do the job that Auto-Owners should have done in the first instance. Because Kearney has suggested that the Court allow Auto-Owners to re-submit its costs under § 768.79, the Court will grant Auto-Owners a second opportunity to ask for costs, if it wishes to do so....

...If Auto-Owners re-submits its motion for costs, Auto-Owners should not seek costs a second time that the Court has already awarded under § 1920. Auto-Owners is not entitled to be paid the same costs twice. If Auto-Owners believes that it is entitled to costs under Florida Statute § 768.79 that would not be permitted under federal law, then it needs to make a legal argument to advance its request for individual costs sought and should cite to case law for each cost....

...CONCLUSION Therefore, it is ORDERED that Auto-Owners' motion, as corrected, for attorney's fees and costs (Docs. 596, 601) is GRANTED IN PART and DENIED IN PART as follows: (1) The motion is GRANTED IN PART to the extent that the Court finds that Auto-Owners is entitled to an award of attorney's fees under Florida Statute § 768.79....

...(3) The Court orders Plaintiff Clayton Kearney to pay Defendant Auto-Owners Insurance Company attorney's fees in the amount of $209,685.50. (4) The motion is DENIED WITHOUT PREJUDICE to the extent that it seeks reasonable costs under Florida Statute § 768.79....

...the docket on which the case is set for trial, whichever is earlier."). Auto-Owners' offer of judgment was served on September 18, 2009, 46 days before November 2, 2009, the first day of the Court's November 2009 trial calendar. [6] Florida Statute § 768.79(2) states that an offer must: (a) Be in writing and state that it is being made pursuant to this section....

...the client; and (12) awards in similar cases." Hensley v. Eckerhart, 461 U.S. 424, 430, n. 3, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). [13] 863 So.2d 210 (Fla.2003). [14] Standard Guar. Ins. Co. v. Quanstrom, 555 So.2d 828 (1990). [15] Florida Statute § 768.79(7)(b) reads: "When determining the reasonableness of an award of attorney's fees pursuant to this section, the court shall consider, along with all other relevant criteria, the following additional factors: 1....

...In this appeal we construe the language of Florida Rule of Civil Procedure 1.442 in the context of a proposal for settlement made by a single defendant to two plaintiffs. The trial court denied the appellant, United Services Automobile Association (USAA), attorney fees under the offer of judgment statute, section 768.79, Florida Statutes (1995), and rule 1.442, and USAA appealed that judgment....

...Behar, instituted an action against USAA under the terms of their policy's underinsured motorist coverage. In Count I, Dr. Behar sought benefits for damages he alleged resulted from the accident. Mrs. Behar, in Count II, claimed damages resulting from a loss of consortium. Pursuant to section 768.79 and rule 1.442, USAA served upon the Behars an offer of judgment and proposal for settlement in the amount of $125,001....

...Here, a lump sum amount was offered, without the necessary specificity as to Dr. or Mrs. Behar. See DiPaola v. Beach Terrace Ass'n, 718 So.2d 1275, 1277 (Fla. 2d DCA 1998) (holding that if it is impossible to perform, with any certainty, the calculation necessary to determine the applicability of section 768.79, then the offer cannot support an award of fees). There were two claims in this case, Dr. Behar's and Mrs. Behar's, and each was separate and distinct from the other. The purpose of section 768.79 is to encourage the resolution of litigation....

...Carter alleges that the thirty-day deadline is subject to being extended by the trial court in accordance with Florida Rule of Civil Procedure 1.090(b) (authorizing a trial court to enlarge the time for performing acts "allowed to be done at or within a specified time ..., by these rules"). Former section 768.79, Florida Statutes (1991) (offer of judgment and demand for judgment) and section 45.061(2), Florida Statutes (1987) (offers of settlement), required a motion for attorneys' fees to be filed within thirty days after the entry of final judgment. The third district believed the express language of the Florida Statutes § 768.79 required the motion for attorneys' fees to be filed within thirty days after the entry of judgment regardless of whether the trial court reserved jurisdiction to award attorneys' fees....

...4th DCA 2001). Defendant argues that the language in the Proposal for Settlement and General Release was consistent with the nature of a general release and sufficiently clear and unambiguous; therefore, the trial court should have enforced its rights under section 768.79, Florida Statutes (1997)....

...nyone associated with him. Zalis, 797 So.2d at 1290. The plaintiff refused the offer. The jury found against the plaintiff and awarded the defendant $105,000 on his counterclaim. Thereafter the defendant filed a motion for attorneys fees pursuant to section 768.79....

...ything at any point in the future and held as follows: The condition that a plaintiff relinquish all rights to sue about anything at any point in the future is intrinsically a condition incapable of being stated with the particularity required under section 768.79 of the Florida Statutes....

...3d DCA 1998) (approving denial of award of fees to husband who rejected a very generous settlement offer from the wife, made no counterproposal, and embarked on an expensive and wasteful litigation strategy), quashed in part on other grounds, 826 So.2d 229 (Fla.2002). In fact, the statute concerning offers of judgment, section 768.79, Florida Statutes (2002), is limited by its own terms to civil actions for damages and has no counterpart in proceedings for dissolution of marriage....

...Eaton, P.A., West Palm Beach, for appellant. Leonard I. Singer of Renick, Singer & Kamber, Lake Worth, for appellee. PARIENTE, Judge. This is an appeal of a post-judgment final order denying attorney's fees and costs to appellant/former wife, Pamela Eagleman (defendant), pursuant to section 768.79, Florida Statutes, 1993, commonly referred to as the "Offer of Judgment" statute....

...The parties agreed that the jury was deadlocked, three in favor of plaintiff and three in favor of defendant. Subsequently plaintiff voluntarily dismissed his case with prejudice and defendant filed the motion for attorney's fees based on her $100 offer of judgment. Section 768.79, Florida Statutes (1993), provides in pertinent part as follows: (1) In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, th...

...It serves as a penalty for parties who fail to act reasonably and in good faith in settling lawsuits. See Goode v. Udhwani, 648 So.2d 247, 248 (Fla. 4th DCA 1994). Explaining the good faith requirement further, this court stated in Schmidt: We do not understand the good faith requirement of section 768.79(7)(a), however, *948 to demand that an offeror necessarily possess, at the time he makes an offer or demand under the statute, the kind or quantum of evidence needed to support a judgment....

...2d DCA 2000), which certified conflict with the decision of the Third District Court of Appeal in Perez v. Circuit City Stores, Inc., 721 So.2d 409 (Fla. 3d DCA 1998), review dismissed, 729 So.2d *548 390 (Fla.1999). The issue in this case is whether, under the offer of judgment statute, section 768.79, Florida Statutes (1993), pre-offer taxable costs are included in calculating the "judgment obtained" for the purpose of determining whether the party making the offer is entitled to attorneys' fees under section 768.79....

...sing out of an incident that occurred on December 16, 1993, claiming Steak and Ale was negligent in the maintenance of its premises. On August 27, 1996, Steak and Ale served on White an "Offer of Settlement and Dismissal Pursuant to Florida Statutes § 768.79," in the total amount of $15,000. White rejected the offer and the case proceeded to trial, resulting in a net verdict of $8,025. Steak and Ale then moved to recover fees and costs under section 768.79(6), Florida Statutes (1993)....

...White appealed to the Second District, which affirmed the trial court, citing Mincin, and certified conflict with Perez. See White, 779 So.2d at 528. ANALYSIS In resolving the conflict between the district courts, we begin with the language of the controlling statute, section 768.79. Specifically, section 768.79(6) sets forth how the court must determine whether the offeror is entitled to recover attorneys' fees and costs: Upon motion made by the offeror within 30 days after the entry of judgment or after voluntary or involuntary dismissal, th...

...amounts by which the verdict was reduced. For purposes of the determination required by paragraph (b), the term "judgment obtained" means the amount of the net judgment entered, plus any postoffer settlement amounts by which the verdict was reduced. § 768.79(6), Fla....

...The Third District in Perez and the Fourth District Court of Appeal have disagreed, concluding that a trial court is required to add taxable costs incurred up to the time *550 of the offer when calculating the judgment obtained for purposes of determining entitlement to attorneys' fees and costs under section 768.79....

...In fact, the "judgment obtained," as defined by statute, is the net judgment entered, plus any post-offer collateral source payments received or due as of the date of the judgment, plus any post-offer settlement amounts by which the verdict was reduced. See § 768.79(6)(b)....

...accrued up to the date of the "offer" to determine the total "judgment." It is this judgment to which the offer must be compared in determining whether to award fees and costs. Id. [5] In summary, we conclude that the "judgment obtained" pursuant to section 768.79 includes the net judgment for damages and any attorneys' fees and taxable costs that could have been included in a final judgment if such final judgment was entered on the date of the offer....

...WELLS, C.J., and SHAW, ANSTEAD, LEWIS, and QUINCE, JJ., concur. HARDING, J., concurs in part and dissents in part with an opinion. HARDING, J., concurring in part and dissenting in part. In order to determine whether the term "judgment obtained" in section 768.79 includes costs, one must first determine whether the offer of judgment included costs....

...the making of the offer." § 45.061(2)(b), Fla. Stat. (1997). Section 627.428 has been interpreted in the same manner. See DeSalvo v. Scottsdale Ins. Co., 705 So.2d 694 (Fla. 1st DCA 1998), review granted, 717 So.2d 537 (Fla. May 20, 1998). Because Section 768.79 serves the same purpose as these statutes, we follow the same reasoning. See Stephenson v. Holiday Rambler, 709 So.2d 139 (Fla. 4th DCA 1998). 721 So.2d at 411-12 (emphasis added) (footnote and some citations omitted). In the Third District, offers and demands for judgment under section 768.79 must include costs. See Clinica Lourdes, Inc. v. Miro, 713 So.2d 1062 (Fla. 3d DCA 1998). Therefore, the Perez court reasoned that if offers or demands are inclusive of costs, then the judgment threshold under section 768.79 must also be inclusive of costs....

...Just as it would "be inherently unfair to force the plaintiff to include costs in his demand for judgment ... and not to include them in determining whether that threshold has been met," Perez, 721 So.2d at 411, it would also be inherently unfair to include costs in the judgment threshold under section 768.79 when it has not been established that the initial offer or demand included costs....

...4th DCA 1993) (holding that the provision in a settlement agreement requiring payment of an unspecified amount of taxable costs was enforceable even though case did not go to trial). Pursuant to the "apples to apples" logic of the Perez court, since Steak and Ale's offer was exclusive of costs, then the judgment threshold of section 768.79 must also be exclusive of costs....

...v. Ground Improvement Techniques, Inc., 645 So.2d 420, 421-22 (Fla. 1994); Stouffer Hotel Co. v. Teachers Ins., 944 F.Supp. 874, 875 (M.D.Fla.1995). In order to be consistent with these cases, I would require that all future offers made pursuant to section 768.79 be inclusive of costs. [9] In turn, I would also construe the term "judgment obtained" in section 768.79(1)(a) to include taxable costs incurred prior to an offer or demand for judgment....

...the Legislature consolidated the offer of judgment statute with section 45.061, Florida Statutes (1989), a statute entitled "Offers of settlement." Fla. S. Comm. on Insurance, CS for SB 2670 Staff Analysis 7 (May 24, 1990). The Legislature expanded section 768.79 to cover both offers of settlement and judgment, and limited the applicability of section 45.061 to causes of action accruing before October 1, 1990....

...If the defendant rejects an offer for $100,000, the judgment threshold is $125,000. [3] With regard to the dissenting opinion's reference to the Fifth District's 1991 decision in Williams, 578 So.2d at 493, we note that Williams was decided under a prior version of section 768.79. Unlike the current version of section 768.79, the prior version dealt only with offers of judgment....

...atters for one stated sum whereas a plaintiff, accepting an Offer of Judgment (for damage claims) would still be entitled to an award of taxable costs under section 57.041, Florida Statutes. Williams, 578 So.2d at 493. Because the present version of section 768.79 does not make the distinction between offers of judgment and offers to settle, the reasoning in Williams is no longer applicable....

...ing whether to settle."), aff'd, 101 F.3d 707 (11th Cir.1996). [5] Although Danis and Scottsdale involved an award of attorneys' fees under section 627.428, we see no reason why this rationale should not apply equally to offers or demands made under section 768.79(6)....

...entitled to an award of taxable costs under section 57.041, Florida Statutes. 578 So.2d at 493. The majority opinion claims that "Williams was decided under a predecessor statute before offers of judgment and offers to settle were consolidated into section 768.79." Majority op. at n. 3. Actually, the Williams court was interpreting section 768.79, the offer of judgment statute, and comparing it to section 45.061, the offer of settlement statute. Recognizing that there was confusion regarding these two similar statutes, the Legislature in 1990 consolidated the two statutes into section 768.79, in essence eliminating section 45.061 except for those causes of action that accrued on or before October 1, 1990. See CS/HB 2670 (1990) Staff Analysis 7 (May 24, 1990). However, section 768.79 the offer of judgment statute—remained in effect, and therefore the reasoning of the Williams court with regard to offers of judgment is still applicable despite the changes that occurred in 1990....

...In Stephenson, the defendant initially made an offer of judgment to pay the plaintiff $10,000 inclusive of attorney's fees. The parties later settled and a judgment was entered for $4,450, exclusive of fees. The parties agreed that both sides could still seek an award of attorney's fees under section 768.79....

...MOTION FOR REHEARING, CLARIFICATION AND CERTIFICATION DENIED. PLEUS and MONACO, JJ., concur. NOTES [1] As to the issue raised by Perez-Melendez in her cross-appeal regarding the trial court's refusal to apply a contingency risk multiplier to the fee awarded her pursuant to section 768.79, Florida Statutes, we affirm based on our decision in Allstate Ins....

...y's fees and costs against her in favor of Appellee ("Insurer") after she did not prevail in her claim for damages under the personal injury protection ("PIP") provision of her insurance policy. Fees were awarded under the offer of judgment statute, section 768.79, Florida Statutes (1999)....

...Alternatively, Insured contends that the proposal for settlement was not valid because it did not comply with the proposal for settlement rule. The county court rejected both contentions but did certify the following issue to this court as a question of great public importance: Are proposals for settlement served pursuant to section 768.79, Florida Statutes, and Florida Rule of Civil Procedure 1.442 in actions to recover personal injury benefits valid and enforceable or applicable to PIP suits? We exercise our discretionary jurisdiction to answer the question and review the underlying cause. Fla. R.App. P. 9.030(b)(4)(A). We rephrase the certified question, however, as follows: May an insurer recover attorney's fees under rule 1.442, Florida Rules of Civil Procedure, and section 768.79, Florida Statutes, in an action brought by its insured to recover under a personal injury protection policy? We answer the question in the affirmative....

...ims, causes of action, etc., that have *745 accrued through the date of [Insured's] acceptance of this proposal." The case proceeded to jury trial, and verdict was rendered in favor of Insurer. Because the judgment was of "no liability," pursuant to section 768.79(1), Florida Statutes, the trial court awarded to Insurer its reasonable attorneys fees and costs incurred since the offer was served, in an amount totalling $23,199.00....

...es. We certify to the Florida Supreme Court, as a question of great public importance, however, the first question addressed in this opinion, to-wit: *747 May an insurer recover attorney's fees under rule 1.442, Florida Rules of Civil Procedure, and section 768.79, Florida Statutes, in an action by its insured to recover under a personal injury protection policy? REVERSED; QUESTION CERTIFIED....

...concurring in part; dissenting in part, with opinion. SAWAYA, J., concurring in part, dissenting in part. I concur with the majority that the order awarding attorney's fees must be reversed. However, I respectfully disagree that the offer of judgment statute found in section 768.79, Florida Statutes, applies to PIP cases. In my view, application of section 768.79 to PIP cases would completely thwart and circumvent the purposes of the Florida Motor Vehicle No-Fault Law [1] (the No-Fault Act) and PIP benefits. Moreover, I believe that the Legislature never intended a suit to recover PIP benefits to be an action for damages under section 768.79....

...ieve that the question certified should be rephrased as follows to reflect the true nature of a suit to recover PIP benefits and answered in the negative: May an insurer recover attorney's fees under rule 1.442, Florida Rules of Civil Procedure, and section 768.79, Florida Statutes, in an action brought by its insured to recover personal injury protection benefits under the insurance policy issued to the insured? Application of the Offer of Judgment Statute Would Circumvent the Purposes of the No-Fault Law and Pip Benefits In order to properly determine whether the offer of judgment statute found in section 768.79, Florida Statutes (2001), applies to PIP cases, it is necessary to start with the firmly established rule that "[l]egislative intent, as always, is the polestar that guides a court's inquiry under the Florida No-Fault Law...." United Auto. Ins. Co. v. Rodriguez, 808 So.2d 82, 85 (Fla.2001). In my view, application of section 768.79 to PIP cases would completely circumvent and thwart the purposes of the No-Fault Act and the specific provisions relating to PIP benefits found in section 627.736. Therefore, it is clear to me that the Legislature certainly did not intend for section 768.79 to apply to PIP cases....

...h leverage over the insureds, who are dependent on the fair and speedy payment of their necessary medical bills from their insurance carrier so they will continue to have access to necessary medical care. Hence, an award of fees to the insurer under section 768.79 would circumvent the purposes of assuring swift and virtually automatic payment of benefits and, instead of discouraging insurers from contesting valid claims, it would have the effect of encouraging the contest of valid claims. Furthermore, an award of fees to the insurer under section 768.79 would completely vitiate the purpose of imposing a penalty on the insurer under section 627.428. Moreover, because section 768.79 is punitive in nature, [3] an award of fees to the insurer would actually impose a penalty on the insured. I do not believe that the Legislature intended this result in enacting the No-Fault Act or section 768.79. I also believe that imposition of attorney's fees on the insureds pursuant to section 768.79 could totally offset the insureds' benefit awards for these essential medical costs and leave the insureds with unpaid medical bills that could potentially cause a cessation of their medical care....

...Surely, the Legislature did not intend for such calamities to occur to insureds who were, according to the court in Lasky, given "an assurance that [they] would receive some economic aid in meeting medical expenses and the like...." Imposition of fees pursuant to section 768.79 would, in my view, constitute a breach of that assurance and could potentially place many injured insureds in "dire financial circumstances with the possibility of swelling the public relief rolls" — a circumstance the court in Lasky indicated should not occur....

...rovided in the statute. Payment of the injured insureds' necessarily-incurred medical bills and continuation of their medical care is far too important to be subjected to the uncertainties of the offer of judgment statute. In my view, application of section 768.79 to PIP cases, with its inherent uncertainties and risks, has completely abrogated the security and the assurance that injured insureds were promised by the Legislature through the No-Fault Act....

...The Florida Supreme Court recognized that section 627.428(1) is a "one-way street offering the potential for attorneys' fees only to the insured or beneficiary." Danis Indus. Corp. v. Ground Improvement Techniques, Inc., 645 So.2d 420, 421 (Fla. 1994). Because of the imposition of fees pursuant to section 768.79, instead of traveling down an unobstructed one-way street to recovery as intended by the Legislature, many injured insureds may find themselves stuck in front of a toll booth erected and maintained by their insurance companies without sufficient funds for passage through. This certainly is not the intention of the Legislature. Section 768.79 is part of Chapter 768, Florida Statutes, wherein the Legislature included section 768.71(3), which provides that "[i]f a provision of this part is in conflict with any other provision of the Florida Statutes, such other provision shal...

...This provision is significant because section 627.428 would apply to PIP cases regardless of the provisions of section 627.736(8). In my view, the Legislature intended that the specific provisions of section 627.428 should apply over the general provisions of section 768.79....

...fees to the insured be a one-way street, especially in light of the fact that the Legislature again failed to make provision for fees to the insurer. Whether the Legislature Intended a Suit to Recover Pip Benefits to be an "Action for Damages" Under Section 768.79. I begin this section by re-emphasizing that "Legislative intent, as always, is the polestar that guides a court's inquiry under the No-Fault Law." Rodriguez, 808 So.2d at 85. The Legislature has clearly indicated that section 768.79 applies to "any civil action for damages." This raises the obvious issue whether the Legislature intended a suit to recover PIP benefits to be an action for damages under section 768.79....

...benefits that replaces the common law suit for damages, as discussed in the first part of my dissent, clearly indicate to me that the Legislature never intended or *752 even considered a suit to recover PIP benefits to be an action for damages under section 768.79. Other indicators that lead me to that conclusion include the statutory rules of construction that must be applied to any interpretation of section 768.79, the plain and ordinary meaning of an "action for damages," and the language in many of the decisions rendered by Florida courts that have discussed actions to recover PIP benefits. The courts have specifically held that because section 768.79 is in derogation of the common law and imposes a penalty, it must be strictly construed and must never be "`extended by construction.'" Hilyer Sod, 817 So.2d at 1054 (quoting Holmberg v....

...Rolling Hills Place Inc., 688 So.2d 937, 940 (Fla. 5th DCA 1996) (holding that the injured party is entitled to recover any and all damages flowing from the breach that were reasonably foreseeable by the breaching party). Moreover, "[i]t is undisputed that section 768.79, Florida Statutes, applies only to actions for money damages." Burtman v....

...rongdoer to recover compensation in the form of money damages for the full measure of the loss or injury that was naturally and proximately caused by the wrongful act in order to make the injured party whole. The term "any" means that application of section 768.79 is not limited to negligence actions, but applies to other tort actions and to actions for breach of contract....

...Hence, the statute does not even allow for full recovery of these costs. Because a PIP suit does not fall within the plain and ordinary meaning of an "action for damages" and because we must assume that the Legislature knew the plain and ordinary meaning of an "action for damages" when it enacted section 768.79, I am convinced that the Legislature never intended a PIP suit to be subject to the provisions of section 768.79....

...U.S. Sec. Ins. Co., 823 So.2d 201 (Fla. 3d DCA 2002), review denied, No. SC02-1926, 842 So.2d 848 (Fla. Mar.4, 2003). *756 The Decision in U.S. Security Insurance Co. v. Cahuasqui [9] The majority relies on the decision in Cahuasqui in concluding that section 768.79 applies to PIP cases....

...the majority opinion in Cahuasqui is wrongly decided, I will provide only brief comment on that decision. First, unlike the majority in Cahuasqui, I discern major differences between PIP cases and other insurance cases where the courts have applied section 768.79....

...Ins. Co. v. Kilbreath, 419 So.2d 632, 634 (Fla.1982) (citing Dewberry v. Auto-Owners Ins. Co., 363 So.2d 1077 (Fla. 1978)). Because PIP insurance is no-fault insurance that differs significantly from other forms of insurance, decisions which apply section 768.79 to those other forms of insurance do not compel application of the statute to PIP cases. Second, I disagree with the majority in Cahuasqui that the decision in Scottsdale Insurance Co. v. DeSalvo, 748 So.2d 941 (Fla.1999), supports its ruling that section 768.79 applies to PIP cases to allow the insurer to recover fees from the insured....

...of fees to the insured. I certainly do not read DeSalvo to hold that the insurer is entitled to fees in the event the insured does not recover more than the amount of the offer. Conclusion I strongly believe that the Legislature never intended that section 768.79 apply to PIP cases because its application would completely thwart the purposes of the No-Fault Act and PIP benefits. I am also convinced that the Legislature never intended a suit to enforce a PIP policy to recover the benefits provided thereunder to be an "action for damages" under section 768.79. Hence, the certified question, as rephrased, should be answered in the negative. NOTES [1] Section 768.79(7)(a), Florida Statutes, gives the trial court discretion to deny attorneys fees if the proposal is not made in good faith....

...ly construed because the procedure is in derogation of the common law and is penal in nature."), approved, 849 So.2d 276, 2003 WL 1089304 (Fla. Mar. 13, 2003); Schussel v. Ladd Hairdressers, Inc., 736 So.2d 776, 778 (Fla. 4th DCA 1999) (noting that "section 768.79 and Florida Rule of Civil Procedure 1.442 are punitive in nature ....") (citing TGI Friday's, Inc....

...fer of judgment, Plaintiffs proposed settlement as follows: COME NOW the Plaintiffs, ROYAL MENDE BASEL and STEVEN KANE as Co-Plenary Guardians of the person and property of MARK VICTOR BASEL, by and through their undersigned counsel, and pursuant to § 768.79, Florida Statutes, hereby serves this Offer of Judgment on Defendants, McFARLAND & SONS, INC., a foreign corporation, JONATHAN QUEEN, and BETTY ANN SWIFT, as Personal Representative of the Estate of JEAN ANN HARTY BASEL, deceased, in the amount of Two Million Dollars *270 ($2,000,000.00) as to the claims pending against Defendants. This Offer of Judgment is being served on Defendants jointly. Post-trial, Plaintiffs moved for attorneys' fees and costs pursuant to section 768.79....

...This case involves an offer of judgment in the amount of $100. The trial judge found it in good faith and awarded fees. We affirm the award because the record fully supports the determination but write to address "nominal" [1] offers of settlement *332 under section 768.79....

...efamation, and interference with a contract. Defendants first responded with a motion to dismiss the complaint on the basis that it failed to state a cause of action. [3] Along with their initial response, they also served an offer of judgment under section 768.79, Florida Statutes (1993), proposing to settle all claims for $100....

...The trial court granted the motion and entered final judgment. Plaintiff appealed the judgment, but the appeal was dismissed when he failed to file a brief. Following the dismissal of the appeal, the trial court concluded that defendants were entitled to attorney's fees under section 768.79 on the basis of their unaccepted offer of judgment....

...The claim in suit, we note, ultimately brought a jury to deadlock. Therefore, even viewing such offers with "considerable skepticism," Eagleman, 673 So.2d at 948, proof of bad faith requires a showing beyond the mere amount of the offer. We stress that the question of good faith in making an offer under section 768.79 involves an inquiry into the circumstances shown by the entire record of the case....

...ffer was nominal. Some nominal offers will have been made in good faith; some not so. The trial judge will have to consider all the surrounding circumstances when the offer was made. If the cases reaching us are any guide, offers of settlement under section 768.79 are pervasive, and there is widespread disagreement among trial judges and lawyers as to the meaning of the "not in good faith" provision of the statute....

...ce to the supreme court: Is a mere purpose to shift fees by making a nominal offer of settlement, regardless of the objective indications at the time of making the offer or after the final disposition of the case, alone indicative of bad faith under section 768.79? In this instance, we affirm the trial judge's finding that this nominal offer was made in good faith because there was no showing by the offeree that it was in bad faith apart from the offer itself....

...He might also base an offer on a perceived advantage as to who the trial judge or claimant's lawyer is. Another reasonable basis could be simply to open negotiations—for there is nothing in the statute to suggest that a defendant could not employ the section 768.79 mechanism merely to begin the process of proposals and counterproposals that often lead to a settlement....

...Shuster therefore raises considerable doubt in my mind that an adverse party without any fiduciary ties would be precluded from offering in good faith to settle a suit against itself for a purely nominal sum to establish a basis for attorney's fees later. While I agree that the legislature intended section 768.79 to play some role in encouraging settlements, see ch....

...of ill will." Bosso, 426 So.2d at 1212. I do not deem making use of a statutory right to fees to be the equivalent of maliciously inflicting unwarranted financial harm on an adverse party. Again, it was undeniably a principal legislative purpose in section 768.79 to create rights to fees in connection with the bringing of some claims, for if the statute does anything else it achieves that result....

...progresses, to be able to obtain legal representation on a contingency arrangement, whereby the defendant's lawyer could agree to be paid by the claimant at the conclusion of the case on the basis of the unaccepted nominal offer of settlement under section 768.79....

...val of all nominal offers. According to the holding in Shuster, the carrier for an insured who has been sued for damages is authorized to offer a nominal sum without investigation to settle a claim against its insured, and presumably may do so under section 768.79....

...ing a purely nominal sum to settle within policy limits without any assessment of liability and damages. As the legislature must be presumed to have been aware of the very narrow meaning of good faith in contract applications in crafting what became section 768.79(7), I necessarily presume that in using the words, "not in good faith," it must have had a similar concept in mind. While I thus acknowledge this plain meaning of section 768.79(7), I nonetheless also express my uneasiness at the unfairness of allowing defendants so easily to set a predicate for fees but denying a mutual predicate in favor of claimants. For while there is no disincentive under section 768.79 for a defendant to offer a nominal sum at the very beginning of the litigation, and without any record basis for supposing that the claim is almost certain to result in a defense verdict, there is a very good reason in some cases why a...

...ke. Thus, although I conclude that we are not free to read the present statutory text to hold that all nominal offers of judgment are indicative of bad faith, I hope the legislature will reconsider the current statutory basis for avoiding fees under section 768.79(7) and strike a corresponding balance in favor of claimants....

...Silow, 714 So.2d 647 (Fla. 4th DCA 1998). Although as a panel member in Silow I agreed with our decision upholding an offer of judgment in the amount of $100, I have now come to believe that nominal offers of judgment are not good faith offers under section 768.79, Florida Statutes (1997)....

...its counterpart in other areas of the law. We are accustomed to dealing with nominal damages, nominal capital, nominal parties, nominal value and nominal consideration. It is useful to denote offers of settlement where the sum offered is small. [2] § 768.79, Fla.Stat....

...lawsuit brought against them by Tralins and Associates, a professional association d/b/a Tralins & Richman ("Tralins suit"). During the course of the Tralins suit, the plaintiffs served a demand for judgment against the Holds for $50,000 pursuant to section 768.79, Florida Statutes (1993)....

...Thereafter, on August 21, 1995, a federal magistrate conducted an evidentiary hearing on the plaintiffs motion for fees and costs in the Tralins suit and recommended in its report that the plaintiffs motion be granted for $100,000.83. The magistrate found Tanker, and several Florida Supreme Court decisions [1] holding section 768.79 to be substantive in nature, to be dispositive....

...against the Holds on October 3, 1995. This final judgment was not appealed. The Holds then brought this legal malpractice and breach of fiduciary duty action against the Manzini firm for its alleged negligent legal advice about the applicability of section 768.79 to the Tralins suit....

...Allen, P.A., Jacksonville, for Appellant. Steven J. Guardiano, Daytona Beach, for Appellee. ORFINGER, J. Paula Mills appeals the trial court's order denying her request for attorney's fees based on a finding that her proposal of settlement was filed prematurely with the court contrary to section 768.79(3), Florida Statutes (2004), and Florida Rule of Civil Procedure 1.442(d)....

...For the reasons discussed hereafter, we reverse. After obtaining a favorable verdict in her breach of contract action against Emanuel Martinez, Mills filed a post-trial motion seeking attorney's fees based on an offer of judgment or settlement proposal she had served on Martinez pursuant to section 768.79 and rule 1.442. The trial judge entered an "Order on Post Trial Motions," concluding that Mills was entitled to an award of attorney's fees pursuant to section 768.79 and rule 1.442, while noting that both the amount and the entitlement to attorney's fees were disputed by Martinez....

...Final judgments or orders "determine the rights and liabilities of all parties with reference to the matters in controversy and leave nothing of a judicial character to be done." Id. at 539. *343 McGurn v. Scott, 596 So.2d 1042, 1043-44 (Fla.1992). Mills also argues that the trial court's use of rule 1.442(d) and section 768.79(3) as a sanction to deny her attorney's fees was error. Rule 1.442(d) provides: (d) Service and Filing. A proposal shall be served on the party or parties to whom it is made but shall not be filed unless necessary to enforce the provisions of this rule. Fla. R. Civ. P. 1.442(d) (emphasis added). Section 768.79(3) provides: (3) The offer shall be served upon the party to whom it is made, but it shall not be filed unless it is accepted or unless filing is necessary to enforce the provisions of this section. § 768.79(3), Fla....

...2d DCA 2002), holds that because the time requirements of rule 1.442 are to be strictly construed, a prematurely filed offer is void. That holding was, at least in part, premised on Schussel v. Ladd Hairdressers, Inc., 736 So.2d 776, 778 (Fla. 4th DCA 1999), which construed the provisions of section 768.79 and rule 1.442 to be punitive in nature and, therefore, subject to strict construction....

...NOTES [1] Because of our reversal for a new trial, we do not reach the issue raised by appellant/cross-appellee Allstate Insurance Company as to whether the trial court improperly failed to award attorney's fees pursuant to the offer of judgment statute, section 768.79, Florida Statutes (1993)....

...We reverse and remand. Appellant Makar sued appellees Credit Bureau and Credit Control for their repeated failure to delete erroneous and detrimental information from Makar's credit file. The appellees each offered a $25.00 settlement to Makar pursuant to Sections 768.79 and 45.061, Florida Statutes (1987), which Makar rejected....

...Appellees moved for costs against Makar, and the trial court awarded Credit Bureau $436.50 and Credit Control $2,148.75 in attorney's fees, pursuant to the costs provision of Florida Rules of Civil Procedure 1.420(d) and the offer of judgment and settlement provisions of sections 768.79 and 45.061....

...We conclude that the trial court erred in interpreting these statutes as authorizing an award of attorney's fees following a voluntary dismissal. Attorney's fees are recoverable as taxable costs pursuant to Rule 1.420(d), if specifically authorized by statute. Campbell v. Maze, 339 So.2d 202, 203 (Fla. 1976). Under section 768.79(1)(a), a defendant is entitled to recover costs and attorney's fees following an offer of judgment that the plaintiff did not accept, " if the judgment obtained by the plaintiff is at least 25 percent less than such offer." (Emphasis a...

...denied, 222 So.2d 751 (Fla. 1969). A voluntary dismissal operates as an adjudication on the merits only when a plaintiff has previously dismissed an action involving the same claim. Fla.R.Civ.P. 1.420(a)(1). Appellant had not previously dismissed this action. Sections 768.79 and 45.061 are comparable to Section 627.428(1), Florida Statutes (1979), which requires a trial court to award attorney's fees "[u]pon the rendition of a judgment or decree." As observed by the Second District: "The paramount condition is the...

...ime for serving a motion for them is not meritorious. She argues that the supreme court's decision in Gulliver Academy, Inc. v. Bodek, 694 So.2d 675 (Fla.1997), applies to the present case by analogy. Gulliver dealt with the statutory requirement of § 768.79(6), Florida Statutes, for the filing of a motion for fees and costs in offer of judgment cases within 30 days of the entry of judgment....

...Gregory Giannuzzi of Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A., Tampa, for Appellees. ALTENBERND, Chief Judge. Maria Barnes appeals a judgment awarding attorneys' fees to The Kellogg Company and Albertson's, Inc., based on a proposal for settlement filed pursuant to Florida Rule of Civil Procedure 1.442 and section 768.79, Florida Statutes (1999)....

...Carl's Mkts., Inc., 45 So.2d 671 (Fla.1950); Wagner v. Mars, Inc., 166 So.2d 673 (Fla. 2d DCA 1964). Albertson's and Kellogg were represented by one attorney from the inception of this litigation. In December 1999, that attorney filed a proposal for settlement pursuant to rule 1.442 and section 768.79 in the amount of $95,000....

...emselves. They are jointly and severally liable for all damages. Under these circumstances, we see nothing improper with a joint offer. If anything, authorizing joint offers in such cases will facilitate settlements, which is the intended purpose of section 768.79....

...April 25, 1991. *492 Brent C. Miller of Jacobs & Goodman, P.A., Altamonte Springs, for appellant/cross-appellee. David B. Falstad of Gurney & Handley, P.A., Orlando, for appellee/cross-appellant. COWART, Judge. This case involves an interpretation of section 768.79(1), Florida Statutes (1986), [1] which provides as follows: (1)(a) In any action to which this part applies, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitl...

...which was also made less than 30 days before trial. (3) The Florida Supreme Court recently rejected the argument that a party is precluded from recovering costs and attorney's fees under rules and statutes such as Rule 1.442 and sections 45.061 and 768.79, Florida Statutes, when an insurance company or other third party pays or advances those costs or fees....

...Rather than remanding for further judicial labor on this point, we reduce the attorney's fees award to $5,315 ($6,400 less $1,085) and modify the defendant's judgment herein by reducing it ($6,736.30 less $1,085) to $5,651.30. The defendant has moved for attorney's fees on appeal pursuant to sections 59.46 and 768.79, Florida Statutes....

...t's recovery for costs ($1,900.80) and attorney's fees ($5,315.00 after modification on appeal) exceeded the plaintiff's recovery of $1,564.50 for damages and costs by $5,651.30. However, the plaintiff did obtain a judgment [7] within the meaning of section 768.79, Florida Statutes, thereby entitling the defendant to recover reasonable costs and attorney's fees incurred from the date of filing of the first Offer of Judgment. Although we find no case in point, because an appeal is but part of the same action being appealed, we perceive no reason why a defendant's right to recover reasonable costs and attorney's fees under section 768.79(1) does not apply to those incurred on appeal in the same action. Therefore, the defendant's motion for attorney's fees on appeal is granted and we remand for the trial court to determine the reasonable amount thereof. AFFIRMED AS MODIFIED; REMANDED. GOSHORN and HARRIS, JJ., concur. NOTES [1] We note that section 768.79(1), Florida Statutes, has been amended by Ch....

...[3] Costs are incidental to an action and are not part of the damages. See, Louisville and Nashville Railroad Co. v. Sutton, 54 Fla. 247, 44 So. 946 (1907); Trawick, Florida Practice and Procedure § 25-12, Costs, p. 377 (1990). [4] For a discussion of the uncertain relationship between Rule 1.442 and sections 768.79 and 45.061, Florida Statutes, see, generally, Vocelle, L....

...2d DCA 1990); Gunn v. DePaoli, 562 So.2d 427 (Fla. 2d DCA 1990); Makar v. Investors Real Estate Management, Inc., 553 So.2d 298 (Fla. 1st DCA 1989), Rabatie v. U.S. Security Ins. Co., 14 F.L.W. 1753 (Fla. 3d DCA 1989) (on rehearing). See also the amendment to section 768.79, Florida Statutes, Ch....

...Oriental Imports, Inc., Aubrey Lee Potts, and Tamiko Potts (collectively referred to as Oriental), defendants below, appeal the denial of an award of costs and attorneys fees after receiving a favorable jury verdict in a negligence action. Oriental made two pre-trial offers of judgment, pursuant to Section 768.79, Florida Statutes (1987), which the plaintiffs failed to accept. Oriental requested attorneys fees pursuant to section 768.79 and costs pursuant to section 57.041 of the Florida Statutes. Both requests were denied. The questions presented are: (1) whether a defendant, who has made an offer of judgment and who has received a favorable jury verdict, may be awarded attorneys fees pursuant to section 768.79; and (2) whether under section 57.041, a judge has discretion to deny recovery of costs to the prevailing party. The answer to both questions is no. Section 768.79(1)(a) provides: In any action to which this part applies, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney's fees...

...The lack of apportionment between claimants is a matter of indifference to the defendant. If he accepts, he is entitled to be released by both claimants. Cf. Flight Express, Inc. v. Robinson, 736 So.2d 796 (Fla. 3d DCA 1999). Nor was it void for failure to expressly reference section 768.79, Florida Statutes....

...Wilson had submitted two pre-trial offers of judgment. The first [was submitted] on May 28, 1996.... On August 26, 1996, Wilson served the second offer ("the August 26th offer") of judgment as follows: Defendant, WILSON ICE ENTERPRISES, INC., a Florida Corporation, pursuant to Section 768.79, Florida Statutes, hereby makes this Offer of Judgment to the Plaintiff, MGR EQUIPMENT CORP., a foreign corporation, in the amount of $5000.00, along with return of the eleven (11) Model DC-44 MGR ice dispensers to MGR EQUIPMENT CORPORATION....

...The Fifth District held that "the August 26th offer meets the requirements of the statute because even though it does not specifically mention the fate of Wilson's counterclaim, ... [it is] require[d] that offers be read as encompassing `all damages which might be awarded in the final judgment.' § 768.79(2), Fla. Stat. (1995)." MGR, 706 So.2d at 378. We agree. Generally, section 768.79 creates a right to reasonable costs and attorney fees when two prerequisites have been fulfilled: (1) a party has served a demand or offer for judgment; and (2) that party has recovered a judgment at least twenty-five percent more or less than the demand or offer. See Hannah v. Newkirk, 675 So.2d 112, 114 (Fla.1996); TGI Friday's, Inc. v. Dvorak, 663 So.2d 606, 611 (Fla.1995). In order to satisfy the technical requirements of section 768.79(2), An offer must: (a) Be in writing and state that it is being made pursuant to this section. (b) Name the party making it and the party to whom it is being made. (c) State with particularity the amount offered to settle a claim for punitive damages, if any. (d) State its total amount. § 768.79(2), Fla....

...aging parties to exercise their "organic right ... to contract a settlement, which by definition concludes all claims unless the contract of settlement specifies otherwise." Unicare Health Facilities, Inc. v. Mort, 553 So.2d 159, 161 (Fla.1989). See § 768.79(1), Fla....

...and terminate the litigation); Aspen v. Bayless, 564 So.2d 1081, 1083 (Fla.1990). In the present case, Wilson's offer of $5000, along with the return of the icemakers, constituted "all damages which may [have been] awarded in [the] final judgment." § 768.79(2), Fla....

...ot mention the counterclaim because defendant, as offeror, and plaintiffs, as offerees, were parties to the offer of judgment which disposed of "all pending claims" under the agreement), review denied, 700 So.2d 687 (Fla.1997). This broad reading of section 768.79 gives full effect to the statute and its purpose of leading litigants to settle by penalizing those who decline offers that satisfy the statutory requirements....

...ount of the offer, the defendant shall be awarded reasonable costs, including investigative expenses, and attorney's fees ... incurred from the date the offer was served, and the court shall set off such costs and attorney's fees against the award." § 768.79(6)(a), Fla. Stat. (1995). [2] The 1995 version of the Florida Rules of Civil Procedure pertaining to offers of judgment only provided that "[p]arties shall comply with the procedure set forth in section 768.79...." Fla....

...struction is inapplicable to this case; the point is also moot, in any event, as there was no liability in this case as a matter of law. Second, there was no error shown in the trial court's denial of the defendant's motion for attorney's fees under Section 768.79, Florida Statutes (1989) and Fla.R....

...1st DCA 1989) and authorities cited therein. Affirmed. HUBBART and BASKIN, JJ., concur. COPE, Judge (concurring in part and dissenting in part). I join the opinion of the court on the issue of liability. I am unable to agree with the interpretation of section 768.79, Florida Statutes (1989), which is the version of the offer of judgment statute applicable to this case....

...was not accepted by plaintiff, "the defendant shall be entitled to recover reasonable costs and attorney's fees incurred from the date of filing of the offer if the judgment obtained by the plaintiff is at least 25 percent less than such offer... ." § 768.79(1)(a), Fla....

...he plaintiff either is or is not entitled to recover by the remedy chosen... ." Irving Trust Co. v. Kaplan, 155 Fla. 120, 125, 20 So.2d 351, 354 (1944) (emphasis added). The offer of judgment statute refers to a "judgment obtained by the plaintiff," § 768.79(1)(a), not a judgment in favor of plaintiff....

...The court stated "[r]ather than providing for an award of fees, section 44.102(6) alters the time limits for making and accepting an offer of judgment." Id. Therefore, in finding the statute unconstitutional, the Knealing court was persuaded by section 44.102(6)'s failure to "create" a substantive right since section 768.79, Florida Statutes, already created the substantive right to attorney's fees based on an offer of judgment....

...h the procedure for recovering under that right. Moreover, in Knealing, the supreme court noted that in Leapai v. Milton, 595 So.2d 12 (Fla.1992), and Timmons v. Combs, 608 So.2d 1 (Fla.1992), [W]e found sections 45.061, Florida Statutes (1987), and 768.79, Florida Statutes (1989), constitutional despite their procedural aspects because they contained substantive provisions authorizing an award of attorney fees....

...See 675 So.2d at 594. Section 44.102 provided, in pertinent part: (6)(a) When an action is referred to mediation by court order, the time periods for responding to an offer of settlement pursuant to s. 45.061, or to an offer or demand for judgment pursuant to s. 768.79, respectively, shall be tolled until: 1. An impasse has been declared by the mediator; or 2. The mediator has reported to the court that no agreement was reached. (b) Sections 45.061 and 768.79 notwithstanding, an offer of settlement or an offer or demand for judgment may be made at any time after an impasse has been declared by the mediator, or the mediator has reported that no agreement was reached. An offer is deemed rejected as of commencement of trial. Id. at 595-96 (quoting § 44.102, Fla. Stat. (1993)). Section 768.79, "Offer of judgment and demand for judgment," which was cited in subsection (6)(b) of section 44.102, provided, in pertinent part: In any action to which this part applies, if a defendant files an offer of judgment which is not accepte...

...shall be entitled to recover reasonable costs and attorney's fees incurred from the date of filing of the offer if the judgment obtained by the plaintiff is at least 25 percent less than such offer. . . . Id. at 595 n. 4 (emphasis supplied) (quoting § 768.79(1)(a), Fla. Stat. (1989)). This Court concluded that section 44.102 altered procedural portions of section 768.79 which this Court had incorporated into Florida Rule of Civil Procedure 1.442: Rather than providing for an award of fees, section 44.102(6) alters the time limits for making and accepting an offer of judgment. Section 44.102(6)(a) tolls the time periods of section 768.79 as incorporated into Florida Rule of Civil Procedure 1.442 from the date of the *939 order of mediation until the mediation is complete. The result is that a party may have more than the thirty days required by section 768.79 and rule 1.442 to accept an offer. Section 44.102(6)(b) allows a party to make an offer of judgment after mediation ends. As a result, a party may have less than the thirty days required by section 768.79 and rule 1.442 to consider and accept an offer....

...Accordingly, we read section 44.102(6) as setting forth only procedural requirements. Id. at 596 (citation omitted). The Court, noting that a statute which provides parties with the substantive right to receive fees must do so expressly, [4] concluded that even though section 44.102 referenced section 768.79, the former statute did not expressly authorize an award of fees, nor did it provide an independent basis for awarding fees....

...dered mediation has taken place. Specifically, the court found that an offer of judgment made fifteen days after the completion of an unsuccessful mediation and eleven days before trial could *595 serve as a basis to award fees and costs pursuant to section 768.79(1)(a), Florida Statutes (1989)....

...ts with Nordyne, Inc. v. Florida Mobile Home Supply, Inc., 625 So.2d 1283 (Fla. 1st DCA), review dismissed, 630 So.2d 1100 (Fla.1993). Like the Puleo court, the court in Nordyne interpreted section 44.102(6)(b) as altering certain time provisions of section 768.79. However, the Nordyne court found section 44.102(6)(b) unconstitutional because it altered procedural portions of section 768.79 which were adopted as Florida Rule of Civil Procedure by this Court in Timmons v....

...The case went to trial, and the jury thereafter returned a verdict in the plaintiff's favor for $15,000. The verdict was reduced by collateral sources to $5,000, which was more than twenty-five percent below the defendants' offer of judgment. The Puleos moved to assess costs and fees pursuant to section 768.79....

...We therefore approve the court's decision with respect to this issue and move to the second and third issues related to the certified question. The second issue the court considered was whether the Puleos' motion for fees and costs was timely. To answer this question the court examined the language of sections 768.79(1) and 44.102(6), Florida Statutes. Section 44.102(6) provides: (6)(a) When an action is referred to mediation by court order, the time periods for responding to an offer of settlement pursuant to s. 45.061, or to an offer or demand for judgment pursuant to s. 768.79, respectively, shall be tolled until: 1. An impasse has been declared by the mediator; or 2. The mediator has reported to the court that no agreement was reached. *596 (b) Sections 45.061 and 768.79 notwithstanding, an offer of settlement or an offer or demand for judgment may be made at any time after an impasse has been declared by the mediator, or the mediator has reported that no agreement was reached. An offer is deemed rejected as of commencement of trial. The court held that by referencing section 768.79 in section 44.102(6), the legislature intended to make section 768.79 fully applicable to a mediation resulting in an impasse. Puleo, 654 So.2d at 150. Specifically, the Fourth District determined that sections 768.79 and 44.102(6)(b) work in conjunction with one another to enlarge the time in which an offer of judgment can be made....

...offer is made. If the judgment obtained by the plaintiff is at least twenty-five percent less than the offer, the defendant making such an offer will be entitled to fees and costs although the defendant has not complied with the time requirements of section 768.79 as incorporated into Florida Rule of Civil Procedure 1.442....

...882, 37 So.2d 160 (1948); Florida Life Ins. Co. v. Fickes, 613 So.2d 501 (Fla. 5th DCA 1993); Scott v. Scott, 303 So.2d 683 (Fla. 4th DCA 1974). Contrary to the district court's finding in Puleo, section 44.102(6) does not expressly authorize an award of fees simply by referencing section 768.79. Nor does it provide any other independent basis for awarding fees. Rather than providing for an award of fees, section 44.102(6) alters the time limits for making and accepting an offer of judgment. Section 44.102(6)(a) tolls the time periods of section 768.79 as incorporated into Florida Rule of Civil Procedure 1.442 from the date of the order of mediation until the mediation is complete. The result is that a party may have more than the thirty days required by section 768.79 and rule 1.442 to accept an offer. Section 44.102(6)(b) allows a party to make an offer of judgment after mediation ends. As a result, a party may have less than the thirty days required by section 768.79 and rule 1.442 to consider and accept an offer....

...Moreover, the purely procedural nature of section 44.102(6) precludes us from holding it constitutional based upon our decisions in Leapai v. Milton, 595 So.2d 12 (Fla.1992), and Timmons v. Combs, 608 So.2d 1 (Fla. 1992). In Leapai and Timmons we found sections 45.061, Florida Statutes (1987), [5] and 768.79, Florida Statutes (1989), constitutional despite their procedural aspects because they contained substantive provisions authorizing an award of attorney fees. Based on our conclusion that section 44.102(6) is unconstitutional, we hold that an offer of judgment made after an unsuccessful mediation must still comply with the time requirements of section 768.79 as incorporated into Florida Rule of Civil Procedure 1.442. [6] *597 Finally, the district court held that a defendant is not required to inform a plaintiff of its intent to rely on section 44.102 in order to obtain fees and costs pursuant to section 768.79....

...erved. It is so ordered. KOGAN, C.J., and SHAW, GRIMES, HARDING and ANSTEAD, JJ., concur. OVERTON, J., dissents. NOTES [1] All references to section 44.102, Florida Statutes, in this case are to the 1993 version of the statute. [2] All references to section 768.79, Florida Statutes, in this case are to the 1989 version of the statute. [3] In Timmons, this Court repealed a former version of Florida Rule of Civil Procedure 1.442 and adopted a new version of the rule which incorporated the procedural portions of section 768.79, Florida Statutes. [4] Section 768.79, Florida Statutes (1989), provides in pertinent part: (1)(a) In any action to which this part applies, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to...

...ith respect to causes of action accruing after October 1, 1990. Ch. 90-119, § 22, Laws of Fla. Although the cause of action in this case accrued before that date, section 45.061 was not applicable here because the Puleos' motion was based solely on section 768.79....

...5th DCA 1996). The issue before the district court in Ong was whether section 44.102(6)(a) was unconstitutional. The plaintiff served a demand for judgment and after obtaining a judgment for twenty-five percent more than the demand moved for fees pursuant to section 768.79. The defendants claimed the thirty-day acceptance period provided in section 768.79 had not elapsed due to the tolling provision in section 44.102(6)(a) and that the plaintiff was thus not entitled to fees....

...PRYOR, Circuit Judge: The trustee for the estate of Terri L. Steffen appeals an award of attorney’s fees to Akerman, Senterfitt, & Eidson, P.A., and attorney Michael I. Goldberg (collectively “Akerman”) under Florida law. Fla. Stat. § 768.79. Steffen argues that section 768.79 is inapplicable in a bankruptcy case and its plain language applies to cases brought only in the “courts of” Florida. Steffen also argues that section 768.79 is preempted by Federal Rule of Civil Procedure 68. Finally, Steffen contends that the district court abused its discretion by denying her requests for discovery and an evidentiary hearing. These arguments fail. Section 768.79 applies in this bankruptcy proceeding, cannot be interpreted to discriminate against a federal forum, and is not preempted by Rule 68....

...App’x 297. In 2003, Steffen filed a one-count complaint for legal malpractice against Akerman as an adversary proceeding in the bankruptcy court, and the district court later withdrew the reference to the bankruptcy court. Akerman served Steffen with an offer to settle in the amount of $10,000 under section 768.79 of the Florida Statutes, but this offer did not apportion liability between the law firm and Goldberg....

...s conditioned upon the acceptance by Steffen of the offer from each defendant. Steffen did not accept either offer. The district court granted summary judgment in favor of Akerman, and we affirmed. Akerman moved for attorney’s fees under section 768.79 of the Florida Statutes....

...Payco Gen. Am. Credits, Inc., 363 F.3d 1113, 1121 (11th Cir. 2004). III. DISCUSSION We address Steffen’s arguments in two parts. First, we conclude that the district court did not err when it applied section 768.79 in this bankruptcy proceeding. Second, we conclude that the district court did not abuse its discretion when it denied Steffen’s requests for discovery and an evidentiary hearing. A. The District Court Correctly Applied Section 768.79 in This Bankruptcy Proceeding. A Florida statute provides, “In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney’s fees . . . if the judgment is one of no liability . . . .” Fla. Stat. § 768.79(1)....

...offer of settlement that Steffen rejected, and a judgment of no liability was entered later in favor of 7 Akerman. The main question in this appeal is whether the district court was bound to apply section 768.79 in this non-core bankruptcy proceeding. Steffen argues that section 768.79 is inapplicable for two reasons. First, Steffen argues that section 768.79 does not apply in bankruptcy proceedings. Second, Steffen argues that section 768.79 is preempted by Federal Rule of Civil Procedure 68. These arguments fail. 1. Section 768.79 Applies in Bankruptcy Proceedings. Steffen argues that section 768.79 is not substantive law in bankruptcy proceedings, but we disagree. We have held that section 768.79 is substantive law in diversity cases, Jones v....

...See Colwell v. Royal Int’l Trading Corp. (In re Colwell), 196 F.3d 1225, 1226 (11th Cir. 1999); Fruehauf Corp. v. Revitz (In re Transystems, Inc.), 569 F.2d 1364, 1366 (5th Cir. 1978). Steffen’s malpractice claim is governed by Florida law in the bankruptcy court, and section 768.79 applies to this appeal. Steffen also argues that the plain language of section 768.79 precludes its application to actions filed in federal court. Section 768.79 applies to “any civil action for damages filed in the courts of” Florida. Fla. Stat. § 768.79(1)....

...urts in the state of Florida”); Keesee v. Bank of Am., NA, 371 F. Supp. 2d 1370, 1376 n.3 (M.D. Fla. 2005) (“Although [the] Florida legislature may have a strong policy favoring the reduction of court case loads [evident from the enactment of section 768.79], that policy appears self-evidently limited to Florida courts.” (citation omitted)). This argument fails for two reasons. First, the language of section 768.79 does not bar its application to claims based on state law that are filed in federal court....

...The district and bankruptcy courts of our Circuit that are located in Florida are courts of Florida because they adjudicate claims under Florida law and are a part of the judicial system in that state. At least one Florida court has explained that section 768.79 “applies to all civil actions for damages brought in Florida.” Marcy v. Daimlerchrysler Corp., 921 So. 2d 781, 785 (Fla. Dist. Ct. App. 2006). Second, even if we were to read “filed in the courts of [Florida]” as an attempt by the Florida Legislature to limit the application of section 768.79 to actions brought 9 in Florida courts, that attempt would fail because Florida cannot discriminate against a federal forum....

...As Justice Brandeis several decades ago wrote for a unanimous Court, “[a] state may not discriminate against rights arising under federal laws.” McKnett v. St. Louis & S.F. Ry. Co., 292 U.S. 230, 234, 54 S. Ct. 690, 692 (1934). Steffen argues that the application of section 768.79 would frustrate the purpose of the Bankruptcy Code because it would punish a debtor’s estate for the 10 pursuit of a claim in a bankruptcy proceeding....

...v. Martinez (In re Martinez), 416 F.3d 1286, 1288 (11th Cir. 2005) (affirming an award of fees in a bankruptcy proceeding under the reciprocal attorney’s fees statute in Florida, Fla. Stat. § 57.105(6)). Steffen’s argument that the application of section 768.79 in a bankruptcy case “subjects bankruptcy estates to penalties for unsuccessfully pursuing claims 11 authorized by a bankruptcy court” is unpersuasive. The statute would “penalize” the estate only if the estate did not accept a reasonable settlement offer made in good faith. Fla. Stat. § 768.79....

...The goal of the statute, which is to make whole a party forced to litigate after a reasonable settlement offer is rejected, does not conflict with the purposes of the Bankruptcy Code. The statute seeks to encourage settlement and to conserve judicial resources. 2. Rule 68 Does Not Preempt Section 768.79. Steffen also argues that Rule 68 preempts section 768.79....

...settlement and they directly conflict. Again, we disagree. Federal law preempts a state statute when the two directly conflict, N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 654, 115 S. Ct. 1671, 1676 (1995), but section 768.79 and Rule 68 do not conflict. Section 768.79 provides for the recovery of attorney’s fees and other costs, but Rule 68 provides for an award of only costs. Compare Fla. Stat. § 12 768.79 with Fed. R. Civ. P. 68. Section 768.79 also addresses offers of judgment, demands for judgment, and offers of settlement and does not require the entry of a judgment as a prerequisite. Fla. Stat. § 768.79; see also Abbott & Purdy Group, Inc....

...Rule 68 applies only to offers of judgment, so a “judgment [against the defendant] on specified terms” is required. Fed. R. Civ. P. 68; see also Bell, 738 So. 2d at 1027. Eighteen years ago, we concluded that the predecessor to the current version of section 768.79 was not preempted by Rule 68, Tanker Mgmt., Inc....

...1990), and that decision controls our resolution of this issue. In Tanker, the defendant made three offers that the plaintiff rejected: a proposal for settlement under section 45.061 of the Florida Statutes, an offer of judgment under an earlier version of section 768.79, and an offer of judgment under Rule 68....

...We concluded that Rule 68 did not support the award because it allowed an award of only costs “unless the underlying statute that creates the cause of action expressly provides that attorney’s fees are recoverable 13 as costs.” Id. We concluded that the earlier version of section 768.79 did not support the award because that version did not apply to a prevailing defendant....

...“Rule 68 concerns only [costs] and offers of judgment, while [section 45.061] concerns attorney’s fees, offers of judgment and settlement offers.” Id. We explained that Rule 68 was “in no way applicable to settlement offers.” Id. at 1529. In 1990, the Florida Legislature consolidated sections 768.79 and 45.061 into the current version of section 768.79, and this new provision addresses offers of judgment, demands for judgment, and offers of settlement and provides for awards of costs and attorney’s fees to either party. Akerman made offers of settlement to Steffen like the...

...a judgment be entered in favor of the offeree. Fed. R. Civ. P. 68; see also Bell, 738 So. 2d at 1027. The offers by Akerman were like the settlement offers in Tanker, so the reasoning in Tanker compels our conclusion that Rule 68 does not preempt section 768.79. B....

...She contends that the district court failed to explain its rulings. She also argues that the denial of discovery by the district court was “essentially a denial of due process” because she could not meet her burden to prove that Akerman did not make its offer under section 768.79 in good faith without additional discovery....

...Steffen’s requests for discovery and an evidentiary hearing. Steffen cites Jamie Schapiro AIA v. Rubinson, 784 So. 2d 1135 (Fla. Dist. Ct. App. 2000), for the proposition that an “evidentiary hearing is required” in connection with a good faith inquiry under section 768.79, but Steffen 16 misunderstands that decision. In Jamie Schapiro AIA, the trial court denied the defendant’s motion for attorney’s fees under section 768.79 without a hearing on the ground that the defendant did not make the settlement offers in good faith....

...III Having concluded that appellees have no liability to Peoples Gas and that summary judgment was appropriately entered, we address Peoples Gas' remaining contention on appeal, that the trial court erred in awarding Metrogas and Siegal Gas attorney's fees and costs. Pursuant to section 768.79(1), Florida Statutes (1991) [9] , Metrogas and Siegal Gas each filed offers of judgment for $2,500.00 in this third-party action....

...Peoples Gas declined to accept either of these offers of judgment. Consequently, when summary judgment was entered in favor of Metrogas and Siegal Gas on the issue of liability, the trial court awarded $8,797.55 as attorney's fees and costs to each of these entities in accordance with that part of section 768.79(1) which states: [I]f a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney's fees incurred by him or on his behalf ... if the judgment is one of no liability.... Peoples Gas nevertheless asserts that this was error pursuant to section 768.79(7)(a) [10] because neither of these offers were made in good faith where both Metrogas and Siegal Gas had reason to know that their meager offers would be rejected by Peoples Gas....

..."[T]he reasonableness of the plaintiff's rejection is irrelevant to the question of fee entitlement." Id. Here, where neither Metrogas or Siegal Gas was found to have any liability to Peoples Gas, they were clearly entitled to recover an award of reasonable attorney's fees and costs pursuant to section 768.79(1). "The obligation of good faith [found in section 768.79(7)(a)] merely insists that the offeror have some reasonable foundation on which to base an offer." Schmidt, 629 So.2d at 1039....

...'s fees against the award. Where such costs and attorney's fees total more than the judgment, the court shall enter judgment for the defendant against the plaintiff for the amount of the costs and fees, less the amount of the plaintiff's award. [10] Section 768.79(7)(a), Florida Statutes (1991) provides that: If a party is entitled to costs and fees pursuant to the provisions of this section, the court may, in its discretion, determine that an offer was not made in good faith....

...K-Mart Corp., 664 So.2d 335 (Fla. 1st DCA 1995). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. The Bodeks, both as individuals and on behalf of their son, sued Gulliver Academy in tort. Gulliver Academy thereafter served an offer of judgment on the plaintiffs pursuant to section 768.79, Florida Statutes (Supp....

...On April 19, 1994, the trial court entered final judgment in favor of Gulliver Academy but reserved jurisdiction to consider a motion for attorney fees and costs. On June 8, 1994, Gulliver Academy filed its motion for attorney fees and costs pursuant to section 768.79....

...On November 2, 1994, the trial court granted the defendant's motion for attorney fees and costs. On appeal, the Third District reversed the award of attorney fees and costs. Bodek v. Gulliver Academy, Inc., 659 So.2d 354 (Fla. 3d DCA 1995). The court concluded that the express language of section 768.79(6) required the motion for attorney fees to be filed within thirty days after the entry of judgment....

...The trial court denied the motion for attorney fees, finding that the motion was untimely and that therefore the trial court lacked jurisdiction to rule on the motion. On appeal, the First District interpreted section 45.061(2), [1] a statute which was closely related to section 768.79, [2] and reversed, finding that pursuant to section 45.061(2), the thirty-day time limit to file a motion for attorney fees was not jurisdictional....

...allowed the trial court to permit a late-filed motion upon showing of excusable neglect and where no prejudice was shown from the late filing. Id. This conflict again brings us to an issue concerning a time period in these offer-ofjudgment statutes. Section 768.79(6), Florida Statutes (1991), provides that the court shall determine the propriety of an award of fees "[u]pon motion made by the offeror within 30 days after the entry of judgment or after voluntary or involuntary dismissal." (Emphasi...

...Combs, 608 So.2d 1 (Fla.1992); Leapai v. Milton, 595 So.2d 12 (Fla.1992). In each of these cases, we recognized that the Florida Rules of Civil Procedure controlled the procedural elements of the statutes. See, e.g., Timmons (adopting procedural portions of section 768.79 as Rule of Civil Procedure 1.442)....

...tion of jurisdiction in a final judgment. Excusable neglect is only a necessary finding if the reservation of jurisdiction occurs after the thirty-day time requirement. [4] Moreover, we note that we recently adopted a new rule of procedure to govern section 768.79....

...in a jury action, or the entry of a voluntary or involuntary dismissal. This rule differs from the language of the statute: "Upon motion made by the offeror within 30 days after the entry of judgment or after voluntary or involuntary dismissal...." § 768.79(6)(a), Fla.Stat....

...In that situation, the party would have to show excusable neglect under rule 1.090(b)(2). By approving this procedure, we allow decisions on attorney fees to proceed in a manner consistent with judicial efficiency and *678 economy. Issues related to setting of fees under section 768.79 are not fully adjudicated until the disposal of posttrial motions....

...withstanding the verdict. Of course, absent a reservation of jurisdiction, a motion for attorney fees based upon the statutes must be filed within thirty days as provided in the rule, [5] or the entitlement to attorney fees on the basis set forth in section 768.79 is waived unless there is a basis for relief under rule 1.090(b)(2)....

...NOTES [1] The legislature repealed section 45.061 with respect to causes of actions accruing after October 1, 1990. Ch. 90-119, § 22, Laws of Fla. [2] As we noted in Timmons v. Combs, 608 So.2d 1, 2 (Fla. 1992), an interpretation of section 45.061 cannot be made without considering the interplay of that statute with section 768.79. But cf. Metropolitan Dade County v. Jones Boatyard, Inc., 611 So.2d 512 (Fla.1993) (finding that the applicable version of section 768.79 is the version in effect at the time the cause of action accrues, while the applicable version of section 45.061(2) is the version in effect at the time the offer was unreasonably rejected)....

...t; making a motion for relief from a judgment under rule 1.540(b); taking an appeal or filing a petition for certiorari; or making a motion for directed verdict. [4] In Timmons v. Combs, 608 So.2d 1 (Fla. 1992), we adopted the procedural portions of section 768.79 as Florida Rule of Civil Procedure 1.442....

...KCIN, Inc., and Nick Varie (KCIN) appeal the denial of their motion for attorney's fees and costs. They assert entitlement on two theories: (1) as a prevailing party based on section 57.105(2), Florida Statutes (1991), and (2) as a result of an offer of judgment based on section 768.79. We affirm the denial based on section 57.105 because we agree with the trial court's refusal to name a prevailing party, but certify conflict with decisions of the Third and Fourth District Courts of Appeal. We reverse the denial based on section 768.79....

...Dvorak, 663 So.2d 606 (Fla.1995), which was issued subsequent to the trial court's ruling. Because the trial court did not have the benefit of TGI Friday's when it ruled, we reverse and remand for the court to reconsider the request for an award of attorney's fees and costs under section 768.79....

...A judgment was entered in favor of Marko and against Mayer in the amount of $30,000. A separate judgment was entered in favor of State Farm and against Marko reflecting the fact that no damages were assessed against State Farm. State Farm then sought its attorney's fees and costs pursuant to the offer of judgment filed under section 768.79, Florida Statutes (1993). We will first address the issue of State Farm's costs. Under the circumstances of this case, State Farm need not look to section 768.79 for the recovery of its costs....

...4th DCA 1994), do not negate the application of section 57.041 with regard to the facts of this case. In both of those cases, the defendants [1] made successful offers of judgment in that the judgments ultimately obtained were at least 25% less than the defendants' offers. In each of those cases, the plaintiff contended that section 768.79 and section 57.041 should be viewed "in pari materia." The plaintiff in Goode contended that while the defendant could recover costs from the date of the offer of judgment through trial, the plaintiff could recover all costs through trial pursuant to section 57.041. The plaintiff in Mincin advanced a similar argument. In rejecting such a contention, the Goode court stated: "Although appellee recovered a judgment in her favor, we hold that § 768.79 controls over § 57.041, Florida Statutes (1991), which allows the taxation of costs by a party recovering a judgment." Under the facts of the present case, where a zero liability judgment was entered in favor of State Farm and against Marko, the effect of section 768.79 negating section 57.041 is not applicable. Accordingly, regardless of the viability of State Farm's offer of judgment pursuant to section 768.79, State Farm is entitled to recover its costs against Marko pursuant to section 57.041. Next, we turn our attention to the offer of judgment as it relates to State Farm's claim for the recovery of its attorney's fees. The trial court concluded that section 768.79 did not apply. In making that decision, the trial court accepted Marko's argument that section 768.79 applied to a net award, or net judgment, in cases involving a tortfeasor and an uninsured/underinsured carrier, such as State Farm....

...nsion or supplement to the coverage of the tortfeasor, Mayer. Under such an argument, since the verdict was in the amount of $30,000 and the State Farm offer was $1, the verdict exceeded the amount of the offer, and thus, the offer of judgment under section 768.79 was not viable. We reject that position and conclude that State Farm as the underinsured liability carrier could make an offer of judgment under section 768.79 independent of any offer, or lack of offer, by the tortfeasor, Mayer....

...Brewton, 538 So.2d 1375 (Fla. 4th DCA 1989). Having determined that the offer of judgment made by State Farm to Marko was not applicable because the statute applied to net awards, the trial court did not discuss the issue of good faith as provided for in section 768.79(7)....

...Just as Marko attempted to protect his interests, State Farm did the same by making the $1 offer of judgment. See Peoples Gas System v. Acme Gas Corp., 689 So.2d 292 (Fla. 3d DCA 1997). Accordingly, we reverse the order denying State Farm its attorney's fees under section 768.79 and remand for a hearing to determine the amount of those fees....

...WHATLEY, Judge, concurring in part, dissenting in part. I concur with the majority opinion in all respects except one. I dissent only with regard to the majority's conclusion that this court may now determine that State Farm's offer was made in good faith. Section 768.79(7)(a) states: "If a party is entitled to costs and fees pursuant to the provisions of this section, the court may, in its discretion, determine that an offer was not made in good faith....

...We also find that the trial court was correct in denying Ladd's motion for attorney's fees and costs pursuant to its offer of judgment because the offer was untimely. Ladd contends that it made a valid offer of judgment in the amount of $10,000.00 pursuant to section 768.79, Florida Statutes (1995) and Florida Rule of Civil Procedure 1.442....

...ection of Schussel. Several months later when the case was reset for trial, Ladd did not renew its offer of judgment. Ladd would have us hold that the granting of the continuance breathed life back into an otherwise untimely offer of judgment. Since section 768.79 and Florida Rule of Civil Procedure 1.442 are punitive in nature in that they impose sanctions upon the losing party and are in derogation of the common law, they must be strictly construed....

...sues for trial. Subdivision (c) is amended to delete the reference to law actions so that the rule will apply to all actions in which unliquidated damages are sought. RULE 1.442. OFFER OF JUDGMENT Parties shall comply with the procedure set forth in section 768.79, Florida Statutes (1991)....

...ecovery of attorneys fees. 2. This is not necessarily limited only to taxable costs. Court Commentary 1992 Amendment. This rule was repealed in Timmons v. Combs, ___ So.2d ___ (Fla. 1992), in which the supreme court adopted the procedural portion of section 768.79, Florida Statutes (1991), as a rule....

...See McCain v. Florida Power Corp., 593 So.2d 500 (Fla.1992); Pinkerton-Hays Lumber Co. Inc. v. Pope, 127 So.2d 441 (Fla.1961). We find merit, however, in the cross-appeal, which challenges the refusal of the trial court to consider attorney's fees under section 768.79, Florida Statutes (1995) stemming from the plaintiffs failure to accept a $100.00 offer of settlement....

...difference to the offeree or otherwise affect its efficacy in any practical way. Thus, the lack of "apportionment" in the unaccepted offer should not, and we therefore hold that it does not, impair the ability of the defendants here to recover under section 768.79, Florida Statutes (1995). [1] See generally, Cooper v. Brickell Bayview Real Estate, Inc., 711 So.2d 258 (Fla. 3d DCA 1998). On this basis, the order denying the application for fees under § 768.79 is vacated....

...Hingson's resulting consortium claim. The jury returned a verdict on March 2, 1999, resulting in the Hingsons receiving nothing and the trial court *198 entering judgment in favor of Allstate. On March 11, 1999, Allstate served its motion for fees under section 768.79, Florida Statutes (1995), based on the $30,000 offer of judgment (policy limits) rejected by the Hingsons. The trial judge denied Allstate's motion for attorney's fees citing the policy considerations regarding undifferentiated offers of judgment enunciated in section 768.79....

...s examined and treated by several physicians. A year later, she and her husband filed suit against K-Mart. In February 1996, K-Mart served the following offer of settlement upon the Herzogs: Defendant, K-Mart Corporation, pursuant to Florida Statute 768.79 makes this Offer of Judgment to the Plaintiffs, Marcia Herzog and Max Herzog, in the total amount of TWENTY THOUSAND AND ONE DOLLAR ($20,001.00)....

...rocedure 1.442 [2] required an offer of settlement made by a defendant to multiple plaintiffs to state the amount and terms attributable to each plaintiff. The former version of rule 1.442 stated: Parties shall comply with the procedure set forth in section 768.79, Florida Statutes. Section 768.79 provides in relevant part: (2) The making of an offer of settlement which is not accepted does not preclude the making of a subsequent offer....

...o each party in order to make a further determination of whether the judgment against only one of the parties was at least twenty-five percent more or less than the offer (depending on which party made the offer). [3] Moreover, the plain language of section 768.79 supports the C & S court's holding....

...oint offer which failed to specify the amount attributable to each plaintiff. Of the four district courts that have considered this issue, only the Second District has held to the contrary. At the time the offer was made in the instant case, neither section 768.79 nor the former version of rule 1.442 required offers of judgment to state the amount and terms attributable to each party. See Bodek v. Gulliver Academy Inc., 702 So.2d 1331, 1332 (Fla. 3d DCA 1997) ("Further, contrary to the plaintiffs' assertion, section 768.79 does not require that in circumstances where the offer of judgment is being made to multiple plaintiffs, that the offer of judgment state the amount that is being offered to each plaintiff. In fact, section 768.79(2)(d) merely provides that the offer of judgment must [s]tate its total amount."); Tucker v....

...Co., 343 So.2d 1357, 1358 (Fla. 1st DCA 1977) ("[When] the claims of a father and his minor daughter are properly joined in one action we fail to see that violence has been done to the rule by a defendant making one offer to both parties."). Hence, Allstate did all that section 768.79 and the former version of rule 1.442 required....

...The jury returned a verdict in favor of the Defendant, resulting in the Plaintiffs receiving nothing. There is no question that the judgment was at least twenty-five percent less than the amount of Allstate's offer, regardless of its nonallocation. Certainly section 768.79 would authorize plaintiffs to recover fees if they had made an unallocated joint offer and received a verdict which was at least twenty-five percent more than that offer. The majority also relies on "the plain language" of section 768.79, which refers to the term "party" in the singular....

...ule of procedure as is deemed applicable by a court of competent jurisdiction." [3] The offer was rejected by defendants. Following the jury verdict, Latosynski moved to have sanctions imposed against Pippin and Davis pursuant to sections 45.061 and 768.79, Florida Statutes, and Fla.R.Civ.P 1.442....

...The trial court denied the motion for sanctions, finding only section 45.061 and rule 1.442 applicable, and concluding that defendants' rejection of the offer of settlement/judgment was not unreasonable. Latosynski appeals only that portion of the trial court's order finding section 768.79 inapplicable. Section 768.79, Florida Statutes (Supp. 1990) provides in pertinent part: (2) An offer must: (a) Be in writing and state that it is being made pursuant to this section. Herein, Latosynski's offer, made pursuant to rule 1.442, was not expressly predicated upon section 768.79. Section 768.79 clearly mandates that offers made pursuant to this section must state so. Hence, we are compelled to find that Latosynski never made a valid offer pursuant to section 768.79. We reject Latosynski's contention that the language of the offer, to wit, "or such other pre-existing statute or rule," by implication included section 768.79. Such language failed to adequately place defendants on notice that Latosynski was traveling under section 768.79 in addition to the rule....

...Subsequently, MX served two offers of judgment on the Crawfords. After being served with the offers of judgment but before trial, the Crawfords voluntarily dismissed their complaint without prejudice. MX then filed a motion to assess attorney fees and tax costs pursuant to section 768.79, Florida Statutes (1991), and Florida Rule of Civil Procedure 1.420(d) (1991). The trial court denied the motion. On appeal, the district court affirmed. MX Investments, 683 So.2d at 586. The court held that an entitlement to attorney fees pursuant to section 768.79, Florida Statutes (1991), requires the entry of a judgment. Id. Judge Booth's opinion provides: In 1990, the Legislature rewrote section 768.79(1), Florida Statutes, to state: (1) In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to...

...n award of attorney's fees where a party has served an offer that is more or less than the ultimate judgment...." Schmidt, 629 So.2d at 1041. Because there was no judgment entered following the voluntary dismissal in this case, the plain language of section 768.79 precludes an award of attorney fees....

...MX Investments, 683 So.2d at 585-586 (citations and footnotes omitted). We approve the district court's decision. However, we do so because the dismissal of the complaint was without prejudice and not because there was no judgment entered. We conclude that section 768.79, Florida Statutes (1991), does not provide a basis for the award of attorney fees and costs unless a dismissal is with prejudice. [1] We construe the terms "voluntary dismissal" and "involuntary dismissal" in section 768.79(6), Florida Statutes (1991), to mean a dismissal with prejudice so that the dismissal is the basis for a judgment of no liability as contemplated in section 768.79(1), Florida Statutes (1991). Thus, only when a plaintiff's voluntarily dismissal is with prejudice or is a second voluntary dismissal is the defendant entitled to attorney fees in accord with section 768.79, Florida Statutes (1991). We do not agree with MX's contention that entitlement exists based on the definition given to the term "judgment" in section 768.79(6)(b), Florida Statutes (1991)....

...[2] MX argues that the costs imposed under Florida Rule of Civil Procedure 1.420(d) fall within the definition of judgment. We find that rule 1.420(d) simply specifies a cost judgment and plainly has nothing to do with whether the dismissal is with or without prejudice. The definition in section 768.79(6)(b), Florida Statutes (1991), merely identifies what is to be used as the total amount for purposes of determining whether attorney fees are to be awarded under the statute and accordingly has nothing to do with whether the dismissal is with or without prejudice. In sum, we conclude that to be entitled to an award of attorney fees under section 768.79, Florida Statutes (1991), there must be a dismissal with prejudice of the cause of action....

...notice or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication on the merits when served by a plaintiff who has once dismissed in any court an action based on or including the same claim. [2] Section 768.79(6)(b), Florida Statutes (1991), provides in pertinent part: [T]he term "judgment obtained" means the amount of the net judgment entered, plus any post-offer collateral source payments received or due as of the date of the judgment, plu...

...statute applies in this case. British Car Auctions received tax advice in Tennessee from BDO Seidman, LLP, an accounting firm, and sued Seidman for professional malpractice in Florida. Prior to trial, each party made an offer of judgment pursuant to section 768.79, Florida Statutes (1991), but neither offer was accepted. A jury found Seidman to have been negligent and awarded damages of $3,200,662. British Car was awarded attorney's fees under section 768.79, and Seidman appealed both the damages and fees....

...[1] We reversed for entry of judgment in favor of Seidman without reaching the issue of attorney's fees, which had become moot. Following the mandate, the trial court entered judgment in favor of defendant Seidman, and Seidman moved for attorney's fees under its section 768.79 offer of *368 judgment....

...Ruling that Tennessee law "preempts" Florida law on the issue of fees, the trial court denied Seidman's motion, and Seidman appeals. We first address British Car's argument that Seidman was estopped from changing its position and seeking fees under section 768.79....

...Palm Beach Estates, 110 Fla. 77, 148 So. 544, 548 (Fla.1933); Rafkind v. Simon, 402 So.2d 22, 24 (Fla. 3d DCA 1981). Proceeding to the merits, Seidman and British Car both rely on a conflict of laws analysis. Seidman's reasoning reaches the result that section 768.79 is procedural and therefore applies. British Car's argument is that the statute is substantive and should not be applied to this out-of-state cause of action. Section 768.79(1), Florida Statutes (1991), applies to " any civil action for damages filed in the courts of this state." (emphasis supplied.) This statute is clear, and on its face is applicable to this action for damages....

...It does not require a court to enforce rights given by the statutes of another state to the prejudice of its own citizens, or when complete justice cannot be done, nor will the courts of one state enforce laws of another state which are repugnant to its own or to public policy. When the Legislature enacted section 768.79, it was making a policy determination that attorney's fees should be recoverable under certain circumstances....

...d be applicable under usual choice-of-law principles. [emphasis supplied.] Section 6 of the Restatement (Second) was relied on by the Florida Supreme Court in Bishop v. Florida Specialty Paint Co., 389 So.2d 999, 1001 (Fla.1980). Our conclusion that section 768.79 applies to all civil actions for damages brought in Florida courts is consistent with the legislative intent, which is to reduce litigation....

...Bayless, 564 So.2d 1081, 1083 (Fla.1990). An action for damages based on the substantive law of another jurisdiction has the same impact on the Florida court system as one based on the substantive law of Florida. We acknowledge that the eleventh circuit has recently held that section 768.79 is substantive under Florida conflict of laws principles....

...This decision is persuasive, but not binding on us. State v. Dwyer, 332 So.2d 333 (Fla.1976). We respectfully disagree with it. See Judge Gross' concurring opinion. We therefore reverse and remand for the trial court to award attorney's fees to Seidman under its section 768.79 offer of judgment....

...GROSS, J., concurs specially with opinion. POLEN, C.J., dissents with opinion. *370 GROSS, J., concurring specially. I concur with Judge Klein's opinion. I write separately to note that even under a choice of law analysis, Seidman is entitled to recover fees under section 768.79, Florida Statutes (1991)....

..."Tennessee law governs substantive matters in this dispute; Florida law controls procedural issues only." Tennessee law does not allow a prevailing party to recover attorney's fees; the Florida supreme court has described the right to attorney's fees under section 768.79 as "substantive." See Knealing v. Puleo, 675 So.2d 593, 596 (Fla.1996) (stating that section 768.79 contains "substantive provisions authorizing an award of attorney [sic] fees"); TGI Friday's, Inc. v. Dvorak, 663 So.2d 606, 611 (Fla.1995) ("The legislature has modified the American rule, in which each party pays its own attorney's fees, and has created a substantive right to attorney's fees in section 768.79.")....

...5th DCA 1995); Aerovias Nacionales De Colombia, S.A. v. Tellez, 596 So.2d 1193, 1195 (Fla. 3d DCA 1992); Guirlinger v. Goldome Realty Credit Corp., 593 So.2d 1135, 1136 n. 1 (Fla. 1st DCA 1992). As the forum state in this case, Florida law determines whether section 768.79 is substantive or procedural for choice of law purposes....

...procedural law involves `the machinery for carrying on the suit.'" Smithco Eng'g, 775 P.2d at 1018 (quoting Roth v. Roth, 571 S.W.2d 659, 672 (Mo. App.1978) (quoting Shepherd v. Consumers Co-op. Ass'n, 384 S.W.2d 635 (Mo. 1964))). To decide whether section 768.79 is substantive or procedural for choice of law purposes, it is helpful to consider those factors the Restatement identifies as pertinent to classifying an issue for choice of law purposes....

...RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 122. "The forum is more concerned with how its judicial machinery functions and how its court processes are administered than is any other state." Id. at cmt. a. Florida cases have identified the legislative objectives behind section 768.79. All pertain to how Florida's "judicial machinery functions." The purpose of section 768.79 is to lead "litigants to settle by penalizing those who decline offers that satisfy the statutory requirements." MGR Equip. Corp., Inc. *372 v. Wilson Ice Enters., Inc., 731 So.2d 1262, 1264 (Fla.1999); see Aspen v. Bayless, 564 So.2d 1081, 1083 (Fla.1990) (stating that "purpose and intent" of section 768.79 is "to encourage parties to settle claims without going to trial")....

...Encouraging settlement lowers litigation costs for the parties and reduces the fiscal impact of litigation on the court system. See Allstate Ins. Co. v. Materiale, 787 So.2d 173, 176 (Fla. 2d DCA 2001) (Casanueva, J., concurring) (indicating that "[t]he main purpose of section 768.79" is "to encourage resolution of disputed claims without the unnecessary consumption of scarce judicial resources"); Pirelli Armstrong Tire Corp....

...Udhwani, 648 So.2d 247, 248 (Fla. 4th DCA 1994). Early settlement of a case frees court time for the many other cases waiting to be heard. Whether this lawsuit expended Florida's judicial resources is not a concern of Tennessee. The primary interest of section 768.79 is, in the words of the Restatement, how Florida's "judicial machinery functions." RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 122, cmt. a. In this case, a more realistic assessment of risk under the statute of limitations might have encouraged an early settlement instead of a lengthy jury trial and two appeals. Not to apply section 768.79 in this type of case would "impose an undue burden upon" Florida. RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 122, cmt. a. Lawsuits that arose elsewhere could willy-nilly consume Florida's judicial resources, while purely Florida cases would be subject to the penalty provisions of section 768.79. Jurisdictions with court dockets less crowded than Florida's might not share the value that early settlement of a case is a "consummation Devoutly to be wished." W. SHAKESPEARE, HAMLET, Act III, Scene I. Application of section 768.79 to this case is consistent with the broad wording of subsection (1), which declares that it applies "in any civil action for damages filed in the courts of this state." (Italics supplied)....

...Significantly, the legislature did not limit the statute to cases "arising" or "accruing" in Florida, or to cases controlled by Florida substantive law. The plain meaning of the statute supports its use in this case. Two other Restatement factors bolster the conclusion that section 768.79 should apply here....

...Parties to a contract "do not usually place reliance on the applicability of the rules of a particular state to issues that would arise only if litigation should become necessary." Id. Also, the offer of judgment statute was not "likely to affect the ultimate result of the case." Id. Section 768.79 comes into play only after the determination of the "ultimate result." Under the terminology of the Florida cases, the offer of judgment statute is a matter of procedural law for choice of law purposes. Section 768.79 is a part of Florida's "judicial machinery." RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 122, cmt....

...ply it in the interest of justice and efficient judicial administration. This court rejected Weatherby's argument that such fees should not be awarded because Connecticut's law governed the substantive issues in the case. Both sections 57.105(1) and 768.79 impose sanctions for certain conduct occurring during litigation....

...rocess. See Patsy v. Patsy, 666 So.2d 1045, 1047 (Fla. 4th DCA 1996). Numerous cases have described the offer of judgment statute as being "punitive." See, e.g., Schussel v. Ladd Hairdressers, Inc., 736 So.2d 776, 778 (Fla. 4th DCA 1999) (describing section 768.79 as "punitive in nature")....

...British Car argues that Clayton v. Bryan, 753 So.2d 632 (Fla. 5th DCA 2000), and Moran v. City of Lakeland, 694 So.2d 886 (Fla. 2d DCA 1997) are controlling, but they are distinguishable. Both cases involve specific attorney's fee provisions in federal statutes that preempted section 768.79 under the supremacy clause of the United States Constitution....

...Hensley v. Eckerhart, 461 U.S. 424, 429 n. 2, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)). This limitation on a defendant's ability to recover fees implements Congress's intent to encourage citizens to seek redress for violation of their rights. To allow section 768.79 to override the federal statute would have a chilling effect on the bringing of civil rights lawsuits, contrary to the intent of Congress....

...That statute provides that fees are to be awarded to a prevailing defendant only when the court expressly finds that the plaintiffs case was "brought in bad faith and for the purpose of harassment." Clayton. 753 So.2d at 633. By this section, Congress leveled the playing field between debtors and creditors. To apply section 768.79 to a case brought under the Act would create the obstacles to bringing suit which Congress expressly sought to avoid. Recently, the eleventh circuit has held that section 768.79 is substantive under Florida choice of law principles....

...as Dvorak and Timmons, an approach which is incorrect for the reasons set forth above. Also, the eleventh circuit wrote that the statute "is properly viewed as a type of `loser pays' rule or standard." McMahan, 256 F.3d at 1134. This pigeonholing of section 768.79 gives inadequate emphasis to the statute's primary purpose of encouraging reasonable settlements....

...I believe the trial court correctly denied attorney's fees, and for that reason, I would affirm. To me, the resolution is much simpler than the majority and concurring opinions make it out to be. While Judge Gross's well-reasoned concurring opinion spends much effort justifying section 768.79 as being procedural rather than substantive, and rejecting the Eleventh Circuit's contrary conclusion in McMahan v....

...party to pay some of the attorney's fees of the other party (outside the section 57.105 context, with which I am inclined to agree with Judge Gross) makes this a substantive provision. I agree with that part of the majority's opinion which declares section 768.79 is not unconstitutional, as applied or otherwise. I further agree that Seidman is not estopped from changing its position that section 768.79 should now apply....

...Gerard Materiale brought a loss of consortium claim against Martin and Allstate. [1] Allstate admitted that Martin was negligent, and therefore, the only issues for determination at trial were causation and damages. Pursuant to Florida Rule of Civil Procedure 1.442 and section 768.79, Florida Statutes (1999), Barbara and Gerard Materiale served upon Allstate a proposal for settlement in the amount of $105,000....

...5th DCA 1999), the court held that the lack of apportionment between plaintiff/offerors of their respective claims was of no import to a single defendant/offeree. While this may be true in some instances, it is not universally so. The main purpose of section 768.79, the offer of judgment statute, is to encourage resolution of disputed claims without the unnecessary consumption of scarce judicial resources....

...Although the propriety of the trial court's application of a 1.5 multiplier to the Materiales' award of attorney's fees of $20,800 is moot because the award itself has been reversed, I continue to adhere to the belief that the application of a multiplier pursuant to section 768.79 is wrong....

...es the Equal Protection Clause in our state and federal constitutions. Pirelli Armstrong Tire Corp. v. Jensen, 752 So.2d 1275 (Fla. 2d DCA 2000) (Casanueva, J., concurring in part and dissenting in part). In Pirelli we certified the question whether section 768.79 violated the Equal Protection Clause....

...Ackerman, Link & Sartory and Julie E. Fox and David Ackerman, West Palm Beach, for appellee. Before NESBITT, GREEN and FLETCHER, JJ. GREEN, Judge. We have before us on the main appeal of this cause the issue of whether the offer of judgment statute, section 768.79, Florida Statutes (1995), is applicable to offers made to representatives of class action suits. On the cross appeal, we have the issue of whether an attorney's fees award made pursuant to section 768.79, may include fees incurred for the prosecution of the amount of attorney's fees. We conclude that: (1) section 768.79, as presently written, applies to all civil actions, including class actions; and (2) an attorney's fee award made pursuant to this section may not include fees for litigating the amount of attorney's fees....

...AT&T again moved to dismiss the amended complaint based on inter alia, its argument, that the allegations were legally insufficient for the certification of a class. *1143 Shortly after filing its motion to dismiss the amended complaint, AT&T served an offer of judgment/settlement pursuant to section 768.79 upon Ruiz for six hundred and twenty-five dollars ($625)....

...On July 23, 1996, the lower court granted AT&T's motion to dismiss with prejudice; no appeal was taken from this order of dismissal. AT&T then filed a motion for attorney's fees and costs based upon the appellant's rejection of its offer of judgment pursuant to section 768.79....

...efendant shall be entitled to recover reasonable costs and attorney's fees incurred by him or on his behalf pursuant to a policy of liability insurance or other contract from the date of filing of the offer if the judgment is one of no liability.... § 768.79(1), Fla....

...v. Pennsylvania Dep't. of Corrections, 876 F.Supp. 1437, 1454 (E.D.Pa.1995), and as such, cannot have interests antagonistic to putative or actual class members, see White v. Deltona Corp., 66 F.R.D. 560, 562-63 (S.D.Fla.1975). Appellant argues that section 768.79 creates an inherent conflict of interest for a class representative in that while it may be personally alluring or advantageous for the representative to accept an offer of judgment to avoid potential personal exposure for substantial...

...In this case, for example, the appellant points out that while AT&T's $625 offer of judgment would have fully recompensed Mr. Ruiz for his losses, it would not have compensated the putative class members for their losses. Moreover, the appellant asserts that if section 768.79 is found to be applicable to class actions, defendants could effectively derail or moot out such suits by making offers of judgment to class representatives early on in the litigation when discovery may not have commenced and at a time...

...At the outset, we acknowledge that the appellant raises some valid and legitimate concerns about applying the offer of judgment statute to class action representatives. Nevertheless, we conclude that we cannot, by judicial fiat, exempt class actions from section 768.79 whose plain and unambiguous language states that it is applicable to any civil action for damages....

...r its reasonable and obvious implications. To do so would be an abrogation of legislative power." Holly, 450 So.2d at 219 (citation omitted)(emphasis in original). There are no cogent reasons for us to believe that the express and literal meaning of section 768.79 does not accurately represent the legislative intent....

...and fiduciary responsibilities to the remaining class members. We do not find the Gay decision to be controlling or persuasive in this case because the federal offer of judgment rule is a rule of procedure rather than a legislative enactment such as section 768.79. Consequently, the Gay court was not faced with the same constitutional restraints that we have before us in this case. The appellant alternatively asserts that even if section 768.79 is applicable to class actions, AT&T's offer of judgment was not made in good faith since it sought only to recompense the then class representative for his stolen telephone and not the remaining class members....

...in this cause. See generally Peoples Gas Sys., Inc. v. Acme Gas Corp., 689 So.2d 292, 300-01 *1145 (Fla. 3d DCA 1997). We therefore find the lower court correctly determined that AT&T was entitled to an award of attorneys fees and costs pursuant to section 768.79(1) and thus we affirm the same....

...in failing to award all of its attorney's fees incurred after a determination of its entitlement to fees was made. AT&T maintains that it is entitled to recoup its fees incurred in litigating the amount of fees under the broad language contained in section 768.79(6)(a), which reads in relevant part that: "[T]he defendant shall be awarded reasonable costs, including investigative expenses, and attorney's fees, calculated in accordance with the guidelines promulgated by the Supreme Court, incurred from the date the offer was served[.]" § 768.79(6)(a), Fla....

...Since Palma, we have similarly construed section 57.105(1), Florida Statutes, [5] as not permitting an award of costs and attorney's fees for time spent litigating the amount of fees. See Eisman v. Ross, 664 So.2d 1128, 1129 (Fla. 3d DCA 1995). We see no reason why the same result should not obtain in our analysis of section 768.79....

...he purpose of this statute. Such work inures exclusively to the attorney's benefit and does not serve to encourage the parties to expeditiously resolve their differences short of a trial. See Palma, 629 So.2d at 833. We therefore decline to construe section 768.79 as permitting such fees....

...e of Plaintiff's cargo to the United States from Costa Rica. During the course of transportation, a portion of the cargo was lost without explanation. On December 19, 1994, Defendant North West filed an offer of judgment pursuant to Florida Statutes § 768.79 [1] in the amount of $500 to Plaintiff *399 INA, the insurer of the cargo....

...ircumstances and requires each side to pay its own attorneys' fees. DISCUSSION This is a case of first impression in the context of admiralty and maritime jurisdiction. The Eleventh Circuit, however, has addressed the application of Florida Statutes § 768.79 in diversity actions....

...In applying a reverse- Erie analysis, the Court determined that "a general award of attorneys' fees pursuant to a state statute which does not require a finding of bad faith directly conflicts with federal admiralty law." Id. Here, Defendant attempts to distinguish Sosebee by arguing that Florida Statutes § 768.79 contains a bad faith provision [7] providing for the disallowance of an award of costs and attorneys' fees upon such a finding. However, section 768.79, while providing that a Court may deny attorneys' fees when an offer of judgment is made in bad faith, does not require a finding of bad faith in order for the Court to award attorneys' fees....

...Moreover, a strong interest exists in maintaining uniformity in maritime law. In Sosebee, supra, the Third Circuit noted that this interest "would be undermined if the availability of attorneys' fees depended upon where the plaintiff filed suit." Sosebee at 56-57. Consequently, this Court believes that Florida Statutes § 768.79 would frustrate the need for uniformity in the admiralty jurisdiction and is preempted by federal maritime common law....

...gs contained herein. LoConte v. Dugger, 847 F.2d 745 (11th Cir.1988), cert. denied, 488 U.S. 958, 109 S.Ct. 397, 102 L.Ed.2d 386. RESPECTFULLY SUBMITTED at the United States Courthouse, Miami, Florida, this 23rd day of June, 1995. NOTES [1] Statutes § 768.79 reads, in pertinent part: In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney's fees incurred by him or on his behalf ......

...ttorneys' fees based on Texas law relating to cargo damage where such argument was not advanced at trial, the Fifth Circuit also affirmed the lower court's refusal to award such fees on that basis. Noritake, 627 F.2d at 730-732. [7] Florida Statutes § 768.79's bad faith provision reads: (7)(a) If a party is entitled to costs and fees pursuant to the provisions of this section, the court may, in its discretion, determine that an offer was not made is good faith....

...The issue in this case is whether the offer of judgment, which was accepted, should have resulted in the dismissal of all claims where there were multiple parties and multiple claims. At the relevant period of time, Florida Rule of Civil Procedure 1.442 set forth that "[p]arties shall comply with the procedure set forth in Section 768.79, Florida Statutes (1991)," with respect to offers of *1383 judgment. [1] Subsection 768.79(2)(b), Florida Statutes (1991), provides that an offer must "[n]ame the party making it and the party to whom it is being made." A judgment entered pursuant to an offer of judgment may be analogized to a consent judgment, which is in the nature of a contract....

...Hayne, their deceased daughter, appeal a summary judgment finding that United Services Automobile Association (USAA) was not liable under its umbrella policy for uninsured motorist coverage (UM). USAA cross-appeals the denial of its request for attorney's fees under the offer of judgment statute, section 768.79, Florida Statutes (1993)....

...erage was available, but continued to deny coverage under the umbrella policy. Later, the Weesners amended their claim to proceed only under the umbrella policy and the case proceeded solely on that claim. USAA filed an offer of judgment pursuant to section 768.79, Florida Statutes (1993) for $100.00 on the claim under the umbrella policy....

...Several motions for summary judgment were then filed by the parties, all of which were denied except the final one which terminated the litigation in favor of USAA. The trial court then denied fees to USAA in an order that simply characterized the offer as "not a good faith offer." "The obligation of good faith [found in section 768.79(7)] merely insists that the offeror have some reasonable foundation on which to base an offer." Schmidt v....

...ction only to the umbrella policy. We also reject their arguments that attempt to characterize the litigation as an action for a declaratory judgment and that section 627.428, Florida Statutes, precludes attorney's fees to an insurance carrier under section 768.79, Florida Statutes. The summary judgment is affirmed. The order denying attorney's fees pursuant to section 768.79, Florida Statutes, is reversed and the matter remanded to the trial court to determine the amount of fees to be awarded....

...3d DCA 1995), the third district specifically refused to award such fees under 57.105 because they concluded there was no statutory authority to do so. See also Oruga Corp., Inc. v. AT & T Wireless of Fla., Inc., 712 So.2d 1141, 1145 (Fla. 3d DCA 1998)(barring fees for fees under section 768.79(6)(a), Florida Statutes (1995)); Dep't of Transp., State of Fla....

...tative Reid pursuant to the offer of judgment statute. Defendant Saia properly contends that Reid's offer was invalid as it was not submitted by the joint personal representatives. [2] A valid offer of judgment must be served by the party plaintiff. § 768.79, Fla....

...November 14, 2007. *1115 Russell S. Adler, Shawn L. Birken and Matthew S. Sackel of Rothstein, Rosendfeldt & Adler, Fort Lauderdale, for appellants. Neil Rose of Bernstein, Chackman & Liss, Hollywood, for appellees. MAY, J. Technical compliance with section 768.79, Florida Statutes (2006), is challenged in this appeal....

...The plaintiff filed suit against the other driver and her uninsured motorist [UM] insurer following a motor vehicle accident. [1] During litigation, the plaintiff served a civil remedies notice on her UM insurer. The plaintiff then filed a notice of service of proposal for settlement on the same insurer, pursuant to section 768.79, Florida Statutes (2006), and Rule 1.442, Florida Rules of Civil Procedure....

...The insurer did not accept the proposal for settlement; the case went to trial. *1116 The jury returned a verdict for the plaintiff. The trial court entered a final judgment against the insurer in the amount of $72,849.53. The plaintiff then moved for costs and attorney's fees pursuant to section 768.79....

...The trial court granted the motion to strike the proposal for settlement, but never ruled on the plaintiff's motion to tax costs and fees. We give proposals for settlement de novo review. Jamieson v. Kurland, 819 So.2d 267, 268 (Fla. 2d DCA 2002); accord Miami-Dade County v. Ferrer, 943 So.2d 288, 290 (Fla. 3d DCA 2006). Section 768.79, Florida Statutes (2006), provides the substantive law concerning proposals for settlement while Rule 1.442, Florida Rules of Civil Procedure, provides its procedural mechanism....

...s fees in connection with their motion to enforce their demand for judgment against Food Lion, Inc., appellee. Appellants were the plaintiffs in a premises liability action. The issue presented is whether the trial court erred in its construction of section 768.79, Florida Statutes (Supp.1990), to deny an award of attorney's fees to appellants....

...We conclude the trial court misconstrued the statute, and reverse the order denying attorney's fees and costs. On July 2, 1994, appellants/plaintiffs served appellee/defendant with a demand for judgment in the amount of $50,000.00, pursuant to the "offer of judgment and demand for judgment" provisions of section 768.79, Florida Statutes (Supp.1990)....

...994, the date appellants/plaintiffs filed their offer of judgment. The order denying attorney's fees did not address the good faith of the offer, and did not determine the reasonableness of the amount of the fees claimed. The following provisions of section 768.79, Florida Statutes (Supp.1990), are applicable to resolution of this cause: (1) ......

...offer that is more or less than the ultimate judgment, if the motion therefor has been timely made." Id. at 612. The only basis to disallow an award of an attorney's fee is if the court determines the qualifying offer was not made in good faith. See § 768.79, Fla.Stat....

...In addition, an offer need not be unreasonably rejected before a court may award attorney's fees, i.e., "the wording of the statute as a whole leaves no doubt that the reasonableness of the rejection is irrelevant to the question of entitlement." Id. In its analysis of section 768.79 in TGI Friday, the supreme court did not address the internal inconsistency in the 1990 amended statute, and it appears that no other district court of appeal has been required to deal with this specific problem....

...If the inconsistent statutory provisions cannot be harmonized, "a court must reach a construction that will give effect to the purpose of the statute and the legislative intent." Spradley, 612 So.2d at 723. *141 Application of the foregoing principles to the internal inconsistencies in section 768.79 indicates that subsection (1) reasonably could be construed as establishing the substantive right to an attorney's fee, provided the procedural requirements of the statute are satisfied....

...(b) sets forth the factors to be considered in determining a reasonable amount of a fee; and subsection (8) sets forth the limited situations in which evidence of the offer is admissible. When subsection (1) is viewed as the substantive provision of section 768.79, legislative intent may be given effect without harmonizing the legislature's use of the verb "file" in subsection (1) with its use of the verb "serve" in subsections (3) and (6). This is because subsections (2) through (8) set forth guidelines governing the conditions precedent to an award of attorney's fees. These provisions require service on an opposing party as the first step in the section 768.79 attorney's fee process....

...ty could be foreclosed from an award of attorney's fees because he or she did not file the offer with the court before the entitlement to the award was established by a jury verdict or acceptance by the opposing party. To summarize, we conclude that section 768.79(1) should be viewed as establishing the substantive right to an award of attorney's fees and costs upon satisfaction of the two requirements set forth in that provision....

...[2] If the offer is accepted and the offeree fails to comply with the terms of the accepted offer, the offeror may file the offer and acceptance with the court for enforcement of the judgment amount. [3] In Timmons v. Combs, 608 So.2d 1 (Fla.1992), the supreme court adopted the procedural portion of section 768.79, Fla.Stat....

...(1991), as a rule, effective January 1, 1993, thereby repealing Florida Rule of Civil Procedure 1.442. [4] Such a result is consistent with dicta in Westfield Insurance Co. v. Mendolera, 647 So.2d 223 (Fla. 2d DCA 1994), in which the court approved an award of section 768.79 attorney's fees and costs based on a judgment at least twenty-five percent greater than the pretrial demand for judgment served by plaintiff.

...This case was before us on appeal from the final judgment of liability and damages, which we affirmed. Pirelli Armstrong Tire Corp. v. Jensen, 688 So.2d 923 (Fla. 2d DCA 1997). Pirelli now challenges the assessment of attorneys' fees against it under section 768.79, Florida Statues (1993), the offer of judgment statute....

...In April, 1994, the appellees commenced the underlying tort suit. [2] The *1276 complaint advanced alternative theories of manufacturing defect, design defect, inadequate warning, or absence of warning. In July, 1994, the appellees served a three million dollar demand for judgment pursuant to section 768.79....

...manner: it first calculated the lodestar figure at slightly over $ 414,000.00; it then applied a contingency risk multiplier of 2.5, thus increasing the amount to just over $ 1 million; it then reduced that amount by 25% based on certain criteria in section 768.79(7)(b); to this total of $ 777,675.95 it added prejudgment interest of $ 183,200.96. The final judgment on fees awarded the appellees $ 960,876.91. Pirelli contends that applying the contingency risk multiplier in assessing fees under section 768.79 is error because the trial court must use only the criteria the statute lists. This is the same argument raised in Collins that the Fourth District rejected, as did the Fifth District in Garrett. We agree with Judge Warner's expressed reasoning in Collins. Section 768.79(7)(b) directs the trial court to consider, in determining the reasonableness of the fee, certain enumerated factors "along with all other relevant criteria" (emphasis ours). The statute also refers the trial court to the guidelines promulgated by the supreme court. See § 768.79(6)(a), (b)....

...igher or lower than that which would result from application of only the time and rate factors." Thus, it is clear that the legislature authorized trial courts to consider and apply a contingency risk multiplier when awarding an attorneys' fee under section 768.79....

...Because we perceive this issue to be an important one for the administration of justice in this state, we certify the following question as one of great importance. WHETHER THE APPLICATION OF A CONTINGENCY RISK MULTIPLIER TO AN AWARD OF ATTORNEY'S FEES UNDER SECTION 768.79, FLORIDA STATUTES (1993), THE OFFER OF JUDGMENT STATUTE, VIOLATE THE GUARANTEE OF EQUAL PROTECTION AFFORDED UNDER THE UNITED STATES OR FLORIDA CONSTITUTION? Affirmed....

...I concur with the majority opinion insofar as it affirms that the appellees were entitled to an attorneys' fee award and certifies the question as one of great importance. However, I dissent from that portion of the majority opinion that concludes section 768.79, Florida Statutes (1993), authorizes a multiplier when awarding attorneys' fees. The majority properly notes that two sister courts have decided that section 768.79(6)(a) authorizes a trial court to apply a multiplier in awarding attorneys' fees under the offer of judgment statute....

...use. Thus, by referring to the fee for legal services rule, the Fourth, Fifth, and now the Second Districts assert that the legislature statutorily authorized trial courts to apply a contingency risk multiplier in determining a reasonable fee under section 768.79....

...Although, arguably, a reading of the fee factors promulgated by our supreme court could support this holding, for the following reasons I believe a different conclusion is warranted. First, the use of a contingency risk multiplier in the context of section 768.79 violates the constitutional principle of equal protection of the law....

...Rowe, 472 So.2d 1145 (Fla.1985), through Bell v. U.S.B. Acquisition Co., Inc., 734 So.2d 403 (Fla.1999), awards of a multiplier have been approved, generally on the ground that an underlying statute encourages the bringing of a civil action. Such is not the case with section 768.79 because it encourages the terminating of litigation....

...However, a classification must rationally relate to a legitimate state interest to be constitutional. See City of New Orleans v. Dukes, 427 U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976); Haves v. City of Miami, 52 F.3d 918 (11th Cir.1995). Both the legislative history and the judicial interpretation of section 768.79 suggest that its purpose is to encourage the resolution of litigation....

...in CS/SB 866. The latter bill pointed out an additional benefit: increased out-of-court settlements should "reduce the fiscal impact of litigation on the court system." This legislative commentary, albeit meager, powerfully manifests the purpose of section 768.79—to reduce both litigation costs and demand on the state's judicial system by imposing sanctions, including attorneys' fees, on those parties who unreasonably reject an offer of settlement....

...multiplier, while prohibiting the sanctioning of a party plaintiff with the application of the same multiplier constitutes, in my mind, an equal protection violation. There is no underpinning in the legislative policy for the unequal application of section 768.79 nor is there a rational basis to sanction only party defendants with a multiplier....

...ncial incentive to bring meritorious litigation, particularly in areas where the legislature sought to encourage the private enforcement of public policy through litigation. The public policy justifications do not apply to the function or purpose of section 768.79....

...The statutes at issue in Rowe and Quanstrom were fee shifting statutes, which mandate that the losing party pay the fees of the prevailing party rather than requiring each party to bear its own fees. See Kuhnlein v. Department of Revenue, 662 So.2d 309, 322 n. 3 (Fla.1995). In contrast, applying section 768.79 can cause even a prevailing party, should it reject a reasonable offer of judgment, to pay the losing party's costs, including attorneys' fees. Because it is neither by definition nor application a fee shifting statute, I cannot read section 768.79 as justifying the use of a contingent risk multiplier in this unrelated context. Second, I conclude that the statutory language of section 768.79 does not expressly provide judicial authority to use a multiplier....

...The interplay between the subsections evinces a clear legislative intent to penalize where appropriate and to provide a mechanism to deny a fee where the offer was not made in good faith. That same clarity of expression could have been used to authorize a multiplier but was not. For these reasons, I conclude section 768.79 does not grant authority to a trial court to apply a contingency risk multiplier....

...Subsequently, Mercury paid Shands $10,000, the remaining coverage available under the policy. Shands then filed suit against Mercury to recover the remaining $28,418.20 of Ms. Price’s medical expenses, alleging that Mercury had impaired Shands’ lien. Mercury served a settlement proposal on Shands pursuant to section 768.79, Florida Statutes (2006), offering to pay Shands $17,700 as final satisfaction of Shands’ lien....

...se, the record supports the trial court’s finding that *214 Shands prevailed with respect to several significant issues. Moreover, the trial court properly-considered and denied Mercury’s claim for attorney fees pursuant to its settlement offer. Section 768.79(1), Florida Statutes (2006), provides in relevant part: (1) In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney’s fees ......

...In determining the amount of the plaintiffs “judgment obtained,” courts should include not only “the amount of the net judgment entered,” but also “any postoffer collateral source payments received or due as of the date of the judgment, plus any postoffer settlement amounts by which the verdict was reduced.” § 768.79(6), Fla. Stat. (2006). We have interpreted the “judgment obtained” under section 768.79 to include “the total net judgment, which includes the plaintiffs taxable costs up to the date of the offer and, where applicable, the plaintiffs attorneys’ fees up to the date of the offer.” White v. Steak & Ale of Fla., Inc., 816 So.2d 546, 551 (Fla.2002). Before awarding attorney fees to Shands, the trial court properly “determine[d] the effect of [Mercury’s] § 768.79 proposal for settlement.” Final Judgment at 3....

...costs, and any damages caused by a violation of a law of this state.’’ § 627.727(10), Fla. Stat. (2007) (emphasis added). In February 2010, (Fridman filed a notice of a settlement proposal pursuant to Florida Rulé of Civil Procedure 1.442 and section 768.79, Florida Statutes. (2010), in the amount of $50,000. Safeco did not respond and, thus, the unanswered proposal for settlement was deemed rejected after thirty days. See § 768.79, Fla....

...precedent. We have jurisdiction. See art. V, § 3(b)(6), Fla. Const. In Auto-Owners Insurance Co. v. Southeast Floating Docks, Inc., 682 F.3d 1195 (11th Cir.2011), the Eleventh Circuit certified the following questions to this Court: DOES FLA. STAT. § 768.79 ALLOW FOR VALID OFFERS OF JUDGMENT IN A SEPARATE SECOND TRIAL; AND, IF SO, MAY OFFERS BE DEEMED VALID IN INSTANCES WHERE AN APPELLATE COURT REINSTATES THE JUDGMENT OF THE FIRST TRIAL? DOES THE CONDITIONING OF AN OFFER OF JUDGMENT ON THE RESOLUTION AND DISMISSAL WITH PREJUDICE OF THE OFFER-EE’S CLAIMS IN THE ACTION AGAINST A THIRD-PARTY RENDER THE OFFER OF JUDGMENT A JOINT PROPOSAL, AS THAT TERM IS USED IN FLORIDA RULE OF CIVIL PROCEDURE 1.442(c)(3)? DOES FLA. STAT. § 768.79 APPLY TO CASES THAT ARE GOVERNED BY THE SUBSTANTIVE LAW OF ANOTHER JURISDICTION; AND, IF SO, IS THIS STATUTE APPLICABLE EVEN TO CONTROVERSIES IN WHICH THE PARTIES HAVE CONTRACTUALLY AGREED TO BE BOUND BY THE SUBSTANTIVE LAWS OF ANOTHER JURISDICTION? Id....

...On September 25, 2006, the district court scheduled a retrial for April 2, 2007. See Southeast, 632 F.3d at 1197. On December 11, 2006, more than six months after the conclusion of the first trial and four months before the date scheduled for the second trial, Southeast sent Auto-Owners an offer of judgment pursuant to section 768.79, Florida Statutes (2006)....

...On June 16, 2009, the Eleventh Circuit Court of Appeals reversed the judgment and the district court’s order for a new trial and reinstated the jury verdict from the original trial in favor of Southeast. See id. 2 Shortly thereafter, Southeast filed a motion for attorney’s fees in federal district court pursuant to section 768.79, which establishes a party’s entitlement to attorney’s fees upon certain conditions related to filing an offer of judgment....

...Southeast sought review of the determination of attorney’s fees in the Eleventh Circuit. The circuit court, based upon an inability to find “definitive answers in clearly established Florida law,” certified the previous three questions to this Court with regard to the application of section 768.79 and Florida Rule of Civil Procedure 1.442. See id. at 1197. This proceeding followed. Analysis We begin our analysis by addressing the third certified question, which involves a determination of whether section *78 768.79(1) constitutes substantive law and, therefore, is inapplicable in instances where parties to a contract have agreed to be bound by the substantive law of another forum. We begin here because the answers to the first two certified questions are dependent on a determination of whether section 768.79 applies in this case, which requires us to determine whether the fee statute is substantive or procedural. This dispute originates from the choice-of-law clause in Southeast and Auto-Owners’s contract that provides for the substantive law of Michigan to apply to disputes that arise under the agreement. Southeast argues that section 768.79 is procedural for conflict of law purposes, warranting its application in this dispute, while Auto-Owners argues that the statute is substantive, and, therefore, is not applicable because the parties have agreed that the substantive law of Michigan shall apply....

...which may contain both procedural and substantive aspects work harmoniously to prevent one branch from encroaching on the constitutional powers of another. See TGI Friday’s, 663 So.2d at 611 . 4 *79 Although the Florida Legislature did not codify section 768.79 until 1986, see § 768.79, Fla. Stat. (Supp.1986), the origins of Florida’s offer of judgment statute date back to 1972, when this Court initially adopted a variation of section 768.79 that mirrored Federal Rule of Civil Procedure 68....

...y Florida Rule of Civil Procedure 1.442, which details the requirements to properly file a proposal of settlement. See Attorneys’ Title Ins. Fund, Inc. v. Gorka, 36 So.3d 646, 649 (Fla.2010) (per curiam) (citing TGI Friday’s, 663 So.2d at 611 ). Section 768.79 was enacted to deter parties from rejecting presumably reasonable settlement offers by imposing sanctions through costs and attorney’s fees....

...The threat of a potentially unfavorable award of costs and fees, in theory, would promote settlement, reduce litigation costs, and conserve judicial resources. See Gorka, 36 So.3d at 649 . This statute, however, has not produced the desired outcome as the validity and applicability of section 768.79 and Florida Rule of Civil Procedure 1.442 have produced a significant amount of independent litigation....

...ntract from the date of filing of the offer if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than such offer, and the court shall set off such costs and attorney’s fees against the award. § 768.79(1) Fla. Stat. (2011) (emphasis supplied). According to section 768.79, a court is required to award reasonable costs and fees to a defendant when two conditions are satisfied: (1) the defendant files an offer of judgment that is not accepted by the plaintiff within thirty days, and (2) the final judgment...

...tiff. See id. The mandatory language used by the Legislature — i.e., “the defendant shall be entitled ... the court shall ” — is reflective of an intentional policy choice to limit judicial discretion in the award of attorney’s fees. Thus, section 768.79 provides courts with a “simple, arithmetic, calculation” to determine an award of costs and fees. TGI Friday’s, 663 So.2d at 611 (quoting Schmidt v. Fortner, 629 So.2d 1036, 1040 (Fla. 4th DCA 1993)). We have previously considered the constitutionality of section 768.79 and held it to be constitutional despite its combination of substantive and procedural aspects. See Knealing, 675 So.2d at 596 (citing Timmons, 608 So.2d at 2-3); see also TGI Friday’s, 663 So.2d at 611 . Specifically, in Timmons, we held section 768.79 to be properly enacted by the Legislature because it is “clear that the circumstances under which a party is entitled to costs and attorney’s fees is substantive.” ' 608 *80 So.2d at 2-3. We have also noted that the Legislature, by enacting section 768.79, modified the traditional American rule, which requires each party to pay its own attorney’s fees, to establish a mandatory award for attorney’s fees once certain statutory conditions are satisfied. See TGI Friday’s, 663 So.2d at 611 . To the extent that section 768.79 alters the common law approach to attorney’s fees, the statute creates a substantive right. See id. The issue at hand, whether section 768.79 is substantive for conflict of law purposes, was not before this Court in Timmons, TGI Friday’s, or Knealing, because those cases exclusively addressed the substantive-procedural determination in the context of constitutionality. Now properly before the Court, we hold that section 768.79 is substantive for both constitutional and conflict of law purposes. In doing so, we reaffirm the holding in the Timmons and TGI Friday’s cases that the Legislature created a substantive right to attorney’s fees in section 768.79....

...award of fees. Under subsection (7)(b), the court’s discretion is directed by the statutory text solely to determining the reasonability of the amount of fees awarded.... 663 So.2d at 613 (emphasis supplied) (quoting Schmidt, 629 So.2d at 1042 ). Section 768.79 is unlike procedural rules that provide courts significant discretion to facilitate the administration of justice. This fact, along with the holdings of the Tim-mons and TGI Friday’s cases, leads us to conclude that section 768.79 is substantive in nature both for constitutional and conflict of law purposes....

...ed upon for its predictable and uniform application. See id. at 711 (“To disregard the choice of law provision here would do violence to the concept of commercial comity.”). 6 Under a conflict of law analysis, an award of attorney’s fees under section 768.79 is not substantially different than an award of fees under section 57.105....

...Neither statute advances a sufficient public policy concern to override the strong policy of protecting freedom of contract. Accordingly, we answer the third certified question in the negative, and hold that because an award of attorney’s fees under Florida’s offer of judgment statute is a substantive right, section 768.79 will not apply in instances where the parties have agreed to be governed by the substantive law of another jurisdiction. In holding that section 768.79 is inapplicable in instances where parties have agreed to be bound by the substantive laws of another forum, we recognize that the majority holdings by the Fourth District in BDO Seidman, LLP v. British Car Auctions, Inc., 802 So.2d 366, 368 (Fla. 4th DCA 2001), and the Fifth District in Bennett v. Morales, 845 So.2d 1002 (Fla. *82 5th DCA 2003), have taken the position that introductory clause of section 768.79, which provides, “[i]n any civil action for damages filed in the courts of this state,” mandates the application of the statute irrespective of the parties’ choice of applicable substantive law. The Fifth District’s opinion in Bennett merely agrees with the reasoning of the majority conclusion in BDO Seidman that “section 768.79 applies to all civil actions for damages brought in Florida, even where the substantive law of another jurisdiction is applied.” 845 So.2d at 1004 ....

...Thus, the reasoning of the Fourth District in BDO Seidman, as agreed with by the Fifth District in Bennett , is erroneous and we disapprove those cases to the extent they conflict with our opinion today. In applying our holding to the facts at hand, we conclude that Southeast is not entitled .to costs and fees under section 768.79 because the statute is substantive, and therefore inapplicable because Southeast and Auto-Owners have contractually agreed to be bound by the substantive laws of Michigan....

...We presume that the choice-of-law clause is valid, and find no sufficient public policy concern to override the parties’ right to choose the law of the particular forum that governs the substantive portions of their contract. Conclusion Florida’s offer of judgment statute, set forth in section 768.79, creates a substantive right to costs and attorney’s fees upon the satisfaction of certain conditions. Accordingly, under a conflict of law analysis, when parties have agreed to be bound by the substantive law of another jurisdiction, section 768.79 simply does not apply....

...Federal Rule of Civil Procedure 68 governs offers of judgment in federal cases. . We agree with the Fourth District’s holding in Precision Tune Auto Care that Weatherby Associates, Inc. v. Ballack, 783 So.2d 1138 (Fla. 4th DCA 2001), a case that Southeast relies on to argue section 768.79 is procedural for conflict of law purposes, is inapplicable to cases where the contractual choice-of-law provisions govern the dispute....

...arising out of an automobile accident. The plaintiff, Carlson, has cross-appealed. The crucial issue which bears on this controversy is the determination of the amount of the "judgment obtained" as that term is used in the offer of judgment statute, section 768.79, Florida Statutes....

...injury within a reasonable *557 degree of medical probability as a result of the accident. McKenna moved for a setoff as to the amount of Carlson's PIP benefits paid and payable, including her deductible. She also moved for attorney fees pursuant to section 768.79, Florida Statutes, on grounds that, after applicable setoff, "the judgment obtained by [Carlson] is at least 25% less than" McKenna's proposals for settlement....

...Subsection 768.76(1) does not govern PIP setoffs but rather controls other collateral source payments received by an injured party. See, e.g., Rudnick (medpay benefits are a collateral source governed by section 768.76). However, we deal in this case with the issue of the entitlement, vel non, to attorney fees under section 768.79, Florida Statutes....

...e computation of the final judgment those benefits are presently due and owing rather than benefits potentially payable in the future. I agree with Chief Justice Wells in his dissent in Rollins that Kokotis is a correct and sound decision. NOTES [1] Section 768.79 provides in relevant part: (1) In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recov...

...court approval if a survivor objects. A defendant in a wrongful death action need not apportion a proposed settlement among the estate and survivors on behalf of whom the personal representative is acting in order to comply with the requirements of section 768.79 and Florida Rule of Civil Procedure 1.442....

...The remaining question before us asks whether Hodson may recover fees from the survivors' shares of settlement proceeds from other settling defendants. In these consolidated cases, we have determined that Hodson has shown an entitlement to fees under section 768.79, Florida Statutes, by serving an offer of judgment on Thompson and then trying the case to a defense verdict....

...ultiple defendant offerees as required by Florida Rule of Civil Procedure 1.442); McFarland & Son, Inc., 727 So.2d at 269 (same). Moreover, the offer of judgment statute has been strictly construed. See, e.g., Hingson, 808 So.2d at 199 (holding that section 768.79, Florida Statutes, not just Florida Rule of Civil Procedure 1.442, requires an offer from one defendant to state the amount and terms attributable to each of multiple plaintiff offerees); Dudley, 799 So.2d at 441 (holding that an offer...

...to accept a settlement offer. Accordingly, we do not perceive that the survivors, out of whose share of the recovery an attorney's fee would ultimately be *954 paid to Dr. Hodson, can be fairly said to have not accepted the offer of settlement. See § 768.79(6)(a), Fla....

...Here the personal representative, who as statutory plaintiff filed suit against nine different defendants in a medical malpractice action for wrongful death, rejected a timely proposal for settlement duly "made pursuant to Rule 1.442, Florida Rules of Civil Procedure, and Section 768.79, Florida Statutes." This forced the case to trial, at which Dr....

...ry directive that if a defendant files an offer of judgment which is not accepted by the plaintiff..., the defendant shall be entitled to recover reasonable costs and attorney's fees incurred by ... him ... if the judgment is one of no liability.... § 768.79(1), Fla....

...On August 19, 2004, Frosti filed her proposals for settlement in the trial court. On September 13, 2004, she filed a motion for judgment in accordance with the jury verdict and a motion for attorney fees and costs. The motion for fees and costs argued that Frosti was entitled to attorney fees and costs pursuant to section 768.79, Florida Statutes (2001), and Florida Rule of Civil Procedure 1.442 because Houk had rejected her proposals for settlement....

...fees and costs because Frostis proposals for settlement were prematurely filed. Frosti, 943 So.2d at 1023-24. [2] The Second District relied on its decision in Bottcher, which held that a motion for attorney fees and costs pursuant to rule 1.442 and section 768.79 should be denied where the party seeking fees and costs prematurely filed its proposal for settlement....

...nt that meets the statutory threshold for an award. These are legal issues subject to de novo review. See Campbell v. Goldman, 959 So.2d 223, 225 (Fla.2007). ANALYSIS As for the certified conflict issue, Frosti is correct that neither rule 1.442 nor section 768.79 delineates a specific period within which to file a proposal for settlement. Florida Rule of Civil Procedure 1.442(d) provides that a "proposal shall be served on the party or parties to whom it is made but shall not be filed unless necessary to enforce the provisions of this rule." Section 768.79(3), Florida Statutes (2001), provides that the "offer shall be served upon the party to whom it is made, but it shall not be filed unless it is accepted or unless filing is necessary to enforce the provisions of this section." No decision from this Court or a district court of appeal has defined "necessary to enforce" as it is used in rule 1.442 or section 768.79....

...Bottcher, 834 So.2d at 185; Mills, 909 So.2d at 343; see also Browning, 884 So.2d at 298 (reversing award of attorney fees where moving party "admitted below and on appeal" that his proposal for settlement was filed prematurely). After reviewing rule 1.442 and section 768.79, we find no basis to deny a party's motion for attorney fees and costs because the underlying proposal for settlement was filed before judgment was entered....

...r settlement or of her motions for attorney fees, it is necessary to consider whether she obtained a judgment sufficient to merit an award of attorney fees and costs. Creel argues that Frosti is not entitled to an award of fees and costs pursuant to section 768.79 because the portion of her judgment attributable to compensatory damages is not twenty-five percent greater than either of her offers to settle the compensatory damages claim. We find no merit in Creel's argument. Section 768.79(6), Florida Statutes (2001), provides that a plaintiff shall be awarded reasonable attorney fees and costs where the plaintiff serves a proposal for settlement which is not accepted by the defendant and obtains a judgment that is at least twenty-five percent greater than the amount of the offer to settle. The statute defines "judgment obtained" as "the amount of the net judgment entered." § 768.79(6)(b), Fla....

...The net judgment entered is the total award of *917 $94,470.66, which far exceeds 125% of the amount offered in either of Frosti's proposals for settlement. Frosti has satisfied the statutory requirements and is entitled to reasonable attorney fees and costs. The right to attorney fees pursuant to section 768.79 applies to fees incurred on appeal....

...rosti through this appeal. We approve the Fifth District's decision in Mills on the issue of the premature filing of the proposal for settlement. It is so ordered. LEWIS, C.J., and ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur. NOTES [1] Section 768.79(1), Florida Statutes (2001), provides that in any civil action for damages "[i]f a plaintiff files a demand for judgment which is not accepted by the defendant within 30 days and the plaintiff recovers a judgment in an amount at least...

...ter than the offer, she or he shall be entitled to recover reasonable costs and attorneys fees incurred from the date of the filing of the demand." Florida Rule of Civil Procedure 1.442 ("Proposals for Settlement") codifies the procedural aspects of section 768.79....

...including, but not limited to, ... items of damage or loss which were brought or not brought in [this] lawsuit.... [e.s.] Plaintiff rejected the offer. After a final judgment against plaintiff on all claims, the trial court awarded attorney's fees under section 768.79, holding that the proposal was legally sufficient....

...Defendant also states Bowman is in conflict with Nichols. We see no conflict. "The particularity required by rule 1.442(c)(2)(C)-(D) is indispensable and not a mere formality." Swartsel, 882 So.2d at 453. This proposal fails to meet the particularity requirements of section 768.79 and rule 1.442....

...Before WILSON, PRYOR and ANDERSON, Circuit Judges. ANDERSON, Circuit Judge: In this offer of judgment case, we certify three questions to the Florida Supreme Court, seeking guidance as to the application of Florida’s offer of judgment statute, Fla. Stat. § 768.79, and Florida Rule of Civil Procedure 1.442. First, we inquire whether an offer of judgment may be viable when filed under the following circumstances: the offer was filed by a defendant after a jury verdict for the defendant had been set...

...Simpson is not a party to this appeal. 3  On December 11, 2006, more than 6 months after the conclusion of the first trial and 4 months in advance of the scheduled second trial, Southeast sent Auto- Owners the § 768.79 proposal for settlement that is the subject of this appeal.2 In the proposal, Southeast offered to settle the case by paying Auto-Owners $300,000, provided that Auto-Owners agree to resolve and dismiss with prejudice all claims asserted in this action by Auto-Owners against Southeast and Alan L....

...Southeast subsequently filed the motion for attorney’s fees that is the subject of this appeal. 2 We use the terms offer of judgment, proposal for settlement, demand for settlement, and shortened versions thereof interchangeably, as these terms are used interchangeably in § 768.79 and Rule 1.442. 4  The district court denied the attorney’s fees motion, finding that Southeast had failed to comply with the requirement in Florida Rule of Civil Procedure 1.442(b...

...Was Southeast’s offer of judgment rendered non-viable by the 45-day requirement in Rule 1.442? The issue here is whether Southeast’s offer of judgment, which came after the first trial had ended but more than 45 days in advance of the scheduled second trial, was timely according to Rule 1.442. Section 768.79(1) provides, in relevant part: In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant...

...ll be entitled to recover reasonable costs and attorney’s fees incurred by her or him or on the defendant’s behalf . . . if the judgment is one of no liability . . . . 5 Fla. Stat. § 768.79(1)....

...ial to determine the reasonableness of their offer; therefore, these cases represented instances where the offer in question satisfied the nexus with the determinative judgment for which Auto-Owners advocates. 3 See Fla. Stat. § 768.79; Nev....

...The court in Glanzberg stated, “Litigants (particularly defendants) who file after the conclusion of trial have the benefit of knowing the jury’s verdict, from which they can calculate the exact amount for which they must offer to settle in order to be entitled to attorney’s fees under section 768.79 if they were to win on appeal.” Id....

...appeal and succeed in reinstating the first jury verdict. Of course, Fla. Stat. § 4 On the other hand, of course, the offeree of such a proposal for settlement would also have the same knowledge. 9 768.79(7) provides that a trial court may disallow an award of fees upon determining that an offer of judgment (like the nominal one in our hypothetical example) was not made in good faith....

...tent of the Florida legislature are unclear, and because there are no Florida cases that conclusively indicate what the proper interpretation should be, we respectfully certify to the Florida Supreme Court the following question: DOES FLA. STAT. § 768.79 ALLOW FOR VALID OFFERS OF JUDGMENT IN A SEPARATE SECOND TRIAL; AND, IF SO, MAY OFFERS BE DEEMED VALID IN INSTANCES WHERE AN APPELLATE COURT REINSTATES THE JUDGMENT OF THE FIRST TRIAL? 5 Auto-Owners has not argue...

...Auto-Owners claims that Michigan law should apply to this case because the parties agreed to apply the substantive law of Michigan in a choice-of-law provision in the indemnity agreement on which Auto-Owners sued. At least one Florida District Court of Appeal has held that § 768.79 applies to all civil cases in Florida, regardless of the substantive law of the case....

...However, in light of the holding and rationale of BDO Seidman, we do not believe that this factual difference undermines that case as precedent for this case. The holding in BDO Seidman did not depend on the kind of case that was involved. Rather, it held that § 768.79(1) is clear and applies to “‘any civil action for damages filed in the courts of this state . [. . .]’” Id. at 368 (quoting Fla. Stat. § 768.79(1) (1991) (emphasis added)). Thus, the court held that the Florida offer of judgment statute “should be applied without engaging in a conflict of laws analysis.” Id. The court also reasoned: Our conclusion that section 768.79 applies to all civil actions for damages brought in Florida courts is consistent with the legislative intent, which is to reduce litigation....

...An action for damages based on the substantive law of another jurisdiction has the same impact on the Florida court system as one based on the substantive law of Florida. Id. at 369 (internal citation omitted). BDO Seidman also stated that § 768.79 is procedural, not substantive. Id. at 369. See also id. at 370–74 (Gross, J., concurring specially) (explaining 15 why § 768.79 is procedural)....

...court, and because we found no pertinent case from the Florida Supreme Court, 16 it is possible that the Florida Supreme Court may desire to address the conflict of laws issue. Therefore, we certify the following question: DOES FLA. STAT. § 768.79 APPLY TO CASES THAT ARE GOVERNED BY THE SUBSTANTIVE LAW OF ANOTHER JURISDICTION; AND, IF SO, IS THIS STATUTE APPLICABLE EVEN TO CONTROVERSIES IN WHICH THE PARTIES HAVE CONTRACTUALLY AGREED TO BE BOUND BY THE SUBSTANTIVE LAWS OF ANOTHER...

...uriae. PER CURIAM. We have for review a decision of the Second District Court of Appeal certifying the following question to be of great public importance: WHETHER THE APPLICATION OF A CONTINGENCY RISK MULTIPLIER TO AN AWARD OF ATTORNEY'S FEES UNDER SECTION 768.79, FLORIDA STATUTES (1993), THE OFFER OF JUDGMENT STATUTE, VIOLATE[S] THE GUARANTEE OF *974 EQUAL PROTECTION AFFORDED UNDER THE UNITED STATES OR FLORIDA CONSTITUTION? Pirelli Armstrong Tire Corp....

...Garbis, Miami, for appellee. Before SCHWARTZ, C.J., and COPE and SHEVIN, JJ. SCHWARTZ, Chief Judge. After it won a jury verdict and resulting judgment in a personal injury action, the Florida Highway Patrol, the defendant below, applied for attorney's fees under section 768.79, Florida Statutes (1995), because the plaintiff had rejected a $1000.00 offer of judgment made soon after the case was filed....

...to conclude that [its] exposure was nominal."[emphasis supplied] Fox v. McCaw Cellular Communications, Inc., 745 So.2d 330, 333 (Fla. 4th DCA 1998). Specifically, the defendant could reasonably believe, as it stated it did believe, either because of a late notice which would have precluded relief under section 768.79, or because its investigation revealed substantial evidence that its trooper had not, as alleged, been guilty of any causative negligence, or both, that it was not liable at all, so that the case was worth no more than a nuisance amount to settle....

...y. After Attorneys' Title allegedly refused, Gorka and Larson sued Attorneys' Title, seeking a declaratory judgment and damages for breach of contract. Prior to trial, Attorneys' Title served a proposal for settlement on Gorka and Larson pursuant to section 768.79, Florida Statutes (2004), and Florida Rule of Civil Procedure 1.442....

...late attorneys' fees pursuant to its unaccepted proposal for settlement. We entered an order remanding the fee issue for determination by the trial court. We stated that if Attorneys' Title established its "entitlement to attorneys' fees pursuant to section 768.79 and rule 1.442," the trial court was authorized to award Attorneys' Title its reasonable appellate fees....

...evaluate or independently accept the offer as the offer required the acceptance of both parties." On that basis, the court concluded that the proposal was invalid and entered the order now on appeal, denying the motions for attorneys' fees. ANALYSIS Section 768.79(1) provides in pertinent part as follows: In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitl...

...(3) A proposal may be made by or to any party or parties and by or to any combination of parties properly identified in the proposal. A joint proposal shall state the amount and terms attributable to each party. Fla. R. Civ. P. 1.442(c) (emphasis added). The purpose of section 768.79 is to encourage the settlement of lawsuits....

...his or her respective claim by accepting the proposal. If one wished to accept but the other elected not to accept, the acceptance would not be effective. In this scenario, the offeree who wished to accept would be exposed to the fee sanction under section 768.79 and rule 1.442 due to the conduct of the other offeree rather than as a result of his or her independent decision to reject the proposal. Thus, because of the penal nature of section 768.79 and the strict construction that we must apply, the proposal for settlement is invalid to impose an award of fees against Gorka and Larson....

...[6] A defendant in a malicious prosecution case has the burden to bring forward evidence to show the termination was not "bona fide" once the plaintiff submits evidence of a bona fide termination. Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352 (Fla.1994). [7] The offer of judgment statute, section 768.79, adds the strong inducement of attorney's fees in an effort to promote settlements....

...the plaintiff nor any firm associated with him would bring any future action against the defendant or anyone associated with him. The plaintiff refused. Zalis subsequently won a $105,000 jury verdict and made a motion for attorneys' fees pursuant to section 768.79 of the Florida Statutes. The trial court found the condition in the settlement offer to be invalid and denied the motion for attorneys' fees. The defendant appeals. Section 768.79 of the Florida Statutes requires that offers of judgment state with particularity the amount offered to settle a claim for punitive damages....

...h particularity all nonmonetary terms of the proposal. The condition that a plaintiff relinquish all rights to sue about anything at any point in the future is intrinsically a condition incapable of being stated with the particularity required under section 768.79 of the Florida Statutes....

...mended complaint with prejudice. In the second appeal, Perkins v. Wilson, 697 So.2d 1276 (Fla. 3d DCA 1997) ("Wilson II"), we reversed the lower court's denial of attorney's fees and costs to appellees pursuant to their offer made in accordance with section 768.79, Florida Statutes (1995), and remanded for a determination of a reasonable amount. Appellant Leroy Thomas now appeals the judgment awarding attorney's fees and costs. On this appeal, Thomas first attempts to challenge, on various grounds, the propriety of the appellees' entitlement to fees and costs pursuant to section 768.79 on various grounds....

...Gaebe, Murphy, Mullen & Antonelli, and Matthew W. Dietz, Coral Gables, for appellee. Before SCHWARTZ, C.J., and GERSTEN and GREEN, JJ. GERSTEN, Judge. The county court certified the following question as being of great public importance: DOES FLORIDA STATUTE § 768.79 REQUIRE THAT THE COURT NOT CONSIDER FLORIDA STATUTE § 57.041 COSTS ADDED TO A JURY VERDICT IN A FINAL JUDGMENT, WHEN COMPARING THAT FINAL JUDGMENT TO PLAINTIFF'S DEMAND FOR JUDGMENT? We accept jurisdiction pursuant to Florida Rule of Appel...

...("defendant") to have a stereo installed. While in the defendant's care, the car was stolen and subsequently recovered in damaged condition. The plaintiff sued the defendant to recover his damages. Thereafter, the plaintiff served a $6,000.00 demand for judgment, pursuant to Section 768.79, Florida Statutes (1997), on the defendant. The defendant rejected the demand and the case went to trial. Section 768.79(6)(b) provides, in pertinent part: (b) If a plaintiff serves [a demand] which is not accepted by the defendant, and if the judgment obtained by the plaintiff is at least 25 percent more than the amount of the [demand], the plaintiff shall be awarded......

...The plaintiff obtained a verdict in the amount of $6,696.23. After adding prejudgment interest and the plaintiff's entitlement to costs under Section 57.041, Florida Statutes (1997), [1] the trial court entered a judgment in the amount of $7,728.03. The plaintiff then moved for attorney's fees under Section 768.79 because he obtained a judgment that was at least twenty-five percent greater than his demand for judgment. The trial court, however, denied the plaintiff's motion on the ground that costs are incidental to the action, and thus, not part of the "judgment" for Section 768.79 purposes. [2] Without the $298.00 statutory pre-demand costs award, the plaintiff's judgment amounted to $7,430.03; $69.97 short of the required amount. The plaintiff's entitlement to fees under Section 768.79 depends upon whether predemand costs, to which a prevailing plaintiff *411 is entitled pursuant to Section 57.104, are part of the "judgment obtained" for Section 768.79 purposes....

...Brochu, 578 So.2d 491, 493 (Fla. 5th DCA 1991). We disagree with our sister courts' limited definition. The amount of the judgment for damages awarded by a jury is a "verdict," see Black's Law Dictionary 1559 (6th ed.1990), not a "judgment." Furthermore, Section 768.79(6)(b) specifically defines the term "judgment obtained" as: the amount of the net judgment entered, plus any postoffer settlement amounts by which the verdict was reduced. While a jury's verdict is certainly an important part of the "judgment obtained," we fail to see how the two terms can be equated. [3] See Allstate Insurance Co. v. Sutton, 707 So.2d 760 (Fla. 2d DCA 1998)("For purposes of a statute such as Section 768.79, the damages that trigger the attorney's fee portion are measured by the judgment rather than by the jury verdict")....

...Bass, 605 So.2d 908 (Fla. 3d DCA 1992), we held that in order for a plaintiff to preserve his entitlement to attorney's fees, the plaintiff's demand must include costs. See also Clinica Lourdes, Inc. v. Miro, 713 So.2d 1062 (Fla. 3d DCA 1998) (applying Bass rule to Section 768.79 attorney's fees motions); Stouffer Hotel Co....

...the making of the offer." § 45.061(2)(b), Fla. Stat. (1997). Section 627.428 has been interpreted in the same manner. See DeSalvo v. Scottsdale Ins. Co., 705 So.2d 694 (Fla. 1st DCA 1998), review granted, 717 So.2d 537 (Fla. May 20, 1998). Because Section 768.79 serves the same purpose as these statutes, we follow the same reasoning....

...in determining the "judgment obtained." The plaintiff, thus, obtained a judgement in the amount of $7,728 .03, which is more than twenty-five percent greater than his $6,000.00 demand. Accordingly, the plaintiff is entitled to attorney's fees under Section 768.79....

...NOTES [1] Section 57.041 provides, in pertinent part: (1) The party recovering a judgment shall recover all his legal costs and charges which shall be included in the judgment... [2] The trial court properly did not subtract prejudgment interest from the judgment for Section 768.79 purposes....

...Liability was alleged on behalf of Island Hoppers both in its direct capacity, and vicariously, on behalf of two of its employees, party codefendant dive instructors. In August of 1996, Beard's estate filed three demands for judgment, pursuant to Florida Statutes 768.79, against Island Hoppers and the two dive instructors, of one million dollars each, for a total of three million dollars, which were all rejected....

...ich were also rejected. The case proceeded to trial in March of 1998. The jury ultimately returned a verdict in favor of Beard's estate, resulting in a $609,004.50 judgment against Island Hoppers. The Estate moved for its attorneys' fees pursuant to section 768.79....

...court's determinations in those regards. Island Hoppers further contends the trial court erred in applying a contingency risk multiplier to the "lodestar" fee award, especially where the attorneys' fees in question were only recoverable pursuant to section 768.79....

...utory provision. The controlling statute provided, "When determining the reasonableness of an award of attorney's fees pursuant to this section, the court shall consider, along with all other relevant criteria, the following additional factors ...". § 768.79(7)(b), Fla. Stat. (1993) [3] (as discussed in Collins ). We further noted the statute referred the court to the guidelines promulgated by the supreme court in determining a reasonable fee. See § 768.79(6)(a),(b), Fla....

...the time and rate factors." Rule 4-1.5(c). Therefore, we concluded that the legislature had authorized a trial court to consider the application of a contingency risk factor as one criterion which may be applied in determining a reasonable fee under section 768.79. Collins, 664 So.2d at 15. Thereafter, a split has arisen among the Districts regarding the propriety of utilizing a contingency risk factor in determining a reasonable fee under section 768.79. In Gonzalez v. Veloso, 731 So.2d 63 (Fla. 3d DCA 1999), Chief Judge Schwartz questioned whether the showing required by Quanstrom could ever be satisfied in a 768.79 context. "Quaere: Whether any such showing can ever be made, and thus whether a multiplier is ever appropriate, when fees are awardable only when a reasonable offer is not accepted under section 768.79, an eventuality which obviously cannot be anticipated when counsel is obtained." Id. at 64. Subsequent to Gonzalez, some courts began to shy away from the application of multipliers in the section 768.79 context, primarily on the grounds the parties seeking fees had failed to prove the necessary factual predicated established in Quanstrom, i.e., that the attorney representing the party who made the offer of judgment would not have take...

...5th DCA 2000); Internal Medicine Specialists, P.A. v. Figueroa, 781 So.2d 1117 (Fla. 5th DCA 2001). Then, in December of 2001, in an en banc opinion, the Fifth District expressly held trial courts were without legal authority to utilize a contingency multiplier in conjunction with a section 768.79 fee award....

...5th DCA 1996); Strahan; Internal Medicine Specialists ). In Sarkis, the court recognized the plaintiff had made a strong factual showing to support the award of a multiplier under its previous case law. However, the court held multipliers were no longer legally applicable where fees were sought under section 768.79, cursorily adopting the view of Judge Casanueva dissenting in Pirelli Armstrong Tire Corp. v. Jensen, 752 So.2d 1275 (Fla. 2d DCA 2000)(Casanueva, J., concurring in part and dissenting in part), rev. dismissed, 777 So.2d 973 (Fla.2001), that neither (1) Quanstrom nor (2) section 768.79 authorized the used of contingency risk multipliers in calculating attorney's fees awarded under the offer of judgment statute. Upon due consideration, we respectfully disagree and follow our prior holding in Collins. As discussed, supra, in Collins, upon due inspection of the statutory language of section 768.79, and the relevant rules promulgated by our supreme court, which the statute itself expressly reference, we held the legislature, via section 768.79, had authorized trial courts to consider the application of a contingency risk factor as a criterion in determining a reasonable fee under the offer of judgment statute....

...admits in his dissenting opinion, "[B]y referring to the fee for legal services *975 rule, the Fourth ... assert[s] that the legislature statutorily authorized trial courts to apply a contingency risk multiplier in determining a reasonable fee under section 768.79 ....arguably, a reading of the fee factors promulgated by our supreme court could support this holding...." Pirelli Armstrong, 752 So.2d at 1277....

...As such, the multiplier was established, to serve as an incentive of sorts, for attorneys to undertake representation where a risk of nonpayment was established. Although an attorney contemplating representation of a particular client can never "know" for certain whether or not entitlement to a fee award under 768.79 will ultimately be established, surely skilled counsel can, contrary to the words of Chief Judge Schwartz in Gonzalez, "anticipate" such....

...Offers of judgment, as well as requests to apply multipliers, have clearly become part and parcel of litigation in the state of Florida; this court need only look at any monthly docket to recognize such. We find no inconsistency in holding competent counsel can "anticipate" the eventual filing of a 768.79 offer of judgment, "anticipate" the possible entitlement to fees if the statutory prerequisites are met, and "anticipate" the possibility said fee award will be multiplied....

...Thus, we hold the trial court did not abuse its discretion in determining a multiplier of 2.3 was warranted in the instant case. We recognize both the First and Second Districts have recently upheld the legal validity of application of a multiplier in conjunction with a fee award under section 768.79. See Lewis v. Bondy, 752 So.2d 1225 (Fla. 1st DCA 2000); Pirelli Armstrong, 752 So.2d 1275 (Fla. 2d DCA 2000); see also Allstate Insurance Co. v. Materials, 787 So.2d 173 (Fla. 2d DCA 2001)(holding multiplier was not applicable to section 768.79 award because plaintiff failed to introduce any evidence establishing the factual proof required by Quanstrom )....

...In this context, the requirement of an expert on attorney's fees insulated a trial court from criticism by providing an objective basis for an award that otherwise might have been perceived by the losing party as one more dose of punishment. Statutes such as sections 57.105 and 768.79, Florida Statutes (2001), have expanded the situations in which courts are called upon to award attorney's fees....

...I also agree with the majority that a hard and fast rule requiring the testimony of an expert in every case is unnecessary. Each party should decide for itself whether securing the testimony of an outside expert will allow it to present a better case. NOTES [1] See § 768.79(6)(b), Fla....

...Quanstrom, 555 So.2d 828 (Fla. 1990); Bell v. U.S.B. Acquisition Co., 734 So.2d 403 (Fla.1999). [3] The controlling version of the statute in the instant case contained the exact same language as that examined in Collins. The instant underlying suit was instituted in 1995; section 768.79 was not amended from 1990 until 1997....

...when the cause of action arose). [4] We recognize an inconsistency has arisen in this regard due to the split among the Districts. For example, counsel practicing in this District could "anticipate" entitlement to a multiplied fee award (pursuant to section 768.79), whereas counsel practicing in the Fifth could not reasonably "anticipate" such....

...ougald's car. McDougald sought damages for personal injuries, and his wife sought damages for loss of consortium. In 1995, McDougald and his wife served a $200,000 demand for judgment (the 1995 demand) on Perry, C & S, and Ryder jointly, pursuant to section 768.79, Florida Statutes (1995). In 1996, McDougald and his wife served a $125,000 demand for judgment (the 1996 demand) on Perry, C & S, and Ryder jointly, pursuant to sections 44.102(6)(b) and 768.79, Florida Statutes (1995)....

...Even if this rule were applicable to this case ... the defendants would only be entitled to their taxable costs, not nontaxable costs as well." Kay, 568 So.2d at 961 n. 1. Logically, if only taxable costs are allowed under rule 1.442, only taxable costs should be allowed under section 768.79. Moreover, to hold that the "reasonable costs" allowed by section 768.79 include nontaxable costs would result in a situation in which the prevailing party under section 768.79 would realize a greater award than a prevailing party under section 57.041, Florida Statutes (1995), which governs the recovery of costs by a party obtaining a judgment....

...ut the defendant "prevails" on an offer of judgment. In that situation, each party would be entitled to recover taxable costs from the other. We agree with the First and Third Districts, and hold that nontaxable costs are not recoverable pursuant to section 768.79....

...s pursuant to the 1996 demand. Therefore, McDougald sought an award of fees and costs from only C & S. Since no judgment for attorney's fees and costs was entered against Perry, he is not a party to this appeal. [3] In this case, the 1989 version of section 768.79 governs the substantive issues concerning the 1996 demand and the 1991 version of 768.79 governs the procedural issues....

...gal contract. The implied contract in this case did not involve services performed or materials provided outside of "services as a life insurance agent" within the meaning of section 626.794(1). We agree with Hull that the attorney's fee award under section 768.79 must be reversed. The 1989 version of section 768.79 applies to this case since the cause of action accrued in 1989....

...y Moore could not be separated from time spent on the unjust enrichment claim or the counterclaims. Additionally, in a footnote, the Chodorows asserted they were entitled to the award of all fees incurred after September 1, 2004, as a consequence of section 768.79, Florida Statutes, the offer of judgment statute, and a $25,000 offer to settle served on that date....

...Dresdner's motion for new trial without any substantive change. On the same day, the trial court entered a separate final judgment awarding Charter Oak $36,021 in attorney's fees and $3000 costs against Dr. Dresdner. The attorney's fee award was based on a proposal for settlement under section 768.79, Florida Statutes (2001), and rule 1.442 of the Florida Rules of Civil Procedure....

...On September 25, 2001, Lexington filed a notice of serving offer of settlement upon the Halls in the amount for $30,000.00. The offer stated as follows: Defendant, LEXINGTON INSURANCE COMPANY, by and through undersigned counsel, and pursuant to Florida Statutes 768.79, 45.061, and pursuant to Rule 1.442, Florida Rules of Civil Procedure, hereby serves this Offer of Settlement inclusive of all costs, interest and attorneys fees, in the amount of THIRTY THOUSAND DOLLARS ($30,000.00), in accordance with and under the terms and conditions set forth by said Statute....

...Thereafter, Lexington filed a motion for attorney's fees and costs on July 2, 2002 and a supplemental motion for attorney's fees and costs on May 19, 2003. This court conditionally granted Lexington's motion for appellate attorney's fees based upon the trial court determining that Lexington was entitled to fees under section 768.79, Florida Statutes (2001)....

...A hearing was held on July 29, 2003. Prior to the court's ruling, the Halls moved for relief from Order on Defendant's Motion for Entitlement to Attorney's Fees and Costs, arguing that Lexington failed to follow Florida Rule of Civil Procedure 1.442 and section 768.79 which provides that a joint proposal shall state the amount and terms attributable to each party, that a full resolution of the case, including the bad faith claim had not been obtained prior to the court's ruling, that the offer of se...

...They argue that since the settlement offer did not delineate which portion of the $30,000.00 was to settle the punitive damages claim, the offer was invalid. The standard of review in determining whether an offer of settlement comports with rule 1.442 and section 768.79 is de novo, because a proposal for settlement is in the nature of a contract....

...It is further alleged that on July 26, 1988, appellee prepared and signed a stipulation to the City's planned demolition of the motel and restaurant, without appellant's knowledge or authorization. On April 18, 1991, appellee served appellant with an offer of judgment in the amount of ten dollars, pursuant to section 768.79, Florida Statutes, together with some other pleadings....

...s. Appellee has filed a motion for appellate attorney's fees. We deny that motion. Appellee has not prevailed on this appeal. In addition, the law would not allow attorney's fees even if appellee had prevailed on this appeal. The statute applicable, section 768.79(1)(a), Florida Statutes (1987), provides in part: [I]f a defendant files an offer of judgment which is not accepted by plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney's fees incurred f...

...The plain language of section 768.71(2), attaches the right to attorney's fees to the underlying cause of action, in the integrated statutory scheme under the negligence chapter of the Florida Statutes. Metropolitan Dade County v. Jones Boatyard, Inc., 611 So.2d 512, 514 (Fla. 1993). Prior to the 1990 amendment to section 768.79, the statute did not authorize an award of attorney's fees in the absence of a judgment in some amount for plaintiff....

...1st DCA 1993); City of Punta Gorda v. Burnt Store Hotel, Inc., 650 So.2d 142, 143 (Fla. 2d DCA 1990) (a judgment rendered in favor of the plaintiff is a prerequisite to awarding costs and attorney's *429 fees to a defendant who has made an offer of judgment pursuant to section 768.79(1)(a)). In 1990, the statute was amended to allow awards of attorney's fees in cases where a judgment of no liability is entered. Buchanan, 629 So.2d at 992; City of Punta Gorda, 650 So.2d at 143. An award of section 768.79 attorney's fees is controlled by the statute in effect when the cause of action accrued....

...On July 26, 2016, after the trial court bifurcated the issues of fee entitlement and fee amount, Fisher Auction filed a copy of the proposal for settlement. Without citation to any authority, Haas argues that, under Florida Rule of Civil Procedure 1.442(d) and section 768.79 of the Florida Statues, proposals for settlement must be filed prior to the time a party seeks to enforce an entitlement to attorney’s fees. Therefore, according to Haas, Fisher Auction’s proposal for 14“An appellate court applies the de novo standard of review in determining whether an offer of settlement comports with rule 1.442 and section 768.79 because a ‘proposal for settlement is in the nature of a contract.’” Miami-Dade Cty....

...sal to its motion for attorney’s fees. We disagree. Rule 1.442(d) provides that “[a] proposal shall be served on the party or parties to whom it is made but shall not be filed unless necessary to enforce the provisions of this rule.” Section 768.79(3) of the Florida Statutes (2016) provides that “[t]he offer shall be served upon the party to whom it is made, but it shall not be filed unless it is accepted or unless filing is necessary to enforce the provisions of this sectio...

...for settlement be filed either before moving for fees or when moving for fees. Both simply require that the movant file the proposal for settlement when “necessary” to enforce provisions of the rule and the statute. Fla. R. Civ. P. 1.442(d); § 768.79(3), Fla. Stat. (2016); see Frosti v. Creel, 979 So. 2d 912, 915 (Fla. 2008) (recognizing that “neither rule 1.442 nor section 768.79 delineates a specific period within which to file a proposal for settlement”). In Frosti, the Florida Supreme Court found it permissible for a party to file a proposal for settlement after a jury verdict, but before entry of a final judgment, noting that neither rule 1.442 nor section 768.79 “unambiguously defines when a proposal for settlement should be filed.” Id....

...in a check made payable to Isicoff, Ragatz & Koenigsberg and delivered to the Foxes’ counsel; and (ii) the sum of $200,001.00 to Haas in a check made payable to Haas Automation, Inc. and delivered to Haas’ counsel. Section 768.79 of the Florida Statutes provides the substantive basis for attorney fee entitlement, and rule 1.442 provides the procedural framework to 18 implement section 768.79’s substantive requirements. See Kuhajda v. Borden Dairy Co. of Ala., LLC., 202 So. 3d 391, 395 (Fla. 2016). Section 768.79(2)(b) requires all proposal for settlement offers to “[n]ame the party making [the offer] and the party to whom [the offer] is being made.” § 768.79(2)(b), Fla....

...n derogation of the common law rule that each party is responsible for its own fees.” Pratt v. Weiss, 161 So. 3d 1268, 1271 (Fla. 2015); Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So. 2d 276, 279 (Fla. 2003) (holding that in order for a section 768.79 settlement offer to be valid, “an offer from multiple plaintiffs must apportion the offer among the plaintiffs” as provided by rule 1.442(c)(3)). The Foxes argue, though, that rule 1.442(c)(4)’s “indirect liability”...

...ent was affirmed on appeal. Dudley v. McCormick, 766 So.2d 1046 (Fla. 1st DCA 2000) (table). A separate judgment awarding Ms. McCormick fees and costs provided: 1. That the Defendant is entitled to an award of reasonable attorneys' fees, pursuant to Section 768.79, Florida Statutes, Rule 1.442, Florida Rules of Civil Procedure, given Defendant's Proposal for Settlement served June 1, 1998, in the amount of $1750.00, which was not accepted by the Plaintiff, and the Directed Verdict, in favor of D...

...Proposal for Settlement, June 1, 1998, through the conclusion of this case. 2. That Defendant is entitled to reimbursement of costs expended in defending this action pursuant to Section 57.041, Florida Statutes, as a prevailing party and pursuant to Section 768.79, Florida Statutes, Rule 1.442, Florida Rules of Civil Procedure and Defendant's Proposal for Settlement served on June 1, 1998, but not accepted by Plaintiffs, from the inception of the case to its conclusion....

...(b) Name the party making it and the party to whom it is being made. (c) State with particularity the amount offered to settle a claim for punitive damages, if any. (d) State its total amount. The offer shall be construed as including all damages which may be awarded in a final judgment. § 768.79(2), Fla....

...cts. See § 768.25, Fla. Stat. (2000). A defendant in a wrongful death action need not apportion a proposed settlement among the estate and survivors on behalf of whom the personal representative is acting in order to comply with the requirements of section 768.79 and Florida Rule of Civil Procedure 1.442....

...McCormick's proposal for settlement did not specify separate amounts for mother and son (or designate only one plaintiff the offeree) as required by Florida Rule of Civil Procedure 1.442(c)(3), we reverse the award of attorney's fees as unauthorized either by the rule or by section 768.79(2), Florida Statutes (1997)....

...Milton, 595 So.2d 12 (Fla.1992), has not been called into question here. See generally Timmons v. Combs, 608 So.2d 1 (Fla.1992). [4] Before the amendment to Florida Rule of Civil Procedure 1.442(c)(3) took effect, an offer of settlement made to multiple plaintiffs sufficed under section 768.79, as long as it identified the source of the proposed payment....

...applicable, would require reimbursement of costs to appellant due to the fact that the amount of the final judgment obtained by appellee was more than 25% less than the amount specified in appellant's rejected offer of judgment. See §§ 45.061 and 768.79, Fla....

...We find ourselves constrained, albeit with certain reservations, to follow the above cited cases and hold that, since appellant did not pay her costs or incur liability to do so, the trial court properly denied her motion to tax costs. We find no evidence in the text of rule 1.442, or sections 45.061 and 768.79, of an intent on the part of the supreme court or the legislature to depart from the common law principles that costs are in the nature of indemnification, or reimbursement, and that they generally are not awardable to nonparties....

...Although rule 1.442 does not specify by whom the awardable costs must be incurred, the rule is couched in terms of the "party" making the offer and the "adverse party," indicating, perhaps, that the costs must be incurred by a party. The inference that costs must be incurred by a party is even stronger in sections 45.061 and 768.79. Section 45.061(3)(a) refers to "[t]he amount of the parties' costs and expenses, " and section 768.79(2)(b)6 speaks of "[t]he amount of the additional delay cost and expense that the offeror reasonably would be expected to incur ......

...text of offers of judgment, should, if warranted, be initiated by the legislature or the supreme court. We note that the supreme court has recently amended rule 1.442. The new rule, to be effective January 1, 1990, will supercede sections 45.061 and 768.79 to the extent that the procedural aspects of the new rule are inconsistent with the statutes....

...State Farm, Milton's insurance company, paid Milton $2,859.05 for property damage to his vehicle. On September 6, 1988, Milton, individually and for the use and benefit of State Farm, filed suit against Leapai and Ekeroma. On November 8, 1988, Leapai made an offer of judgment in the amount of $1.00 pursuant to section 768.79, Florida Statutes....

...The trial court found that Leapai had transferred her interest in the vehicle in December of 1985 and therefore had no liability for the accident. Accordingly, the trial court granted her motion for summary judgment. *806 Leapai then moved to tax costs and attorney's fees in her favor pursuant to sections 768.79 and 45.061 and Florida Rule of Civil Procedure 1.442, based on the fact that she was the prevailing party and that Milton had not accepted her offer of judgment. The trial court held that section 768.79, which had been enacted after the accident here, did not apply....

...ocedure Committee to adopt a new procedure by which parties could be sanctioned for the failure to accept bonafide pretrial offers of settlement. The Florida Supreme Court had requested the committee to examine any possible conflict between sections 768.79 and 45.061, Florida Statutes (1987) and Florida Rule of Civil Procedure 1.442, governing offers of judgment. The court declined to address the constitutionality of the "purely substantive aspects" of section 768.79 and 45.061. However, the court agreed with the committee that sections 768.79 and 45.061 infringe upon the court's duties in their procedural details. For example, the court pointed out that the time limits for acceptance of an offer in the two statutes are inconsistent; section 768.79 allows only 30 days while section 45.061 permits 45 days....

...Pursuant to its constitutional duty to adopt uniform rules of procedure governing the courts of the state, the Florida Supreme Court amended rule 1.442, effective January 1, 1990. The court held that to the extent the procedural aspects of the new rule 1.442 are inconsistent with sections 768.79 and 45.061, the rule supersedes the statutes....

...COBB and GOSHORN, JJ., concur. NOTES [1] We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(b)(4). [2] Because of our holding that section 45.061 is unconstitutional, we decline to address the second question certified by the county court. [3] Section 768.79 governs offers of judgment in negligence actions....

...s in a footnote to Gonzalez v. Veloso, 731 So.2d 63 (Fla. 3d DCA 1999): Quarere: Whether any such showing can ever be made, and thus whether a multiplier is ever appropriate, when fees are awardable only when a reasonable offer is not accepted under § 768.79, an *162 eventuality which obviously cannot be anticipated when counsel is obtained....

...Alfred Vincent Hess and Florida Orthopaedic Institute (FOI) appeal a final judgment entered in favor of Noreen Walton in a medical malpractice action. They challenge an award of attorneys' fees that was entered against FOI pursuant to Florida Rule of Civil Procedure 1.442 and section 768.79, Florida Statutes (2003). Although the settlement strategy employed by the plaintiff in this multi-defendant case may not have been foreseen by the legislature when it enacted section 768.79, we affirm....

...Hess had been negligent and that FOI was vicariously liable. The primary dispute in the lawsuit centered on the value of this claim. Because the value of the claim was the primary issue, the parties submitted several offers of judgment or proposals for settlement pursuant to rule 1.442 and section 768.79....

...[1] *1048 FOI contests the award of attorneys' fees, arguing that two separate and unequal proposals to settle by a single plaintiff made to an active tortfeasor and to a party vicariously liable for the active tortfeasor are impermissible under rule 1.442 and section 768.79....

...We are simply unable to articulate and announce any rule barring such proposals to settle. Accordingly, we affirm the judgment and leave to the legislature the task of reviewing its policies as they relate to defendants who are merely vicariously liable for the acts of another. II. REASONS EXIST TO "CONSTRUE" RULE 1.442 AND SECTION 768.79 IN FAVOR OF A COMMON LAW OUTCOME If this trial had been a game of horseshoes, Dr....

...The circumstances of this case do not seem to fit within any scenario that would warrant or justify an outcome different from that envisioned by the common law. Given that the common law outcome would seem to be the better approach in this case, the question is whether rule 1.442 and section 768.79 give us the option to announce a common law outcome and refuse to impose the attorneys' fees as a penalty or sanction against FOI....

...They use the rule of strict construction when a statute is vague to assure that the statutory rule, which is in derogation of the common law, is not extended to govern any factual scenario other than those clearly covered by the statute. In Sarkis, Justice Wells was explaining that rule 1.442 and section 768.79 were vague on the issue of whether the fee would be determined with or without a multiplier....

...As Chief Justice Pariente has observed, however, there is a point at which a strict construction of a statute to preserve the common law is merely a "forced" construction. Sarkis, 863 So.2d at 228 (Pariente J., dissenting). We conclude that a holding in favor of FOI in this case would require such a forced construction. III. SECTION 768.79 AND RULE 1.442, WHEN READ TOGETHER, ARE NEITHER VAGUE NOR AMBIGUOUS Section 768.79(1) allows attorneys' fees and costs to be awarded against a defendant when a plaintiff files a demand for judgment which is not accepted by the defendant and the plaintiff recovers a judgment in an amount at least 25% greater than the offer. § 768.79(1), Fla. Stat. (2003). Section 768.79(1) does not explicitly discuss the complexities that arise in multiparty lawsuits. However, it uses the terms "a plaintiff," "the plaintiff," "a defendant," and "the defendant" in a manner that would allow a plaintiff to make an offer to a specific defendant. Section 768.79(2) describes the content of an offer and requires that the offer "[n]ame the party making it and the party to whom it is being made." This language, of course, suggests that offers can be party specific. By itself, this language might arguably be vague when applied to multiparty cases. The language of the statute may allow for an interpretation limiting the statute to two-party cases. Rule 1.442 implements section 768.79 and leaves no doubt about the outcome required in this case....

...[4] In the case before us today, the defendants not only wished to have the option of making a joint, unified proposal to settle but also wanted this court to hold that the plaintiff is prohibited from making any other type of offer to the two of them. Nothing in Barnes, rule 1.442, or section 768.79 supports that position....

...[5] It should be noted that the current rule does not leave a pair of defendants such as Dr. Hess and FOI defenseless against the tactic of bookend offers to settle. In this *1052 case, the verdict was $23,500. If our math is correct, the 25% safe haven for both parties existed between $17,625 and $29,375. See § 768.79, Fla....

...reme court no jurisdiction to resolve the confusion. We conclude that the issue presented by this case is a question of great public importance, and we certify to the supreme court the following question: DOES A STRICT CONSTRUCTION OF RULE 1.442 AND SECTION 768.79, FLORIDA STATUTES (2003), REQUIRE A COMMON LAW OUTCOME WHEN A PLAINTIFF MAKES TWO SEPARATE PROPOSALS OF SETTLEMENT TO TWO DEFENDANTS WHEN ONE DEFENDANT IS ONLY VICARIOUSLY LIABLE FOR THE OTHER? Affirmed....

...held that a unified joint proposal served by a plaintiff on vicariously liable defendants was proper and did not need to be apportioned because the defendants' claims were unified, not separate and distinct. [5] These proposals under rule 1.442 and section 768.79 are not immune from the rule announced in section 768.041, Florida Statutes (2003)....

...amounts and terms each plaintiff was requesting. The trial court granted the plaintiffs' subsequent motion for attorney's fees and costs because the ultimate total of the recoveries was more than 25% greater than the proposed settlement amount. See § 768.79(1), Fla....

...f the claims plaintiffs, WILLIS SHAW EXPRESS, INC. and EDWARD McALPINE, have filed against defendant, HILYER SOD, INC., in this action. 4. The total amount being offered with this proposal is NINETY-FIVE THOUSAND ONE AND NO/100 DOLLARS ($95,001.00). Section 768.79, Florida Statutes, provides a sanction against a party that unreasonably rejects an offer of settlement. See § 768.79(1), Fla....

...Any statute that deviates from the common law approach must be strictly construed. See Major League Baseball v. Morsani, 790 So.2d 1071, 1077-78 (Fla.2001) ("[A] statute enacted in derogation of the common law must be strictly construed. ..."). In addition, section 768.79 imposes a penalty for unreasonably rejecting a settlement offer....

...nstrued.'") (quoting Gershuny v. Martin McFall Messenger Anesthesia Prof'l Ass'n, 539 So.2d 1131, 1132 (Fla.1989)). The abundance of case law cited by both parties in this case demonstrates that courts have generally applied a strict construction to section 768.79 and Rule 1.442 by the frequency with which they invalidate unspecified offers....

...James Kadyk of Smith Clark Delesie Bierley Mueller & Kadyk, P.A., Tampa, for Appellee. PARKER, Judge. Anthony Wagner challenges the trial court's order denying him an award of attorney's fees pursuant to his proposal for settlement served on Steve Brandeberry under section 768.79, Florida Statutes (1997)....

...Following entry of the final judgment, Wagner moved for attorney's fees and costs against Brandeberry based on the proposal for settlement served on Brandeberry alone. At hearings on the motion, Brandeberry conceded that Wagner's proposal and the jury's verdict mathematically triggered section 768.79 and created an entitlement to fees....

...Despite this evidence, the trial court concluded that Wagner had not served his proposal in good faith and denied Wagner's motion for fees. On appeal, the parties do not dispute that Wagner's proposal for settlement and the subsequent jury verdict mathematically triggered section 768.79 so as to entitle Wagner to an award of fees. The only question is whether Wagner forfeited his entitlement to fees by not serving his proposal in good faith. See T.G.I. Friday's, Inc. v. Dvorak, 663 So.2d 606, 611 (Fla. 1995) (noting that section 768.79 creates an entitlement to fees which may be lost only if the proposal was not served in good faith)....

...v. Thompson, 641 So.2d 189, 190 (Fla. 2d DCA 1994) ("The trial court erred in considering *446 whether appellee was reasonable in rejecting GEICO's offer, because an unreasonable rejection is not a prerequisite to an award of attorney's fees under section 768.79.")....

...Therefore, we conclude that the trial court's determination that Wagner acted in bad faith was an abuse of discretion. Second, whether Wagner's proposal would completely eliminate Brandeberry from the litigation is likewise irrelevant to the determination of whether Wagner acted in good faith because nothing in section 768.79 requires that a proposal for settlement completely eliminate the offeree from the litigation. The plain language of section 768.79 makes it clear that any party to a lawsuit can serve a proposal for settlement on any other party to that suit. See § 768.79(2)(b), Fla....

...Because the trial court found that Wagner intended to fully settle all of his claims against Brandeberry through the proposal, the trial court should have found that Wagner acted in good faith. The court's failure to do so constituted an abuse of discretion. In conclusion, once the jury's verdict mathematically triggered section 768.79, the only basis for denying Wagner an award of fees pursuant to his proposal for *448 settlement was a conclusion that Wagner had not acted in good faith....

...Therefore, the trial court's order denying fees is reversed and the case is remanded for entry of an award of fees. Reversed and remanded with directions to the trial court to enter an order in favor of Wagner for an award of attorney's fees. CAMPBELL, A.C.J., and DANAHY, PAUL W., (Senior) Judge, Concur. NOTES [1] Section 768.79, Florida Statutes (1997), states in part: Offer of judgment and demand for judgment....

...Maureen Cloer, as Charles' parent and next friend, filed a complaint for negligence against Deltona, alleging that the eagle statue was a dangerous condition on their rental premises. Four months later, Deltona served an offer of judgment on Cloer in the amount of $101.00 pursuant to the offer of judgment statute, section 768.79, Florida Statutes....

...r. This is not one of those cases, however. In light of the manifest lack of liability, Deltona was not obliged to offer more than a nominal amount for its offer to be in good faith. REVERSED and REMANDED. THOMPSON and ANTOON, JJ., concur. NOTES [1] § 768.79, Fla....

...Under the Supremacy Clause of the United States Constitution, a federal law preempts a state law where the two conflict. Felder v. Casey, 487 U.S. 131, 108 S.Ct. 2302, 101 L.Ed.2d 123 (1988); Free v. Bland, 369 U.S. 663, 82 S.Ct. 1089, 8 L.Ed.2d 180 (1962). An offer of judgment filed pursuant to rule 1.442 is governed by section 768.79 as the rule merely incorporates the procedural portion of this statute as a rule of court. Section 768.79(1) provides in pertinent part that a defendant whose offer of judgment is rejected by the plaintiff and who obtains a judgment of no liability may recover reasonable costs and attorney's fees from the plaintiff....

...ss the defendant." Hensley v. Eckerhart, 461 U.S. 424, *887 429, n. 2, 103 S.Ct. 1933, 1937, n. 2, 76 L.Ed.2d 40 (1983). Thus, because section 1988 allows the award of attorney's fees to prevailing defendants in a much more limited context than does section 768.79(1), section 1988 preempts section 768.79(1)....

...Caruso of Caruso, Burlington, Bohn & Compiani, P.A., West Palm Beach, for appellees. PER CURIAM. Stephen Levine and Nutricology, Inc. (Appellants) [1] appeal from an order denying their motion for attorney's fees under the offer of judgment statute, section 768.79, Florida Statutes (1991)....

...fidavits filed, various interrogatories and various documents produced during discovery. The parties also deposed Stephen Levine, Dr. Gonzalez and Don Hartman. Thereafter, on March 14, 1997, Appellants filed an offer of judgment of $500, pursuant to section 768.79, Florida Statutes (1991)....

...d Dr. Gonzalez was banned by the law and public policy of Florida. The summary judgment was affirmed on appeal. See Harris v. Gonzalez, 789 So.2d 405 (Fla. 4th DCA 2001). On January 3, 2000, Appellants filed a motion for attorney's fees, pursuant to section 768.79, Florida Statutes (1991), alleging that they made an offer of judgment in the amount of $500 on March 14, 1997, which was rejected....

...An award of attorney's fees pursuant to the offer of judgment statute is controlled by the version of the statute in effect when the cause of action arose, not when the offer was made. Metro. Dade County v. Jones Boatyard, Inc., 611 So.2d 512 (Fla.1993); Marcus v. Miller, 663 So.2d 1340 (Fla. 4th DCA 1995). Section 768.79, Florida Statutes (1991), provides in relevant part: (1)In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant s...

...(7)(a) If a party is entitled to costs and fees pursuant to the provisions of this section, the court may, in its discretion, determine that an offer was not made in good faith. In such case, the court may disallow an award of costs and attorney's fees. (Emphasis added). Under section 768.79, a party has the right to attorney's fees when the following prerequisites have been fulfilled: (1) a party has served a demand or offer for judgment and (2) that party has recovered a judgment at least twenty-five percent more or less than the demand or offer....

...In that circumstance, Eagleman holds that an issue of good faith arises for resolution by the trial court. Id. at 332-33. This court emphasized that "nominal offers of judgment are not alone determinative of bad faith." Id. at 333. This court went on to stress: [T]he question of good faith in making an offer under section 768.79 involves an inquiry into the circumstances shown by the entire record of the case....

...Some nominal offers will have been made in good faith; some not so. The trial judge will have to consider all the surrounding circumstances when the offer was made. Id. In explaining the "good faith" requirement, this court stated in Schmidt: We do not understand the good faith requirement of section 768.79(7)(a), however, to demand that an offeror necessarily possess, at the time he makes an offer or demand under the statute, the kind or quantum of evidence needed to support a judgment....

...purpose of creating a right to fees if it is not accepted. Schmidt, 629 So.2d at 1040 n. 5. As the third district has recognized: The creation of the right to attorney's fees is the reason, or among the reasons, why any litigant makes an offer under section 768.79. It is the carrot held out by the statute to encourage early settlements. If we were to conclude that it is bad faith to utilize section 768.79 to obtain the right to attorney's fees, then the legislative inducement, the reason section *1179 768.79 exists, disappears into a judicial black hole....

...In any event, it will advance the discussion started by Judge Schwartz and continued by Judge Casanueva that the application of the attorney's fees multiplier to offer of judgment cases is inconsistent with reason, fairness, and the very statute involved. What is a "reasonable attorney's fee" under the provisions of section 768.79, Florida Statutes, when an offer of judgment is not accepted and the offeror prevails by more than 25%? Is an attorney's fee multiplier ever appropriate when fees are awarded under the authority of an offer of judgment statute? [2] If...

...Jensen, 752 So.2d 1275 (Fla. 2d DCA 2000). Judge Casanueva based his opinion on equal protection guarantees. It can just as well be argued that to apply the multiplier in offer of judgment cases is contrary to clear legislative intent. The legislature in section 768.79 carefully crafted a party neutral fee provision to encourage settlement by assessing identical risks against each party if an offer is improperly rejected....

...m with this position, I submit, is that the legislature minimized its general reference to the supreme court guidelines by emphasizing that the court must rely on additional, offer of judgment specific factors in determining an appropriate fee under section 768.79....

...ing party cases. If you view the offer of judgment provision relating to fees in its entirety, it seems clear that the legislature did not contemplate a contingency fee multiplier. Such a multiplier is inconsistent with the policy encompassed within section 768.79(7)(b) which is to determine the amount of the fee based on the merits of the case, the number and nature of the offers made, the closeness of the questions of law and fact, whether information was withheld so that a proper evaluation o...

...jury is understandable; that the position obtained judicial acceptance is not. [11] The fact that imposition of a contingency multiplier is inconsistent with the offer of judgment case is apparent from looking at Rowe and comparing it with sections 768.79(7)(b)1 and 3....

...Information requested in that application would be material to the premium charged. There being no material issues of fact, the trial court should have entered summary judgment in favor of NIC. In its second point, NIC argues that the trial court erred in striking its offer of settlement made pursuant to section 768.79, Florida Statutes (1999)....

...The second counterclaim alleged damages resulting from Porsche's appeal of the arbitration award, and the third sought revocation of acceptance under chapter 672, Florida Statutes, from Contemporary. Porsche also served Mason with a written offer of judgment, purportedly pursuant to section 768.79, Florida Statutes (1991), offering to settle for $20,000, which Mason did not accept....

...British Car Auctions, Inc., 802 So.2d 366 (Fla. 4th DCA 2001), the abrogation of the statutory common law rule was clear, where the statute stated that the provision at issue applied to "any civil action for damages filed in the courts of this state." Id. at 367-68 (quoting Fla.Stat. § 768.79(1))....

...The Complaint was dismissed on the basis of the statute of limitations defense. The Amended Complaint was filed on October 1, 1999. On October 20, 1999, Leonor and Jorge Gonzalez served a proposal for settlement on the children pursuant to the offer of judgment statute, section 768.79, Florida Statutes (1997)....

...no actions prior to his death to enforce or establish his rights. After the trial court granted summary judgment in their favor, the Gonzalezes filed a Motion for Sanctions/Fees and Costs accruing from the date the offers were rejected, pursuant to section 768.79, Florida Statutes (1997). The children's Motion to Bifurcate the issue of entitlement and the issue of a reasonable amount of attorney's fees and costs was granted. At the hearing on the motion, the children argued that the trial court should consider the factors in section 768.79(7)(b), including the merit of the claim, the number and nature of offers made by the parties, the closeness of questions of fact and law at issue and whether it was a test case when determining the issue of entitlement to fees....

...no evidence that he was induced to forbear enforcing his rights. ATTORNEY'S FEES Leonor and Jorge Gonzalez (Defendants [6] ) argue that the trial court erred when it denied their motion for attorney's fees pursuant to the offer of judgment statute, section 768.79, Florida Statutes (1997). Section 768.79 provides in relevant part: (1) In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recov...

...Whether the person making the offer had unreasonably refused to furnish information necessary to evaluate the reasonableness of such offer. 5. Whether the suit was in the nature of a test case presenting questions of far-reaching importance affecting nonparties.... (Emphasis added). "Under section 768.79, a party has the right to attorney's fees when the following prerequisites have been fulfilled: (1) a party has served a demand or offer for judgment and (2) that party has recovered a judgment at least twenty-five percent *521 more or less than the demand or offer." Levine v....

...In that circumstance, Eagleman holds that an issue of good faith arises for resolution by the trial court. Id. at 323-33. This court emphasized that "nominal offers of judgment are not alone determinative of bad faith." Id. at 333. This court went on to stress: [T]he question of good faith in making an offer under section 768.79 involves an inquiry into the circumstances shown by the entire record of the case....

...Some nominal offers will have been made in good faith; some not so. The trial judge will have to consider all the surrounding circumstances when the offer was made. Id. In explaining the "good faith" requirement, this court stated in Schmidt: *522 We do not understand the good faith requirement of section 768.79(7)(a), however, to demand that an offeror necessarily possess, at the time he makes an offer or demand under the statute, the kind or quantum of evidence needed to support a judgment....

...if it is not accepted. Levine, 791 So.2d at 1178 (citing Schmidt, 629 So.2d at 1040 n. 5). As the third district has recognized: The creation of the right to attorney's fees is the reason, or among the reasons, why any litigant makes an offer under section 768.79. It is the carrot held out by the statute to encourage early settlements. If we were to conclude that it is bad faith to utilize section 768.79 to obtain the right to attorney's fees, then the legislative inducement, the reason section 768.79 exists, disappears into a judicial black hole....

...We agree with the analysis of S.A.P. in Judge Gross's concurring opinion. [6] We use Defendants and Plaintiffs in this section of the opinion to avoid confusion with Appellants and Appellees in case No. 4D00-4658. [7] The issue as to attorney's fees pursuant to section 768.79 does not apply to the Estate of Julio Lobo because no offer was made to it....

...Davis, 606 So.2d 393 (Fla. 1st DCA 1992). Hence, the final judgments for the sellers and purchasers are both affirmed. II. In separate appeals, the Codinas and Coneses claim error in the trial court's denial of their applications for attorney's fees under section 768.79, Florida Statutes (1997). We find merit in that position. Early in the litigation, the Codinas and Coneses made separate unaccepted offers of $1,000.00 and $100.00 respectively to settle the case. Despite their eventual success and thus the apparent applicability of section 768.79, Florida Statutes (1997), the trial judge denied their claims for fees on the ground that the fact that their offers of judgment stated that, if accepted, the parties would exchange general releases and E & S would voluntarily dismiss the action with prejudice rendered the offers unenforceable under Martin v....

...They thus should be regarded as mere surplusage, the existence of which should not affect substantial rights. We agree with Judge Glickstein's dissenting view in *367 Martin that the "tail [of] additional documents [should not] wag the dog" of the rejected offer. Martin, 564 So.2d at 241. Because this holding renders section 768.79 facially applicable, the orders denying the applications for fees are vacated....

...COPE, J., specially concurring. I concur in all except the discussion of Martin v. Brousseau, 564 So.2d 240 (Fla. 4th DCA 1990). In Martin, the Fourth District considered whether it was permissible for a person who makes an offer of judgment under section 768.79, Florida Statutes, to include in the offer a requirement that the offeree "execute a full and complete release and satisfaction, a hold harmless affidavit, and a stipulation for dismissal with prejudice." Id....

...As a matter of common sense, if the case proceeded to a trial on the merits, a final judgment would be entered disposing of the case, which would also bar relitigation of the case through the doctrine of res judicata. Thus, it is both logical and necessary in settling a case under section 768.79 that there be a dismissal with prejudice, or other appropriate final judgment....

...It is true that if the case were tried on the merits, there would be no procedure whereby, upon entry of judgment, the parties could be required to execute releases in favor of each other. Instead, the litigants rely on the doctrine of res judicata to preclude further litigation of the same claims. Nonetheless, section 768.79 was intended to facilitate settlement, and exchange of general releases in customary form is the usual way of effectuating a negotiated settlement....

...execute a hold harmless agreement. The theory of the offer of judgment statute is to compare "apples with apples," that is, the financial terms of the offer of judgment as compared with the financial result at the end of trial. If the offeror under section 768.79 is allowed to demand a hold harmless agreement, then the offer of judgment scheme breaks down....

...Without knowing the value of the hold harmless agreement, the financial worth of the offer cannot be meaningfully compared with the financial result obtained in the final judgment. It is "oranges and apples." I therefore do not think that an offer of judgment under section 768.79, Florida Statutes, can be conditioned on a requirement that the offeree enter into a hold harmless agreement, and disagree with the majority opinion on this issue....

...Moletteire of Graham, Moletteire, Tuttle & Torpy, P.A., Melbourne, for Appellee. EN BANC. SHARP, W., J. Allstate Insurance Company appeals from a final judgment awarding attorney's fees to its underinsured motorist insured, Sally Sarkis, based on her proposed settlement offer of $10,000 pursuant to section 768.79, Florida Statutes, the offer of judgment statute....

...cases. Because this overturns prior caselaw in this court, [1] we issue this opinion en banc. In Garrett, we affirmed an attorney's fee award which included a 1.5 contingency risk multiplier in the computation of an attorney's fee award pursuant to section 768.79 without an analysis of how it was established in that case. In Strahan and Figueroa, we held that contingency risk multipliers are available in computing attorney's fees under section 768.79, but that the parties in those cases failed to prove the necessary predicate based on Standard Guaranty Ins....

...Veloso, 731 So.2d 63 (Fla. 3d DCA 1999), such a showing is logically problematic: Quaere: Whether any such showing can ever be made, and thus whether a multiplier is ever appropriate, when fees are awardable only when a reasonable offer is not accepted under section 768.79, an eventuality which obviously cannot be anticipated when counsel is obtained....

...We adopt the view of Judge Casanueva dissenting in Pirelli Armstrong Tire Corp. v. Jensen, 752 So.2d 1275 (Fla. 2d DCA 2000) (Casanueva, J., concurring in part and dissenting in part), rev. dismissed, 777 So.2d 973 (Fla.2001) that neither Quanstrom nor section 768.79 authorizes the use of contingency risk multipliers in calculating attorney's fees awarded under the offer of judgment statute....

...IV). As to TMC, Reynolds asserted claims that it was vicariously liable for the negligence of Danner and McClain. Prior to trial, on June 12, 1998, the attorney for Danner, acting on behalf of Danner and TMC, served an offer of judgment, pursuant to section 768.79, Florida Statutes (1997), and Florida Rule of Civil Procedure 1.442, proposing to settle all *201 claims against Danner and TMC for the sum of $1,500,000.50....

...ee also Moritz v. Hoyt Enters., Inc., 604 So.2d 807, 810 (Fla.1992)("the party prevailing on the significant issues in the litigation" should be considered the prevailing party). Danner next argues that it was entitled to attorney's fees pursuant to section 768.79, Florida Statutes (1997), on the ground that Reynolds rejected Danner's joint offer of judgment....

...Robinson, 736 So.2d 796 (Fla. 3d DCA 1999), and Spruce Creek Development Co., of Ocala, Inc. v. Drew, 746 So.2d 1109 (Fla. 5th DCA 1999), to support its position that the lack of apportionment in the unaccepted offer should not impair its ability to recover under section 768.79....

...ts to be contributed by each of the two defendants. The district court held that "the lack of `apportionment' in the unaccepted offer *202 should not, and we therefore hold that it does not, impair the ability of the defendants here to recover under section 768.79, Florida Statutes (1995)." 736 So.2d at 797....

...percent less than the offer made on behalf of that defendant. This court concluded that "[t]he fact that the offer was made on behalf of two defendants who were not joint tortfeasors makes the necessary determinations as to *203 the applicability of section 768.79 impossible to perform with any certainty" and reversed the award of attorney's fees to the plaintiff....

...2d DCA 1993)(res judicata is affirmative defense that cannot be raised by motion to dismiss unless clear on face of pleadings). We affirm the dismissal. In case no. 96-3450, Margaret appeals an award of attorney's fees in Carmen's favor, based on the offer of judgment statute, section 768.79, Fla....

...ate of the judgment. II. ATTORNEYS' FEES ON THE PROPOSAL FOR SETTLEMENT After the trial, RDR filed a motion for attorneys' fees based on a proposal for settlement that it had served on Eurodirect pursuant to Florida Rule of Civil Procedure 1.442 and section 768.79, Florida Statutes (2001)....

...On count IV they requested fees based on their offer of judgment, which stated: COMES NOW Defendant, BEACH TERRACE ASSOCIATION AND DIRECTORS, by and through their undersigned counsel, and offers Plaintiffs, WANDA DI PAOLA and STEVEN RINKO, pursuant to § 768.79 Florida Statutes, to allow judgment to be taken against Defendants, BEACH TERRACE ASSOCIATION AND DIRECTORS, on all claims against Defendants, BEACH TERRACE ASSOCIATION AND DIRECTORS, and in favor of Plaintiffs, WANDA DI PAOLA and STEVEN RI...

...For all anyone knows, only $1.00 of the total amount was offered for entry of judgment on that count against the association, and the rest of the offered amount was to resolve the claim against the directors in count VI. The calculation necessary to determine the applicability of section 768.79 is impossible to perform with any certainty....

...s. Ins. Co. v. Silverman, 689 So.2d 346 (Fla. 3d DCA 1997), review denied, 707 So.2d 1124 (Fla. 1998). If the plaintiffs had accepted the offer, they might have been forced to continue litigating their requests for injunctive relief. The purposes of section 768.79 include the early termination of litigation....

...Sharon Lee Stedman, Sharon Lee Stedman, P.A., Orlando, for appellant. George H. Moss and Lisa D. Harpring, Moss, Henderson, Van Gaasbeck, Blanton & Koval, P.A., Vero Beach, for appellee. WARNER, Judge. The appellant challenges an assessment of an attorney's fee under section 768.79, Florida *15 Statutes (1993), the offer of judgment statute. She contends that a contingency risk multiplier cannot be used to calculate a reasonable fee under section 768.79, Florida Statutes, in this personal injury case....

...We disagree with this interpretation of the statute and affirm. The statute provides: When determining the reasonableness of an award of attorney's fees pursuant to this section, the court shall consider, along with all other relevant criteria, the following additional factors: § 768.79(7)(b), Fla....

...The statute follows with enumerated additional factors for the court to consider. However, these are not exclusive but, as the statute says, must be considered with the other relevant criteria. Since the statute also refers the court to the guidelines promulgated by the supreme court in determining a reasonable fee, see section 768.79(6)(a), (b), Florida Statutes (1993), we look to the Rules of Professional Conduct, Rule 4-1.5, Fees for Legal Services, for the factors to be considered in determining a reasonable fee....

...only the time and rate factors." Rule 4-1.5(c). Therefore, we conclude that the legislature authorized a trial court to consider the application of a contingency risk factor as one criterion which may be applied in determining a reasonable fee under section 768.79....

...In this consolidated appeal, plaintiff Virginia Kline challenges a final summary judgment in favor of defendant Publix in a case in which she alleged intentional infliction of emotional distress and discrimination. Although the trial court awarded costs to Publix pursuant to section 768.79, *930 Florida Statutes (1987), Publix appeals the trial court's denial of attorney's fees under that same section. In Kline's appeal, we affirm the final summary judgment in favor of Publix. In Publix's appeal, we affirm that portion of the order which denied Publix attorney's fees and reverse the award of costs to Publix. Section 768.79(1)(a), Florida Statutes (1987), provides, in part: [I]f a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney's fees incur...

...ng of the offer if the judgment obtained by the plaintiff is at least 25 percent less than such offer... . (Emphasis added.) In this case, defendant Publix obtained the judgment, therefore, it is not entitled to either costs or attorney's fees under section 768.79(1)(a). The plain language of the statute requires that there be a judgment rendered in favor of the plaintiff as a prerequisite to awarding costs and attorney's fees to a defendant who has made an offer a judgment pursuant to section 768.79(1)(a). See also Rabatie v. U.S. Security Insurance Co., Nos. 88-2229 and 88-2503 (Fla. 3d DCA July 25, 1989) [14 F.L.W. 1753] (section 768.79(1)(a) does not provide for attorney's fees where defendant prevails in underlying action); Makar v. Investors Real Estate Management, Inc., 553 So.2d 298 (Fla. 1st DCA 1989) (in order for a defendant to recover costs and attorney's fees under section 768.79(1)(a), there must be a judgment for the plaintiff)....

...offeree to obtain a damage award against the offeror before a trial court can impose sanctions upon an offeree for the failure to accept an "offer to pay." Id. at 444. Accordingly, we reverse the order awarding costs to defendant Publix pursuant to section 768.79(1)(a)....

...Lee Dorough, Orlando, for Appellants. Elizabeth C. Wheeler of Wheeler & Wilkinson, LLP, Orlando, for Appellee. PETERSON, J. Cynthia and Bruce Nants appeal a final judgment awarding attorney's fees to Geraldine Griffin. Attorney's fees were awardable pursuant to section 768.79(6)(a), Florida Statutes (1997) because Griffin made an offer of judgment of $101 during the litigation and the jury entered its verdict for Griffin after determining that she was not the legal cause of Nants' alleged injuries....

...ppeal), resulting in a summary judgment in favor of Levine and Nutricology, as discussed in Harris v. Gonzalez, 789 So.2d 405 (Fla. 4th DCA 2001). During those proceedings, Levine and Nutricology had filed an offer of judgment under Florida Statutes section 768.79....

...54, the Florida Antitrust Act, and the Florida Deceptive and Unfair Trade Practices Act (Doc. No. 368) [6] . On May 24, 2005, the Burton Defendants filed their motion for an award of attorneys' fees and costs pursuant to Fed.R.Civ.P. 54, Fla. R. Civ. P. 1.442, FLA. STAT. § 768.79, the Florida Antitrust Act, and the Florida Deceptive and Unfair Trade Practices Act (Doc. No. 372) [7] . On May 24, 2005, the Stadium Jumping Defendants filed their motion for an order determining entitlement to attorneys' fees and costs pursuant to Fed. R.Civ.P. 54, FLA. STAT. § 768.79, the Florida Antitrust Act, and the Florida Deceptive and Unfair Trade Practices Act (Doc....

...rida Antitrust Act, which they are not entitled to. As such, the Court finds that an award of attorneys' fees and costs under the Florida Deceptive and Unfair Trade Practices Act is not warranted in this case 3 Attorneys' Fees Pursuant to FLA. STAT. § 768.79—Offer of Judgment Under certain conditions, FLA. STAT. § 768.79 permits a defendant who prevails in a civil action to recover his attorneys' fees if he files an offer of judgment which is not accepted by the plaintiff....

...able costs, including investigative expenses, and attorney's fees"(Doc. Nos. 370 and 374, p. 4). Plaintiffs contend that this Court should deny the Burton Defendants' and Stadium Jumping Defendants' motions for attorneys' fees pursuant to FLA. STAT. § 768.79 since: (1) FLA. STAT. § 768.79 is preempted by the Sherman Act; (2) the offers of judgment are facially invalid; and (3) and the offers of judgment were made in bad faith. FLA. STAT. § 768.79 states in relevant part: (1) In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reas...

...See Lucas v. Calhoun, 813 So.2d 971, 973 (Fla. 2d DCA 2002). "A proposal shall be deemed rejected unless accepted by delivery of a written notice of acceptance within 30 days after service of the proposal." Fla. R. Civ. P. 1.442(f)(1). a. FLA. STAT. § 768.79 is Preempted By the Sherman Act FLA. STAT. § 768.79 is preempted in the instant case since its application would be inconsistent with federal law....

...Generally speaking, "[a]ttorney's fees under the antitrust laws that authorize damages awards are generally mandatory and are awarded to successful plaintiffs only." 2 Alba Conte, Attorney Fee Awards, § 9:1 at 467 (3d ed.2004). In contrast, FLA. STAT. § 768.79 permits a defendant who prevails in a civil action to recover his attorneys' fees if he files an offer of judgment which is not accepted by the plaintiff. To award attorneys' fees under FLA. STAT. § 768.79, based upon state law claims permitted in federal court by the supplemental jurisdiction statute [16] , would impermissibly substitute the interests of FLA. STAT. § 768.79 for those expressly provided for by the Sherman Act [17] . See Keesee v. Bank of America, NA, 371 F.Supp.2d 1370, 1376-77 (M.D.Fla.2005)(holding FLA. STAT. § 768.79 did not apply in case arising under Title VII); see also Moran v. City of Lakeland, 694 So.2d 886, 887 (Fla. 2d DCA 1997). b. The Offers of Judgment Are Facially Invalid and Were Not Made in Good Faith In reviewing a defendant's request for attorneys' fees under FLA. STAT. § 768.79, the court must first examine whether statutory prerequisites have been met thereby creating an entitlement to fees....

...f judgment stated only that they were "intended to resolve all claims of relief" (Doc. Nos. 370 and 373). If the plaintiffs had accepted the offers, they might still have been forced to litigate their requests for injunctive relief. "The purposes of section 768.79 include the early termination of litigation....

...Lucas, 813 So.2d at 973. Based on the foregoing, the Court finds that the offers of judgment were legally insufficient and cannot support an award of attorneys' fees to the Burton Defendants and the Stadium Jumping Defendants pursuant to FLA. STAT. § 768.79....

...ere not made in good faith. Typically, once the statutory requisites have been met, an award of attorneys' fees and costs pursuant to an offer of judgment is mandatory. See Vines v. Mathis, 867 So.2d 548, 549 (Fla. 1st DCA 2004). However, FLA. STAT. § 768.79(7)(a) allows a court, in its discretion, to disallow the recovery of attorney's fees if it determines that the offer of judgment was not made in good faith....

...fendants and Stadium Jumping Defendants offers of judgment, that the offers of judgment were not in good faith. Accordingly, this Court declines to award the Burton Defendants and the Stadium Jumping Defendants attorneys' fees pursuant to FLA. STAT. § 768.79....

...The trial court awarded costs to the defendants because the award was more than twenty-five per cent less than the settlement offer. See id. The appellate court reversed because Mr. Wright had not been given thirty days in which to accept the settlement offer. See id. at 198-99 (citing section 768.79(1)(a), Florida Statutes (Supp.1990), and section 768.79(1)(a), Florida Statutes (Supp.1986))....

...Black of Harrell & Johnson, P.A., Jacksonville, for Appellant. Francis J. Milon of Harris Brown, P.A., Jacksonville, for Appellee. HAWKES, J. Appellant, Theresa Norris, lost at trial in her claim for personal injuries. Appellee, Darrell Treadwell, previously made an offer of judgment pursuant to section 768.79, Florida Statutes (2004)....

...Dinan, 884 So.2d 398 (Fla. 2d DCA 2004). VAN NORTWICK, J., concurs, and KAHN, J., dissents with opinion. KAHN, J., dissenting. Appellant, Theresa Jean Norris, appeals from an order awarding attorneys' fees and costs to appellee, Darrell Treadwell, pursuant to section 768.79(6)(a), Florida Statutes, the offer of judgment statute....

...." Am. Heritage Dictionary (2d college ed. 1985). The consequence of the majority's approach is that it revives the "reasonable time" problem, with trial courts now being faced with determining what is a reasonable time before the judgment. Finally, section 768.79(6), Florida Statutes, creating the substantive right to fees here, does not support the result the trial court reached. Under the statute, entitlement to attorneys' fees is triggered when a defendant serves an offer not accepted by the plaintiff and "the judgment obtained by the plaintiff is at least 25 percent less than the amount of the offer." § 768.79(6)(a), Fla....

...Also, the statute mirrors the wording of the rule by providing that the trial court shall make its determination of entitlement "[u]pon motion made by the offeror within 30 days after the entry of judgment or after voluntary or involuntary dismissal." § 768.79(6), Fla....

...penses and $8500 for future medical bills. After a deduction for plaintiff's $10,000 in PIP coverage, the remaining $7,000 was covered by the Lemons' primary insurance. Allstate filed a motion for entitlement to attorney's fees and costs pursuant to section 768.79....

...cy limits, $30,000. A separate judgment was entered in favor of State Farm and against Marko reflecting the fact that no damages were assessed against State Farm, the UM carrier. Thereafter, State Farm moved for attorney's fees and costs pursuant to section 768.79, Florida Statutes. In reversing the trial court's denial of attorney's fees and costs, the second district disagreed with the trial court's conclusion that section 768.79 did not apply....

...The trial court had reasoned that this section applied to a net award, or net judgment, in cases involving a tortfeasor and an uninsured/underinsured carrier, such as State Farm, and that State Farm was not a separate and distinct defendant entitled to make an offer under section 768.79 independent of the tortfeasor....

...Accordingly, since the verdict amounted to $30,000 and State Farm's offer was $1, the verdict exceeded the amount of the offer and invalidated it. The second district expressly rejected that position and concluded instead that: State Farm as the underinsured liability carrier could make an offer of judgment under section 768.79 independent of any offer, or lack of offer, by the tortfeasor, Mayer....

...Applying this theory to the present case, we note that the $100 offer by Allstate for its UM coverage is not unlike the $1 offer made by State Farm in Marko. Since the offer only applied to any potential recovery in excess of a net verdict within the Lemons' coverage of $10,000, section 768.79 entitles Allstate to an award of attorney's fees and costs, as the $100 offer clearly exceeded plaintiff's zero recovery from Allstate....

...e of bad faith). Because we conclude that there was insufficient evidence upon which the court based its finding that the offer of judgment was not made in good faith, we reverse the order denying Allstate an award of attorney's fees and costs under section 768.79....

...5th DCA 1999), disapproved of by Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276, 2003 WL 1089304 (Fla. 2003), we held that a single and undifferentiated offer of an injured driver and her husband, who brought a claim for lack of consortium, was not void under the offer of judgment statute (section 768.79, Florida Statutes) on the basis that the lack of apportionment between the claimants was a matter of indifference to the defendant, who would be entitled to a release by both claimants upon his acceptance of their offer....

...Spruce Creek has now been expressly *1144 disapproved with respect to this point by the recent opinion of the Florida Supreme Court in Willis Shaw. Therein, the opinion of Justice Wells emphasized the language of Florida Rule of Civil Procedure 1.442(c)(3), which implements section 768.79: "A joint proposal shall state the amount and terms attributable to each party." We believe the language of Willis Shaw is applicable whether the offer emanates from joint plaintiffs or is directed to joint defendants....

...It is not the law, as contended by counsel for Lamb at oral argument, that the delay inherent in the nature of contingency fees justifies imposition of a multiplier. We certify conflict with Barnes. REVERSED and REMANDED. THOMPSON and ORFINGER, JJ., concur. NOTES [1] See § 768.79, Fla....

...Harden of Bateman Harden, P.A., Tallahassee, for Appellants. J. Steven Carter and Laura Beth Faragasso of Henry, Buchanan, Hudson, Suber & Carter, P.A., Tallahassee, for Appellees. DAVIS, J. In this appeal from the trial court's denial of the appellants' motion to tax attorneys' fees and costs pursuant to section 768.79, Florida Statutes (2002), and Florida Rule of Civil Procedure 1.442, we review de novo the appellants' assertion that they were entitled to fees based on the appellants' extension of a $1.00 proposal for settlement to Appellee-Floyd (h...

...nts ultimately prevailed. We affirm the trial court's order denying an award of attorneys' fees to the appellants. The appellants are correct that, had their proposal for settlement been valid, they would have been entitled to an award of fees under section 768.79 and Rule 1.442....

...uired the appellee's stipulation to a final judgment that would have made a specific finding that the appellants prevailed in defense of the appellee's claims against them. After succeeding at trial, the appellants sought attorneys' fees pursuant to section 768.79 and Rule 1.442....

...Accordingly, this proposal for settlement was not valid and the trial court's order is affirmed. ALLEN, J., concurs; BENTON, J., dissents with opinion. BENTON, J., dissenting. The court today affirms denial of fees under the proposal for settlement statute, § 768.79, Fla....

...the recipient of the proposal alleges to be liable only vicariously. See Barnes v. Kellogg Co., 846 So.2d 568, 572 (Fla. 2d DCA 2003) ("If anything, authorizing joint offers in such cases will facilitate settlements, which is the intended purpose of section 768.79"); Thompson v....

...party's attorneys were retained on a contingent fee basis. In Sarkis our high court made the following observation: Throughout the statutory and rule history of offers of judgment, the use of a multiplier has never been expressly authorized. Neither section 768.79 nor rule 1.442 authorizes the use of a multiplier in determining the amount of attorney fees as a sanction for the rejection of an offer. Applying a strict construction of the statute and rule, a multiplier therefore cannot be applied under section 768.79 or rule 1.442, and the trial court's application of a multiplier in this case was error....

...We agree with the Third District Court of Appeal's analysis in Amisub [American Hospital, Inc. v. Hernandez, 817 So.2d 870 (Fla. 3d DCA 2002)] that Quanstrom specifically refers to obtaining counsel in the first instance. It is self-evident that attorney fees awarded as a sanction under 768.79 and rule 1.422 are awarded after an attorney has already been obtained and agreed to undertake the case, and thus the use of a multiplier is not consistent with the purpose of the fee-authorizing statute....

...t. The seller responded that the brokerage commission contract was unenforceable because its contract with the buyer was unenforceable. Then, after serving discovery on the buyer, the seller served proposals for settlement on the brokers pursuant to section 768.79, Florida Statutes (2004), and Florida Rule of Civil Procedure 1.442 *352 (2004)....

...We affirmed. Bus. Specialists, Inc. v. Land & Sea Petroleum, Inc., 25 So.3d 693 (Fla. 4th DCA 2010). While the brokers’ appeal of the summary judgment was pending, the seller filed a motion to recover its attorney’s fees and costs pursuant to: (1) section 768.79 and rule 1.442, both allowing for recovery of attorney’s fees and costs pursuant to proposals for settlement; (2) section 57.105(7), Florida Statutes (2004), allowing for reciprocal recovery of attorney’s fees pursuant to a contrac...

...2d DCA 2008) (quoting Nichols, 932 So.2d at 1079 ). Applying those principles here, we find that the absence of language stating which side would pay the $500 did not make the proposals for settlement ambiguous. The seller complied with rule 1.442(c)(2)(A) and section 768.79(2)(b) by naming itself as “the party ... making the proposal” and naming the brokers as “the parties to whom the proposal is being made.” Fla. R. Civ. P. 1.442(c)(2)(A) (2004); see also § 768.79(2)(b), Fla....

...tinguished other pending unrelated claims.”). Good Faith The standard of review upon a finding that a proposal for settlement was not made in good faith is abuse of discretion. Sharaby v. KLV Gems Co., 45 So.3d 560, 563 (Fla. 4th DCA 2010); accord § 768.79(7)(a), Fla....

...Reversed and remanded. 1 HAZOURI, J., concurs. DAMOORGIAN, J., concurs specially with opinion. . This case adds to the growing list of cases addressing the alleged ambiguity of a proposal for settlement. We believe this issue continues to arise because neither section 768.79 nor rule 1.442 requires the offeree to notify the offeror when the offeree considers a proposal to be ambiguous....

...was not accepted. It is uncontroverted that appellee was awarded the entire interpleaded fund, which was at least twenty-five percent more than it had asked for in its demand for judgment. All parties moved for attorney's fees and costs pursuant to section 768.79, Florida Statutes (1993)....

...way disadvantaged the adverse party. 572 So.2d at 557. Appellee has not demonstrated any reasonable reliance on the appellants' offer of judgment that could form a basis for equitable estoppel. In fact, appellants filed their offer of judgment under section 768.79, Florida Statutes (1993), after the appellee had filed its demand under that statute....

...that the statute does not apply to interpleader actions. In the recent case of Government Employees Ins. Co. v. Thompson, 641 So.2d 189 (Fla. 2d DCA 1994), submitted by the appellee as supplemental authority, the court held that an offer made under section 768.79, Florida Statutes (1993), is not rendered invalid by the fact that it is a joint offer....

...This would trigger the defense of subsection 7(a) that the offer was not made in good faith and costs and fees would not be recoverable. That burden was not met in the present case and we therefore reject appellants' position that the offer was invalid because it was made to them jointly. Finally, appellants contend that section 768.79, Florida Statutes (1993), applies only to actions for damages....

...t attend the required examination unless State Farm accepted her unreasonable and unacceptable demand that it waive its rights under the CME provisions of the policy. The record further reveals that Curran filed a Proposal For Settlement pursuant to section 768.79, Florida Statutes, and rule 1.442, Florida Rules of Civil Procedure, for $1,000,000, which is ten times the amount of the policy limits, to establish a basis for fees in the bad faith action and the final judgment we review provides th...

...n terms of paying the claim and settling the suit once it is able to properly investigate the claim because it gives the insured more leverage to insist on settlement in excess of the policy limits. Hence Curran's Proposal For Settlement pursuant to section 768.79, Florida *825 Statutes, and rule 1.442, Florida Rules of Civil Procedure, for ten times the amount of the policy limits....

...Thus the court entered judgment in favor of the defendants. Based on the unaccepted proposal for settlement, the court ordered Carr only (not her mother) to pay the defendants $18,460.60 in attorney's fees. I. Offer of Judgment. The requirements for a valid proposal for settlement are set forth in section 768.79 [5] and Florida Rule of Civil Procedure *971 1.442....

...ain and suffering) and not her mother's claims (medical expenses and loss of consortium). The defendants' proposal for settlement was therefore unclear and ambiguous. Accordingly, the defendants were not entitled to an award of attorney's fees under section 768.79. See, e.g., Stern v. Zamudio, 780 So.2d 155 (Fla. 2d DCA 2001)(sanctions of section 768.79 were not enforceable where lump sum offer was defective)....

...[3] The age of majority was reduced to eighteen years in 1973. § 743.07, Fla. Stat. According to records in our file, Carr was born on March 6, 1981. [4] However, Hibbard was also a plaintiff, having her own claims for economic damages (her daughter's medical expenses) and loss of consortium. [5] 768.79....

...The offer of judgment stated an offer of "$50,001.00, plus interest, costs and attorney fees as the court may award, pursuant to all applicable Florida Statutes and the Florida Rules of Civil Procedure." McMullen's notice of filing the offer of judgment stated that the offer was made "pursuant to section 768.79, Florida Statutes, and all other applicable Florida statutes and Florida Rules of Civil Procedure." ISS rejected the offer....

...The case was tried before a jury, which found in McMullen's favor. McMullen then filed the offer of judgment and a motion for attorney's fees. When denying McMullen's motion for fees the trial court found that McMullen's offer of judgment did not meet the requirements of section 768.79 because it did not state that it was being made pursuant to that statute, and because it contained conditions which rendered it indefinite. [1] Section 768.79(2)(a), Florida Statutes (1991), provides that an offer of judgment must "[b]e in writing and state that it is being made pursuant to this section." McMullen's offer of judgment lacked the specificity required by the statute....

...state that it was made pursuant to the statute. Murphy, 689 So.2d 1164; Pippin v. Latosynski, 622 So.2d 566, 569 (Fla. 1st DCA 1993). We also agree that the language of McMullen's offer of judgment was impermissibly *374 conditional. The purposes of section 768.79 include the early termination of litigation by encouraging realistic views of the claims made....

...ced to litigate both its entitlement to attorney's fees [2] and the reasonable amount of those fees. By offering to pay ISS's attorney's fees only if ISS first obtained an award from the court, McMullen imposed a condition that was not authorized by section 768.79, and that precluded immediate enforcement of the offer upon its acceptance....

...Gary Lee Printy, Tallahassee, for Appellee. HAWKES, J. Appellant, Ambeca, Inc., prevailed in the action below after making a timely offer of judgment. As the prevailing party, Appellant moved to tax fees and costs pursuant to the offer of judgment statute, section 768.79 Florida Statutes, (2002) and Rule 1.442, Fla....

...e facts giving rise to the underlying litigation. Because the release language does not contain an invalid obligation to relinquish rights on future causes of action based on facts that have not occurred, it was a valid offer of judgment pursuant to section 768.79, Florida Statutes....

...Brian C. Deuschle of Brian C. Deuschle, Chartered, Fort Lauderdale, for appellee Robert Elmore. SHAHOOD, J. The broad issue presented in this case is whether a defendant who obtains a judgment of no liability is entitled to attorney's fees pursuant to section 768.79, Florida Statutes....

...In reaching such a conclusion, the trial court considered the settlement amounts received by appellees from the other defendants, and found that the "judgment obtained" was greater than twenty five percent of Florida Gas' offer. This was an incorrect interpretation of the offer of judgment statute. Section 768.79(1), Florida Statutes (1993), states the following: if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney's fees incurred by him ......

...The standard of review in determining whether a proposal for settlement is ambiguous is de novo. Nationwide Mut. Fire Ins. Co. v. Pollinger, 42 So.3d 890, 891 (Fla. 4th DCA 2010). The requirements for a valid proposal for settlement are set forth in section 768.79, Florida Statutes, and Florida Rule of Civil Procedure 1.442....

...that pertained to the underlying final judgment. See In re: Forfeiture of $104,591 in U.S. Currency, 589 So.2d 283 (Fla.1991); Rice v. Brown, 645 So.2d 1020 (Fla. 2d DCA 1994). On the remaining issues, we affirm the attorney's fee award pursuant to section 768.79, Florida Statutes (1997). Under that statute, in light of the specific findings made by the trial court, we also affirm the award of travel costs in connection with a deposition. See Madison v. Midland Nat'l Life Ins. Co., 648 So.2d 1226, 1228 (Fla. 4th DCA 1995); § 768.79(6)(b), Fla....

...We affirm. Appellee, Rahammet Mohammed, was injured in a five-car collision. He sued, among others, appellant and co-defendant Bertha Pierce. Two months prior to trial, the appellee filed a demand for a $100,000 judgment against appellant pursuant to section 768.79, Florida Statutes (1995)....

...mistrial. [2] We now address appellant's argument that the trial court erred in applying a contingency *631 risk multiplier in awarding attorney's fees. Following the trial, the appellee filed a "motion to tax costs and attorney's fees," pursuant to section 768.79, Florida Statutes (1995)....

...teria to be used in establishing a reasonable fee, only those enumerated factors may be used in setting a fee. Id. at 644. The appellant maintains that the trial court was precluded from considering a contingency risk multiplier in this case because section 768.79(7)(b) includes enumerated criteria to be used in setting a reasonable fee. This argument is not persuasive. Section 768.79 provides in pertinent part: * * * * * * (6)(b) ..., the plaintiff shall be awarded reasonable costs, including investigative expenses, an attorney's fees, calculated in accordance with the guidelines promulgated by the Supreme Court, .......

...iteria." Given such a directive, a trial court may properly consider whether a fee is fixed or contingent. See R. Regulating Fla. Bar. 4-1.5(b)(8). Moreover, the question of whether a risk multiplier can be used in calculating a reasonable fee under section 768.79 in a personal injury case was affirmatively answered in Collins v....

...Kupfer of Richard A. Kupfer, P.A., and Lawrence Chandler, West Palm Beach, for appellee/cross-appellant. KLEIN, J. Defendants appeal an award of attorney's fees to plaintiff resulting from their rejection of plaintiffs demand for judgment made pursuant to section 768.79, Florida Statutes (1995)....

...Shortly after the accident underlying this lawsuit, plaintiffs counsel offered to settle for the $10,000 limits of the defendants' insurance policy. When the insurer rejected that offer, plaintiff filed suit, and later served a demand for judgment pursuant to section 768.79, for $76,000....

...The trial court awarded plaintiff attorney's fees, and defendants appeal. Defendants argue that plaintiffs demand for judgment in the amount of $76,000 was not made in good faith because plaintiff knew the defendants' policy limits were $10,000, and therefore her demand could not result in a settlement. We disagree. Section 768.79 does not require either ability to pay or payment in order to accept a demand for judgment. Defendants could have agreed to plaintiffs demand for judgment even if they did not have the ability to pay. The court would then have had the authority, under section 768.79(4), to "enforce the settlement agreement," presumably by entering a judgment. Plaintiffs demand, therefore, could have produced a settlement, and defendants' argument is without merit. Our standard of review on whether the demand is in good faith is abuse of discretion. § 768.79(7)(a)....

...Cassetty and Lucie M. McAllister, Coral Gables, for appellees. Before SCHWARTZ, C.J., and LEVY and GREEN, JJ. SCHWARTZ, Chief Judge. The plaintiff below appeals from an order on her application for attorney's fees under the offer of judgment statute, section 768.79, Florida Statutes (1997), [1] for the trial and appellate services of her counsel in the medical malpractice action for the wrongful death of her husband we considered in Gonzalez v....

...NOTES [1] The appellees did not accept a $55,000 offer of judgment. The eventual award was $131,325.33. [2] Quaere: Whether any such showing can ever be made, and thus whether a multiplier is ever appropriate, when fees are awardable only when a reasonable offer is not accepted under § 768.79, an eventuality which obviously cannot be anticipated when counsel is obtained.

...y under the dangerous instrumentality doctrine; therefore, it is unnecessary to reach the issue on cross appeal. In case number 92-4363, Gallo appeals from a posttrial order denying his request for attorney's fees and investigative costs pursuant to section 768.79, Florida Statutes (1989)....

...es suffered by Gallo, pursuant to the dangerous instrumentality doctrine. A judgment was entered in the amount of $1,000,000 pursuant to the stipulation as to damages. On November 15, 1991, Gallo had served on Bush a demand for judgment, pursuant to section 768.79, Florida Statutes, offering to settle all claims against all the defendants in exchange for $300,000. In the demand pursuant to section 768.79, Gallo stated that the offer was strictly and specifically contingent upon Gallo's successfully obtaining from his uninsured motorist carrier, Allstate, its authority to accept $300,000 and to issue a full and complete release....

...e same accident. We are, therefore, unable to conclude that Bush is exempt from liability pursuant to section 324.021(9)(b), Florida Statutes. Affirmed. Case No. 92-4363 Gallo asserts that the trial court erred in denying attorney's fees pursuant to section 768.79, Florida Statutes (1989), because the judgment that was entered was more than 25 percent greater than the offer of judgment with which he had previously been served. Section 768.79(4), Florida Statutes, states that immediately upon filing of an offer and acceptance, "the court has full jurisdiction to enforce the settlement agreement." An offer of judgment that contains conditions not permitted by the statute and which will not *742 allow immediate enforcement upon acceptance is invalid....

...e fees incurred by Nationwide in prosecuting this appeal as to that claim only. [3] Given that Ms. Voigt has not prevailed in this appeal and that the judgment must now be reduced, we deny Ms. Voigt's motion for appellate attorneys' fees pursuant to section 768.79, Florida Statutes (2005)....

...llowed. [2] We are aware that the trial court has entered a judgment for attorneys' fees in favor of Ms. Voigt because the jury's verdict and the judgment entered thereon exceeded her offer of judgment to Nationwide of $50,000 by more than 125%. See § 768.79, Fla....

...discretion in denying the motion for remittitur, we affirm on this issue. Cross-appeal on denial of the plaintiff’s attorney’s fees After the jury verdict, the plaintiff moved for fees and costs pursuant to a proposal for settlement under section 768.79(6)(b) and rule 1.442....

...Before SCHWARTZ, C.J., and GERSTEN and FLETCHER, JJ. FLETCHER, Judge. Hartford Casualty Insurance Company [insurer] appeals the denial of attorney's fees in an action for breach of contract. Finding that the insurer's offer of settlement was not made in compliance with section 768.79, Florida Statutes (1993), we affirm....

...In conjunction with the insurer's rescission claim and pursuant to an agreed order, the insurer deposited $9,000 into the court registry, an amount representing Silverman's premium payments. During the litigation the insurer served an offer of judgment which cited section 768.79, Florida Statutes (1993), and provided: "Defendants offer to allow Judgment to be taken against them in the total amount of $500.00 inclusive of attorneys [sic] fees and costs, in exchange for a full release in favor of HARTFORD CASUAL...

...her breach of contract claims and finding for the insurer on its breach of contract and fraud/rescission claim. Final judgment was entered for the insurer, after which the insurer filed its offer of judgment and moved for attorney's fees pursuant to section 768.79, Florida Statutes (1993)....

...Can there then be any doubt that, had Silverman accepted the offer, the insurer would have chosen the option most beneficial to it, while Silverman would have been clinging to a contrary position? We conclude as a consequence that the offer is indeed ambiguous. The purposes of section 768.79, Florida Statutes (1993) include the early elimination of litigation by encouraging realistic views of the claims made. The making of an ambiguous offer fails to carry out that purpose as it will inevitably lead only to further litigation over the ambiguities. As a consequence, the insurer's ambiguous offer fails to comply with section 768.79, Florida Statutes (1993), and thus is void....

...is not entitled to an award of attorney's fees and costs under a proposal for settlement it served on Mike Elliott; Mike Elliott & Company; HomeSellers Realty, Inc.; Santo Carollo; and Commercial Group Realty, Inc. (together "Appellees") pursuant to section 768.79, Florida Statutes (1997), and Florida Rule of Civil Procedure 1.442....

...There, the defendants sought review of a jury verdict in a personal injury action. Id. at 227. After entry of the final judgment below, the plaintiffs filed a motion for attorney's fees and costs pursuant to an offer of judgment they had previously served pursuant to section 768.79....

...See Florida Bar Re Amendment to Rules of Civil Procedure, Rule 1.442 (Offer of Judgment), 550 So.2d 442 (Fla. 1989). Appellants next claim that there must be a judgment for the plaintiff in order to trigger section 45.061. Because there was a defense verdict in this case, no award of attorney's fees could be entered. While section 768.79(1)(a), Florida Statutes (1989) which is similar to section 45.061, refers to a "judgment obtained by the plaintiff", there is no comparable requirement in section 45.061....

...At best, the legislation is ambiguous, and where legislation is ambiguous the courts should look to the legislative history to interpret the statutes. See Streeter v. Sullivan, 509 So.2d 268 (Fla. 1987). In addition, it is significant to note that section 768.79, the similar statute regarding offers of judgment, was amended in 1990 to clarify that a defense verdict would trigger fee entitlement under section 768.79, Florida Statutes, as well....

...at our request." *299 While this policy was in force, Ms. Kinsey was involved in an auto accident with Kevin M. Steele on March 13, 1995. Mr. Steele was injured in the accident and instituted an action against Ms. Kinsey for his damages. Pursuant to section 768.79, Florida Statutes (1995), the offer of judgment statute, Mr....

...ll personal injury defendants may be so fortunate. The result reached in Johnson, finding coverage despite clear and unambiguous language to the contrary, may well be an appropriate public policy result. One can well envision a scenario where, under section 768.79, an insurer may reject in good faith an offer of judgment, and the jury verdict so exceeds the offer that the resulting final judgment, combining the jury verdict and the section 789.79 fees and costs, is in excess of the insured's policy's limits....

...SALCINES and STRINGER, JJ., Concur. NOTES [1] Others have noted the disparate results that occur in applying the offer of judgment statute. In his concurring opinion in Sparks v. Barnes, 755 So.2d 718, 720 (Fla. 2d DCA 2000), Judge Whatley described how section 768.79, Florida Statutes (1997), creates an uneven playing field between the insured and the insurer....

...But there is no indication in the record that he refused to consider their argument on that basis. If that is his basis, he should so state when he reconsiders this issue on remand. REVERSED and REMANDED. DAUKSCH, J., concurs. W. SHARP, J., dissents, with opinion. W. SHARP, Judge, dissenting. I would affirm this case. Section 768.79(a) provides that a trial judge may, in his or her discretion, determine that an offer of judgment was not made in good faith and in such a case, it may disallow an award of costs and attorney's fees: If a party is entitled to costs and...

...section (having made an offer of judgment or demand for judgment pursuant to the statute), the court may, in its discretion, determine that an offer was not made in good faith. In such case the court may disallow an award of costs and attorney fees. § 768.79(a), Fla....

..., it was not necessary. I just don't think that the hundred dollar offer at the time it was made and the circumstances it was made was in good faith. The court in T.G.I. Friday's, Inc. v. Dvorak, 663 So.2d 606 (Fla.1995) pointed out that pursuant to section 768.79(2)(a), a court may in its discretion disallow an award of attorney's fees, if it determines that an offer "was not made in good faith" or if the offeror's intentions were shown to be "not in good faith." In my view, that was done in th...

...cent negligent in an automobile accident. Phillips raises three points on appeal. The first two issues relate to whether he is entitled to recover costs and attorney's fees which occurred since the date that he filed an offer of judgment pursuant to section 768.79, Florida Statutes (1987)....

...We affirm as to the third issue, and in light of our ruling as to that issue, it is unnecessary to address the other issues on appeal. On September 12, 1989, Phillips and his codefendant, Superior Insurance Company, served an amended offer of judgment pursuant to section 768.79, Florida Statutes....

...In the instant case, damages were fixed as of a certain date, and the trial judge was correct to award prejudgment interest. Since prejudgment interest is merely another element of damages, it is properly included in determining whether a judgment is so deficient as to activate the provisions of section 768.79, Florida Statutes....

...25 percent less than the offer of $4,546.52 *1040 and, thus, attorney's fees and costs are not awardable pursuant to that statute. Affirmed. WIGGINTON, J., and WENTWORTH, Senior Judge, concur. NOTES [1] Neither party raised the constitutionality of § 768.79, Fla....

...Stanley and Thomas John Wood of Vega, Stanley, Martin & Zelman, Naples, for Appellant. John W. MacKay of John W. MacKay, P.A., and Kerry H. Brown, Tampa, for Appellee. CAMPBELL, Judge. Appellant, Peter Twiddy, appeals the final judgment awarding attorney's fees pursuant to section 768.79, Florida Statutes (1987) to appellee, Jessica Guttenplan....

...After a trial, the jury found no liability on the part of the Rocas, and a final judgment was entered in their favor. A final judgment finding Guttenplan negligent was entered for Twiddy in the amount of $2,100. The trial judge awarded both the Rocas and Guttenplan attorney's fees pursuant to section 768.79....

...Even so, we are required to reverse because the joint offer of judgment was not specific enough to enable the trial judge to determine that the $2,100 verdict against Guttenplan was at least twenty-five percent less than the offer made on her behalf. We have previously held that a joint offer pursuant to section 768.79 is not invalid per se, but may be found invalid by reason of the nature of the offer and its validity and enforceability against an offering party....

...of the offerees for $2,100 was at least twenty-five percent less than the offer on her behalf. The fact that the offer was made on behalf of two defendants who were not joint tortfeasors makes the necessary determinations as to the applicability of section 768.79 impossible to perform with any certainty....

...[1] Prior to the trial period, the case was referred to mediation pursuant to Florida Statutes Chapter 44. The mediation took place on December 9, 1992, but the parties reached an impasse. On December 10, 1992, the Caruanas made an offer of judgment to Wright, in the amount of $4,000, pursuant to Florida Statutes Section 768.79....

...The trial court later entered a final judgment for Wright for $2,040 in accordance with the jury verdict, and reserved jurisdiction to tax costs. Wright moved for costs as the prevailing party under Florida Statutes Section 57.041. The Caruanas moved for costs and attorney's fees under § 768.79, since the judgment was more than 25% below the offer....

...See § 45.061(1), Fla. Stat. (1991); Fla.R.Civ.P. 1.442(b) (version effective January 1, 1990). Therefore, neither former Rule 1.442 nor § 45.061 applies to this case. This leaves us to consider and apply the offer of judgment statute codified as § 768.79. The parties have briefed and argued the issue of which version of § 768.79 applies to this case....

...[3] However, our resolution of this case renders this issue moot. Under both versions of the statute, "if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney's fees... ." § 768.79(1)(a), Fla. Stat. (Supp. 1986) and § 768.79(1), Fla. Stat. (Supp. 1990) (emphasis supplied). This statutory language plainly contemplates that an offeree have a full 30 days within which to accept an offer of judgment. See also § 768.79(4), Fla....

...favor of the Caruanas. The trial court properly denied attorney's fees to the Caruanas, but erred in awarding them their costs. Our conclusion here is not altered by Florida Statutes Section 44.102(5)(b), (1991), which provides: Sections 45.061 and 768.79 notwithstanding, an offer of settlement or an offer or demand for judgment may be made at any time after an impasse has been declared by the mediator, or the mediator has reported that no agreement was reached....

...Yaeger, 571 So.2d 600, 601 (Fla. 2d DCA 1990); Gunn v. DePaoli, 562 So.2d 427, 427-28 (Fla. 2d DCA 1990); Bridges v. Newton, 556 So.2d 1170, 1171 (Fla. 3d DCA 1990); Oriental Imports, Inc. v. Alilin, 559 So.2d 442, 443 (Fla. 5th DCA 1990). Our disposition of the § 768.79 issue makes it clear that on remand, the trial court should enter an order awarding Wright all of her taxable costs for prosecuting this action....

...[2] Previous versions of Rule 1.442 contained procedural requirements for the making of offers of judgment. See, e.g., The Florida Bar re: Amendment to Rules of Civil Procedure, Rule 1.442 (Offer of Judgment), 550 So.2d 442 (Fla. 1989). However, Rule 1.442 was repealed and replaced with the procedural elements of § 768.79 on July 9, 1992. See Timmons v. Combs, 608 So.2d 1, 3 (Fla. 1992). [3] The original version of this statute, § 768.79, Fla....

...If the nonmonetary condition is something to which the settling litigant is already entitled by operation of law, the condition is superfluous. If it is a term beyond what the settling litigant would be entitled to, it ought to invalidate the offer. Section 768.79, Florida Statutes, appears to contemplate a straightforward and exclusively mathematical test: compare the amount of the rejected offer to the amount of the plaintiff's verdict, and apply the twenty-five percent differential. Under section 768.79, you offer an "amount," not a deal....

...The dissent's reference to the Florida Supreme Court's recent decision in Campbell v. Goldman, 959 So.2d 223 (Fla.2007), as additional support for the application of a bright-line rule is misplaced. The issue in Campbell is whether a proposal for settlement could be enforced without citation to section 768.79, Florida Statutes. The majority in Campbell held that the attorney fee-shifting provision of a proposal for settlement was created by statute and because it is penal and in derogation of the common law, rule 1.442 and section 768.79 must be strictly construed....

...4th DCA 2006), which although recognizing the bright-line trend, did not apply it to a case involving some unique circumstances surrounding Rule 1.442 and the law related to proposals for settlement. In Goldman, the plaintiff failed to cite Florida Statutes section 768.79 in his proposal for settlement as required by Rule 1.442(c)(1) and the statute, and this Court concluded that such a technical violation of the rule did not warrant invalidating the proposal where only one statute presently governed proposals for settlement....

...On March 24, 1998, Inverrary increased its offer to $9,000.00 to settle the matter in full. The record indicates that Grimsley filed a "Notice of Acceptance of Offer of Settlement" on April 20, 1998. Grimsley's notice of acceptance said the following: "Please be advised that pursuant to Fla. Stat. 768.79(4), I am accepting the $9,000.00 offer of settlement made on March 24 for the claims of breach of contract and wrongful ejection." There was a series of correspondence between Grimsley and Inverrary....

...g access to courts. Bell, 734 So.2d at 411 . A few years after Bell, in 2003, this Court, decided, in Sarkis v. Allstate Insurance Co., 863 So.2d 210 (Fla. 2003), that the use of a multiplier is not appropriate in determining attorney’s fees under section 768.79, Florida Statutes (2002)—the offer of judgment statute. 3 Sarkis held that the fees authorized by section 768.79 are sanctions that attach to the rejection of a reasonable offer, not to the underlying cause of action, and went on to note as follows: [T]he use of a multiplier must be consistent with the purpose of the fee-authorizing statute or rule....

...In those cases, we authorized tlie use of a multiplier to promote access to courts by encouraging lawyers to undertake representation at the inception of certain cases." See Doyle-Vallery[ v. Aranibar], 838 So. 2d [1198, 1198-99 (Fla. 2d DCA 2003) ] (Altenbernd, J., concurring). Id. at 222. Thus, Sarkis clearly distinguished section 768.79, Florida Statutes, while reaffirming the reasons for authorizing the use of the contingency fee multiplier articulated in Rowe, Quanstrom, and Bell. Nothing in Sarkis suggests that section 627.428 was to be viewed prospectively as a sanction against insurers in the same way that Sarkis viewed section 768.79 as a sanction....

...juries. We reject his arguments in support of reversal and affirm. We agree, however, with the arguments of the appellee/cross-appellant, Georgia Short, that the trial court erred in denying her motion for attorney's fees and costs filed pursuant to section 768.79, Florida Statutes (1989), and in awarding Mincin all of his taxable costs under section 57.041, Florida Statutes (1993)....

...It did, however, award Mincin $5,000 for past medical expenses and lost earnings. The trial court later rendered a final judgment in accord with the jury's verdict, reserving jurisdiction to determine the amount of attorney's fees and costs awardable to the parties. Short moved for attorney's fees and costs under section 768.79, contending that the amount of the judgment obtained by Mincin was at least 25 percent less than her offer....

...Because the addition of Mincin's taxable costs to the jury's award resulted in a figure far in excess of Short's offer, the trial court denied her motion. As we will explain, these rulings constituted reversible error. We first consider the propriety of the trial court's denial of Short's motion for fees and costs. Section 768.79(1)(a), Florida Statutes (1989), provides in pertinent part that: In any action to which this part applies, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled...

...as an incident to the main action. E.g., Golub v. Golub, 336 So.2d 693 (Fla. 2d DCA 1976). In *1325 accord with this basic principle, the court in Williams v. Brochu, 578 So.2d 491, 493 (Fla. 5th DCA 1991), held that the term "judgment obtained" in section 768.79(1)(a), Florida Statutes (Supp....

...1st DCA 1992). We also conclude that Mincin was not entitled to taxable costs incurred after Short filed her offer of judgment. In Goode v. Udhwani, 648 So.2d 247 (Fla. 4th DCA 1994), the court recently considered the interplay between sections 57.041 and 768.79 in determining the taxable costs that could be recovered by a plaintiff who rejected an offer of judgment and later received a judgment in her favor which was at least 25 percent less than the offer. After declining to construe the statutes in pari materia in light of the legislative intent in enacting the penalty provisions of section 768.79, it concluded that "[t]o allow a plaintiff who has not been successful under section 768.79 to still recover costs incurred after the offer was filed would negate at least part of the penalty which the legislature intended to impose." Id....

...he offer. Schmidt v. Fortner, 629 So.2d 1036 (Fla. 4th DCA 1993), approved, TGI Friday's, Inc. v. Dvorak, 20 Fla. L. Weekly S436, ___ So.2d ___ (Fla. Aug. 24, 1995). If the motion is granted, then the trial court shall perform the offset mandated by section 768.79(1)(a)....

...Ragan of Marks, Gray, Conroy & Gibbs, P.A., Jacksonville, for Appellant. Natalie A. Nice and Michael E. Seelie of Seelie and Doolittle, P.A., Jacksonville, for Appellees. ALLEN, J. The appellant challenges an order by which its motion for attorney's fees pursuant to section 768.79, Florida Statutes, was denied following a defense verdict of no liability in favor of the appellant. Because the trial judge employed the wrong test in determining that offers of judgment served by the appellant pursuant to the statute were not made in good faith, we reverse the order. Section 768.79 provides in relevant part as follows: 768.79 Offer of judgment and demand for judgment.— (1) In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney's fees incurred by her or him ......

...y have expected the appellee to accept any of the offers. As the appellant properly argues, this test applied by the trial judge conflicts with the relevant decisional law under the statute. Entitlement to an award of costs and attorney's fees under section 768.79 does not depend upon "the reasonableness of an offeree's rejection of an offer of judgment." See TGI Friday's, Inc....

...Thus, we answer the certified question in the affirmative and hold that section 627.739(1) requires that the amount awarded to a plaintiff be reduced by the plaintiff's elected PIP deductible. Newkirk has also filed a motion for reasonable costs and attorney's fees pursuant to section 768.79, Florida Statutes (1991), [3] because her offer of $2401 is at least twenty-five percent greater than the judgment of $1,146.28. [4] Section 768.79 creates a right to reasonable costs and attorney's fees when two prerequisites have been fulfilled: (1) a party has served a demand or offer for judgment; and (2) that party has recovered a judgment at least twenty-five percent more or less than the demand or offer....

...Dvorak, 663 So.2d 606, 611 (Fla.1995). In light of our decision here, Hannah will recover a judgment that is over fifty percent less than Newkirk's offer for judgment. Thus, both prerequisites have been met and Newkirk is entitled to reasonable costs and attorney's fees pursuant to section 768.79. See id. at 611-613. On remand, the court should determine the amount of reasonable costs and attorney's fees in accordance with section 768.79....

...*115 KOGAN, C.J., and OVERTON, SHAW and ANSTEAD, JJ., concur. GRIMES, J., concurs with an opinion. WELLS, J., concurs in part and dissents in part with an opinion. GRIMES, Justice, concurring. I agree with Justice Wells that it makes more sense to permit the judge to consider the factors in section 768.79(7)(b), Florida Statutes (1991), in determining whether to award a fee rather than in determining the amount of the fee....

...WELLS, Justice, concurring in part and dissenting in part. I concur with the answer to the certified question and approve the decision of the district court. I do not agree, however, with the majority's decision that Newkirk is entitled to attorney fees pursuant to section 768.79, Florida Statutes (1991). I continue to adhere to the view that the legislature never intended section 768.79 to be a mandatory attorney-fee provision. Rather, discretion should remain with the trial court to determine in each case whether attorney fees are reasonable using the criteria enumerated in section 768.79(7)(b)....

...Dvorak, 663 So.2d 606, 614 (Fla.1995) (Wells, J., concurring in part and dissenting in part). To continue to interpret the statute in the way the majority does violates the statute's directive. Further, as demonstrated by the facts of this case, the majority's interpretation of section 768.79 impinges on the constitutional guarantee of access to courts....

...scerated because the question is answered adversely to his position. The facts of the situation at bar make it even more clear to me why the statute should be read as giving the court discretion to award fees by considering the factors delineated in section 768.79(7)(b), which fit this situation perfectly: the closeness of the questions of fact and law at issue and whether the suit was in the nature of the test case presenting questions of far-reaching importance affecting nonparties. See § 768.79(7)(b)(3), (5)....

...Contrary to the majority opinion in this case and the referenced statements from Dvorak, the statute has three and not two prerequisites. Not only does the party have to serve a demand or offer of judgment and have to recover a judgment at least twenty-five percent more or less than the demand or offer, but section 768.79(6) requires the party to make a motion within thirty days after entry of judgment or after voluntary or involuntary dismissal....

...to pay, in accordance with sections 627.737(1) and 627.736(1), Florida Statutes (1983). The footnote also provided that "[t]his calculation should not be confused with the optional deductible provided for under section 627.739." Id. at 990 n. 2. [3] Section 768.79(1), Florida Statutes (1991), provides in pertinent part: In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant...

...After considering the record in light of the analysis in Binger, and our determination that the trial court misapplied the holding in Suarez-Burgos, we conclude that the trial court's order granting a new trial was an abuse of discretion. Attorneys' Fees Below, Appellant made an offer of judgment to Appellee pursuant to section 768.79, Florida Statutes....

...Creel, 979 So.2d 912, 916 (Fla.2008). Because the trial court did not rule on the merits of Appellant's motion for fees below, we remand with directions to the trial court to rule on the motion. The determination of whether Appellant is entitled to fees under section 768.79, Florida Statutes, is a question of law....

...4th DCA 2009) ("`[t]he courts of this state have consistently held that judicial interpretation of statutes ... are pure questions of law subject to the de novo standard of review.'") (quoting State v. Sigler, 967 So.2d 835, 841 (Fla.2007)). We further note the compelling policy foundation of section 768.79, as Judge Gross noted in his concurring opinion in British Car Auctions: The purpose of Section 768.79 is to lead "litigants to settle by penalizing those who decline offers that satisfy the statutory requirements." Encouraging settlement lowers litigation costs for the parties and reduces the fiscal impact of litigation on the court system.......

...e subject matter as the instant case. Conclusion We therefore REVERSE the trial court's order granting a new trial and REMAND for reinstatement of the jury's verdict and consideration of Appellant's motion for lower court attorneys' fees pursuant to section 768.79, Florida Statutes....

...n. The motion was denied and this appeal followed. I Defendant's offer of judgment was made pursuant to section 44.102, Florida Statutes, which permits an offer of judgment to be made after an impasse has been reached in mediation. The provisions of section 768.79, Florida Statutes, are applicable to offers made pursuant to section 44.102. See Puleo v. Knealing, 654 So.2d 148, 150 (Fla. 4th DCA), rev. granted, 663 So.2d 630 (Fla.1995). The 1989 version of section 768.79, which was in effect in 1990 when the cause of action accrued in this case, did not dictate any method for withdrawing an offer of judgment. However, the 1990 amendment to section 768.79 added the following provision: (5) An offer may be withdrawn in writing which is served before the date a written acceptance is filed....

...Since the 1989 version does not dictate a method for withdrawing an offer, defendant maintains that common law contract principles which permit a verbal withdrawal should apply. Defendant cites to numerous cases which support its contention that the version of section 768.79 to be applied is determined by the date on which the cause of action accrued....

...See, e.g., State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So.2d 55, 61 (Fla.1995) (generally on prospective versus retroactive application). Therefore, the version in effect at the time the cause of action accrues is determinative at least as to the substantive portions of section 768.79. However, section 768.79 also contains procedural provisions and in fact the supreme court in 1992 adopted the procedural portions of section 768.79, Florida Statutes (1991), as *239 Florida Rule of Civil Procedure 1.442....

...Since procedural statutes and rules operate retroactively, see, e.g., Laforet, 658 So.2d at 61, this version of rule 1.442 which was in effect at the time of the offer and asserted withdrawal would dictate the procedures to be followed to effectuate such an offer and withdrawal. Thus, the procedures of section 768.79, Florida Statutes (1991), as incorporated by rule 1.442, governed and required that the withdrawal be in writing. [1] This was essentially the conclusion reached by the trial court. Defendant argues that this conclusion is contrary to the intent expressed by the legislature in adopting the 1990 version of section 768.79. Defendant relies upon section 55 of chapter 90-119, Florida Laws, which states that the act amending section 768.79 "shall take effect October 1, 1990, and shall apply to policies or contracts issued or renewed on or after that date." Defendant contends that this evidences a legislative intent to apply the amended version of section 768.79 only prospectively....

...Reder, Tampa, for appellant/cross appellee. John M. Strickland of Livingston, Patterson & Strickland, P.A., Sarasota, for appellee/cross appellant. SCHOONOVER, Judge. The appellant, Edwin N. Gunn, challenges the attorney's fees and costs awarded to the appellee, Enso DePaoli, pursuant to section 768.79, Florida Statutes (1987)....

...The appellee has filed a cross-appeal challenging the manner in which the attorney's fees were calculated. The appellant filed an action against the appellee seeking damages for malicious prosecution and defamation. Prior to trial, the appellee, pursuant to section 768.79 filed an offer of judgment in the amount of $1 plus taxable costs....

...g the amount of the attorney's fees award. Although the appellee was entitled to an award of costs as the prevailing party under section 57.041, Florida Statutes (1987), he was not entitled to receive costs or attorney's fees under the provisions of section 768.79....

...Investors Real Estate Management, Inc., 553 So.2d 298 *428 (Fla. 1st DCA 1989). Since the appellant, plaintiff at the trial level, did not receive a favorable verdict, the court erred in awarding attorney's fees and costs to the appellee pursuant to section 768.79....

...Liliana Cahuasqui ("Cahuasqui"), sought but was denied personal injury protection ("PIP") benefits. The trial court certified the following question to us as one of great public importance. Is the Proposal for Settlement/Offer of Judgment Statute, F.S. 768.79, applicable to PIP actions? We have jurisdiction pursuant to rule 9.030(b)(4)(A), Florida Rules of Appellate Procedure. [1] Because we find the offer of judgment statute, section 768.79, Florida Statutes (1997), to be applicable to PIP claims, we answer the certified question in the affirmative....

...US Security answered and raised material misrepresentation as a defense. [2] On June 13, 1997, the trial court noticed the case for a jury trial on August 26, 1997. On June 16, 1997, U.S. Security served its proposal for settlement/offer of judgment, pursuant to rule 1.442, Florida Rules of Civil Procedure [3] and section 768.79, Florida Statutes (1997), [4] in the amount of $1,501.00. Specifically, U.S. Security's proposal for settlement/offer of judgment provided: PURSUANT TO RULE 1.442 [Eff. 1-1-97] and/or Florida Statute § 768.79, the Defendant, U.S....

...US Security filed a motion for attorney's fees based on its proposal for settlement/offer of judgment. The trial court initially granted U.S. Security's motion for attorney's fees. Cahuasqui thereafter filed a motion to strike U.S. Security's offer of judgment on grounds that section 768.79, Florida Statutes, conflicts with section 627.428, Florida Statute [5] (the insurance attorney's fee statute), and therefore the court's grant of U.S....

...They convey a clear meaning sweeping in all civil actions in which one party seeks damages from another party. The right to damages may arise under tort law; it may arise under contract law; it may arise under property law. If the party seeks damages from another party, then the claim is covered by section 768.79's broad phrase, `civil action for damages'....

...The trial court found and Cahuasqui argues that the offer of judgment statute conflicts with the insurance attorney's fee statute, section 627.428(1), Florida Statutes, which permits a court to award attorney's fees to the prevailing insured exclusively. [8] In concluding that section 627.428 precludes fee awards under section 768.79, the trial court relied upon the rule of statutory construction which provides that specific statutes control over statutes dealing generally with the same subject matter....

...Indeed, the Supreme Court of Florida in Scottsdale Insurance Company v. DeSalvo, 748 So.2d 941, 944 (Fla.1999), albeit not a PIP case, held that section 627.428 does interact with the offer of judgment statute. [11] Moreover, this court and the other appellate courts of this state have consistently applied section 768.79 in insurance cases despite the existence of section 627.428....

...1st DCA 1993) (UM insurance). In fact, the fifth district in Weesner v. United Services Automobile Ass'n, 711 So.2d 1192 (Fla. 5th DCA 1998), specifically rejected the argument "that section 627.428, Florida Statutes, precludes attorney's fees to an insurance carrier under section 768.79, Florida Statutes." Id....

...f an insured's real need. The majority opinion blithely downgrades the value to the insured of the exchange, arguing that because PIP insurers still (after the swap) have some defenses, then, ipso facto, section 627.736(8) is amended sub silencio by section 768.79, the offer of judgment statute....

...e form required by rule 1.080(f). (3) A proposal may be made by or to any party or parties and by or to any combination of parties properly identified in the proposal. A joint proposal shall state the amount and terms attributable to each party. [4] Section 768.79 provides in pertinent part: (1) In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to reco...

...shall be entitled to recover reasonable costs and attorney's fees incurred from the date of the filing of the demand. If rejected, neither an offer nor demand is admissible in subsequent litigation, except for pursuing the penalties of this section. § 768.79(1), Fla....

...he insured's or beneficiary's attorney prosecuting the suit in which the recovery is had. § 627.428, Fla. Stat. (1997). [6] In Silva v. U.S. Security Insurance Co., 734 So.2d 429 (Fla. 3d DCA 1999), this Court accepted the certified question: "Does section 768.79 conflict with sections 624.428(1) and 627.736(8)?" The procedural posture of that case, however, precluded us from reaching the question on the merits....

...percent less than the amount stated in an offer of judgment made by the appellee (the verdict was for $7,500; the offer of judgment was for $10,200). Upon motion made by the appellee, the trial court awarded costs and attorneys' fees provided for in section 768.79, Florida Statutes (1987) (the "statute") and Florida Rule of Civil Procedure 1.442 (the "court rule")....

...sed on a model that Maytronics sold under its own label. On November 23, 1996, the 1 Aqua Vac also argues, in Case No. 00-16106-DD, that the district court improperly awarded attorneys’ fees to Maytronics pursuant to Fla. Stat. § 768.79(6)(b)....

...Howard Duncan Bridges and Mahi Temple South Florida Fair Association, Inc. (collectively "Bridges"), who were defendants below, appeal a final judgment entered on jury verdict in a personal injury action, and a final judgment awarding attorney's fees and costs pursuant to section 768.79, Florida Statutes (1987)....

...Because of the negotiation over the additional conditions, a final agreement had not been reached and Newton was able to reject what we have determined was a counteroffer. Those additional terms, however, had an insubstantial impact on the $250,000 amount. Since it is undisputed that Newton curtailed the section 768.79 process because she believed her own $250,000 demand for judgment was inadequate, the demand was plainly made in bad faith and no post-demand attorney's fees should have been awarded. [*] Newton contends that the bad faith exception created by paragraph 768.79(2)(a) applies only to offers of judgment, not demands for judgment....

...As the initial phrase makes clear, the bad faith exception applies to any party "entitled to costs and fees pursuant to ... subsection (1)," id., and subsection (1) covers both offers of judgment and demands for judgment. In order to avoid an internal inconsistency within paragraph 768.79(2)(a), we conclude that the bad faith exception applies, as the language indicates, to any party entitled to claim an award of attorney's fees and costs pursuant to subsection (1), and that the "offer of judgment" phraseology employed in paragraph (2)(a) is a shorthand reference which includes both offers of, and demands for, judgment. Even if that were not so, paragraph 768.79(2)(b) also applies in determining "the reasonableness of an award of attorney's fees pursuant to this section......

...It would be entirely unreasonable *1172 to reward that behavior with an award of post-demand attorney's fees. The final judgment for attorney's fees is therefore reversed, and the cost judgment is affirmed. Affirmed in part, reversed in part. NOTES [*] Although paragraph 768.79(2)(a) also permits the court to disallow an award of costs (as well as attorney's fees) where there has been bad faith, the plaintiff here would be entitled to costs in any event by virtue of prevailing at trial.

...We, therefore, reverse the final judgment and remand for a new trial. Having reversed the underlying judgment, we also reverse the trial court's award of attorney's fees and costs to Florida Freedom as the statutory basis for the award of fees and costs is dependent upon the judgment obtained by the plaintiff. See § 768.79, Fla....

...ON MOTION FOR REHEARING WARNER, Judge. We withdraw our previous opinion and substitute the following in clarification: We reverse the trial court's order denying appellant's motion for attorney's fees and costs pursuant to an offer of judgment under section 768.79, Florida Statutes (1991). Schmidt v. Fortner, 629 So.2d 1036 (Fla. 4th DCA 1993). Schmidt holds that an award of fees and costs under section 768.79 is mandatory where a judgment in favor of the offeree is at least 25% less than the offer of judgment, unless the trial court determines that the offer was not made in good faith....

...The trial court did not have the benefit of Schmidt and our construction of the statute, as it was decided after the ruling in this case. With respect to the costs assessed in favor of appellee, we reverse as to the costs incurred after the offer was filed. Although appellee recovered a judgment in her favor, we hold that § 768.79 controls over § 57.041, Florida Statutes (1991), which allows the taxation of costs by a party recovering a judgment. See Insurance Co. of North America v. Twitty, 319 So.2d 141 (Fla. 4th DCA 1975). While Twitty dealt with former Rule of Civil Procedure 1.442 regarding offers of judgment, it is not materially different in its purpose from section 768.79....

...s to the result that while appellant can recover her costs from the date of the offer of judgment through the trial, appellee can recover all of her costs through trial. We think that such a result was not intended by the legislature. The purpose of section 768.79 was to serve as a penalty if the parties did not act reasonably and in good faith in settling lawsuits. The statutory language even refers to "the penalties of this section." § 768.79(1). To allow a plaintiff who has not been successful under section 768.79 to still recover costs incurred after the offer was filed would negate at least part of the penalty which the legislature intended to impose....

...The automobile accident occurred on July 17, 1986; the Buchanans filed their personal injury action on July 17, 1990. On January 30, 1992, Allstate served offers of judgment on the Buchanans in the amount of $10,000, pursuant to Sections 45.061 and 768.79, Florida Statutes, and Florida Rule of Civil Procedure 1.442....

...Allstate then moved for attorney's fees based on the unreasonable rejection of its settlement offers. The trial court denied the motion, finding that Allstate was not entitled to fees under either of the statutes or rule 1.442. We agree with the trial court that Allstate is not entitled to fees under section 768.79 or rule 1.442. Addressing Allstate's entitlement to fees under section 768.79 first, we now agree with the Buchanans' argument on rehearing that the statute does not authorize an award of fees. In our initial opinion, we reversed the trial court's denial of same by applying the 1990 amendment to section 768.79....

...The court reasoned that the right to recover fees attaches to the unreasonable rejection of an offer and not to the cause of action. The supreme court in Metropolitan Dade County v. Jones Boatyard, Inc., 611 So.2d 512 (Fla. 1993), refused to apply the same analysis for offers made under section 768.79, explaining that section 45.061 exists as an independent statute under the civil procedure chapter of the statutes, while section 768.79 is part of an integrated statutory scheme under the negligence chapter and is part of the damages portion of that chapter. Id. at 514. Accordingly, we conclude that the version of section 768.79 in effect at the time the cause of action accrues is the version that should be applied in determining attorney-fee awards thereunder. Consequently, as the 1986 version of section 768.79 has been interpreted as allowing such awards only after a plaintiff obtains a judgment, [2] Allstate is not entitled to an attorney-fee award under section 768.79....

...se is remanded with directions for the court to grant Allstate's motion for same pursuant to section 45.061. AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings. JOANOS and WOLF, JJ., concur. NOTES [1] Before the 1990 amendment, section 768.79 had been interpreted as requiring that a judgment be entered in favor of the plaintiff before an attorney-fee award could be made to the defendant. See Timmons v. Combs, 608 So.2d 1 (Fla. 1992); Makar v. Investors Real Estate Management, Inc., 553 So.2d 298 (Fla. 1st DCA 1989). Section 768.79 was amended in 1990 to allow an attorney-fee award in cases where the judgment was for no liability....

...[2] See cases cited in footnote 1, supra. [3] In so saying, we note that when it rendered its decision, the trial court correctly followed this court's decision in Timmons v. Combs, 579 So.2d 840 (Fla. 1st DCA 1991), wherein we held that section 45.061, like section 768.79, required a judgment for the plaintiff before an attorney-fee award could be made to the defendant....

...However, the future PIP benefits awarded by the jury should not have been offset by the $524.78 the trial court believed was still available. Accordingly, the trial court is instructed upon remand, to reinstate the jury's verdict. Appellant's motion for attorney's fees under section 768.79, Florida Statutes (1991), is granted inasmuch as the reinstatement makes the verdict 25% greater than the offer of judgment....

...Nationwide prevailed in the case and filed a motion for attorney's fees on its proposal for settlement. Pollinger filed a motion to strike the proposal for settlement, which the trial court granted, finding it to be ambiguous. "The standard of review in determining whether a proposal for settlement complies with section 768.79, Florida Statutes [2009], and Florida Rule of Civil Procedure 1.442 is de novo." Palm Beach Polo Holdings, Inc....

...claims against the offeror" were to be "extinguished by any proposed release." Id. at 1080. Similar to Nichols, an extraneous fact in this case rendered Nationwide's proposal ambiguous, so that it could not support an award of attorney's fees under section 768.79....

...Finally, in related case 97-2055, appellants appeal the judgment awarding attorney's fees to appellees. Having reversed the underlying judgment, we also reverse the trial court's award of attorney's fees to appellees since the statutory basis for the award of fees is dependent on the judgment obtained by the plaintiff. See § 768.79, Fla....

...Coldwell Banker prevailed at trial, and the jury awarded it $18,000. The court then entered final judgment for this amount in Coldwell Banker's favor. Grip moved for a new trial. While his motion was pending, Coldwell Banker moved for attorney's fees pursuant to section 768.79, Florida Statutes (1997) and *264 Florida Rule of Civil Procedure 1.442....

...he remaining costs were awarded as a result of Coldwell Banker's attorney's fee litigation. This appeal followed. Grip argues that because Coldwell Banker's proposal of judgment was served prematurely, the court should not have awarded it fees under section 768.79 and rule 1.442....

...Coldwell Banker concedes its proposal was served before the expiration of 90 days, but argues that a distinction should be made between offers served too early and those served too late. It concludes that offers served too early should be considered valid if they otherwise substantially comply with the requirements of section 768.79 and rule 1.442. Section 768.79 provides in pertinent part as follows: (1) In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney's fees incurred by him ... if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than such offer.... § 768.79(1), Fla. Stat. (1997)(emphasis supplied). In Schmidt v. Fortner, 629 So.2d 1036 (Fla. 4th DCA 1993), we concluded that in enacting section 768.79, the legislature created a mandatory right to attorney's fees if the statutory prerequisites have been met....

...No other factor is relevant in determining the question of entitlement. Id. at 1040. We also noted that, under this statute, the legislature gave judges discretion only to determine whether the qualifying offer was made in good faith, and whether the amount of fees awarded was reasonable. Id. at 1041. Section 768.79 does not specify when such offers may be served....

...Under the Florida Constitution, only the supreme court has the prerogative to promulgate rules for the procedural aspects of civil litigation through the Florida Rules of Civil Procedure. Fla. Const. art. V, § 2(a). As such, the supreme court in Timmons adopted the procedural portion of section 768.79 as a rule of court....

...To paraphrase from our opinion in Fortner, the words "shall be served" that appear in this rule cannot possibly have any meaning other than setting a mandatory time frame for service of such offers. In fact, we held in our recent case of Schussel v. Ladd Hairdressers, Inc., 736 So.2d 776 (Fla. 4th DCA 1999) that section 768.79 and rule 1.442 are punitive [1] provisions which must be strictly construed....

...Arguably, the fact the offer was untimely did not prejudice Schussel because discovery was complete; there was no date certain for the trial to commence; and trial did not actually take place until over six months later. Nevertheless, we held the offer was still void ab initio. We explained, Since section 768.79 and Florida Rule of Civil Procedure 1.442 are punitive in nature in that they impose sanctions upon the losing party and are in derogation of the common law, they must be strictly construed....

...an offer of judgment after having obtained the continuance. The offer of judgment was untimely and thus unenforceable. Id. As Schussel suggests, prejudice or lack thereof should not be a topic for judicial inquiry in determining the applicability of section 768.79 and rule 1.442 (outside the "good faith" concept)....

...party seeking the attorney's fees has the burden to show compliance with the rules. See Gulliver Academy, Inc. v. Bodek, 694 So.2d 675, 677 (Fla.1997)(holding absent reservation of jurisdiction in final judgment, party seeking attorney's fees under section 768.79(6)(a) must show excusable neglect under rule 1.090(b)(2) to enlarge the time for filing a late motion)....

..."insignificant technical violation" of the rule. We disagree and find this case inapposite. In Drew, the fifth district held that the plaintiff's offer to settle was not void for purposes of award of attorney's fees for failure to expressly refer to section 768.79 in the offer....

...Instead, the offer is dismissed as a nullity —and, at that, long after the offeror could possibly go through a new formalistic compliance with the 90 day period and thereby cure any supposed violation. To sketch the background, initial process was served on defendant on June 8, 1998. Plaintiff then placed a section 768.79 offer of judgment in the mail to defendant on September 4th....

...Combs, 608 So.2d 1 (Fla. 1992); Leapai v. Milton, 595 So.2d 12 (Fla.1992). In each of these cases, we recognized that the Florida Rules of Civil Procedure controlled the procedural elements of the statutes. See, e.g., Timmons (adopting procedural portions of section 768.79 as Rule of Civil Procedure 1.442)....

...Fortner, 629 So.2d 1036 (Fla. 4th DCA 1993), swallow his words is ineffectual. In Schmidt, we confronted a trial judge's decision inferring a substantive condition not expressly stated in the text of the statute. The Schmidt trial court had effectively read into section 768.79 a requirement that an offeror have a reasonably reliable basis for the amount of an offer....

...Or as the majority would have it "shall means shall." In Spruce Creek, however, the Fifth District disagreed, explaining that "[t]his is an insignificant technical violation of the rule." [e.s.] 746 So.2d at 1116. Similarly, in Flight Express, Inc. v. Robinson, 736 So.2d 796 (Fla. 3d DCA 1999), an offer under section 768.79 failed to specify the amounts that each of the several offerors intended to contribute to the payment....

...fective only when it is actually received. Would the majority be willing to hold an offeree bound by an offer that was so "served" by mail but never actually received? The trial judge obviously recognized these considerations. In awarding fees under section 768.79, Judge Baker explained that he granted the motion: "based, inter alia, upon the legal reasoning and analysis set forth in Hanzelik v....

...gitimate concern of the offeree. The cases he cited further explain his thinking. In Hanzelik, an offer of judgment was made less than 30 days before trial, and it was accepted within the 30 day period but after trial had ended. The trial judge read section 768.79 to mean that an offer served less than 30 days before trial begins is deemed rejected or withdrawn as of the start of trial. On review, we held the 30 day acceptance provision in section 768.79 was a procedural requirement that was adopted by the supreme court in Timmons v....

...unjust to allow the offeree to accept the offer after trial, whose result was contrary to the offeree, had ended. Not actually mentioned in the Hanzelik opinion— but surely underlying our decision —is the obvious truth that an award of fees under section 768.79 founded on an offer accepted only after trial had already ended would be wildly inconsistent with the statute's principal purpose to facilitate settlement before a trial....

...nicate—with how the author wanted to use language or the audience might understand it. It holds up text in isolation from actual usage." William D. Popkin, MATERIALS ON LEGISLATION: POLITICAL LANGUAGE AND THE POLITICAL PROCESS 214 (2d ed.). [3] See § 768.79, Fla....

...Gart of Gordon Hargrove & James, P.A., Fort Lauderdale, for appellee. MAY, J. The "particularity" and specificity of a proposal for settlement is challenged in this appeal. The plaintiff appeals an order denying his motion for attorney's fees, pursuant to section 768.79, Florida Statutes, and Florida Rule of Civil Procedure 1.442....

...y's fees and costs. The trial court did not articulate the basis for the denial, but the parties agree the only basis was the lack of the requisite particularity required by rule 1.442. The question of whether a proposal for settlement complies with section 768.79, Florida Statutes (2005), and Florida Rule of Civil Procedure 1.442 is reviewed de novo....

...The insistence on a general release without clarifying that it applied only to the PIP claim created ambiguity. In the instant case, BellSouth has no unresolved claims that a full release would cause BellSouth to relinquish. In Nichols, one of the issues raised was whether rule 1.442 and section 768.79 were applicable in an action by an insured to recover PIP benefits....

...aterial facts in the investigation of the claim and made false statements or engaged in fraudulent conduct during the investigation of the claim. During the course of the State Court Action, USAA served an offer of judgment on the Debtor pursuant to section 768.79, Florida Statutes, and Rule 1.442, Florida Rules of Civil Procedure (collectively, the "Florida Offer of Judgment Statute")....

...7 to under the Florida Offer of Judgment Statute ("Fee Hearing"). 3. A pretrial conference is scheduled with respect to the Fee Hearing for November 7, 2001, at 10:30 a.m. DONE AND ORDERED at Tampa, Florida, on October 16, 2001. NOTES [1] Fla. Stat. § 768.79(1) provides in relevant part: (1) In any civil action for damages in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reaso...

...om collecting statutory fees. Ferrer sued the County for false imprisonment and battery due to the actions of a police officer. Prior to trial, the County presented Ferrer with two offers of judgment both on the same day pursuant to Florida Statutes section 768.79, and Florida Rule of Civil Procedure 1.442....

...hing and rejected its offers of judgment. Ferrer argued that the offers were invalid because the damages for the two counts overlap and therefore made the settlement proposals ambiguous. The trial court denied attorney's fees and the County appeals. Section 768.79, Florida Statutes (2005), provides for an award of reasonable costs and attorney's fees when: "(1) a party has served a demand or offer for judgment; and (2) that party has recovered a judgment at least twenty-five percent more or less than the demand or offer." Hannah v....

...ule that each party pay its own fees." Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276, 278 (Fla.2003). An appellate court applies the de novo standard of review in determining whether an offer of settlement comports with rule 1.442 and section 768.79 because a "proposal for settlement is in the nature of a contract." Jamieson v....

...om the penalty is imposed." Sarkis, 863 So.2d at 223 (citing Hotel & Rest. Comm'n v. Sunny Seas No. One, Inc., 104 So.2d 570, 571 (Fla.1958)). In Sarkis, the supreme court strictly construed what it concluded were penal attorney's fees provisions in section 768.79, Florida Statutes (1997), and Florida Rule of Civil Procedure 1.442 to determine that a multiplier was not appropriate for fees awarded under those authorities....

...For one thing, the supreme court has said that it does not implicitly overrule itself. Puryear v. State, 810 So.2d 901, 905 (Fla.2002). Moreover, the court's decision in Sarkis addressed the propriety of applying a fee multiplier to attorney's fee awards under section 768.79 and rule 1.442, which deal with offers of judgment....

...ion at the inception of certain cases. We agree with the Third District Court of Appeal's analysis . . . that Quanstrom specifically refers to obtaining counsel in the first instance. It is self-evident that attorney fees awarded as a sanction under section 768.79 and rule 1.442 are awarded after an attorney has already been obtained and agreed to undertake the case, and thus the use of a multiplier is not consistent with the purpose of the fee-authorizing statute....

...Reiter of Bunnell and Woulfe, P.A., Fort Lauderdale, for appellant. *877 Rhea P. Grossman of Rhea P. Grossman, P.A., Miami, and Lanza, O'Connor, Armstrong, Sinclair & Tunstall, P.A., Coral Gables, for Appellee-Community Asphalt Corp. PER CURIAM. This is an appeal from an order taxing fees and costs pursuant to section 768.79, Florida Statutes....

...The Eleventh Circuit Court of Appeals affirmed. Stouffer Corp. v. Teachers Ins. & Annuity Ass'n of America, 20 F.3d 1174 (11th Cir. 1994). The defendants' requests prompt an inquiry into the meaning and history of Section 45.061, Florida Statutes; Section 768.79, Florida Statutes; Rule 1.442, Florida Rules of Civil Procedure; and several decisions of Florida's appellate courts, including Timmons v....

...00, in September 1995. Plaintiff once again rejected the offer, and the second jury returned a verdict for $30,000. That verdict was more than 25% less than the first offer of $50,000, and defendant moved to tax attorney's fees and costs pursuant to section 768.79(1), Florida Statutes (1991)....

...McGowan Electrical Supply Co., 511 So.2d 977 (Fla.1987) the Florida Supreme Court held that an offer of judgment made before a first trial and an appeal is still effective in subsequent proceedings. Cheek involved an offer of judgment under Florida Rule of Civil Procedure *134 1.442, the predecessor to section 768.79; however, there is no reason why Cheek should not apply here....

..., she cites no authority to support her argument. [1] A similar fact situation existed in Williams v. Brochu, 578 So.2d 491 (Fla. 5th DCA 1991), and the court held that defendant's second offer did not affect the first offer. The court observed that section 768.79 "puts no limitations on the number of offers or demands for judgment which can be made." Id. at 494. Section 768.79(2) was amended after Williams and now provides that "[t]he making of an offer of settlement which is not accepted does not preclude the making of a subsequent offer." Plaintiff's argument that the second offer revoked the first offer o...

...Once that period expired the defendant acquired a statutory right to recover attorney's fees and costs in the event the judgment was below a certain amount. Plaintiff no longer had the ability to accept that offer, nor could she have done anything unilaterally to make it ineffective. The legislature did provide in section 768.79(5) that if an offer of judgment is withdrawn prior to a written acceptance, it is void....

...HAZOURI, FREDERICK A., Associate Judge, concurring specially. I agree that existing case law compels our decision that the trial court erred in denying appellant's "offer of judgment" fees. There is no dispute that an offeror may make subsequent offers, as the recent amendment to section 768.79(2) makes clear....

...Appellees argue that they should be excused for their late filing of the motion *137 for trial court attorney's fees on several theories, none of which do we find persuasive. They argue that there was "confusion" as to the time requirements for the filing of their motion for fees because section 768.79(6)(a), Florida Statutes (1995), sets the time for such filing to be "within 30 days after the entry of judgment...." However, the time periods prescribed in statutes such as section 768.79 have long and clearly been held to be procedural....

...ES X NO ______ 10. State the percentages of negligence that you charge to: AMI KENDALL REGIONAL MEDICAL CENTER 45% JOSE RODRIGUEZ, M.D. 55% FRANCISCO CUELLO, M.D. -0-% BERTA PINO -0-% ROBERTO PINO, SR. -0-% TOTAL MUST EQUAL 100% 100% [4] Pursuant to section 768.79, Florida Statutes (1989), the appellee made a pretrial demand for judgment in the amount of $250,000....

...On September 1, 1992, a collision occurred between a motor vehicle driven by Eloisa Andrea Padron and a United Cab taxi. Mrs. Padron filed suit against Gulf Coast seeking damages for her personal injuries. Prior to trial, Gulf Coast submitted a proposal for settlement pursuant to section 768.79, Florida Statutes (1997), and Florida Rule of Civil Procedure 1.442....

...Gulf Coast then filed a motion to tax costs and attorney's fees based on the proposal for settlement it had served on Mrs. Padron. In denying Gulf Coast's motion for attorney's fees, the trial court *466 found that Gulf Coast's offer did not meet the requirements of section 768.79 because it contained impermissible conditions. The trial court also found that, pursuant to section 768.79, Mrs....

...th its entitlement to attorney's fees and the reasonable amount of those fees. Id. at 374. Thus, by offering to pay ISS's attorney's fees only if ISS first obtained an award from the court, McMullen Oil imposed a condition that was not authorized by section 768.79....

...Padron concedes that the trial court erred in concluding that all her future social security disability income, including amounts not yet due or payable at the time of the judgment, should be added to the net judgment for purposes of computing the judgment obtained under section 768.79. Section 768.79(6), provides, in part, that: For purposes of the determination required by paragraph (a), the term "judgment obtained" means the amount of the net judgment entered, plus any postoffer collateral source payments received or due as of th...

...amounts by which the verdict was reduced. For purposes of the determination required by paragraph (b), the term "judgment obtained" means the amount of the net judgment entered, plus any postoffer settlement amounts by which the verdict was reduced. § 768.79(6), Fla....

...uld not be entitled to attorney's fees. However, this court in Mincin v. Short, 662 So.2d 1323 (Fla. 2d DCA 1995), held that taxable statutory costs are not damages and should not be added to the jury award in determining the judgment obtained under section 768.79....

...However, if there is a new trial on damages, McCarthy and Tilbury will be required to revisit the attorney's fees issue in its entirety, pending the outcome of the new trial. Because there are too many possible contingencies, such as a different result on damages or the effect of an offer of judgment pursuant to section 768.79, Florida Statutes, this court will not address the issue....

...judgment in the wrongful death case awarding sums dramatically in excess of what Mr. Ward had been willing to settle for. As the prevailing party, he filed a timely motion to tax attorney’s fees and costs pursuant to the offer of judgment statute, section 768.79, Florida Statutes (2012), and Florida Rule of Civil Procedure 1.442, but cited no other statute or rule....

...Horowitch, 107 So.3d 362, 376-78 (Fla.2013) (requiring strict compliance with rule 1.442(c)(2)(F), and reversing an award because the offer did not specify whether attorneys’ fees were included); Campbell v. Goldman, 959 So.2d 223, 226-27 (Fla.2007) (requiring strict compliance with section 768.79(2)(a) and reversing a fee award because the offer failed to cite the statute even though the offer did cite rule 1.442); Willis Shaw Express, Inc....

...ican] rule that each party pay *239 its own fees. Willis Shaw, 849 So.2d at 278 .” Campbell, 959 So.2d at 226 . Strict construction is also required because the offer of judgment statute prescribes a sanction. See Willis Shaw, 849 So.2d at 278 (“Section 768.79, Florida Statutes (1999) (“ ‘Offer of judgment and demand for judgment’ ”), provides a sanction against a party who unreasonably rejects a settlement offer.”)....

...But neither of the provisions considered in Nichols required, as both the rule and statutory subsection at issue here plainly do, that an “amount” be stated. The offers of judgment in the present case did not “state with particularity the amount offered to settle a claim for punitive damages.” § 768.79(2)(c), Fla....

...$1,700,000 in punitive damages. Reynolds and Liggett appealed and Ward cross-appealed application of the comparative fault statute. We affirmed per curiam. R.J. Reynolds et al. v. Ward, No. 1D12-2953, 2013 WL 4778569 (Fla. 1st DCA Sept. 6, 2013). . Section 768.79, Florida Statutes (2012) provides in part: (1) In any civil action for damages filed in the courts of this state ......

...gment awarding trial and appellate attorney's fees of $52,089.50 to William G. Osborne and Osborne & Akin, P.A. ("Osborne") in case 96-3232, and $49,320.90 to Broad & Cassel, P.A. ("Broad & Cassel") in case 97-1896. The fees were awarded pursuant to section 768.79, Florida Statutes, which allows the award of attorney's fees if a rejection of offer of judgment is 25 percent greater than the final judgment....

...s fees. The dismissal was affirmed without opinion. Respiratory Care Services, Inc. v. Murray D. Shear, P.A., 666 So.2d 157 (Fla. 5th DCA 1995). After remand, a hearing was held on appellee Osborne's motion for attorney's fees and costs, pursuant to section 768.79, Florida Statutes....

...Bayshore Garden Apartments, Ltd., 530 So.2d 977 (Fla. 2d DCA 1988). In this case, the appellees did not move this court for an award of fees, and no such mandate was issued. Nevertheless, appellees argue that Florida Rule of Civil Procedure 1.442 incorporates section 768.79, Florida Statutes, which allows recovery of appellate attorney's fees when an offer of judgment is rejected. Further, appellees assert that section 768.79 only requires that the motions for trial and appellate fees be filed in the trial court "within 30 days after the entry of judgment or after voluntary or involuntary dismissal." Hence, they argue there is no need to comply with Rule 9.140. We disagree with this reasoning. Appellees are correct that provisions of section 768.79(b) allow the recovery of appellate attorney's fees....

...In each of these cases, however, a motion was filed with the appellate court requesting appellate attorney's fees. The holding in Williams, that appellate fees are recoverable under section 768,79, is correctly interpreted to mean only that upon proper motion to the appellate court, section 768.79 provides a basis for attorney's fees. It in no way states or implies that section 768.79 supersedes the procedural requirements of rule 9.400(b)....

...Even where a fee award is mandatory, a motion for appellate fees must be filed pursuant to rule 9.400(b). Salley v. City of St. Petersburg, 511 So.2d 975 (Fla.1987); School Bd. of Alachua County v. Rhea, 661 So.2d 331 (Fla. 1st DCA 1995), rev. denied, 670 So.2d 939 (Fla.1996). Under section 768.79, an award of attorney's fees is mandatory if the statutory requirements in subsections (6)(a) or (b) are satisfied and if the offer of judgment was made in good faith....

...FPI counterclaimed for breach of contract. In April of 1990, Baker Protective, who sought a recovery in excess of $730,000, made a demand for settlement of $595,000. In October of 1991, FPI and F & D made an offer of judgment pursuant to Florida Statutes, Section 768.79 in the amount of $100,000. *1122 In January of 1992, and again in July of 1992, FPI and F & D made an offer of judgment pursuant to Florida Rule of Civil Procedure 1.442 and Section 768.79 for $125,000....

...FP, Inc., 643 So.2d 1099 (Fla. 3d DCA 1994). [2] The parties have raised an issue as to whether the offers of judgments made in this case should be evaluated under the 1990 version of Florida Rule of Civil Procedure 1.442 or under the 1991 version of Florida Statutes § 768.79....

...ior to the repeal of Rule 1.442. See Timmons v. Combs, 608 So.2d 1, 3 (Fla. 1992) (decision supplemented Oct. 22, 1992); see also In re Amendments to the Florida Rules of Civil Procedure, 604 So.2d 1110, 1110 (Fla. 1992). Moreover, Florida Statutes, Section 768.79 is not applicable in the instant case since that section does not apply to offers of judgments where the underlying causes of actions accrued prior to July 1, 1986, the effective date of that section....

...Metropolitan Dade County v. Jones Boatyard, Inc., 611 So.2d 512 (Fla. 1993). [3] "Since prejudgment interest is merely another element of damages, it is properly included in determining whether a judgment is so deficient as to activate the provisions of section 768.79, Florida Statutes." Phillips v....

...Disney filed a motion for award of attorney's fees and costs in the trial court. That motion has not yet been decided. Vaughen appealed the judgment entered against him to the circuit court. Disney filed a motion for appellate attorney's fees in the circuit court based in part on section 768.79, Florida Statutes....

...The circuit court *583 affirmed the county court's decision, but in a separate order, denied Disney's motion for attorney's fees without a hearing or explanation of its reasoning. Disney filed a motion for rehearing or reconsideration which the circuit court denied without a hearing. [1] Under section 768.79, a defendant in any civil action for damages is entitled to reasonable costs and attorney's fees if the defendant's offer of judgment is not accepted and if the judgment is for no liability or is at least 25% less than the offer. See section 768.79, Florida Statutes (1999); Camejo v. Smith, 774 So.2d 28 (Fla. 2d DCA 2000). We have previously held that because an appeal is but part of the action being appealed, a defendants right to attorney's fees under section 768.79, Florida Statutes applies to fees incurred on appeal....

...on which to make the offer." Id. In the instant case, Disney filed a timely offer of judgment which Vaughen rejected. Disney then obtained a judgment of no liability. After Vaughen appealed, Disney filed a motion for attorney's fees based in part on section 768.79....

...PETITION GRANTED; ORDER QUASHED AND REMANDED. THOMPSON, C.J., and PETERSON, J., concur. NOTES [1] Disney alleged in his motion for reconsideration that his motion for attorney's fees was timely filed. We find nothing in the record before us to indicate otherwise. [2] Vaughen's argument that section 768.79, Florida Statutes, does not apply to appeals lacks merit. Vaughen relies on Glanzberg v. Kauffman, 771 So.2d 60 (Fla. 4th DCA 2000), which held that section 768.79 cannot be used purely as a mechanism for obtaining appellate attorney's fees....

...pellant's recovery to only $2,000. Appellee then argued that because $2,000 would be more than 25% less than the two offers of judgment she had served on appellant prior to trial, she was entitled to an award of attorney's fees and costs pursuant to section 768.79, Florida Statutes (1997)....

...on for attorney's fees and costs which awards appellee attorney's fees in the amount of $27,043.50 and costs in the amount of $5,986.80, but states that the total award equals only $30,030.30. [1] This award of attorney's fees and costs was based on section 768.79, Florida Statutes (1997)....

...Appellant correctly contends that the order awarding attorney's fees and costs, pursuant to the offer of judgment statute, must be reversed because such an award requires the entry of a final judgment on the issue of liability, or its equivalent, *762 in order to trigger entitlement under the statute. See § 768.79, Fla. Stat. (1997). Cf. MX Investments, Inc. v. Crawford, 700 So.2d 640, 642 (Fla.1997) (holding that a dismissal with prejudice can trigger a defendant's entitlement to attorney's fees pursuant to § 768.79)....

...Thus, the amount of appellant's actual recovery has not yet been determined. Without a final determination of the amount of appellant's recovery in this case, the trial court appears to have erred in awarding attorney's fees and costs to appellee pursuant to section 768.79, Florida Statutes (1997)....

...lectively referred to as "defendants"), appeal (1) a final judgment in favor of the plaintiff, Elida Nerys ("Nerys" or "plaintiff"), in the amount of $185,290.00; and (2) a final order awarding the plaintiff her attorneys' fees and costs pursuant to section 768.79, Florida Statutes (2005)....

...2d DCA 2002). As we are remanding for a new trial, we necessarily reverse the final judgment for attorneys' fees and costs since the statutory basis for the award of fees and costs is dependent on the underlying judgment obtained by the plaintiff. See § 768.79, Fla....

...A hearing was held on the motion on January 16, 1998. McKenzie's partner, Daniel Soloway, argued that the proposal had not been properly accepted because the original of the acceptance was not filed in the court file on or before the thirtieth day, February 24, 1997, as required by section 768.79, Florida Statutes....

...l Procedure does not require the filing of an acceptance with the court. Leatherberry could have taken the position that rule 1.442 would prevail on a procedural matter such as this and would therefore take precedence over the contrary provisions in section 768.79, Florida Statutes, but he did not make this argument in the trial court or on appeal....

...y's fees. Jerry Modesto sued Royal Caribbean and Sun Viking under the Jones Act, 46 U.S.C.A. § 688 (1982), and general maritime law for personal injuries he sustained aboard ship. Before trial, the plaintiff served a demand for judgment pursuant to section 768.79, Florida Statutes (1989), in the amount of $225,000....

...t the defendants to present any testimony regarding the mediation proceedings. The cause proceeded to trial and resulted in a verdict and judgment for the plaintiff in the amount of $499,000 plus costs. Plaintiff's counsel moved for fees pursuant to section 768.79, Florida Statutes (1989). The trial court denied the motion and declared section 768.79 an unconstitutional infringement upon the rulemaking authority of the Florida Supreme Court....

...nes Act case). Therefore, application of the mediation privilege was not error, and we accordingly affirm the judgment under review. On plaintiff's cross-appeal of the denial of attorney's fees, we reverse. We do not address the constitutionality of section 768.79, Florida Statutes (1989), as the Florida Supreme Court, when given the opportunity to declare section 768.79 an unconstitutional infringement on its rulemaking authority, expressly declined to do so....

...The Florida Bar Re: Amendment to Rules of Civil Procedure Rule 1.442 (Offer of Judgment), 550 So.2d 442 (Fla. 1989). Instead, the court amended Fla.R.Civ.P. 1.442 and held that "[t]o the extent that procedural aspects of new rule 1.442 are inconsistent with sections 768.79 and 45.061, the rule shall supersede the statutes." Amendment to Rules of Civil Procedure Rule 1.442, 550 So.2d at 443....

...Crawford, 700 So.2d 640 (Fla.1997). We conclude that the trial court erred by relying upon MX Investments in a context not involving an offer of judgment. In MX Investments, the supreme court held that the language of the offer of judgment statute, section 768.79, Florida Statutes (1991), does not support an award of attorneys' fees unless the case is dismissed with prejudice....

...We affirm that portion of the order which denied attorney's fees, but reverse and remand as to costs. During the pendency of a suit for personal injuries arising out of a motor vehicle accident, Luizza served an offer of judgment in the amount of $6,501.00 on plaintiff Elva Yaeger pursuant to section 768.79, Florida Statutes (1987)....

...After the briefs were filed in this case, the Florida Supreme Court quashed our decision in Aspen. See Aspen v. Bayless, 564 So.2d 1081 (Fla. 1990). Aspen, therefore, would no longer impede Luizza's recovery of costs or fees. Luizza predicates his entitlement to attorney's fees and costs upon section 768.79, Florida Statutes....

...In our recent decisions in Gunn v. DePaoli, 562 So.2d 427 (Fla. 2d DCA 1990) and Kline v. Publix Supermarkets, Inc., 568 So.2d 929 (Fla. 2d DCA 1990), we held that a defendant may not recover attorney's fees and costs following an offer of judgment under section 768.79, Florida Statutes, unless a judgment is rendered in favor of the plaintiff. Since there was no judgment rendered in favor of the plaintiff Yaeger, defendant Luizza was not entitled to attorney's fees and costs pursuant to section 768.79....

...District Court of Appeal of Florida, Fourth District. December 13, 1995. *63 Todd A. McDowell, Cocoa, for appellant. Steven B. Sprechman of Steven B. Sprechman, P.A., North Miami Beach, for appellee. FARMER, Judge. Defendant appeals the trial court's denial of attorney's fees under section 768.79, Florida Statutes (1993), as to which the court concluded that this action on the common counts and for breach of contract was not covered by the statute's qualifying phrase, "any civil action for damages." We reverse. Plaintiff sought judgment against defendant, who was the consignee of goods, for unpaid transportation and delivery charges exceeding $20,000. During pretrial proceedings, defendant served plaintiff with an offer of judgment for $500 under section 768.79. After a judgment in its favor, defendant moved for attorney's fees under the statute. In denying the motion, the court explained that section 768.79: "is inapplicable to this action in that Chapter 768 is limited solely to negligence actions pursuant to the Supreme Court's holding in Smith v....

...ot determinative on the issue *64 of legislative intent." Legislative intent must be determined exclusively from the language of the statute. Aetna Cas. & Sur. Co. v. Huntington Nat. Bank, 609 So.2d 1315 (Fla. 1992). In 1990, the legislature amended section 768.79 by deleting the words, "in any action to which this part applies," and by substituting in their place the words, "[i]n any civil action for damages." It is basic that statutes should not be interpreted in a manner that would deem legislative action useless....

...They convey a clear meaning sweeping in all civil actions in which one party seeks damages from another party. The right to damages may arise under tort law; it may arise under contract law; it may arise under property law. If the party seeks damages from another party, then the claim is covered by section 768.79's broad phrase, "civil action for damages." Construing the words, "[i]n any civil action for damages," to mean the same thing as the words, "any action to which this part applies * * *," would be to render the legislative change a nullity. It is thus not necessary to resort to any rule of statutory construction to see that the legislature intended to broaden the coverage of section 768.79 from personal injury actions only to any civil action for damages. Because an action for damages for breach of contract and on the common counts is indisputably "a civil action for damages," there can be no doubt that the action below was within section 768.79. The trial court's reliance on Smith was misplaced. Smith concerned a constitutional challenge to the Tort Reform and Insurance Act of 1986, chapter 86-160, Laws of Florida, of which section 768.79 was merely one part....

...Plaintiff now is left with convincing the trial judge that, in fixing the fees due, the court ought to adjust the fees awarded to reflect that the offer was unrealistic, if not in bad faith, under the circumstances. See TGI Friday's Inc. v. Dvorak, 663 So.2d 606, 608 (Fla. 1995) (enumerated factors in section *65 768.79 are intended to be considered in the determination of the amount of fee to be awarded)....

...Bodek, 694 So.2d 675 (Fla.1997), rev'g 659 So.2d 354 (Fla. 3d DCA 1995). In April 1993, Gulliver Academy, Inc. [Gulliver] served the plaintiffs with its Amended Offer of Judgment. The offer of judgment provided, in part, that it was being made pursuant to section 768.79, Florida Statutes, and that "[t]he offer is being made by the Defendant, Gulliver Academy, Inc. to the Plaintiffs." The plaintiffs rejected the offer of judgment. The case proceeded to trial, and the jury entered a verdict in favor of Gulliver. Gulliver then moved for attorney's fees and costs pursuant to section 768.79, Florida Statutes (Supp.1990)....

...The trial court granted Gulliver's motion. The plaintiffs' appeal followed. The plaintiffs contend that the trial court erred by granting Gulliver's motion for attorney's fees and costs where the offer of judgment to "the Plaintiffs" fails to meet the statutory requirement of section 768.79(2)(b), which provides that the offer must "[n]ame the party making it and the party to whom it is being made." See also Fla....

...We disagree with these arguments. In the instant case, the offer of judgment states that it was being made to "the Plaintiffs." We find that in situations, as in the instant case, where there are multiple plaintiffs, and the defendant seeks to settle with all plaintiffs, section 768.79(2)(b) is satisfied when the offer of judgment provides that it is being made to "the Plaintiffs." Further, contrary to the plaintiffs' assertion, section 768.79 does not require that in circumstances where the offer of judgment is being made to multiple plaintiffs, that the offer of judgment state the amount that is being offered to each plaintiff. In fact, section 768.79(2)(d) merely provides that the offer of judgment must "[s]tate its total amount." [1] Moreover, this issue was addressed in Tucker v....

...properly joined in one action we fail to see that violence has been done to the rule [1.442] by a defendant making one offer to both parties." Tucker, 343 So.2d at 1358. Therefore, we find that the offer of judgment met the statutory requirements of section 768.79....

...ike Defendant's Proposal For Settlement [DE-72]. As was discussed in detail at the August 21, 2009 hearing, this Motion is DENIED. On July 17, 2009, Defendant served upon Plaintiff an Offer of Judgment pursuant to Fed.R.Civ.P. 68 and Florida Statute § 768.79 proposing to pay $250,000.00 in full settlement of the action [DE-72-1]....

...including all claims for attorneys' fees as attorneys' fees are an element of damages being sought in the Complaint." Plaintiff now argues that this Offer should be stricken because it "fails to offer any specific amount of attorney fees." However, Florida Statute § 768.79 does not require that each independent element of an Offer of Judgment be specifically quantified....

...Hosley and Richard P. Spence of Seipp, Flick & Kissane, P.A., Lake Mary, for Appellee. VILLANTI, Judge. Vicky Talbott appeals the trial court's order granting American Isuzu Motors, Inc., attorney's fees and costs under the offer of judgment statute, section 768.79, Florida Statutes (2003)....

...Isuzu subsequently won final summary judgment in its favor on two counts in Talbott's complaint and, after a trial, final judgment in its favor on the remaining count. Isuzu filed a motion for attorney's fees and costs under Florida's offer of judgment statute, section 768.79. Talbott argued to the trial court that section 768.79 was preempted by the Magnuson-Moss Act....

...shall be entitled to recover reasonable costs and attorney's fees incurred from the date of the filing of the demand. If rejected, neither an offer nor demand is admissible in subsequent litigation, except for pursuing the penalties of this section. § 768.79(1)....

...t and expenses (including attorneys' fees based on actual time expended) determined by the court to have been reasonably incurred by the plaintiff for or in connection with the commencement and prosecution of such action.... 15 U.S.C. § 2310(d)(2). Section 768.79 provides for awards of attorney's fees to parties who previously attempted to settle a case by making offers of judgment—not based on their status as prevailing parties but on their offers of judgment and the ultimate determination of liability. The Magnuson-Moss Act, on the other hand, provides for awards of attorney's fees to prevailing consumers. It is possible to comply with the dictates of both section 768.79 and the Magnuson-Moss Act because the Magnuson-Moss Act does not say that defendants or manufacturers can never recover their attorney's fees; [1] defendants *646 or manufacturers simply cannot argue entitlement to attorney's fees based on only the Magnuson-Moss Act. Here, Isuzu would not be entitled to recover attorney's fees under the Magnuson-Moss Act because it is not a consumer. However, it could recover attorney's fees under section 768.79 because the judgment was ultimately one of no liability and Isuzu made an offer of judgment. Theoretically, it is possible to comply with the dictates of both section 768.79 and the Magnuson-Moss Act even if the plaintiff consumer prevails—the court could award a prevailing consumer attorney's fees and costs and then offset that award against the defendant's post-offer of judgment fees and costs as the Supreme Court of Alaska discussed in Catalina Yachts v....

...Florida's offer of judgment statute penalizes parties who "fail to act reasonably and in good faith in settling lawsuits." Eagleman v. Eagleman, 673 So.2d 946, 947 (Fla. 4th DCA 1996). Consumers should not be exempt from this penalty if they fail to act reasonably and in good faith simply because they are consumers. Because section 768.79 and the Magnuson-Moss Act do not conflict either in language or in purpose, we conclude that section 768.79 is not preempted by the federal statute....

...ime Merger Corp. v. MeCabe, 763 So.2d 505, 506 (Fla. 4th DCA 2000)). In sum, we affirm this case because the trial court did not err in granting attorney's fees to Isuzu under Florida's offer of judgment statute. Florida's offer of judgment statute, section 768.79, is not preempted by federal law....

...WALLACE, J., Concurs. KELLY, J., Dissents with opinion. KELLY, Judge, Dissenting. The majority should have relied on decisions from this court, not the dubious reasoning of an Alaskan court, to determine whether Florida's offer of judgment statute, *648 section 768.79, is preempted by 15 U.S.C....

...This court has held that where a federal law provides for an award of attorney's fees in a more limited context than provided for under state law, the federal law preempts the state law. Adherence to this standard compels the conclusion that the Magnuson-Moss Act preempts section 768.79, because under section 768.79 a manufacturer can recover fees from a consumer provided the statutory conditions for the award are satisfied, while under the Magnuson-Moss Act, a manufacturer can never recover its attorney's fees from a consumer in an action brought under the Act....

...licts' that make it `impossible' for private parties to comply with both state and federal law. Rather, it has said that both forms of conflicting state law are `nullified' by the Supremacy Clause." Id. (citations omitted). The issue here is whether section 768.79 "`stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'" [3] Id. (citation omitted). In Moran v. City of Lakeland, 694 So.2d 886 (Fla. 2d DCA 1997), this court considered whether section 768.79 conflicted with the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C....

...ling defendant may recover fees only where the action was "frivolous, unreasonable, or without foundation." Christiansburg Garment Co. v. Equal Employment Opportunity Comm'n, 434 U.S. 412, 421, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978). On the other hand, section 768.79 allows a defendant to obtain fees regardless of whether it has prevailed and regardless of whether the suit is "frivolous, unreasonable, or without foundation." Id. Because section 1988 allowed an award of attorney's fees to prevailing defendants "in a much more limited context" than section 768.79(1), this court held that section 768.79(1) was preempted....

...ted. Other Florida courts have used the same test. In Clayton v. Bryan, 753 So.2d 632 (Fla. 5th DCA 2000), the Fifth District considered whether a fee provision in the Federal Fair Debt Collection Protection Act (FDCPA), 15 U.S.C. § 1692, preempted section 768.79. FDCPA allows an award of fees to a prevailing defendant when the court expressly finds that the plaintiff's case was "brought in bad faith and for the purpose of harassment." 15 U.S.C. § 1692.k(a)(3). Citing Moran, the court concluded that section 768.79 was preempted because it did not restrict an award of fees to cases brought in bad faith. Clayton, 753 So.2d at 633-34. In Keesee v. Bank of America, NA, 371 F.Supp.2d 1370, 1376 (M.D.Fla.2005), the court found that section 768.79 was "inconsistent" with 42 U.S.C. § 1988 because its provision for mandatory fees would "override" the discretionary test applied under federal law. The court noted that if section 768.79 were applied it "would expose plaintiffs to greater risk and upset the substantive balance of interest embodied in Title VII." Id....

...A consumer who does not prevail recovers nothing, and a consumer who continues to litigate despite a reasonable settlement offer risks having the court deny some or all of the fees the consumer is seeking on the grounds that such fees are not "reasonably incurred." Applying section 768.79 will "upset the substantive balance of interest" embodied in the Magnuson-Moss Act....

...And it is because Congress is "silent"—that is, it has not expressly stated that states may not provide for an award of fees to a manufacturer—that we must consider whether Congress has impliedly preempted, as opposed to expressly preempted, state law. To make the determination of whether Congress has impliedly preempted section 768.79, we must analyze whether section 768.79 "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." See Hines v....

...for attorney's fees in "a much more limited context" than permitted by state law. See Moran, 694 So.2d at 887. In footnote 1, the majority opinion acknowledges that "[t]he Magnuson-Moss Act does not authorize fees for [manufacturers]" and that under section 768.79 a manufacturer denied fees under the Magnuson-Moss Act might nevertheless be able to recover those fees under section 768.79....

...rd those cases employed to evaluate whether state law conflicted with the statute at issue. As explained above, when "the unique language of the Magnuson-Moss Act" is examined under that standard, the conclusion that flows from that analysis is that section 768.79 is preempted....

...Marcy states that this section details the Act's application to other statutes, and it "does not either expressly or implicitly preempt any state statute concerning an award of attorneys' fees for a prevailing party." 921 So.2d at 784. The issue we are concerned with is not whether the Magnuson-Moss Act expressly preempts section 768.79, but rather, whether preemption is implied because section 768.79 conflicts with section 2310(d)(2)....

...Id. The fact that Volkswagen was able to recover its fees under state law in Deadwyler has no bearing on the analysis in this case. Thus, I find nothing in Marcy or in the majority opinion that persuades me to join the majority in its conclusion that section 768.79 is not preempted....

...City of Lakeland, 694 So.2d 886 (Fla. 2d DCA 1997). [3] Although the majority opinion contains a lengthy discussion of "impossibility" preemption, Talbott has not argued that it is impossible to comply with both statutes. [4] In support of its contention that section 768.79 is compatible with section 2310(d)(2), the majority opinion cites Marek for its discussion of Federal Rule of Civil Procedure 68, the federal offer of judgment rule....

...pted the common-law rule, and that, therefore, a successful defendant could not recover attorney's fees even against a plaintiff who had proceeded in bad faith." 434 U.S. at 419 n. 13, 98 S.Ct. 694. [6] Moran and Keesee compared 42 U.S.C. § 1988 to section 768.79, Petsche and Small compared 29 U.S.C. § 1132(g) to section 627.428, and Clayton compared 15 U.S.C. § 1692 to section 768.79....

...favor of Pate was $17,000. The trial court relied upon the verdict of $17,000 in determining that the verdict was more than twenty-five percent less than the offers of judgment, making Pate liable for Renfroe's costs and attorney's fees pursuant to section 768.79, Florida Statutes (1995). Renfroe filed a motion for sanctions pursuant to section 768.79, and a separate motion for a PIP set-off, asking the court to reduce the jury verdict in favor of Pate by $10,000, the amount of Pate's PIP coverage....

...pursuant to *1098 section 627.736. The trial court reduced the verdict for plaintiff to $7000 and entered judgment for defendant in the amount of $41,695.20. Pate does not dispute that Renfroe was entitled to recover attorney's fees and costs under section 768.79, Florida Statutes (1995), because the verdict was more than twenty-five percent less than the offers of judgment Pate rejected....

...not made in good faith and denying its motion for attorney's fees and costs. We agree and reverse the trial court's order denying attorney's fees and costs to Allstate. This case arose from an uninsured motorist claim. On March 11, 1994, pursuant to section 768.79, Florida Statutes (1993), Allstate made an Offer of Judgment to Appellee/Cross-Appellant Myrda Manasse (Manasse) in the amount of $4,001.00....

...The trial judge decided that, based upon his recollection of the trial and the state of the case on the date when the offer was made, the offer was not a good faith offer and disallowed the award of attorney's fees and costs. In Schmidt v. Fortner, 629 So.2d 1036 (Fla. 4th DCA 1993), we held that under section 768.79, a party has the: right to attorney's fees when the two preceding prerequisites have been fulfilled: i.e., (1) when a party has served a demand or offer for judgment, and (2) that party has recovered a judgment at least 25 percent more or less than the demand or offer....

...ines that a qualifying offer "was not made in good faith." Id. at 1040-41. We restated our holding in Schmidt in deciding Dvorak v. TGI Friday's, Inc., 639 So.2d 58 (Fla. 4th DCA 1994), approved by, 663 So.2d 606 (Fla.1995). There, we stressed that "section 768.79 does not give the trial court discretion to deny attorney's fees, once the prerequisites of the statute have been fulfilled, except if the court determines under section 768.79(7)(a) that `an offer was not made in good faith.'" Dvorak, 639 So.2d at 59. In approving Dvorak, the supreme court also noted that "the district court correctly held that section 768.79 provides for the award of attorney's fees regardless of the reasonableness of an offeree's rejection of an offer of judgment." Dvorak, 663 So.2d at 611....

...Allstate did, in its argument, come forward with a reasonable explanation for its offer. On the other hand, Manasse did not establish that the offer was not in good faith. Rather, Manasse focused upon factors showing the reasonableness of her rejection of the offer of judgment. Such criteria, under section 768.79, bear more appropriately upon a consideration of the amount of fees awarded, rather than entitlement to fees....

...Eagleman, 673 So.2d 946 (Fla. 4th DCA 1996). Because we conclude that there was an insufficient basis for finding that the offer of judgment was not made in good faith, we reverse the order denying Allstate an award of attorney's fees and costs under section 768.79 and remand for a hearing to determine the amount of fees and costs to which Allstate is entitled....

...Defendants were served with the complaint during March and April of 1993. (Def.'s Mem. in Opp'n to Pl.'s Mot. Remand 1). On October 1, 1993, Defendants filed the Answer and Defenses in state court. (Def.'s Mem. in Opp'n to Pl.'s Mot. Remand 2). On December 15, Plaintiff filed a Demand for Judgment pursuant to F.S. § 768.79 in the amount of $165,000....

...er of Judgment. Because this case does not deal with revival of the right to remove, Wilson is inapplicable. Plaintiff also argues that Defendants may not base removal upon an offer of judgment because it would violate public policy. Plaintiff cites § 768.79 of the Florida Statutes, which does not require that an offer of judgment be filed with the state court....

...82 (N.D.Ill.1960), the court defined "other paper." It held that: "`Other paper' refers to such court processes even though not required to be filed, so long as these papers are part and parcel of the state court proceedings having their origin and existence by virtue of state court processes." Id. at 85. Section 768.79 of the Florida Statutes is part and parcel of state court proceedings. The provision of an offer of judgment would not exist absent litigation in state court. In addition, allowing Defendants to use Plaintiff's Offer of Judgment does not violate § 768.79 of the Florida Statutes. There is no conflict between state and federal law on this point. Section 768.79 does not require offers of judgment to be filed with the court....

...enants," *452 and ordered that the other owners were individually liable on a pro rata basis of $2475 each. Then, as to the Vinsons, the court found that they were liable for additional fees based on the Partons' "Offer of Judgment" made pursuant to section 768.79, Florida Statutes (2004)....

...ally, because "under the breach of contract action, we thought we had to allocate them." [2] The Partons titled each of their demands as a "proposal for settlement," and the trial court referred to the demands collectively as an "offer of judgment." Section 768.79 refers to a defendant's "offer of judgment" and a plaintiff's "demand for judgment." For ease of reference, in this opinion we will use the term used by the trial court, "offer of judgment."

...This Proposal does not attempt to resolve [MYD’s] claims for injunctive relief, and if accepted, the claims for money damages will be resolved, but the claim? for injunctive relief will remain pending. At the hearing on International Paint’s fee motion, MYD argued that Florida’s offer of judgment statute, section 768.79, did not apply because MYD sought both damages and equitable relief in the form of a permanent injunction in its complaint....

...The court based its decision on the fact that MYD did not pursue injunctive relief with the trial court and only litigated its money damages. We affirm the costs awards without further comment, but write to address International Paint’s attorney’s fee award. Section 768.79 of the Florida Statutes creates a substantive right to attorney’s fees when, among other scenarios, a plaintiff refuses to accept an offer of judgment from the defendant and the ensuing judgment is one of no liability on the part of the defendant. § 768.79(1), Fla. Stat. (2011). “The purpose of Section 768.79 is to lead litigants to settle by penalizing those who decline offers that satisfy the statutory requirements....

...Encouraging settlement lowers litigation costs for the parties and reduces the fiscal impact of litigation on the court system.” Allstate Prop. & Cas. Ins. Co. v. Lewis, 14 So.3d 1230, 1235 (Fla. 1st DCA 2009) (citations and internal quotation marks omitted). By its own terms, section 768.79 applies only to “civil action[s] for damages.” See § 768.79(1), Fla....

...Horowitch, 107 So.3d 362, 374-75 (Fla.2013). What is less clear, however, is whether an offer purporting to resolve only monetary claims in a suit also containing a nonmonetary cause of action is valid. Id. at 374 (“Florida courts have *1287 not decided whether a party may utilize section 768.79 when.he or she has asserted separate claims for monetary and-nonmon-etary relief in the same pleading and .the opposing party has served an offer directed specifically to the monetary claim”)....

...We need not decide this issue at this juncture as affirmance is warranted based on the trial court’s finding that the true relief sought by MYD below was monetary in nature. In Diamond Aircraft, the Florida Supreme Court approvingly cited to authority suggesting that section 768.79 may be utilized in a suit seeking monetary and nonmonetary relief if the “true relief’ sought is monetary....

...ly damages. DiPompeo Constr. Corp., 916 So.2d at 18 ; Nelson, 677 So.2d at 999 . Citing to Diamond Aircraft, the United States Court of Appeals for the Eleventh Circuit recently rejected a party’s argument “that attorney’s fees under [section] 768.79 are not available in any case in which a declaratory judgment accompanies a claim for damages.” Yacht Club on the Intracoastal Condo....

...Considering the facts behind a suit for breach of contract and declaratory relief, the Eleventh Circuit concluded that “the only dispute in the suit was one for damages” and thus, held that the “district court did not err in awarding attorney’s fees under [section] 768.79” despite the presence of a claim for nonmonetary relief....

...Parrish, Miami, for appellee. Before SHEPHERD, SUAREZ, and ROTHENBERG, JJ. ROTHENBERG, J. Eucenda Segundo ("the defendant") appeals from the trial court's orders awarding attorney's fees to Cedric Reid ("the plaintiff"), pursuant to the demand for judgment statute, section 768.79, Florida Statutes (2005), and the proposal for settlement rule, Florida Rule of Civil Procedure 1.442....

...nal. On November 29, 2005, while the plaintiff's alleged damages continued to relate solely to his neck and back injuries, the plaintiff served a proposal for settlement/demand *935 for judgment ("proposal for settlement") pursuant to rule 1.442 and section 768.79, offering to settle the action for $10,000, inclusive of costs and attorney's fees....

...[3] In a letter dated August 17, 2006, the plaintiff's attorneys outlined the plaintiff's shoulder injury, and asked the defense to tender the policy limits of $10,000. The letter did not state that it was a settlement proposal nor reference rule 1.442 or section 768.79, and the plaintiff concedes that this letter does not constitute a proposal for settlement....

...0 for future pain and suffering. Thereafter, the trial court entered a final judgment in favor of the plaintiff for $13,775, after applying a $10,000 personal injury protection setoff. The plaintiff filed a motion for attorney's fees and costs under section 768.79 and rule 1.442, based on the defendant's failure to accept the plaintiff's proposal for settlement dated November 29, 2005....

...Following a hearing on the plaintiff's motion for attorney's fees and costs, the defendant *936 filed a supplemental response, stating that although she was not abandoning her argument that the plaintiff should not be awarded any attorney's fees, if fees were awarded, pursuant to section 768.79(7)(b), the only reasonable hours that the plaintiff could claim are those from the date of the proposal for settlement to the last billing date before the claim for the shoulder dislocations was made (8.4 hours for a total of $1,710). The trial court granted the plaintiff's motion for attorney's fees, and entered an order awarding attorney's fees to the plaintiff's counsel in the amount of $29,023. [4] This appeal followed. Pursuant to section 768.79(1), if a plaintiff serves a demand for judgment which is not accepted by the defendant, the plaintiff is entitled to recover reasonable attorney's fees and costs if the judgment he recovers is at least twenty-five percent greater than the offer. Section 768.79(1) provides in pertinent part: If a plaintiff files a demand for judgment which is not accepted by the defendant within 30 days and the plaintiff recovers a judgment in an amount at least 25 percent greater than the offer, she or he shall be entitled to recover reasonable costs and attorney's fees incurred from the date of the filing of the demand. Thus, section 768.79(1) serves as a sanction for an unreasonable rejection of a good faith offer of settlement. See Brower-Eger v. Noon, 994 So.2d 1239, 1241 (Fla. 4th DCA 2008) (noting that section 768.79 "authorizes an award of attorney's fees as a sanction against a party who unreasonably rejects a reasonable offer made in good faith"). In the instant case, the defendant acknowledges that the plaintiff's judgment was at least twenty-five percent greater than the proposal for settlement. The defendant, however, contends that: (1) pursuant to section 768.79(7)(a), the trial court abused its discretion by failing to disallow the award of attorney's fees as the proposal for settlement was not made in good faith, or (2) the trial court abused its discretion by awarding attorney's fees or by failing to significantly reduce the amount of attorney's fees requested by the plaintiff, as the fees requested were not reasonable based on the criteria set forth in section 768.79(7)(b) and the particular facts of this case. Section 768.79(7) provides in pertinent part as follows: (7)(a) If a party is entitled to costs and fees pursuant to the provisions of this section, the court may, in its discretion, determine than an offer was not made in good faith....

...(h)(2) contain similar provisions. Although we conclude that the November 2005 proposal for settlement was made in good faith based upon what the plaintiff believed his injuries and damages were at the time, we nonetheless conclude that pursuant to section 768.79(7)(b), the trial court abused its discretion by not completely disallowing an award of attorney's fees as that would be the only reasonable award under the circumstances of this case....

...d not abuse its discretion by denying the defendant's motion to disallow the attorney's fee award on the basis that the proposal for settlement was not a good faith offer. [6] *938 Next, we address the defendant's alternative argument that, based on section 768.79(7)(b), the trial court abused its discretion by not disallowing or, at the very least, significantly reducing the amount of attorney's fees requested by the plaintiff, as the amount requested was unreasonable under the circumstances....

...Based on the record before us, including a review of the jury's verdict, we conclude that the trial court did abuse its discretion by not completely disallowing the award of attorney's fees under the circumstances of this case. In determining the reasonableness of an attorney's fees award under section 768.79(7)(b), the trial court is required to consider not only the specific factors set forth in subsection (7)(b), but "all other relevant criteria." § 768.79(7)(b). Rule 1.442(h)(2) contains a similar provision. Although we disagree with the defendant that any of the listed factors contained in section 768.79(7)(b) apply, we agree with the defendant that the trial court should have considered the actual damages awarded by the jury and the relationship between the award and the plaintiff's proposal for settlement under the "all other relevant criteria" provision contained in section 768.79(7)(b)....

...nded his claim for damages. A review of the jury's verdict demonstrates that if the damages awarded to the plaintiff for the shoulder injury are not considered, the judgment recovered would not be at least twenty-five percent greater than the offer, § 768.79(1), and the plaintiff would not be entitled to an award of attorney's fees under section 768.79 or rule 1.442....

...[4] The trial court awarded costs to the plaintiff under the prevailing party statute, section 57.041, and the award of costs is not at issue in this appeal. [5] The August 17, 2006 letter sent by the plaintiff's attorneys to the defendant's attorneys does not comply with section 768.79(2), which provides in pertinent part: "(2) ......

...An offer must: (a) Be in writing and state that it is being made pursuant to this section." Moreover, rule 1.442(c)(1) provides: "A proposal shall be in writing and shall identify the applicable Florida law under which it is being made." Because the letter failed to comply with either section 768.79(2) or rule 1.442(c)(1), it does not qualify as a proposal for settlement....

...der injuries from the onset of the litigation amounts to a "gotcha" tactic. Cf. Cent. Motor Co. v. Shaw, 3 So.3d 367, 370 (Fla. 3d DCA 2009) (holding that allowing defendant whose offer of judgment was rejected to recover attorney's fees pursuant to section 768.79 and rule 1.442 "would counter the intent of the statute and would amount to nothing more than a `gotcha' tactic" where the defendant permitted his codefendant to settle the action for $10,000, in exchange for a dismissal with prejudice as to both defendants)....

proposal for settlement filed by Odom, pursuant to section 768.79(1), Florida Statutes (2014), in the amount

...FULMER, Acting Chief Judge. Ricardo Camejo appeals an order denying his motion for attorney's fees and costs. Camejo's motion for fees and costs was based upon a $100 offer of judgment he served upon the Hillsborough Transit Authority (Hartline) pursuant to section 768.79, Florida Statutes (1997), and Florida Rule of Civil Procedure 1.442....

...f the principal fact witnesses that Camejo was not liable for the accident. Hartline essentially argued that the nominal offer was not made in good faith. The trial court denied Camejo's motion without stating the grounds for its ruling. Pursuant to section 768.79(1), a defendant is entitled to an award of reasonable costs and attorney's fees if the defendant's offer of judgment is not accepted and if the judgment ultimately obtained is one of no liability or is at least twenty-five percent less than the offer....

...Arabia demanded judgment from Appellants in the amount of $250,000, which "exclud[ed] costs accrued to date." Appellants rejected the demands, and Arabia obtained final judgment against Appellants for over $1 million. When Arabia moved for fees pursuant to section 768.79, Florida Statutes (1995), Florida's demand-for-judgment statute, the trial court ruled that the demands were not valid because they failed to specify a sum certain for costs, including attorney's fees....

...and Rick McKay, defendants in the trial court, appeal from an order denying them costs as prevailing parties pursuant to section 57.041, Florida Statutes (2002). They also contend that the trial court erred in denying them attorney's fees and costs in accordance with their offer of judgment pursuant to section 768.79, Florida Statutes (2002), and Florida Rule of Civil Procedure 1.442....

...tious interference with its business relationships, A1 Teletronics, Inc. sued 1 Nation and its president, Rick McKay. A1 also sought an injunction against the defendants. Prior to trial, the defendants served A1 with an offer of judgment pursuant to section 768.79 in the amount of $50,000....

...This payment does not include any claims for punitive damages. The Defendants are not offering any amount for the Plaintiff's claimed punitive damages. 5. The Offer/Proposal is to include the settlement of all current and potential attorney's fees and costs. Rule 1.442 implements section 768.79, which authorizes an award of attorney's fees and costs when a defendant files an offer of judgment that is not accepted by a plaintiff and the final judgment is of no liability or an amount at least twenty-five percent less than the offer. In this case, the jury returned a verdict of no liability on the part of the defendants, so there is no dispute that the mathematical requirements of section 768.79 are satisfied....

...Ali of Kramer, Ali, Lambert & Fleck, Juno Beach, for appellee. GUNTHER, Judge. Appellants, Reliable Reprographics Blue-Print & Supply, Inc. and Steve Schlosberg, (Defendants) appeal two orders; (1) an order denying them attorney's fees and costs pursuant to section 768.79, Florida Statutes (1993), and (2) an order granting the Appellee (Plaintiff) attorney's fees and costs as the prevailing party. We dismiss in part and affirm in part. Plaintiff, as landlord, sued Defendants pursuant to a written lease agreement for money damages. Pursuant to Florida Rule of Civil Procedure 1.442 and section 768.79, Florida Statutes (1993), Defendants served "Defendants' Offers of Judgment" on Plaintiff....

...The total amount offered by Defendants was $16,480.00. Plaintiff, however, never accepted the offers. The case was tried and final judgment was entered in favor of Plaintiff in the amount of $10,946.83. Thereafter, Defendants moved to tax costs and attorney's fees pursuant to section 768.79, Florida Statutes (1993), alleging that the final judgment was at least 25% less than the offers of judgment. The trial court, determining that the fee provision of section 768.79, Florida Statutes (1993) was not triggered, denied the motion on July 8, 1993....

...fter the rendition of the appealable order. Consequently, this court lacks subject matter jurisdiction over the matter. Because we are unable to review the propriety of the July 8, 1993 order denying Defendants' attorney's fees and costs pursuant to section 768.79, Florida Statutes (1993), we are necessarily precluded from addressing the impact that section 768.79 has on the contractual right to attorney's fees and costs as the prevailing party....

...After recalculating the final judgment for set-offs and interest, Cul-pepper received an award of $9074.06. II. Discussion A. The Wolfes’ Offer of Judgment We first review whether the Wolfes were entitled to an award of attorney’s fees and costs pursuant to their joint offer of judgment which Culpepper had rejected. Section 768.79, Florida Statutes (2006), provides the basis for an award of attorney’s fees and costs when an offer or demand for judgment is not accepted and the statutory calculation formula is met....

...Affirmed in part, reversed in part, and remanded for further proceedings in accord with this opinion. SILBERMAN, C.J., and ALTENBERND, WHATLEY, NORTHCUTT, DAVIS, KELLY, VILLANTI, WALLACE, LaROSE, KHOUZAM, CRENSHAW, MORRIS, and BLACK, JJ., Concur. . The relevant language of section 768.79(1) provides: [I]f a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney’s fees incurred by her or him or on the defendant's behalf pursuant to a ......

...ise be awarded in a final judgment in the action,” subject to the provision in the rule governing attorney fees. The majority of the Committee determined that the amendment was needed to curtail partial proposals for settlement and to comport with section 768.79(2), Florida Statutes (2012), which states, in pertinent part, that “[t]he offer [to settle] shall be construed as including all damages which could be awarded in a final judgment.” Although the Committee reported that a minority of...

...On January 29, 2001, appellant made a Proposal for Settlement which stated: Defendant, Julie Sosnick, the Personal Representative of the Estate of Leonard Cyrulnik, by an [sic] through their under [sic] undersigned counsel, and pursuant to Rule 1.442 of the Florida Rules of Civil Procedure, and Florida Statute 768.79 hereby offers Plaintiff, Danette McManus, to settle this action for the total sum of TWO THOUSAND FIVE HUNDRED ($2500) DOLLARS, inclusive of costs and attorney's fees, and contingent upon the Plaintiff's execution of a Release and Settlement in favor of Defendant, as full and complete settlement of all claims....

...By and Through Paikin v. Segall, 685 So.2d 1381 (Fla. 4th DCA 1997), and MGR Equipment Corp., v. Wilson Ice Enterprises, 731 So.2d 1262 (Fla. 1999). Both Security Professionals and MGR hold that a proposal for settlement made pursuant to Rule 1.442 and section 768.79 which includes language settling "all claims" is sufficiently specific to include counterclaims....

...nforcement of the settlement. For the purposes of enforcement of a settlement, as opposed to imposing sanctions for failing to accept a proposal for settlement, it is irrelevant that the offer and acceptance in the instant case were made pursuant to section 768.79, Florida Statutes (1999) [2] and Rule 1.442....

...Therefore, we reverse the order enforcing the settlement and remand for further proceedings. KLEIN and SHAHOOD, JJ., concur. NOTES [1] Appellant's attorney affirmatively stated in the verified response that his authority to settle related solely to the main claim made by appellee and not to the counterclaim. [2] Section 768.79, Florida Statutes, was enacted for the purpose of encouraging settlements....

...In this case we review a trial court's decision to deny the defendants'/appellants' motion to tax attorney's fees and costs against the plaintiff, as well as the final judgment and cost judgment. The issues concern, inter *149 alia, the relationship between sections 44.102 and 768.79, Florida Statutes (1993)....

...Ernest and Maria Puleo were defendants in a personal injury suit resulting from an auto accident involving plaintiff, Rhonda Knealing. The parties engaged in court-ordered mediation, which resulted in an impasse. Fifteen days after the unsuccessful mediation, and eleven days before the trial date, the Puleos, pursuant to section 768.79, Florida Statutes (1989), served an offer of judgment in the amount of $15,001, which was rejected by the plaintiff....

...d in a judgment against the Puleos in the amount of $5,000, an amount which represented greater than a 25% reduction from the Puleos' original offer of judgment. The trial court denied the defendants' post-trial motion to assess costs and fees under section 768.79, setting forth its reasons as being that 1) the defendants' offer of judgment was not timely served, and 2) the plaintiff's rejection of the Puleos' offer of judgment was not unreasonable. The trial court then entered a cost judgment in favor of the plaintiffs, and against the Puleos, in the amount of $4,539, as well as an amended final judgment against the Puleos in the amount of $5,000. Section 768.79(6)(a), Florida Statutes (1989) states in pertinent part: (6)(a) If a defendant serves an offer which is not accepted by the plaintiff, and if the judgment obtained by the plaintiff is at least 25 percent less than the amount of the off...

...and the court shall set off such costs in attorney's fees against the award. In arriving at our determination to reverse on this point, we rely upon our holding in Schmidt v. Fortner, 629 So.2d 1036 (Fla. 4th DCA 1993), wherein this court, turning to the substance of section 768.79 itself, concluded that the legislature has created a mandatory right to attorney's fees so long as the above-stated statutory prerequisites have been met....

...ding, as it improperly applied a "reasonableness of rejection" standard in determining whether the Puleos were entitled to an award of attorney's fees and costs. Next we turn our attention to the issue of whether the Puleos' offer was timely served. Section 768.79, Florida Statutes (1989) (Offer of judgment and demand for judgment), provides in pertinent part: (1)(a) In any action to which this part applies, if a defendant files an offer of judgment which is not accepted by the plaintiff within...

...(Emphasis added.) However, section 44.102, Florida Statutes (1993) (Court-ordered mediation), provides in pertinent part: *150 (6)(a) When an action is referred to mediation by court order, the time periods for responding to ... an offer or demand for judgment pursuant to section 768.79 ... shall be tolled until: 1. An impasse has been declared by the mediator; or 2. The mediator has reported to the court that no agreement was reached. (b) Sections 45.061 and 768.79 notwithstanding, an offer of settlement or an offer or demand for judgment may be made at any time after an impasse has been declared by the mediator, or the mediator has reported that no agreement was reached. An offer is deemed rejected as of commencement of trial. We hold that by specifically referencing section 768.79 in section 44.102(6), the legislature left no doubt that it intended for all the provisions of section 768.79 to apply, following a court-ordered mediation resulting, as here, in impasse. A court-ordered mediation resulting, as here, in impasse. A court-ordered mediation which results in an impasse, simply modifies the time limitations imposed by section 768.79 by allowing either party the opportunity to serve a new offer at any time prior to trial. The provisions of section 768.79 and section 44.102(6)(b) are, in fact, consistent with one another in that it appears the legislature has simply allowed an enlargement of time within which to serve an offer of judgment in those instances where a court-ordered mediation has taken place....

...Prior to the hearing on the Hotel's motion, Smith served the Hotel with a Notice of Voluntary Dismissal without prejudice, upon which the Hotel filed its motion seeking an award of attorney's fees and costs based on its Proposal of Settlement and pursuant to section 768.79, Florida Statutes....

...ving a notice of dismissal at any time before a hearing on a motion for summary judgment." Marine Contractors, Inc. v. Armco, Inc., 452 So.2d 77, 79 (Fla. 2d DCA 1984) (citing Randle-Eastern Ambulance Serv., Inc. v. Vasta, 360 So.2d 68 (Fla. 1978)). Section 768.79, the Offer of Judgment statute, allows a party to recover attorney's fees "when a party has satisfied the terms of the statute and rule." Attorneys' Title Ins. Fund, Inc. v. Gorka, ___ So.3d ___, ___ (Fla. 2010) (citing MGR *103 Equip. Corp. v. Wilson Ice Enters., Inc., 731 So.2d 1262, 1263 (Fla.1999)). Under section 768.79, a defendant who files an offer of judgment which is not accepted by the plaintiff within thirty days is entitled to an award of attorney's fees and costs where: (1) the judgment is one of no liability; (2) the judgment obtained by the...

...ess than the defendant's offer; or (3) the cause of action was dismissed with prejudice. In MX Investments, Inc. v. Crawford, 700 So.2d 640, 642 (Fla.1997), the Florida Supreme Court concluded that to be entitled to an award of attorney's fees under section 768.79 based on a dismissal of the cause, the dismissal must be with prejudice....

...t of no liability. Id. Thus, an involuntary dismissal, a dismissal with prejudice, and a second voluntary dismissal (which serves as adjudication on the merits pursuant to rule 1.420(a)(1)) all qualify as a basis of an award of attorney's fees under section 768.79....

...ach of written warranty pursuant to the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act, 15 U.S.C. §§ 2301-2312 (2000) (MMWA). See 976 So.2d at 1213 . In November 2005, DaimlerChrysler served an offer of judgment, pursuant to *1131 section 768.79, Florida Statutes (2005), and Florida Rule of Civil Procedure 1.442....

...The Fourth District affirmed the trial court, holding that “[tjhere simply was no court-ordered change in the relationship of the parties in this case by the plaintiffs acceptance of DaimlerChrysler’s proposal for settlement.” Id. at 1215 . The Fourth District found “that section 768.79(4)’s provision for enforcement is not the same as the required affirmative court action that either approves of the terms of a settlement or affirmatively retains jurisdiction for enforcement.” Id. In direct conflict, the Second District held in Dufresne that a settlement agreement entered into pursuant to section 768.79 entitles a consumer to attorneys’ fees under the MMWA....

...DaimlerChrysler Corp., 983 So.2d 620, 625 (Fla. 3d DCA 2008), rejected the Mady decision, aligned itself with the Second District, and employed reasoning similar to that of the Second District in Dufresne . ANALYSIS' A settlement produced pursuant to Florida’s offer of judgment statute, section 768.79, Florida Statutes (2005), and Florida Rule of Civil Procedure 1.442 is under the auspices of the court in which the dispute is being processed and is tantamount to a consent judgment....

...Florida’s offer of judgment statute provides: An offer shall be accepted by filing a written acceptance with the court within 30 days after service. Upon filing of both the offer and acceptance, the court has full jurisdiction to enforce the settlement agreement. § 768.79(4), Fla....

...A resolution reached pursuant to the offer of judgment statute, as opposed to an extrajudicial settlement agreement that is not subject to judicial enforcement, bears the imprimatur of the court because a party that fails to accept that resolution is subject to judicial penalty and sanctions. See § 768.79(4), Fla....

...consent decree.” Id. Smalbein v. City of Daytona Beach, 353 F.3d 901, 905 (11th Cir.2003) (emphasis supplied). Florida’s offer of judgment statute explicitly states that “the court has full jurisdiction to enforce the settlement agreement.” § 768.79(4), Fla....

...Here, unlike Buckhannon, the settlement agreement between the parties in litigation produced pursuant to an offer of judgment statute represents a “judicially sanctioned change.” A settlement made *1135 pursuant to Florida’s offer of judgment statute remains under that court’s full jurisdiction. See § 768.79(4), Fla....

...On April 6, 1999, Ms. Bottcher filed a small claims action in the county court against Ms. Walsh for $2500 in damages arising from the death of a horse. On January 12, 2000, Ms. Walsh timely served a proposal for settlement on Ms. Bottcher pursuant to section 768.79, Florida Statutes (1999), and Florida Rule of Civil Procedure 1.442, which govern offers of judgment....

...Walsh's counsel claimed that he prematurely filed the proposal to safeguard his client's position. On January 31, 2001, the county court denied Ms. Walsh's motion for fees. It found that Ms. Walsh's settlement proposal was prematurely filed in violation of both section 768.79 and rule 1.442(d), which provides that "[a] proposal shall be served on the party ......

...Grip holds that the time requirements of rule 1.442 are procedural in nature and thus mandatory. Grip, 788 So.2d at 265 (citing Schmidt v. Fortner, 629 So.2d 1036, 1040 (Fla. 4th DCA 1993)); see also Schussel, 736 So.2d at 778 (stating that the provisions of section 768.79 and rule 1.442 are punitive and must be strictly construed)....

...Keesee's claims were for alleged violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Florida Civil Rights Act of 1992, FLA. STAT. § 760 et seq. ("FCRA"). [1] Well into this action, BOA *1372 served Keesee with a settlement proposal according to Florida Statute § 768.79 ("Section 768.79") among other provisions....

...BOA's favor. BOA now seeks an order requiring Keesee to pay $38,277.65 in attorney's fees BOA purportedly accrued since service of its proposal. Keesee contends that she should not be held liable for BOA's attorney's fees, in relevant part, because Section 768.79 does not apply to this action under the principles announced in Erie Railroad Company v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), and related cases. The Court agrees that this is not an action in which Section 768.79 applies. II. Analysis Section 768.79 provides, in relevant part, that: In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney's fees incurred by her or him ... from the date of filing of the offer if the judgment is one of no liability ... FLA. STAT. § 768.79(1). The purpose and intent of this statute is "to encourage parties to settle claims without going to trial." Aspen v. Bayless, 564 So.2d 1081, 1083 (Fla.1990). For this reason, Florida courts are to apply Section 768.79 even to actions under the substantive law of other states because such actions place the same burden on the Florida courts as actions under the substantive law of Florida. BDO Seidman, LLP, v. British Car Auctions, Inc., 802 So.2d 366, 369 (Fla. 4th DCA 2001). It is, therefore, evident that Section 768.79 can act independently of claims arising under Florida law. At issue is whether Section 768.79 applies in the instant action, which arises under Title VII. BOA contends that Section 768.79 is a "substantive" rule of decision, that this case is based on diversity jurisdiction, and that this Court must, therefore, apply the statute according to the analysis in Erie....

...s FCRA claim, albeit sub silentio. Nevertheless, Keesee's claims, in this Court's judgment, were not (nor did they become clearly) frivolous, unreasonable, or groundless so as to warrant fee shifting under the Christiansburg rule. [2] Application of Section 768.79, following BOA's proposal, however, calls for a mandatory award of attorney's fees to BOA. To apply Section 768.79 would, therefore, override the discretionary test and balance set forth in Christiansburg. See 434 U.S. at 422-24, 98 S.Ct. 694. As this case arises under federal law, it is not a case subject to the Erie doctrine. Regardless of whether Section 768.79 is seen to create some substantive interest, [3] it cannot apply to undermine federal law or to diminish a federal right....

...In doing so, the Supreme Court *1377 considered Title VII in the context of federal law and appropriately did not conform or subordinate federal law to the law of any one state. See Christiansburg, 434 U.S. at 415-22, 98 S.Ct. 694. As Title VII and FCRA claims (as currently interpreted) are effectively inseparable, Section 768.79, if applied, would expose plaintiffs to greater risk and upset the substantive balance of interest embodied in Title VII. Id. at 418-19, 98 S.Ct. 694. Regardless of how an Erie analysis would turn out, the beginning and end of the analysis in this federal-question case is whether Section 768.79 is inconsistent with federal law. Section 768.79, as discussed, is inconsistent and must yield....

...Consistent with the foregoing analysis, this Court finds BOA's citations to the following cases inapposite: McMahan v. Toto, 311 F.3d 1077 (11th Cir.2002)(diversity case); McMahan v. Toto, 256 F.3d 1120 (11th Cir.2001)(same); Tanker Management, Inc. v. Brunson, 918 F.2d 1524, 1527-28 (11th Cir.1990)(diversity case finding Section 768.79 inapplicable). Furthermore, to the extent they are inconsistent with the foregoing analysis, this Court disagrees with the attorney-fees decisions in: Farmer v. United Space Alliance, LLC, 6:00-cv-189-Orl-28JGG (M.D.Fla. Oct. 3, 2001)(applying Section 768.79 in a case arising under Title VII); De Miguel v....

...Watermark Communities, Inc., 01-4138-civ-Jordan (S.D. Fla. June 17, 2003) (same); Schultz v. School Board of Miami-Dade County, Florida, 00-3496-Civ-Moreno (S.D.Fla. Oct. 24, 2003) (same); Balboni v. Law Offices of David J. Stern, P.A., 9906009-civ-Ferguson/Snow (S.D.Fla. March 12, 2002)(applying Section 768.79 to FCRA claims in a case arising under Title VII)....

...original pleading. FED. R. CIV. P. 15(c)(2). [2] BOA has not sought attorney's fees under the Christiansburg rule and, therefore, apparently concedes that Keesee's claims were not frivolous, unreasonable, or groundless. [3] The Court has doubt that Section 768.79 should be considered "substantive" for Erie purposes. Section 768.79 is a provision of broad application....

...FCRA, etc.). Cf. People of Sioux County, Nebraska v. National Surety Co., 276 U.S. 238, 242-43, 48 S.Ct. 239, 72 L.Ed. 547 (1928)(concerning statute that provided attorney's fees to insurers as a measure of relief in lawsuits on insurance policies). Section 768.79, furthermore, carries a purpose directed to court practice and procedure — "to encourage parties to settle claims without going to trial." Aspen, 564 So.2d at 1083....

...Wilderness Soc'y, 421 U.S. 240, 247, 254-57, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). Rule 68 is consistent with the notion that a division exists between substantive causes of action (and attendant rights) and general matters of court practice and procedure. In Section 768.79, the Florida legislature appears to have made a foray into the realm of Florida court practice and procedure. One might argue that Rule 68 applies to the exclusion of Section 768.79 because Rule 68 is not "outcome determinative" and is part of the housekeeping rules of federal courts, a judicial system distinct from state courts....

...ously liable for the actions of its employee, John Barr. Barr was also sued for his actions. During the course of the litigation, Toll Brothers served Alioto-Alexander with a $5,000 proposal for settlement, pursuant to the offer of judgment statute, section 768.79, Florida Statutes (2003)....

...ntended to encourage settlement of litigation. Without detailing every requirement, this is accomplished by serving a proposal stating the amount, claims being settled, and any conditions and nonmonetary terms on another party to the litigation. See § 768.79, Fla....

...Upon receipt, the receiving party must assess her case and determine whether to accept or reject the proposal. This assessment must be made objectively and honestly because a party who rejects a reasonable offer may be liable for the sending party's attorney's fees and costs from the date of the proposal. § 768.79, Fla. Stat. To take advantage of this penal aspect of the offer of judgment statute, however, the sending party must strictly comply with the requirements in section 768.79 and rule 1.442....

...failing rule 1.442's requirement that all conditions and nonmonetary terms be stated with particularity. State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So.2d 1067, 1079 (Fla.2006). Whether a proposal for settlement complies with the requirements in section 768.79 and rule 1.442 is reviewed de novo....

...The trial court granted the motion in the amount of $43,667.15. The court found that while there was a typographical error in the amount in the release, the amount of the proposal was unequivocal. The requirements for a valid proposal for settlement are set forth in section 768.79 [2] and Florida Rule of Civil Procedure *678 1.442....

...HEDSTROM, E.E., Associate Judge, concurs. SAWAYA, J., dissents without opinion. NOTES [1] Our review of this issue is de novo. Ambeca, Inc. v. Marina Cove Village Townhome Ass'n, Inc., 880 So.2d 811 (Fla. 1st DCA 2004); Jamieson v. Kurland, 819 So.2d 267 (Fla. 2d DCA 2002). [2] 768.79....

...The court entered judgment against plaintiffs/appellants, finding appellee/defendant school board not liable. The court also awarded attorney's fees to the school board based on appellants' rejection of the school board's $5,001.00 offers of judgment and settlement made under section 45.061, Florida Statutes (1989), section 768.79, Florida Statutes (1986 Supp.) and Florida Rule of Civil Procedure 1.442. While we affirm the application of the doctrine of assumption of the risk, we reverse the award of attorney's fees because attorney's fees could only be awarded under those statutes (§§ 45.061 and 768.79) and then-existing law if there was a judgment for plaintiff....

...properly charged and that there was evidence to support the verdict. We hold that the court did not err in applying this doctrine in this case. However, the court did err in awarding attorney's fees to the school board under either section 45.061 or section 768.79 because neither of those statutes, at the applicable times, allowed such an award of fees unless there had been a judgment for plaintiff, which was not the case here. Although both statutes have since been amended or interpreted so as to allow attorney's fee awards under these circumstances, at the times applicable to this case, neither allowed such an award. Section 768.79 was amended effective October 1, 1990, to allow an award of attorney's fees where the judgment was "one of no liability," i.e., where there had been no judgment for plaintiff. However, that amendment does not apply here because at the time this cause of action accrued in 1987, the critical time for application of section 768.79 ( Metropolitan Dade County v. Jones Boatyard, Inc., 611 So.2d 512 (Fla. 1993), the language of that statute (§ 768.79, Fla....

...Joel S. Perwin of Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin, P.A., Miami, for Appellee. FRANK, Acting Chief Judge. Allstate Insurance Company has appealed from a final judgment awarding attorneys' fees and costs to Vonnie B. Sutton under section 768.79, Florida Statutes (1995)....

...ident that injured her and killed her husband. Prior to trial, Mrs. Sutton issued to Allstate a demand for judgment in the total sum of $100,000, the limits of the uninsured motorist policy. That demand specifically tracked the statutory language of section 768.79, Florida Statutes (1995), stating that, in the event the demand was not accepted, "Plaintiff will be entitled to reasonable costs and attorney's fees incurred from the date of service of this demand where Plaintiff `recovers final judgment' greater than 25% of this demand." The jury's verdict awarded Mrs....

...Sutton damages of more than $300,000 for bodily injury and $92,000 for the emotional distress she suffered from witnessing her husband's injuries. Allstate then filed a post-trial motion for judgment to conform to policy limits of $100,000. Mrs. Sutton filed her own motion for attorneys' fees and costs under section *761 768.79, contending that the fee provision of the statute was triggered because the verdict was greater than 125% of her demand. After a hearing, the court conformed the judgment to the policy limits without objection by Mrs. Sutton's counsel. Allstate thereupon argued that Mrs. Sutton was not entitled to fees under section 768.79 because the final judgment entered against it was the same amount as the demand—$100,000. Mrs. Sutton's counsel, however, contended that a bad faith claim against Allstate for its failure to settle for the policy limits would be filed. Upon a finding of bad faith, section 768.79 would be triggered and Mrs....

...enty (20) days of the date of this order." In this appeal Allstate argued that, at a minimum, the trial court's award of fees and costs was premature. Mrs. Sutton's attorney essentially agreed with that premise. For the purposes of a statute such as section 768.79, the damages that trigger the attorneys' fee portion are measured by the judgment rather than by the jury verdict, see Stewart v....

...Luks, Koleos & Santaniello, Sharon Lee Stedman, Orlando, for appellee. Before COPE, GREEN, and FLETCHER, JJ. FLETCHER, Judge. The plaintiff [Lieff] appeals the trial court's denial of his post-trial motion for attorney's fees and costs, which motion was made pursuant to the offer of judgment statute, section 768.79, Florida Statutes (1993)....

...Sandoval, Lieff served on Sandoval an offer to accept judgment in the amount of $250,000, which offer Sandoval did not accept. The case proceeded to trial, the ultimate result of which was a judgment in Lieff's favor and against Sandoval for $700,000. [1] This amount obviously met the requirement of section 768.79 for an award of attorney's fees and costs, i.e., a judgment in Lieff's favor in an amount at least 25% more than the amount of his offer. As a consequence Lieff was entitled to "reasonable costs, including investigative expenses, and attorney's fees, calculated in accordance with the guidelines promulgated by the supreme court, incurred from the date the offer was served." [2] § 768.79(6)(b); Knealing v. Puleo, 675 So.2d *336 593 (Fla.1996). Sandoval, however, contended that Lieff's offer was not made in good faith, thus invoking section 768.79(7)(a), [3] which permits a trial court to disallow fees and costs where it concludes that the offer was not made in good faith....

...statute intends) as Lieff planned to pursue a subsequent "bad faith" claim against Sandoval's insurer. However, it is clear that this action against Sandoval would have terminated had Sandoval accepted Lieff's offer, thus accomplishing the intent of section 768.79 of bringing about earlier conclusions to litigation....

...that Lieff served the offer for the sole reason of creating a right to attorney's fees if the offer was not accepted by Sandoval. The creation of the right to attorney's fees is the reason, or among the reasons, why any litigant makes an offer under section 768.79. It is the carrot held out by the statute to encourage early settlements. If we were to conclude that it is bad faith to utilize section 768.79 to obtain the right to attorney's fees, then the legislative inducement, the reason section 768.79 exists, disappears into a judicial black hole....

...Entitlement to Attorney's Fees and Costs The standard of review on this issue is whether the trial court abused its discretion. See Alexandre v. Meyer, 732 So.2d 44 (Fla. 4th DCA 1999). We conclude that the trial court abused its discretion when it denied Coastal Systems' entitlement to attorney's fees. Section 768.79, Florida Statutes (2005), governs offers of judgment and demands for judgment, and provides in relevant part as follows: (1) In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment w...

...When a court determines the existence or non-existence of good faith, the court must consider whether or not there was a reasonable basis for making the offer and an intent to settle the case. See Talbott v. Am. Isuzu Motors, Inc., 934 So.2d 643 (Fla. 2d DCA 2006). In accordance with section 768.79, Florida Statutes (2005), Coastal Systems timely served its proposal for settlement on Downs....

...the [offeror] . . . had a reasonable basis . . . to conclude that [its] exposure was nominal." Specifically, the defendant could reasonably believe, as it stated it did believe, either because of a late notice which would have precluded relief under section 768.79, or because its investigation revealed substantial evidence that its trooper had not, as alleged, been guilty of any causative negligence, or both, that it was not liable at all, so that the case was worth no more than a nuisance amount to settle....

...ial court. Shortly after the conclusion of the appeal, Krock’s attorney withdrew from her representation. After the underlying final judgment was affirmed on appeal, State Farm filed an Amended Motion to Tax Attorney’s Fees and Costs pursuant to section 768.79, Florida Statutes, and also filed a motion for the trial court to award appellate fees and costs....

...Bass filed an action against State Farm Insurance Company [State Farm] and its agent for breach of contract and negligence. The jury found in favor of Bass finding negligence on the part of State Farm and its agent. Thereafter, Bass moved for attorney's fees pursuant to Section 768.79, Florida Statutes (1991), the offer of judgment statute, and Rule 1.442, Florida Rules of Civil Procedure....

...with Rule 1.442(c)(2) because it did not "state the total amount of the offer." State Farm Life Ins. Co. v. Bass, 605 So.2d 908, 910 (Fla. 3d DCA 1992). Bass also filed a motion for appellate attorney's fees pursuant to Sections 627.428, 45.061, and 768.79, Florida Statutes (1991), as well as Rule 1.442....

...y theory under the Magnuson-Moss Warranty Act ("MMWA"). During the course of the suit, Daimler-Chrysler made a proposal for settlement to Mr. and Mrs. Marcy in the amount of $1,500 in accordance with rule 1.442, Florida Rules of Civil Procedure, and section 768.79, Florida Statutes (2003)....

...If the MMWA is only supplementary to state law, and if it is intended to preempt state warranty law only in a narrow area, then there appears to be ample room for state law to apply in the areas not specifically addressed by the federal act. Consider now the applicable Florida legislation. Section 768.79(1) states in relevant part: In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover...

...onditions are met. See Keesee v. Bank of America, N.A., 371 F.Supp.2d 1370, 1376 (M.D.Fla.2005). Rule 1.442, Florida Rules of Civil Procedure, applies to "all proposals for settlement authorized by Florida law," including presumably a proposal under section 768.79(1), and details the procedural process to be followed in implementing the statute....

...law, and concluded that an application of the state law would not undermine the policy implications of the MMWA. Chaurasia, 126 P.3d at 174. D. Conclusion. We are persuaded by the logic of these opinions that the MMWA is not in conflict with either section 768.79 or rule 1.442. We are likewise convinced that the MMWA does not preempt Florida law in connection with the issue of attorneys' fees, and that the enforcement of section 768.79 and rule 1.442 does not undermine the policies and purposes of the MMWA....

BADÁLAMENTI, Judge. Anthony P. Diecidue appeals the trial court’s award of attorneys’ fees and costs to Allstate-Property and Casualty Insurance Company (Allstate) pursuant to a proposal for settlement (proposal) governed by section 768.79, Florida Statutes (2012), and Florida Rule of Civil Procedure *1017 1.442....

...The orders each awarded Allstate $103,744.31 in attorneys’ fees and costs, which were set off against Diecidue’s previous award of costs, for a net award of $35,553.41 to Allstate. Whether a proposal for settlement complies with rule 1.442 and section 768.79 is subject to de novo review....

...That is, the supreme court has instructed that courts are only to invalidate a proposal for settlement for “reasonable ambiguities” and has discouraged courts from nitpicking a proposal for inconsequential ambiguities. Anderson v. Hilton Hotels Corp., 202 So.3d 846, 852-53 (Fla. 2016). That said, because section 768.79 and rule 1.442 are in derogation of common law, they demand strict construction and compliance. See Diamond Aircraft Indus., Inc. v. Horowitch, 107 So.3d 362, 377 (Fla. 2013). Under section 768.79, an award of attorneys’ fees ultimately depends “on the difference between the amount of a rejected offer and the amount of a later judgment.” TGI Friday’s, Inc....

...v. Dvorak, 663 So.2d 606, 612 (Fla. 1995). If a defendant’s proposal for settlement is twenty-five percent greater than the judgment ultimately obtained by the plaintiff, then the defendant is entitled to an award of attorneys’ fees and costs. § 768.79(1)....

...Allstate concedes that the trial court inadvertently entered a duplicate judgment. Accordingly, we direct the trial court to strike the later judgment, dated April 22, 2015. See Sound Builders of St. Petersburg, Inc. v. Hanlon, 439 So.2d 276, 276 (Fla. 2d DCA 1983). As we have in the past, we again stress that the purpose of section 768.79 and rule 1.442 is to reduce litigation costs, not create more. See, e.g., Wolfe v. Culpepper Constructors, Inc., 104 So.3d 1132, 1134 (Fla. 2d DCA 2012) (en banc). We are *1020 mindful that prevailing parties seeking recovery under section 768.79 have expressed concerns that some litigants who initially rejected' proposals for settlement and neglected to receive a favorable verdict at trial make post hoc attempts to conjure up ambiguities in proposals for settlement to get a second bite at the apple....

...nto disputes that can otherwise be amicably resolved. In sum, Allstate’s proposal for settlement did not comply with the particularity requirement in rule 1.442(c)(2)(D). Because a valid proposal for settlement must comply with both rule 1.442 and section 768.79, the trial court erred in awarding Allstate attorneys’ fees on the basis of Allstate’s proposal for settlement....

...gs consistent with this opinion. LUCAS, J., Concurs. CASANUEVA, J., Concurs with opinion. . Lewis and Nowak were not present for trial. . The majority of this cost award was not considered when calculating the necessary twenty-five percent margin in section 768.79(1) because the costs were not incurred on October 5, 2012....

...(2002) ("Any person who prevails in a suit brought against a health care provider predicated upon a violation of this section [prohibiting engaging in unnecessary diagnostic testing] shall recover reasonable attorney's fees and costs. " (emphasis added)); § 768.79(1) (providing for circumstances under which party offering or demanding judgment is "entitled to recover reasonable costs and attorney's fees " (emphasis added))....

...ation of Plaintiff's pre- and post-demand costs), for a total judgment in the amount of $10,770.05. Because the total judgment amount exceeded the total demand amount by twenty-five percent (25%) or more, Plaintiff sought attorney's fees pursuant to section 768.79, Florida Statutes (2002)....

...Without inclusion of these post-demand costs, Plaintiff did not meet the threshold. The issue in this case is clearly controlled by the supreme court's decision in White, wherein the court held: In summary, we conclude that the "judgment obtained" pursuant to section 768.79 includes the net judgment for damages and any attorneys' fees and taxable costs that could have been included in a final judgment if such final judgment was entered on the date of the offer....

...We fail to see how this factual distinction makes any difference. In our view, the "literal" application of White not only comports with our obligation to follow precedent from our high court, but also leads to a fair result that is consistent with the legislative intent behind the Demand for Judgment statute. § 768.79, Fla....

...An interpretation of the statute that would allow a plaintiff to obtain attorney's fees simply by intentionally incurring post-demand costs is inconsistent with the statute's purposes of decreasing litigation expenses and expediting resolutions. Plaintiff also contends that this court overlooked the plain language of section 768.79, Florida Statutes....

...Hellman timely appeals because he was not awarded attorney's fees in his final judgment. Hellman's car was struck by a City of Orlando street sweeper. He made an offer/demand for judgment in the amount of $8,500.00 plus costs under Rule 1.442, Fla. R.Civ.P. and section 768.79, Florida Statutes which was denied....

...ts in the amount of $2,604.32. The issue before us is whether an offer/demand for judgment is ineffective if costs are requested but not stated in a specific dollar amount. We find the demand was sufficient and reverse the denial of attorney's fees. Section 768.79 provides: (2) The making of an offer of settlement which is not accepted does not preclude the making of a subsequent offer....

...(c) State with particularity the amount offered to settle a claim for punitive damage, if any. (d) State its total amount. The offer shall be construed as including all damages which may be awarded in a final judgment. [Emphasis added.] In Williams v. Brochu, 578 So.2d 491 (Fla. 5th DCA 1991), this court considered whether section 768.79 which provides that a defendant who has made an offer of judgment may recover costs and attorney fees if the judgment obtained is at least 25% less than the offer includes in the definition of "judgment obtained" taxable costs or attor...

...settle would be more inclusive resolving all matters for one stated sum whereas a plaintiff, accepting an Offer of Judgment (for damage claims) would still be entitled to an award of taxable costs under section 57.041, Florida Statutes. Id. at 493. Section 768.79 states that an offer should be construed as including all damages "which may be awarded in a final judgment." We held in Williams that the "judgment obtained" language in the statute does not include taxable costs which are incidental...

...ied. Appellant plaintiff sued defendant as a result of a slip and fall in defendant's restaurant on April 2, 1987 in which she broke her hip. She served three different offers of judgment, one under section 45.061, Florida Statutes (1987), one under section 768.79(1)(a), Florida Statutes (1987), and one under Fla.R.Civ.P....

...The offers ranged from $55,000 to $69,750. Defendant rejected the offers and the jury returned a verdict of $248,000. The trial court refused to award attorney's fees pursuant to the offers of judgment and plaintiff appeals. We reverse the denial of attorney's fees under section 768.79, but affirm denial under section 45.061 and rule 1.442....

...[1] The court also concluded, after an evidentiary hearing, that the offer had not been unreasonably rejected by defendant, and denied attorney's fees under both statutes and the rule for that reason as well. Although the supreme court in Leapai decided only the constitutionality of section 45.061, it follows that section 768.79 is also constitutional. We can find no distinction between these two similar statutes which would cause section 768.79 to unconstitutionally infringe on the rulemaking power of the Florida Supreme Court, when section 45.061 does not....

...Plaintiff also argues that the court erred in its alternative finding that plaintiff's offers were not unreasonably rejected by defendant, and that plaintiff was not entitled to attorney's fees for that reason as well. In Schmidt v. Fortner, 629 So.2d 1036 (Fla. 4th DCA 1993), this court analyzed section 768.79 and pointed out that the unreasonable rejection language, while appearing in section 45.061, does not appear in section 768.79. As this court noted, section 768.79 does not give the trial court discretion to deny attorney's fees, once the prerequisites of the statute have been fulfilled, except if the court determines under section 768.79(7)(a) that "an offer was not made in good faith." In the present case the trial court made no finding that plaintiff's offer to settle under section 768.79 was not made in good faith, nor did defendant make that contention. We therefore conclude, as this court *60 did in Schmidt, that the trial court had no discretion to deny attorney's fees as a result of the offer of judgment under section 768.79....

...Since plaintiff has failed to demonstrate that the trial court erred as a matter of law in concluding that the defendant had not unreasonably rejected the offers, we affirm the denial of attorney's fees under rule 1.442 and section 45.061. We reverse the denial of attorney's fees under section 768.79....

...pted before the rejection of the offer, it was applicable to the rejection of the offer. We conclude that the same reasoning would apply to rule 1.442. [2] In Timmons v. Combs, 608 So.2d 1 (Fla. 1992), the supreme court adopted an amended version of section 768.79 as rule 1.442.

...We also reverse the fee award based on Second Chance's offer of judgment. The offer was served on April 13, 1998, and stated: Counter-defendants, Second Chance Wholesale, Inc., Second Chance Finance, Inc., Seminole Finance Corporation and Michael G. Krizmanich, jointly and severally, pursuant to and in accordance with Section 768.79, Florida Statutes, offer judgment to Counter Plaintiff RLS Business Ventures, Inc., in the total amount of $50,000.00 inclusive of court costs and attorneys fees....

...Lamb, 906 So.2d 1037, 1042. In our view, the facts of this case demonstrate that the invalidation of such offers will discourage settlements. Such a result is contrary to the legislative intent to encourage settlements through offers of judgment, as clearly expressed in section 768.79, Florida Statutes....

...We respectfully submit that the Florida Supreme Court should consider whether rule 1.442 should be amended to align with the legislative intent and to better state the requirements for a valid offer of judgment. A rule of procedure cannot alter, amend or eliminate an entitlement to an award of attorney's fees authorized in Section 768.79, Florida Statutes....

...In our view, the result in this case implicates the separation of powers clause in Article II, Section 3 of the Florida Constitution. Such a result will deprive Appellees of a significant attorney's fee award based on a requirement of rule 1.442 that is not contained in section 768.79, Florida Statutes....

...In the underlying lawsuit, Willie Samuel brought suit for his personal injuries; Mary Samuel's claim was for loss of consortium. Appellant Safelite Glass Corporation (Safelite) was vicariously liable for the negligence of its employee, appellant Ernest Henly Haughton, Jr. Pursuant to Florida Rule of Civil Procedure 1.442 and section 768.79, Florida Statutes (1997), the Samuels filed a joint proposal for settlement offering to settle the case for $400,000, including all attorney's fees and costs....

...The trial judge later heard argument of counsel regarding the defendants' entitlement to attorney's fees, and denied the motion after finding the proposals for settlement were invalid. The judge concluded the proposals were invalid because they did not comply with section 768.79, Florida Statutes, Rule 1.442 or the Florida Supreme Court's holding in Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276 (Fla.2003), as interpreted by this court in Matetzschk v. Lamb, 849 So.2d 1141 (Fla. 5th DCA 2003). Section 768.79, Florida's offer of judgment statute, is implemented by rule 1.442....

...5th DCA 2004). D.A.B. Constructors, Inc., ("D.A.B."), and Cornell P. Cox then sought an award of attorney's fees pursuant to their proposal of settlement, but the trial court denied an award reasoning that each of those two co-defendants failed to comply with section 768.79, Florida Statutes, rule 1.442 and Willis Shaw Express v....

...Hilyer Sod, Inc., 849 So.2d 276 (Fla.2003), as interpreted by this court in Matetzschk v. Lamb, 849 So.2d 1141, 1144 (Fla. 5th DCA 2003); and Meyer v. Hutchinson, 861 So.2d 1185 (Fla. 5th DCA 2003) by failing to specify the amount to be paid by each of the co-defendants. Section 768.79, Florida Statutes, Florida's offer of judgment statute, is implemented by rule 1.442....

...lly liable defendants may not promote settlements. In fact, the invalidation of such offers will discourage settlements. Such a result is contrary to the legislative intent to encourage settlements through offers of judgment, as clearly expressed in section 768.79....

...for costs is rejected. Hemmerle v. Bramalea, Inc., 547 So.2d 203 (Fla. 4th DCA 1989), rev. denied, 558 So.2d 18 (Fla.), and cert. denied, 496 U.S. 926, 110 S.Ct. 2620, 110 L.Ed.2d 641 (1990). We affirm the denial of an award of attorney's fees under section 768.79, Florida Statutes (1989)....

...The majority did not have the benefit of Timmons as the present case began its lengthy en banc journey through our court. And while Timmons does not squarely address the attorney's fee issue we have before us, the supreme court seems to approve the result reached by the majority when it notes: Because the statute [768.79] in each instance referred to the recovery of a judgment by the plaintiff, the courts have consistently construed section 768.79 to preclude the recovery of costs and attorney's fees by a defendant when the defendant obtained a judgment....

...dissent and urge that we adopt Judge Cope's well-reasoned dissent in Mujica v. Turner, 582 So.2d 24 (Fla. 3d DCA 1991). NOTES [1] We also wish to correct what is an apparent mistake in our opinion in Winn-Dixie v. Elbert . In that case we held that section 768.79 (1989) required a judgment in favor of plaintiff to trigger its application....

...However, we also stated that "Appellant, however, argues that a verdict awarding appellee nothing is certainly 25 percent less than the offer, thus activating the applicable portion of either statute. It would appear that appellant's position is well-founded." That sentence implies that contrary to our holding, 768.79 did not require a judgment in favor of plaintiff. To dispel any confusion, we interpret Winn-Dixie v. Elbert as holding that section 768.79, Florida Statutes (1989), requires a judgment in plaintiff's favor, but section 45.061 permits an award of attorney's fees where a defense verdict is entered, albeit under the reasonableness standard enunciated in that opinion.

...Associates and Bruce L. Scheiner, Fort Myers and Thomas M. Pflaum, Micanopy, for Appellees. PER CURIAM. Appellant, Allstate Indemnity Company, challenges the trial court's denial of its motion for attorney's fees based on an offer of judgment under section 768.79, Florida Statutes (1995)....

...r. Hingson's injuries in an automobile accident and Mrs. Hingson's resulting consortium claim. The trial judge denied appellant's motion for attorney's fees citing the policy considerations regarding undifferentiated offers of judgment enunciated in section 768.79, Florida Rule of Civil Procedure 1.442, and USAA v....

...This is an appeal from the trial court's denial of a motion for attorney's fees. The facts of the case are simple and straightforward. Plaintiff sued defendant as a result of an alleged slip and fall at the premises of the defendant Winn Dixie Stores. Defendant filed an offer of judgment pursuant to section 768.79, Florida Statutes (1987), in the amount of $250.00 on April 7, 1989....

...A jury trial was held on September 26, 1989, resulting in a verdict in favor of the appellant. Thereafter, in a timely fashion, appellant moved to tax costs and attorney's fees. The trial court granted appellant costs but denied fees. This appeal followed. Section 768.79, Florida Statutes (1989) [1] , provides in part: (1)(a) In any action to which this part applies, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recov...

...3d DCA 2003) (mortgage foreclosure action); Allstate Ins. Co. v. Blanco, 791 So.2d 515 (Fla. 3d DCA 2001) (homeowner's insurance claim); Oruga Corp. v. AT & T Wireless of Fla., Inc., 712 So.2d 1141, 1145 (Fla. 3d DCA 1998) (offer of judgment under section 768.79, Florida Statutes); Eisman v....

...efendant. The second amended complaint was deemed filed on May 27, 2010, the date the court entered its order permitting the second amendment. On June 30, 2010, Regions served Rhodes with its offer of judgment and proposal for settlement pursuant to section 768.79, Florida Statutes (2010), and Florida Rule of Civil Procedure 1.442....

...d proposal for settlement. Rhodes opposed the motion and argued the proposal was premature under Rule 1.442. The court agreed and entered an order denying fees. “The standard of review in determining whether a proposal for settlement complies with section 768.79, Florida Statutes ... and Florida Rule of Civil Procedure 1.442 is de novo.” Palm Beach Polo Holdings, Inc. v. Madsen, Sapp, Mena, Rodriguez & Co., P.A., 957 So.2d 36, 37 (Fla. 4th DCA 2007) (citation omitted). Section 768.79(1), Florida Statutes (2010), governs offers of judgment and provides in relevant part: “[I]f a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney’s fees incurred ......

...However, the Third District’s focus on whether the violation of the rule may be harmless is contrary to the strict construction approach taken by the Florida Supreme Court. See Campbell v. Goldman, 959 So.2d 223, 226-27 (Fla.2007) (finding that an offer of judgment which referenced Rule 1.442 but failed to cite section 768.79, Florida Statutes, as required by the offer of judgment statute and Rule 1.442, rendered the offer invalid, and rejecting the “mere technical violation” rationale adopted by the Fourth and Fifth Districts)....

...ing that a “harmless” or “mere technical violation” exception applies to compliance with the plain language requirements of Rule 1.442, we certify conflict. Affirmed; conflict certified. MAY, J., and SCHIFF, LOUIS, Associate Judge, concur. . Section 768.79, Florida Statutes (2010), governs offers of judgments....

...§ 86.061, Fla. Stat. (2007). We cannot say that no reasonable person would take the view adopted by the trial court. See Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980). Accordingly, we affirm the trial court's ruling. Motion for attorneys' fees under section 768.79, Florida Statutes The trial court denied the Lead's request for attorneys' fees based upon an offer of judgment conditioned upon a joint acceptance by both Three Keys and the Muller Trust....

...As a result, the defendant refused to pay the balance due for the remodeling and the partnership filed suit. The defendant counterclaimed against the partnership and the two partners for negligent hiring of the daughter. The defendant served a demand for judgment, pursuant to section 768.79, Florida Statutes (2005)....

...The demand provided that the defendant would accept $10,000 from the three plaintiffs. The demand was not accepted. A bench trial resulted in a net judgment of $13,839.70 for the defendant. Following the bench trial, the defendant filed an amended motion for relief, pursuant to section 768.79 and Florida Rule of Civil Procedure 1.442....

...The trial court granted the defendant's motion and awarded $1,305.95 in costs, $3,474.71 in pre-judgment interest, and $14,780 in attorney's fees. The judgment was silent on the legal basis for the attorney's fee award. The standard of review in determining whether an offer of settlement *1241 comports with rule 1.442 and section 768.79 is de novo because a proposal for settlement is in the nature of a contract. Papouras v. BellSouth Telecomm., Inc., 940 So.2d 479, 480 (Fla. 4th DCA 2006); Hall v. Lexington Ins. Co., 895 So.2d 1161, 1165 (Fla. 4th DCA 2005). Section 768.79 governs offers of and demands for judgment....

...under her insurance policy issued by State Farm. In a subsequently-rendered order, the county court certified the following two questions to be of great public importance: 1) Is the proposal for settlement/offer of judgment statute, Florida Statute § 768.79 applicable to PIP actions? 2) Under what circumstances does a nominal proposal for settlement/offer of judgment qualify as a good faith offer for imposition of fees as a sanction? This court accepted jurisdiction pursuant to Florida Rule of Appellate Procedure 9.160(e)(2)....

...Assoc., 711 So.2d 1192, 1194 (Fla. 5th DCA 1998); State Farm Mut. Auto. Ins. Co. v. Marko, 695 So.2d 874 (Fla. 2d DCA 1997). Id. at 364-65; see also Schmidt v. Fortner, 629 So.2d 1036, 1039 (Fla. 4th DCA 1993) ("We do not understand the good faith requirement of section 768.79(7)(a), however, to demand that an offeror necessarily possess, at the time he makes an offer or demand under the statute, the kind or quantum of evidence needed to support a judgment....

...Griffin, 783 So.2d 363 (Fla. 5th DCA 2001), and holds that the offer of judgment was made in good faith. I dissent from that part of the majority opinion that answers the first certified question in the affirmative and holds the offer of judgment statute found in section 768.79, Florida Statutes, does apply to PIP cases....

...unds, on rehearing en banc (Fla. 3d DCA, opinion filed October 16, 1990) [15 FLW 2590], in determining that the defendants were not entitled to attorney's fees since the plaintiffs had not obtained a judgment. In Rabatie, this court, in interpreting section 768.79(1)(a), Florida Statutes (1987), [2] stated that "there must be a judgment for the plaintiff ... in order to award attorney's fees to the defendant." Rabatie, 14 FLW at 1753. The trial court's reliance on section 768.79(1)(a) as construed in Rabatie is misplaced. Unlike section 768.79(1)(a), section 45.061(2)(b), Florida Statutes (1987), [3] does not require that the plaintiff obtain a judgment prior to sanctions *780 being imposed....

...aid their costs and attorney's fees is erroneous. The Florida Supreme Court has ruled that an insured defendant could recover litigation costs even though they had been paid by his liability insurer. Aspen v. Bayless, 564 So.2d 1081 (Fla. 1990). [2] Section 768.79(1)(a), Florida Statutes (1987), states, in pertinent part: "the defendant shall be entitled to recover reasonable costs and attorney's fees incurred from the date of filing of the offer if the judgment obtained by the plaintiff is at least 25 percent less than such offer......

...Blum, Miami, for appellants. Carusello & Hunnefeld and Henry J. Hunnefeld, Coral Gables, for appellee. Before JORGENSON, GODERICH and SHEVIN, JJ. PER CURIAM. The Crowleys appeal the trial court's order denying their motion for attorney's fees and costs pursuant to section 768.79, Florida Statutes (1995)....

...n. Both Sunny's and Perez were insured by the same insurance company and were represented by the same defense counsel in this case. In September 1994, the Crowleys served the defendants with an Offer of Judgment on all claims for $60,000 pursuant to section 768.79, Florida Statutes (1995)....

...Joint offers of judgment by, or to, two or more defendants are valid. See Bodek v. Gulliver Academy, Inc., 702 So.2d 1331, 1332 (Fla. 3d DCA 1997). Even though the Crowleys' offers of judgment did *221 not name Sunny's and Perez individually, the general offers made to the defendants were valid under section 768.79....

...In fact, the insurance company was paying if either defendant was held liable. Furthermore, Sunny's and Perez were jointly and severally liable for any judgment when the offers were made; Sunny's was vicariously liable for the fault attributable to Perez. The trial court erred when it interpreted section 768.79 to mean that the Crowleys had withdrawn their offers of judgment after the statutory time for defendants' acceptance had expired. According to statute, since the offers were not accepted within 30 days they were considered rejected. See § 768.79, Fla....

...The Crowleys' offers were open for the full 30 days and there was no written revocation delivered before the 30 days expired. Thus, any purported withdrawal of an offer after the expiration of the 30 days was a legal nullity and an event not contemplated by section 768.79....

...See Motter Roofing, Inc. v. Leibowitz, 833 So.2d 788 (Fla. 3d DCA 2002) (holding that the circuit court sitting in its appellate capacity departed from the essential requirements of law by denying petitioner's application for mandatory appellate attorneys fees under section 768.79(1) of the Florida Statutes)....

...rendered in favor of the plaintiff. [1] AFFIRMED. SMITH, WIGGINTON, JJ. and WENTWORTH, S.J., concur. NOTES [1] In an unrelated case, Hughes v. Goolsby, 578 So.2d 348 (Fla. 1st DCA 1991), this court reversed an award of attorney's fees, holding that section 768.79, Florida Statutes (1989), is unconstitutional for the reasons stated in Milton v. Leapai, 562 So.2d 804 (Fla. 5th DCA 1990), with respect to the Fifth District's determination that section 45.061 is unconstitutional; question certified to the Florida Supreme Court with respect to section 768.79....

...Final Judgment was rendered in favor of RIC, but RIC was ordered to pay Progressive $640.00 plus interest, based on RIC's admission at trial that there had been a mistake in billing. Thereafter, as the prevailing party, RIC moved for attorneys' fees and costs pursuant to its Offer of Judgment under Florida Statute section 768.79 and Florida Rule of Civil Procedure 1.442....

...To allow one party to modify the contract simply by moving to another state would substantially restrict the power to enter into valid, binding, and stable contracts.”). Accordingly, the decision of the trial court is affirmed. West Bend’s motion for attorney’s fees under section 768.79, Florida Statutes (2007), is denied....

...m claim and the amount allocated for the injuries Tony Satterfield sustained. Appellants did not accept the offer, and the matter went to trial. At the conclusion of trial, the jury awarded the Satterfields damages totaling $1,300,797.36. Based upon section 768.79, Florida Statutes (2000), the offer of judgment statute, the Satterfields moved for attorney's fees and costs....

...d to fees based on the offer of judgment statute. The Appellants suggest that since the Satterfields' offer was a single amount that would have settled both the personal injury claim and the loss of consortium claim, the offer was insufficient under section 768.79....

...The case was not reached during the June 8th docket and was reset for the docket beginning August 18, 1998. On August 24, 1998, the case was tried before a jury. After the jury returned a verdict in her favor, appellee moved for an award of attorney's fees and costs under Florida Statutes section 768.79....

...We rejected Ladd's contention that the offer of judgment was timely since it was filed more than forty-five days before the case actually went to trial. We stated: Ladd would have us hold that the granting of the continuance breathed life back into an otherwise untimely offer of judgment. Since section 768.79 and Florida Rule of Civil Procedure 1.442 are punitive in nature in that they impose sanctions upon the losing party and are in derogation of the common law, they must be strictly construed....

...Ten days later, on February 28, the trial court entered an order requiring the parties to participate in mediation, scheduled for March 24. On March 7, before the mediation took place, Guido served a demand for judgment in accordance with the provisions of section 768.79, Florida Statutes (1993)....

...rejudgment interest. On direct appeal, this court issued a per curiam affirmance of the final judgment. Ong v. Mike Guido Properties, 661 So.2d 18 (Fla. 5th DCA 1995). Guido filed a timely motion seeking an award of appellate attorney's fees, citing section 768.79(1), Florida Statutes (1993), as authority for such an award. [1] In this regard, Guido maintained that his motion for appellate attorney's fees should be granted because (1) section 768.79(1) authorizes an award of attorney's fees when a defendant *710 fails to respond to a plaintiff's demand for judgment within thirty days and the final judgment entered in favor of the plaintiff is at least 25% greater than the demand;...

...es (1993), [2] established that the thirty-day time period within which the Ongs were required to respond had never elapsed. Specifically, the Ongs argued (1) that pursuant to the terms of section 44.102(6)(a), the thirty-day time period provided in section 768.79 was tolled from the date the trial court referred this matter to mediation (February 28) until the date the mediator declared an impasse (March 24); and (2) thereafter, it was impossible for the thirty-day time period to have elapsed b...

...[3] The facts of the instant case demonstrate that, when a defendant fails to respond to the demand after the lawsuit is referred to mediation, there is an apparent inconsistency between the tolling provision of section 44.102(6)(a) and the timing provision of section 768.79(1)....

...of separation of powers, the statute's procedural aspects were required to yield to the provisions of rule 1.422. Id. at 15. *711 Thereafter, in Timmons v. Combs, 608 So.2d 1 (Fla.1992), our supreme court was confronted with the question of whether section 768.79, Florida Statutes (1989), contained procedural aspects which were in conflict with section 45.061, Florida Statutes (1989), and rule 1.422 of the Florida Rules of Civil Procedure when a defendant's offer of settlement was unreasonably rejected....

...Florida Mobile Home Supply, 625 So.2d 1283 (Fla. 1st DCA), rev. dismissed, 630 So.2d 1100 (Fla.1993), also addressed the inconsistency existing between section 44.102(5)(b), [5] and section 768.78, Florida Statutes (1991). Section 44.102(5)(b) of the statute provides that: Sections 45.061 and 768.79 notwithstanding, an offer of settlement or an offer or demand for judgment may be made at any time after an impasse has been declared by the mediator, or the mediator has reported that no agreement was reached....

...e the amount of the judgment, it was entitled to fees. The court rejected this argument, concluding that FMHS should have put Nordyne on notice that it was relying on section 44.102(5)(b): Moreover, we note that, recognizing that sections 45.061 and 768.79 contained conflicting terms, and that both statutes included procedural provisions which intruded upon the powers granted by our constitution to the judicial branch, the supreme court recently adopted the procedural portions of section 768.79 as a court rule. Timmons v. Combs, 608 So.2d 1 (Fla.1992). We believe that section 44.102(5)(b) likewise intrudes upon the rulemaking power of the judicial branch. Accordingly, in our opinion, the provisions of section 44.102(5)(b) must yield to those of section 768.79, which have been adopted as a court rule....

...In fact, it is difficult to imagine a provision more purely procedural than the tolling of a response time. Therefore, we strike this provision as an unconstitutional infringement of the separation of powers doctrine. We recognize that the fourth district recently addressed the conflict between section 768.79 and the tolling provision of section 44.102(6) in Puleo v. Knealing, 654 So.2d 148 (Fla. 4th DCA), rev. granted, 663 So.2d 630 *712 (Fla.1995). In that case, the fourth district concluded that: By specifically referencing section 768.79 in section 44.102(6), the legislature left no doubt that it intended for all the provisions of section 768.79 to apply, following a court-ordered mediation resulting, as here, in impasse. A court-ordered mediation which results in an impasse, simply modifies the time limits imposed by section 768.79 by allowing either party the opportunity to serve a new offer at any time prior to trial....

...ate attorney's fees is granted, and this matter is remanded to the trial court for proceedings consistent with this opinion. In so ruling, we acknowledge conflict with Puleo. VACATED and REMANDED. GRIFFIN, THOMPSON and ANTOON, JJ., concur. NOTES [1] Section 768.79(1), Florida Statutes (1993), provides in pertinent part: Offer of judgment and demand for judgment.— (1) In any civil action for damages filed in the courts of this state.......

...nd. [2] Section 44.102(6)(a), Florida Statutes (1993), provides: Court-ordered mediation.— * * * * * * (6)(a) When an action is referred to mediation by court order, the time periods for responding to ... an offer or demand for judgment pursuant to s. 768.79 ......

...cause of action for its fees. After substantial pretrial preparation and motion practice, the case went to trial and ultimately resulted in a verdict in Quarles & Brady's favor, a judgment of $360,081.76, and an award of additional fees pursuant to section 768.79, Florida Statutes (1995)....

...Fowler, White, Burnett, Hurley, Banick & Strickroot and Ronald G. Neiwirth, Miami, for appellee. Before SCHWARTZ, C.J., and GREEN and FLETCHER, JJ. SCHWARTZ, Chief Judge. Long after the defendant appropriately served, and the plaintiff ignored, a concededly good faith $10,000.00 offer of judgment under section 768.79, Florida Statutes (1995), the trial court sitting non-jury entered a judgment for the defendant which was affirmed by this court. See Brickell Bayview Real Estate, Inc. v. Cooper, 691 So.2d 1094 (Fla. 3d DCA 1997). Section 768.79(6)(a) provides that fees and costs shall be "calculated... from the date the offer was served, "[emphasis supplied], and section 768.79(3) specifically provides that the offer may not be filed at all "unless it is accepted or unless filing is necessary to enforce the provisions of this section." Notwithstanding, the trial judge, purportedly following section 768.79(1), assessed fees and costs only from the date that the offer was "filed" by defendant after it had won the case and had thus qualified for section 768.79 relief....

...Bland, 66 So.2d 59, 61 (Fla.1953); Curry v. Lehman, 55 Fla. 847, 855, 47 So. 18, 21 (1908); State v. Brigham, 694 So.2d 793 (Fla. 2d DCA 1997), the order under review is reversed and the cause remanded to award fees and costs from the "date the offer was served." § 768.79(6)(a)....

...Reversed with directions. NOTES [1] This case is another of a recent series in which trial courts, obviously indulging a perhaps understandable reluctance to add to the misery of a party which has already lost on the merits, have refused to enforce section 768.79 as written....

...She also challenges the separate final judgment awarding Allstate attorney's fees and costs. We affirm the award of costs but strike that part of the judgment awarding Allstate attorney's fees. Allstate filed a motion to tax attorney's fees and costs pursuant to sections 45.061, [1] 57.041, and 768.79, Florida Statutes (1987), and Florida Rule of Civil Procedure 1.442....

...We strike the award of attorney's fees because judgment was not entered in favor of Westover. Entry of judgment in favor of the plaintiff is a prerequisite to the defendant seeking sanctions against the plaintiff for refusing an offer made pursuant to sections 768.79 and 45.061 and rule 1.442 Kline v. Publix Supermarkets, Inc., 568 So.2d 929 (Fla. 2d DCA 1990) (section 768.79 and rule 1.442); Coe v. B & D Transportation Services, Inc., 561 So.2d 469 (Fla. 2d DCA 1990) (sections 768.79 and 45.061)....

...Following a bench trial, the trial court ruled against Eastern, finding that it was not the procuring cause of the transaction with GSOMR and could not recover a commission. BJV and GSOMR moved for attorneys' fees and costs, pursuant to Florida Rule of Civil Procedure 1.442 and sections 768.79 and 57.041, Florida Statutes (2005), based on the proposal....

...ent sale to GSOMR, *1220 we affirm the trial court's entry of final judgment as to Eastern. B. CROSS-APPEAL We now turn to BJV's cross-appeal in which it contends that the trial court erred in denying its motion for fees and costs. 1. APPLICATION OF SECTION 768.79 and RULE 1.442 Section 768.79, Florida Statutes (2007), provides for an award of attorneys' fees and reasonable costs in any civil action for damages where a defendant files an offer of judgment that is not accepted by the plaintiff within thirty days. Of relevance to the cross-appeal, section 768.79(2) provides that an offer must: (1) be in writing and state that it is being made pursuant to the section; (2) name the party making it and the party to whom it is being made; (3) state with particularity the amount offered to settle a claim for punitive damages, if any; and (4) state its total amount. Florida Rule of Civil Procedure 1.442 implements section 768.79....

...er [GRO] and the Buyer [GRO] will purchase from the Seller [BJV] the Property, together with all appurtenances, rights, easements, and rights of way incident thereto." [9] In determining whether a proposal for settlement comports with Rule 1.442 and section 768.79, appellate courts apply the de novo standard of review....

...we find no abuse of discretion and we therefore affirm the judgment. THE MOTION FOR FEES AND COSTS In February 1996, K-Mart served an offer of judgment upon appellants in the following form: Defendant, K-Mart Corporation, pursuant to Florida Statute 768.79 makes this Offer of Judgment to the Plaintiffs, Marcia Herzog and Max Herzog, in the total amount of TWENTY THOUSAND AND ONE DOLLAR ($20,001.00)....

...The court's order denying that motion (the subject of K-Mart's cross-appeal) was without comment or explanation. From the transcript of the hearing on this motion it is apparent that the court's focus was on the question of whether the offer was ineffective to invoke the sanctions of section 768.79, Florida Statutes, due to it being a joint offer without specifying the amount offered to each individual plaintiff....

...[3] K-Mart's offer was "inclusive of costs." Appellants' taxable pre-offer costs, to which they are entitled under section 57.041, Florida Statutes, apparently are yet to be determined. When determined, those costs added to the adjusted verdict will produce the amount, for comparison purposes under section 768.79, of the "judgment obtained." See Scottsdale Ins....

...She once again did not comply with any of State Farm’s requests during the course of discovery. She also denied State Farm’s nominal settlement offer. The trial court ultimately entered summary judgment for State Farm. State Farm then moved for attorney’s fees under section 768.79, Florida Statutes (2011), and Florida Rule of Civil Procedure 1.442....

...s in a footnote to Gonzalez v. Veloso, 731 So.2d 63 (Fla. 3d DCA 1999): Quarere: Whether any such showing can ever be made, and thus whether a multiplier is ever appropriate, when fees are awardable only when a reasonable offer is not accepted under § 768.79, an eventuality which obviously cannot be anticipated when counsel is obtained....

...in Quanstrom, which is beyond our authority, but the adoption of the concurring and dissenting opinion of Judge Casanueva in Pirelli Armstrong Tire Corp. v. Jensen, 752 So.2d 1275 (Fla. 2d DCA 2000), which would hold that an assessment of fees under section 768.79, Florida Statutes (1999), the offer of judgment statute, simply does not contemplate a contingency risk multiplier and to so interpret that statute renders it unconstitutional as a denial of equal protection of the law to parties defendant in civil litigation involving contingent fees....

...hwartz' comment in Gonzalez v. Veloso, 731 So.2d 63 (Fla. 3d DCA 1999). Quarere: Whether any such showing can ever be made, and thus whether a multiplier is ever appropriate, when fees are awardable only when a reasonable offer is not accepted under section 768.79, an eventuality which obviously cannot be anticipated when counsel is obtained....

...The majority opinion in this case is reversing the contingency fee multiplier factor of the fee award for the same stated reasons as we gave in Strahan. I think there has to be a better way. We should not continue to hold out contingency fee multiplier factors as possible under section 768.79, and then require attorneys to offer incredible or impossible proofs....

...One is to recede from Garrett and sign on to Judge Casanueva's dissenting and concurring opinion in Pirelli Armstrong Tire Corp. v. Jensen, 752 So.2d 1275 (Fla. 2d DCA 2000). That would require us to en banc this case. Another approach would be to readdress what is required by way of proof to sustain a multiplier award in section 768.79 cases....

...Not sometime down the road, after discovery or other misadventure has altered the judicial landscape. The order entered by the trial judge concerning the fee award stated that he had considered all of the factors set forth in Rowe and Quanstrom, as well as those enumerated in section 768.79....

...Quanstrom, 555 So.2d at 834. NOTES [1] It stretches credulity to believe that the Figueroas would have had difficulty obtaining quality counsel in a case which their experienced trial counsel evaluated as warranting a settlement demand of $500,000.00. [1] § 768.79, Fla....

...Johnson, Tallahassee, for Amicus Curiae The National Employment Lawyers Association, Florida Chapter. KELLY, Judge. Yoder Brothers, Inc., challenges the order of the trial court denying its motion for attorney's fees pursuant to the offer of judgment statute, section 768.79, Florida Statutes (2004)....

...efore affirm. James Weygant sued Yoder Brothers alleging quid pro quo sexual harassment in violation of the Florida Civil Rights Act of 1992 (FCRA). [1] Yoder Brothers served an offer of judgment pursuant to Florida Rule of Civil Procedure 1.442 and section 768.79....

...Yoder Brothers has not argued that Weygant's claim was frivolous, unreasonable, or groundless. Accordingly, Yoder Brothers cannot recover fees under section 760.11(5). Yoder Brothers nevertheless claims it may recover its fees pursuant to its offer of judgment. Weygant contends that section 768.79, the offer of judgment statute, is inapplicable because it conflicts with the legislature's expressed intent to limit when attorney's fees may be awarded to a prevailing defendant in an action brought under the FCRA....

...n at trial. This holding does not persuade me on the issue at hand because offers are seldom admissible or binding on a party's position at trial. See, e.g., § 45.061 (offers of settlement); § 73.032 (offers of judgment in eminent domain actions); § 768.79 (offer of judgment)....

...National served an offer of judgment for $40,000; however, it was rejected. After several days of trial and seven hours of deliberations, on September 27, 1996, a jury returned a verdict in favor of National. National then filed a motion for attorney's fees under section 768.79, Florida Statutes (1995)....

...National argues that the trial court (1) abused its discretion in awarding a new trial on the ground that the plaintiff was prejudiced by the trial court's pretrial discovery rulings and (2) erred in denying National's motion for attorney's fees under section 768.79....

...of the Barfuss order and the orders restricting discovery was harmless. See § 59.041, Fla. Stat. (1995). Accordingly, we hold it was an abuse of discretion to grant the plaintiff a new trial. National's Motion for Attorney's Fees In accordance with section 768.79, National timely served an offer of judgment in the amount of $40,000 that was rejected. When National received a verdict in its favor, it immediately filed a motion for attorney's fees. The trial court denied National's motion and limited defendant's entitlement to attorney's fees to section 400.023, Florida Statutes (1995). Section 768.79(1), Florida Statutes (1995), provides, in pertinent part: In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment, which is not accepted by the plaintiff within 30 days, the defendan...

...er reasonable attorney's fee pursuant to s. 57.105." Section 57.105, Florida Statutes (1995), permits recovery of attorney's fees only when the opposing party files a suit that is without justiciable issues of fact or law. The legislative purpose of section 768.79 is to encourage the early settlement and termination of litigation in civil cases generally....

...*634 Moran involved a section 1983 federal civil rights action against the City of Lakeland. The city successfully defended the claim but was not successful in obtaining attorney's fees sought pursuant to an offer of judgment. The city appealed and the second district found that Florida's offer of judgment statute, section 768.79, was preempted by the federal statute which allowed an award of fees only when the suit was vexatious or brought to harass or embarrass the defendant....

...The issue in this case is whether the Federal Fair Debt Collection Protection Act, which provides that the prevailing defendant is entitled to attorney fees only if the consumer has brought the action in bad faith or for the purpose of harassment, supercedes Florida's offer of judgment statute, section 768.79, Fla....

...Tropicana Pools, Inc. v. Boysen, 296 So.2d 104, 108 *1018 (Fla. 1st DCA 1974). Accordingly, the trial court correctly ordered that the $8,500 deposit be returned to the buyers. Further, we also affirm the trial court's award of attorney's fees pursuant to Section 768.79, Florida Statutes (1993)....

...Ocariz, Miami, for appellant. Louis K. Nicholas, II, Miami, for appellee. Before COPE, GREEN, and FLETCHER, JJ. GREEN, J. This is an appeal from an order awarding trial and appellate attorney's fees and costs pursuant to the offer of judgment statute, section 768.79, Florida Statutes (1995)....

...In May 1995, appellant Rolando Barrero, the plaintiff below, filed suit against appellee Ocean Bank (or "the bank"), for the bank's alleged failure to sell him a parcel of real property pursuant to an agreement. On February 29, 1996, Ocean Bank served its offer of judgment on Barrero pursuant to section 768.79 [1] wherein it agreed to settle this suit for $500....

...In this case, Ocean Bank's motion for attorney's fees and costs was filed more than thirty (30) days after entry of the final summary judgment and the court did not retain jurisdiction to entertain a motion for fees and costs in this final judgment. As such, it was clearly untimely under section 768.79(6). See Gulliver Academy, Inc. v. Bodek, 694 So.2d 675, 678 (Fla.1997) (holding "[a]bsent a reservation of jurisdiction in the final judgment, a motion for attorney's fees based upon section 768.79 must be filed within thirty (30) days or the entitlement to such fees is waived unless there is a basis for relief under Florida Rules of Civil Procedure rule 1.090(b)(2)."); Bosch v. Hajjar, 639 So.2d 1096, 1097 (Fla. 4th DCA 1994). In Gulliver Academy, the supreme court affirmed the principle that the thirty (30) day time limitation contained in section 768.79 is procedural in nature and thus, governed by the Florida Rules of Civil Procedure....

...* * * * * * (7)(a) If a party is entitled to costs and fees pursuant to the provisions of this section, the court may, in its discretion, determine that an offer was not made in good faith. In such case, the court may disallow an award of costs and attorney's fees. * * * * * * § 768.79(6)(a), (7)(a), Fla....

...Horky of Fuller, Johnson & Farrell, P.A., Tallahassee, for Appellant. Sharon H. Proctor, Avon Lake, Ohio, for Appellees. PER CURIAM. In this appeal we uphold the trial court's determination that the appellees are entitled to an attorney's fee award under section 768.79, Florida Statutes....

...The City contests the assessment and Burnt Store cross-appeals the trial court's failure to enhance the lodestar fee award. Because the trial resulted in a defense or no damage judgment and the cause of action accrued in 1987, before the 1990 amendment to Florida Statute section 768.79, we conclude the trial court erred in awarding attorney's fees....

...assessed impact fee. This court affirmed the final judgment with a written opinion. City of Punta Gorda v. Burnt Store Hotel, Inc., 639 So.2d 679 (Fla. 2d DCA 1994). Before trial, Burnt Store made a $20,000 offer of judgment to the City pursuant to section 768.79, Florida Statutes. The City refused the offer. Following its success at trial, Burnt Store requested and was awarded attorney's fees based on the offer of judgment statute. The dispositive issue in this appeal is what version of section 768.79 applies. Prior to the 1990 amendment to section 768.79, the statute did not authorize the award of attorney's fees where the judgment was not for the plaintiff. The statute was amended in 1990 to allow awards of attorney's fees in cases where a judgment of no liability is entered. Therefore, if section 768.79 as amended in 1990 controlled, we would affirm. However, this court has previously determined that an award of attorney's fees pursuant to section 768.79 is controlled by the statute in effect when the cause of action accrued, not when the offer was made....

...School Bd. of Pinellas County, 622 So.2d 513 (Fla. 2d DCA 1993). Brodose relied on Metropolitan Dade County v. Jones Boatyard, Inc., 611 So.2d 512 (Fla. 1993), and held that the time the cause of action accrued is the critical time for application of section 768.79....

...e injury claims combined with the consortium claim of the other. Neither of the two proposals for settlement apportioned the amounts attributable to the personal injury and consortium claims. *1189 The trial court awarded attorney's fees pursuant to section 768.79, Florida Statutes (2002), based on this court's holding in Spruce Creek Development Co....

...Marin, 623 So.2d 1182 (Fla.1993)." Rule 1.442 Committee Note, 1996 Amendment. The Florida Supreme Court in Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276, 279 (Fla.2003), held that rule 1.442(c)(3) "must be strictly construed because the offer of judgment statute [section 768.79] is in derogation of the common law rule that each party pay its own fees." As noted, the trial court found the Hutchinsons' proposal to be valid based on Spruce Creek....

...This court in Matetzschk v. Lamb, 849 So.2d 1141 (Fla. 5th DCA 2003), has previously acknowledged that the Florida Supreme Court expressly disapproved of Spruce Creek in Willis Shaw Express, Inc., finding unapportioned proposals of settlement void under rule 1.442(c)(3) and section 768.79, Florida Statutes....

...cted. The Hutchinsons could have avoided having their proposals declared void by simply including in each proposal for settlement that portion of the total amount of their settlement proposal attributable to each of the two parties as is required by section 768.79, Florida Statutes, rule 1.442(c)(3), and Willis Shaw Express, Inc....

...d a Proposal for Settlement, which stated the following: Plaintiffs, AMANDA MEYERS, a minor, by and through her parents and legal guardians, ANDREW MEYERS and DAWN MEYERS, individually, serve this Proposal for Settlement, pursuant to Florida Statute 768.79, and Rule 1.442 of the Florida Rules of Civil Procedure, and Demand the total sum of Three Hundred Fifty Thousand Dollars ($350,000.00), from Defendants, FORD MOTOR COMPANY, and WALLACE FORD, INC., for settlement of this case, including attorney's fees and costs....

...ment to be entered in accordance with the Proposal For Settlement. Both Ford and Wallace Ford, Inc. rejected the proposal. Following entry of the $725,000 plaintiff's verdict and final judgment, Amanda moved for attorney's fees and costs pursuant to section 768.79, Florida Statutes, and Rule 1.442, Florida Rules of Civil Procedure....

...The lawsuit at issue included claims for declaratory judgment, a partnership accounting, partition of real and personal property, dissolution of partnership, temporary in-junctive relief, constructive fraud, and fraud. In May 2009, Appellees/Cross-Ap-pellants served a proposal for settlement pursuant to section 768.79, Florida Statutes, upon Appellants/Cross-Appellees....

...Chastain in the amount of $2,500 and from each Appellee/Cross-Appellant to Appellant/Cross-Appellee Cleone C. Chastain, William’s wife, in the amount of $1. The offer noted that it would be deemed rejected unless accepted within thirty days of service. It further noted, “Pursuant to § 768.79(B) ... this offer is being served upon plaintiffs, WILLIAM H. CHASTAIN and CLEONE C. CHASTAIN, but will not be filed with the Court unless accepted, or unless the filing of the offer is necessary to enforce the provisions contained in § 768.79.” Paragraph 10 provided in part, “Upon the acceptance of this proposal for settlement, the defendants ......

...nts/Cross-Appellees were entitled to prevailing party fees on a limited issue pertaining to the partition and accounting claims that was not settled by the parties and that Appellees/Cross-Appellants were entitled to attorney’s fees under sections 768.79 and 44.103....

...Although the trial court found in its Order on Entitlement to Attorney’s Fees that Appel- *552 lees/Cross-Appellants were also entitled to fees under section 44.103, which is a finding that has not been challenged in this proceeding, the award as set forth in the Order on Attorney’s Fees was based only upon section 768.79....

...Any fees ordered to be paid on the accounting claim should be paid by and to the former partners of the dissolved partnership. REVERSED and REMANDED for further proceedings. BENTON and MAKAR, JJ., concur. . Both claims were labeled as Count X in the amended complaint. . See Grover, 988 So.2d at 1227 (noting that neither section 768.79 nor rule 1.442 requires that a settlement proposal cover all claims between all parties involved or that it settle all claims between the parties to the proposal).

...*1226 Don H. Lester of Lester & Mitchell, P.A., Jacksonville, for Appellant. James A. Bledsoe, Jr., of Bledsoe, Jacobson, Schmidt, Wright, Lang & Wilkinson, Jacksonville, for Appellees. THOMAS, J. We review an order denying attorneys' fees sought under section 768.79, Florida Statutes (2000), and Florida Rule of Civil Procedure 1.442. We reverse, finding Appellant's Offer of Judgment is clear, unambiguous, and in compliance with section 768.79, Florida Statutes....

...The standard of review for a trial court's ruling on a motion to tax attorneys' fees and costs pursuant to the offer of judgment statute is de novo. Ambeca, Inc. v. Marina Cove Vill. Townhome Ass'n, Inc., 880 So.2d 811, 812 (Fla. 1st DCA 2004). *1227 Section 768.79, Florida Statutes (2000), allows a party to recover its reasonable attorneys' fees and costs after an offer of settlement is rejected "[i]f a plaintiff files a demand for judgment which is not accepted by the defendant ... and the plaintiff recovers a judgment in an amount at least 25 percent greater than the offer, she or he shall be entitled to recover reasonable costs and attorney's fees incurred...." § 768.79(1), Fla....

...A settlement proposal "may be made by or to any party or parties and by or to any combination of parties properly identified in the proposal. A joint proposal shall state the amount and terms attributable to each party." Fla. R. Civ. P. 1.442(c)(3). Section 768.79 and rule 1.442 do not require that a settlement proposal cover all claims between all parties involved, or that it settle all claims between the parties to the proposal....

...Here, the offer simply proposes to resolve all counterclaims against Appellee Gary Grover, and all claims Appellee Gary Grover might have against Appellant. The legislature created a property right to an award of attorneys' fees where a party complies with section 768.79, Florida Statutes....

...in this action." Id. at 37. The offeree argued that this proposal was defective since it did not state whether, if accepted, the claims would be dismissed or whether the offeror would release the offeree. Id. The court rejected this argument, since section 768.79, Florida Statutes, and Florida Rule of Civil Procedure 1.442 do not require that a proposal contain this type of language....

...This provides more detail than the proposal in Madsen, which the Fourth District found satisfied the particularity requirement. We thus have no difficulty finding the offer free of ambiguity and Appellant entitled to an award of attorneys' fees under section 768.79, Florida Statutes. Finding Appellant's offer unambiguous and in compliance with section 768.79, Florida Statutes, and Florida Rule of Civil Procedure 1.442, we reverse the trial court's order denying attorneys' fees pursuant to Appellant's offer of judgment....

...torney's fees against her, and she appeals. We reverse because the offer of judgment statute is not applicable to will revocation proceedings. We also reverse that portion of the cost judgment awarding travel expenses. The offer of judgment statute, section 768.79, Florida Statutes (1997), is limited to actions "for damages," and accordingly, notwithstanding appellees' argument that this case was "at all times, about money," the offer of judgment under this statute was not valid in this action seeking to revoke a will....

...District Court of Appeal of Florida, First District. August 12, 1994. Charles Evans Davis, Orlando, for appellant/cross-appellee. Ernest J. Myers of Moody, Salzman & Robertson, Gainesville, for appellee/cross-appellant. PER CURIAM. ORDER ON APPELLEE'S MOTION FOR ATTORNEY FEES In accordance with section 768.79, Florida Statutes, the appellee (plaintiff below) served a pretrial demand for judgment in the amount of $50,000, which the appellant refused. A judgment in the amount of $176,715.00 was entered in the trial court on a jury verdict in favor of the appellee. [1] The trial court also awarded fees and costs because the judgment was "at least 25 percent greater than the offer." § 768.79(1), Fla....

...(1993). We align ourselves with the Fourth [2] and Fifth [3] District Courts of Appeal in granting, on the same grounds, the appellee's motion for an award of reasonable costs and attorney's fees incurred in successfully defending the judgment on appeal. § 768.79, Fla....

...of the Appellees in the amount of $500, none of which were accepted. Subsequently, Event Services won a jury verdict in a bifurcated trial on liability (the only defendant so exonerated). Event Services filed a motion for attorney's fees pursuant to section 768.79, Florida Statute (2002)....

...Event Services appeals, contending that the trial court erred in striking its nominal proposals for settlement and disallowing an award of attorney's fees. The Appellees assert that Event Services' nominal proposals for settlement were made in bad faith and were, therefore, properly stricken by the trial court. We agree. Section 768.79 provides that a defendant is entitled to reasonable costs and attorney's fees if the plaintiff does not accept an offer of judgment made by the defendant within thirty days, and if the judgment later obtained by the plaintiff is for no liability or at least twenty-five percent less than the original offer. § 768.79(1), Fla. Stat. (2002). Additionally, section 768.79 provides that a court may, in its discretion, determine that an offer was not made in good faith and disallow an award that a defendant would otherwise be entitled to by the statute....

...Schaub, 856 So.2d 13, 14 (Fla. 4th DCA 2003) (barring fees for fees under § 57.105(7), Fla. Stat. (2003), in contract dispute); Oruga Corp., Inc. v. AT & T Wireless of Fla., Inc., 712 So.2d 1141, 1145 (Fla. 3d DCA 1998) (barring fees for fees under offer of judgment statute § 768.79(6)(a), Fla....

...vices rendered. Prior to trial, Madsen filed its "Plaintiff's Proposal for Settlement" which stated: Plaintiff MADSEN, SAPP, MENA, RODRIGUEZ & CO., P.A. ("Plaintiff"), by its undersigned counsel, pursuant to Florida Rule of Civil Procedure 1.442 and Section 768.79, Florida Statutes, *37 hereby makes this Proposal for Settlement to Defendant PALM BEACH POLO HOLDINGS, INC....

...led to provide any information as to whether, if the proposal was accepted, the claims asserted by Madsen would be dismissed or whether Holdings would be released. The standard of review in determining whether a proposal for settlement complies with section 768.79, Florida Statutes (2005), and Florida Rule of Civil Procedure 1.442 is de novo. See Papouras v. BellSouth Telecomm., Inc., 940 So.2d 479, 480 (Fla. 4th DCA 2006). Section 768.79, Florida Statutes (2005), provides in pertinent part: (2) The making of an offer of settlement which is not accepted does not preclude the making of a subsequent offer....

...In the instant case there is no such ambiguity. It is clear from Madsen's proposal for settlement that it is offering to settle all claims including claims for punitive damages, interest, costs and attorney's fees whether contractual or statutory. There is no language in section 768.79 or rule 1.442 requiring that there must be language expressing a willingness to dismiss all claims in a proposal for settlement....

...3d DCA), review denied, 509 So.2d 1118, 1119 (Fla.1987). The judgment for the carrier on appeal in case numbers 96-3080 and 96-3081 is therefore affirmed. II. Turning to the insurer's separate appeal in case number 97-329, we reverse the denial of attorney's fees claimed under section 768.79, Florida Statutes (1997)....

...Allstate has filed a motion for clarification. We grant the motion in part. Because we have reversed this case for a new trial on the issue of damages, we necessarily reverse the final judgment for attorney's and expert witness fees and costs awarded in favor of Mazzorana. See § 768.79, Fla....

...V, § 3(b)(3), Fla. Const. BACKGROUND At issue in this negligence case is whether a settlement offer complied with the requirements delineated by the Florida Statutes and the Florida Rules of Civil Procedure so as to justify an award of attorney’s fees and costs. Section 768.79, Florida Statutes (2014),1 provides, in relevant part: (1) In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff...

...for punitive damages, if any. (d) State its total amount. The offer shall be construed as including all damages which may be awarded in a final judgment. 1. Although the incident in this case occurred in 1996, and section 768.79 was amended in 1997, the changes to the statute were not substantive. Therefore, we reference the current version of the statute. -2- Florida Rule of Civil Procedure 1.442 articulates the procedures that implement section 768.79....

...The Defendant(s), FMC HOSPITAL LTD., a Florida Limited Partnership d/b/a FLORIDA MEDICAL CENTER; FMC MEDICAL, INC. f/k/a FMC CENTER, INC. d/b/a FLORIDA MEDICAL CENTER, by and through their undersigned counsel, and pursuant to Florida Statute § 768.79 and Fla....

...A jury returned a verdict adverse to Pratt with respect to the claims, and the trial court entered final judgment in favor of FMC Hospital and FMC Medical. FMC Hospital and FMC Medical subsequently filed a motion for attorney’s fees and costs pursuant to section 768.79 and rule 1.442....

... On appeal, the Fourth District affirmed. Pratt, 92 So. 3d at 852. The district court held that because the offer was made on behalf of the single hospital entity that was allegedly responsible for the injury to Pratt, the settlement proposal complied with section 768.79 and rule 1.442....

...See, e.g., Hilyer Sod, 849 So. 2d at 278-79; Lamb v. Matetzschk, 906 So. 2d 1037, 1040 (Fla. 2005). ANALYSIS Proposals for Settlement The eligibility to receive attorney’s fees and costs pursuant to section 768.79 and rule 1.442 is reviewed de novo....

...acceptance of 4. This Court has also strictly applied other provisions of the offer of judgment statute and rule. See Campbell v. Goldman, 959 So. 2d 223, 226-27 (Fla. 2007) (holding that settlement proposal was invalid for failing to cite section 768.79 as mandated by both the statute and the rule). 5....

...ment/Offer of Judgment,” the text of the proposal unambiguously refers to the defendant offerors in the plural. Thus, under the clear wording of the proposal, two offerors—FMC Hospital and FMC Medical—presented the offer. Accordingly, under section 768.79 and rule 1.442 the proposal was invalid because it failed to apportion the settlement amount between FMC Hospital and FMC Medical. This conclusion is supported by the amended complaint filed by Pratt, which treated FMC Hospital and FMC Medical as separate defendants....

...The plaintiff submitted an unapportioned offer of settlement to the physician and the association. Id. After a verdict was entered in favor of the -9- plaintiff, she sought attorney’s fees pursuant to section 768.79 and rule 1.442....

...erenced two defendants—FMC Hospital and FMC Medical. Attorney’s fees and costs were requested by two defendants. - 10 - Thus, the offer constituted a joint proposal and, under a strict construction of section 768.79 and rule 1.442, apportionment of the settlement amount was required....

...Accordingly, the Fourth District erred when it affirmed the award of attorney’s fees and costs to these defendants. CONCLUSION Based on the foregoing, we quash the decision in Pratt. We reiterate that parties must strictly adhere to the requirements of section 768.79 and rule 1.442 to be eligible for an award of attorney’s fees and costs....

...es’ ultimate agreement that FMC Hospital, Ltd. was the only proper defendant.” Id. Because the settlement offer was made by a single entity, the district court held that the “defendants’ failure to apportion the offer did not run afoul of section 768.79, rule 1.442, or any case law interpreting those provisions.” Id....

...t DAVID P. GINZBERG, ESQUIRE, shall lawfully do or cause to be done by virtue here of. In the course of litigation, U-Haul filed an offer of judgment and Ginzberg then filed a "Plaintiffs Offer of Judgment/Proposal for Settlement" in accordance with section 768.79, Florida Statutes, and Rule 1.442, Florida Rules of Civil Procedure....

...Before GERSTEN, GODERICH, and GREEN, JJ. PER CURIAM. We have for review Silva v. U.S. Security Insurance Co., No. 94-38 (Fla. Dade Cty. Ct. May 28, 1998), wherein the county court certified the following question as one of great public importance: DOES SECTION 768.79 CONFLICT WITH SECTIONS 627.428(1) AND 627.736(8)? Although this court has jurisdiction, upon closer review, we find that we are not in a position to reach the merits of this question, given the procedural posture in which this issue arrives to us....

...We remanded this cause for entry of final judgment in favor of U.S. Security. Id. at 596. During the appeal of Silva I, both parties moved for an award of appellate attorney's fees. U.S. Security's motion was based upon its rejected offer of judgment made to Silva pursuant to the offer of judgment statute, section 768.79, Florida Statutes (1993). [1] At that time, Silva never challenged the propriety of U.S. Security's entitlement to its fees as the prevailing party under section 768.79. Indeed, Silva filed no response to U.S. Security's motion. Thereafter, upon declaring U.S. Security to be the prevailing party, this court issued its order and mandate granting U.S. Security its appellate attorney's fees pursuant to section 768.79 and remanded this case to the trial court for its determination of a reasonable amount....

...iff. The defendants’ policy with GEICO provided liability coverage with limits of $25,000 per person and $50,000 per accident. While the lawsuit was in litigation, the plaintiff filed a proposal for settlement against the father/owner, pursuant to section 768.79, Florida Statutes, for $150,000....

...for the outstanding interest owed. The trial court held a hearing on the plaintiffs motions in May 2011. At this hearing, the plaintiff (and individual counsel for the defendant car-owner) argued: (1) that GEICO was hable for attorneys’ fees under section 768.79, Florida Statutes (the “offer of judgment statute”) because GEICO was in control of the defense and rejected the plaintiffs offer of settlement, which resulted in a $2.5 million verdict following a jury trial (reduced to $250,000 a...

...4th DCA 2014). Attorney’s Fees Hearing Following the final judgment, FPH moved for attorney’s fees and prejudgment interest pursuant to its prior demands for judgment. In October 2010, two years before the bench trial, FPH served the appellants with a demand for judgment pursuant to section 768.79, Florida Statutes (2006), offering to settle the case for $1,000,000.00....

...billings included in the judgment. Since this issue involves the calculation of attorney’s fees, our review is for an abuse of discretion. See Glantz & Glantz, P.A. v. Chinchilla, 17 So. 3d 711, 713 (Fla. 4th DCA 2009). -6-  Section 768.79, Florida Statutes (2006), “provides the basis for an award of attorney’s fees and costs when an offer or demand for judgment is not accepted and the statutory calculation formula is met.” Wolfe v. Culpepper Constructors, Inc., 104 So....

...In his cross-appeal, Cross-Appellant/Appellee contends that the trial court erred in denying his motion for a directed vérdict ón the issue of wantonness and in denying his motion for attorney’s fees filed pursuant to Florida’s offer of judgment statute, section 768.79, Florida Statutes, For the following reasons, we reverse the order -granting a new trial but affirm the order denying Cross-Appellant’s fee motion....

...proposal for settlement filed by Appellee in 2010. The trial court found that the resolution of the case was controlled by Southeast Floating Docks, Inc. v. Auto-Owners Insurance Company, 82 So.3d 73 (Fla. 2012), in which the supreme court held that section 768.79 does not apply in situations where the parties have agreed to be governed by the substantive law of another jurisdiction....

...issues of wantonness and punitive damages. We, therefore, reverse the order granting a new trial. *152 ■ Turning to the cross-appeal; Cross-Appellant contends that the trial court erred in denying his motion for attorneys’ fees filed pursuant to section 768.79(1), Florida Statutes, which provides: In any civil action for damages filed in the courts of this state, if a ......

...and the plaintiff recovers a judgment in an amount at least 26 percent greater than the offer, she or he shall be entitled to recover reasonable costs and attorney’s fees incurred from the date of the filing of the demand. ■ In ruling that Cross-Appellant Was not entitled to fee's under section 768.79, the trial court correctly found Southeast Floating Docks, Inc. v. Auto-Owners Insurance Company, 82 So.3d 73 (Fla. 2012), controlling, Jn that case, the Florida Supreme Court answered in the negative the certified question of whether “section 768.79 applies] to cases that are governed by the substantive law of another jurisdiction and, if so, is this statute applicable even to controversies in which the parties have contractually agreed to be bound by the substantive laws of another jurisdiction.” The supreme court held that “because an award of attorney’s fees under Florida’s offer of judgment statute is a substantive right, section 768.79' will not apply in instances where the parties have agreed to be governed by the substantive law of another jurisdiction.” Id. at 81 . Applying its holding to the facts of the case before it, the supreme court concluded that “Southeast” was not entitled to costs .and fees under section 768.79 “because Southeast and Auto-Owners have contractually agreed to be bound by the substantive laws of Michigan.” Id. at 82 . * As for the stipulation itself in this case, Cross-Appellant argues that while a stipulation can be comparable to a contract in certain instances, both sides invoked section 768.79 when exchanging proposals for settlement in June 2010....

...Instead, Alabama law was to apply to the substantive issues “in the case.” We find it telling, as did the trial court, that Cross-Appellant’s counsel con *153 tinued to use the same stipulation language after the issuance of Southeast Floating Docks, Inc., which made clear that attorney’s fees awarded under section 768.79 are substantive in nature....

...ROBERTS, J., CONCURS; WINSOR, J., CONCURS IN JUDGMENT WITH OPINION. The supreme court disapproved of both BDO Seidman, LLP v. British Car Auctions, Inc., 802 So.2d 366 (Fla. 4th DCA 2001), and Bennett v. Morales, 845 So.2d 1002 (Fla. 5th DCA 2003), where the Fourth and Fifth Districts held that section 768.79 applied to all civil actions for damages brought in Florida "even where the substantive law of another jurisdiction is applied” and that section 768.79 mandated "the application of the statute irrespective of the parties’ choice of applicable substantive law,” 82 So.3d at 82 ....

...September 28, 1994. Eric P. Gibbs of Zimmerman, Shuffield, Kiser & Sutcliffe, P.A., Orlando, for appellant. Fred S. Pflaum, Sarasota, for appellee. ORDER ON MOTION FOR ATTORNEY'S FEES FILED BY APPELLEE, JOSEPH A. MENDOLERA PER CURIAM. In accordance with section 768.79, Florida Statutes (1993), Joseph Mendolera, the plaintiff *224 in the lower court, served a pretrial demand for judgment in the amount of $100,000.00, which Westfield Insurance Company refused....

...The jury returned a verdict in favor of Mendolera, awarding total damages of $500,000.00 and the trial court entered judgment for this amount. The court also awarded Mendolera his attorney's fees and costs because the judgment was "at least 25 percent greater than the offer." § 768.79(1), Fla....

...Westfield appealed the judgment, which we affirmed, per curiam, in Westfield Ins. Co. v. Mendolera, 647 So.2d 223 (Fla. 2d DCA 1994). We now align ourselves with the First, Fourth and Fifth District Courts of Appeal in granting Mendolera's motion for appellate attorney's fees and costs based on section 768.79....

...er on the Academy's ice rink on January 28, 2000, and that she was injured as a result of the collision. (Exhibit A to Plaintiff's Complaint). On February 8, 2002, Palluel served an Offer of Judgment/Proposal for Settlement on the Debtor pursuant to § 768.79 of the Florida Statutes....

...the Adversary Plaintiff and even if attorneys fees had been awarded to Adversary Plaintiff, the basis of such an award would not have been tortious action by the Debtor but would have been awarded pursuant to the provisions of Florida Statutes Sec. 768.79 and Florida Rule of Civil Procedure 1.442." (Motion to Dismiss, ¶ 3)....

...er of judgment and improperly admitted expert testimony in deciding the amount of attorney's fees. We agree that the defendant should not have filed the rejected offer of judgment because the plaintiffs' recovery was not 25% less than the offer. See § 768.79(1), Fla....

...Upon remand, the trial court should address these issues. Reversed and Remanded. STONE and GROSS, JJ., concur. NOTES [1] The defendant offered the plaintiffs $100,000. The jury awarded them $76,240. This rendered the offer of judgment inadmissible. § 768.79(8), Fla....

...Ohren's offers of judgment made to Okun and Tucker were not accepted. His motions for attorney's fees, which set forth the statutory grounds, were each filed after the respective dismissals. Ohren was awarded attorney's fees against Okun and Tucker pursuant to both sections 607.07401(5) (shareholder's action) and 768.79 (offer of judgment), Florida Statutes....

...ort for a reasonable cause finding. Therefore, the award of attorney's fees under section 607.07401(5) is unsupported, in any event. *686 The attorney's fees awards were also erroneously based on offers of judgment. The supreme court has interpreted section 768.79(6)(a), Florida Statutes, as limiting attorney's fees on an offer of judgment after voluntary dismissal to those cases where the voluntary dismissal is with prejudice....

...as ambiguous under the Florida Supreme Court's decision in State Farm Mut. Auto., Ins. Co. v. Nichols, 932 So.2d 1067 (Fla.2006). We are mindful of the requirements which must be satisfied for a proposal for settlement to be valid in accordance with section 768.79, Florida Statutes (2001), and rule 1.442, Florida Rules of Civil Procedure....

...ordered stricken by the trial court as a sanction. This case concerns the propriety of the sanctions imposed by the trial court for discovery violations. The petitioners filed a motion for attorney's fees pursuant to the demand for judgment statute, section 768.79, Florida Statutes (1997)....

...o strike Publix’s offers of settlement on the seemingly unassailable reasoning that, in the face of a wrongful failure to disclose the address of a key witness, such an offer could not meet the test of “good faith” and the factors set forth in section 768.79(7), Florida Statutes....

...writing. The defendant [1] appeals the judgment resulting from the trial court's entry of a directed verdict in favor of the plaintiffs. In a second consolidated appeal, the defendant seeks reversal of an attorney's fees judgment entered pursuant to section 768.79, Florida Statutes (2001), subsequent to entry of the final judgment....

...h of contract and proximate cause of damages. If they conclude that, then they can conclude which of the plaintiffs is owed that." We agree. Until there are answers to these unresolved questions, there can be no award of attorney's fees, pursuant to section 768.79, Florida Statutes (2001)....

...Both Glanzberg and the Kauffmans move for rehearing. We deny the Kauffmans' motion, finding it to be without merit. With regard to Glanzberg's motion, she suggests this Court inadvertently neglected to reverse a post-decretal order awarding the Kauffmans costs and attorney's fees under section 768.79, Florida Statutes....

...We clarify, however, that implicit in this Court's reversal of the final judgment and remand for a new trial is that the attorney's fee and cost order is likewise reversed. Glanzberg also asks this Court to reconsider its denial of her motion for appellate attorney's fees under section 768.79. We decline to do so because her offer of settlement under section 768.79 was untimely served. Glanzberg served an offer of settlement, proposing settlement for $35,000, after final judgment was entered in all defendants' favor but before she filed her notice of appeal. She now seeks section 768.79 attorney's fees for this appeal. Section 768.79, however, should not be used purely as a mechanism to recover appellate attorney's fees. "The spirit of the offer of judgment statute is to encourage litigants to resolve cases early to avoid incurring substantial amounts of court costs and attorney's fees." Eagleman v. Eagleman, 673 So.2d 946, 947 (Fla. 4th DCA 1996). Moreover, section 768.79 "does not contain any language which would indicate that the legislature contemplated its use during appeals." Deleuw, Cather & Co....

...or appellees, to utilize its provisions." Id. Although the offer of judgment in Grogis was served during the pendency of appeal while the offer of settlement in this case was served prior to filing the notice of appeal, this general principle—that section 768.79 was not intended to be used purely to gain attorney's fees—still applies because in both instances, the offer came after the trial had concluded....

...Litigants (particularly defendants) who file after the conclusion of trial have the benefit of knowing the jury's verdict, from which they can calculate the exact amount for which they must offer to settle in order to be entitled to attorney's fees under section 768.79 if they were to win on appeal. This might be a particularly appealing option for those litigants who do not otherwise have a substantive right to appellate attorney's fees. There are circumstances in which appellate attorney's fees are properly awarded under section 768.79. For instance, here, assuming Glanzberg prevailed after remand and otherwise met the requirements of section 768.79, she could recover fees from the second trial and subsequent appeal, if any. Nothing in section 768.79, however, entitles her to fees on this appeal from the first trial. To rule otherwise would encourage litigants to serve offers of judgment or settlement after trial has concluded, which in turn would adulterate the spirit of section 768.79 by allowing it to become a mechanism for appellate attorney's fees....

...DELL and GUNTHER, JJ., concur. WARNER, C.J., concurs in part and dissents in part. WARNER, C.J., concurring in part, dissenting in part. I concur with the majority on rehearing on all but the denial of Glanzberg's motion for appellate attorney's fees under section 768.79....

...Such an offer is timely as to any judgment which might be entered after a second trial which we have now ordered. Therefore, she should be conditionally authorized to seek her appellate fees should she prevail *62 in the trial below and meet the requirements of section 768.79....

...In his Answer, Rosado denied that the currency was contraband and prayed for return of the money and damages as provided by law. Appellants Rafael Rosado and Caribair also filed answers asserting that they had an interest in the seized money. [1] Appellants next filed a Proposal for Settlement pursuant to section 768.79, Florida Statutes (2001), the offer of judgment statute, for an amount of $25,000 to be retained by the Sheriff....

...contract from the date of filing of the offer if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than such offer, and the court shall set off such costs and attorney's fees against the award. § 768.79(1), Fla....

...In Miller v. Hayman, 766 So.2d 1116, 1117 (Fla. 4th DCA 2000), this court made it clear that the offer of judgment statute is limited to actions for damages and refused to extend its application to a will revocation proceeding. "The offer of judgment statute, section 768.79, Florida Statutes (1997), is limited to actions `for damages,' and accordingly, notwithstanding appellees' argument that this case was `at all times, about money,' the offer of judgment under this statue was not valid in this action seeking to revoke a will." Id....

...The final judgments directed that DOT shall take nothing on its third-party actions and that FPL and BellSouth "shall go hence without day." Following the entry of the final judgments, FPL and Bell-South filed motions for attorney's fees under Florida Statutes section 768.79 (2002) and Florida Rule of Civil Procedure 1.442 based on offers of settlement made to DOT during the pendency of litigation....

...As this Court wrote in Johnson: Nothing in the structure and purpose of the statute purports to mandate an omnibus trial in a multi-issue, multi-party case where the adverse parties to discrete claims have failed to request a trial after non-binding arbitration. 736 So.2d at 1240. Moving on to the attorney's fees issue, section 768.79 provides for attorney's fees as follows: In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitle...

...or other contract from the date of filing of the offer if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than such offer, and the court shall set costs and attorney's fees against the award. § 768.79(1)....

...Additionally, because FPL and BellSouth were found not liable and no damages were awarded to DOT, the award was both one of no liability and was at least 25% less than the offers of settlement. Because the necessary prerequisites for an attorney's fee award under section 768.79 have been established, we reverse the order denying attorney's fees to FPL and BellSouth and remand for calculation of fees....

...Shenkman, Miami, for appellee. Before COPE, GREEN and FLETCHER, JJ. FLETCHER, J. Laurel L. Gammie, the defendant in a subrogation case filed by State Farm Mutual Automobile Insurance Company [State Farm], appeals the denial of her motion for attorney's fees pursuant to section 768.79, Florida Statutes (1991)....

...ment of no liability on the claim as required for recovery of fees by a defendant whose offer of judgment is rejected. See MX Invs., Inc. v. Crawford, 700 So.2d 640 (Fla.1997). We cannot agree with Gammie's contentions on appeal under our reading of section 768.79, Florida Statutes and MX Investments....

...Although we recognize that State Farm's claim against Gammie is indeed subject to being barred in a second action due to the running of the statute of limitations period, the voluntary dismissal here was not the equivalent of a no liability adjudication on the merits as required by section 768.79....

...arties who alone can make nominal offers merely to set up a claim for attorneys fees when the litigation is over. There is no comparable offering stratagem whereby claimants can make nominal offers without risk, merely to set up an entitlement under section 768.79 to attorneys fees....

...of pecuniary damages). The offeree is paying the cost of exercising the privilege of continuing to litigate after a qualifying offer has been made. [3] Although the attorneys fees can be onerously high, the imposition of an entitlement to fees under section 768.79 operates no more punitively (except for its inequality) than other consequences experienced routinely and frequently in ordinary litigation....

...calculating the amount based upon only past-due payments over the time between each payment's due date and the jury verdict. The trial court entered another order striking appellee's demand for judgment of $100,000 offered under the 1986 version of section 768.79, Florida Statutes....

...Without a demand for judgment, appellee had no basis for recovery of attorney's fees. Parenthetically, we note that the trial court did not err when it entered its initial order striking appellee's demand for judgment. Appellee's demand for judgment relied upon section 768.79, Florida Statutes (1986). Chapter 86-160, section 58 of the Laws of Florida created section 768.79 effective on July 1, 1986....

...Ch. 86-160, § 1, at 699, Laws of Fla. In Smith v. Department of Insurance, 507 So.2d 1080 (Fla.1987), the supreme court considered a challenge to the constitutionality of the Tort Reform and Insurance Act (Ch. 86-160) within which, as noted above, section 768.79 is included....

...f the act. Id. at 1087. The supreme court held the act applied "only to claims for personal injury and property damage, both tort and contract." Id. The claim sub judice does not involve personal injury or property damage. From 1986 throughout 1989, section 768.79 remained unaltered. The legislature substantially revised section 768.79 under Chapter 90-119, section 48 of the Laws of Florida....

...Hence, the previous version of the statute controls our decision in this matter. The supreme court held that version applicable only to claims for personal injury or property damage. See Smith. As the instant case does not present either of these types of claims, appellee is barred from recovering attorney's fees under section 768.79....

motion for attorneys’ fees and costs pursuant to section 768.79(1), Florida Statutes, and Florida Rule of Civil

...as simple as where she was that day. The jury returned a verdict finding Segarra 100% liable, and awarding the Mellersons damages of $1.2 million. The trial court denied post trial motions, including McCarthy's motion for attorney's fees pursuant to Section 768.79, Florida Statutes (1993)....

...732, 98 L.Ed.2d 680 (1988); see also Forman v. Wallshein, 671 So.2d 872 (Fla. 3d DCA 1996). We reverse the trial court's order denying McCarthy's and Tom Thumb's motion for attorney's fees. The sole basis for the trial court's denial of the motion, filed pursuant to Section 768.79, Florida Statutes (1993), was that the plaintiffs' rejection of the offer was "not unreasonable." However, the Florida Supreme Court has recently held that the trial court has the discretion to "disallow an award of attorney's fees, but only if it determines that a qualifying offer `was not made in good faith....

...Peacock of Tanner Bishop, Jacksonville, for Appellee. VAN NORTWICK, J. Tierra Holdings, Ltd. ("Tierra") appeals a trial court order which (1) awarded Tierra its costs and attorney's fees incurred after December 1, 2006, the date of its valid proposal for settlement pursuant to section 768.79, Florida Statutes (2006), in the breach of contract claim filed against Tierra by Mercantile Bank ("Mercantile"), and (2) awarded Mercantile all of its costs *560 and attorney's fees incurred through trial in connection with its breach...

...Tierra conceded below that Mercantile was the prevailing party under the contract, but argued that its proposal for settlement cut off Mercantile's entitlement to fees under the contract which were incurred after the date of the proposal. The trial court rejected Tierra's argument, ruling that section 768.79 contained no language which would expressly authorize the modification of a contractual attorney's fees provision and that to read such a rule into the statute would contravene the parties' economic expectations under the contract without express statutory support. Because section 768.79 must be strictly construed and the statute, as written, does not support the interpretation advanced by Tierra, we affirm....

...After discovering the sale of Parcel 2 to Pilot Bank, Mercantile filed a two-count complaint against Tierra and Diamond, alleging breach of contract and unjust enrichment. Tierra and Diamond served Mercantile with a proposal for settlement on December 1, 2006, pursuant to rule 1.442, Florida Rules of Civil Procedure, and section 768.79, Florida Statutes....

...Mercantile, relying on the attorney's fees and costs provision of the contract, sought fees and costs incurred in regard to its breach of contract claim. Tierra moved for attorney's fees and costs pursuant to rules 1.442 and 1.525, Florida Rules of Civil Procedure, and section 768.79, Florida Statutes. At the hearing on the parties' motions, Mercantile conceded that Tierra was entitled to recover some fees and costs under section 768.79, and Tierra conceded that Mercantile was the prevailing party in regard to the breach of contract claim and thus entitled to recover some fees and costs under the contract....

...to the date of Tierra's proposal for settlement. In its order, the trial court rejected Tierra's argument that its proposal for settlement cut off Mercantile's contractual right to fees as of the date of the proposal, reasoning that the language of section 768.79 does not expressly authorize the sort of modification of a contractual attorney's fees provision that Tierra proposed....

...nt of $232,381.62. Tierra does not contend on appeal that this amount was unreasonable for the services provided. Further, the trial court found that Tierra's December 1, 2006 proposal for settlement conformed with the requirements of rule 1.442 and section 768.79, that the proposal was made in good faith, and that the verdict obtained by Mercantile combined with the $22,256.50 in fees and $684.00 in costs incurred before the date of Tierra's proposal was at least 25% less than Tierra's offer....

...awarded Mercantile $23,753.67, the difference between the award of Mercantile's fees and costs, and the award of Tierra's fees costs and costs. Tierra appeals, raising an issue of first impression, arguing that a valid proposal for settlement under section 768.79, Florida Statutes, cuts off a prevailing party's claim for contractual attorney's fees and costs incurred after the date of the proposal. Standard of Review A trial court's ruling on a motion to tax attorney's fees and costs pursuant to section 768.79 is reviewed de novo....

...Costs were the only sanctions imposed under the original rule and the original rule did not authorize an award of attorney's fees. Sarkis v. Allstate Ins. Co., 863 So.2d 210, 218 n. 5 (Fla.2003). [3] In 1986, the Florida Legislature enacted the original version of section 768.79, Florida Statutes, authorizing the award of attorney's fees....

...at 219. See Florida Bar re Amendment to Rules of Civil Procedure, Rule 1.442 (Offer of Judgment), 550 So.2d 442, 442-43 (Fla.1989). The Court withdrew the then existing rule 1.442 and replaced it with a new rule which reflected the major components of section 768.79 and section 45.061. [4] Sarkis, 863 So.2d at 219-20. In 1990, the Legislature amended section 768.79, Florida Statutes, adopting its current language. Ch. 90-119, § 48, at 400, Laws of Fla. Subsection (1) of section 768.79 provides: In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs a...

...ney's fees incurred from the date of the filing of the demand. If rejected, neither an offer nor demand is admissible *563 in subsequent litigation, except for pursuing the penalties of this section. Because the Supreme Court subsequently found that section 768.79 also contained procedural aspects which were the subject of the Court's rule-making authority, the Court withdrew rule 1.442 again and adopted the procedural portions of section 768.79....

...The Court explained that it could not accept amendments affecting entitlement to attorney's fees because it concluded that it was the "legislative prerogative to enact substantive law." Id. at 106. Analysis The Florida Supreme Court has held that the language of section 768.79, as well as rule 1.442 which implements it, "must be strictly construed because [they] are in derogation of the common law rule that each party pay its own fees." Willis Shaw Express, Inc....

...contract. Lashkajani, 911 So.2d at 1158. In the case before us, nothing in the language of the contract limited a prevailing party's entitlement to an award of fees based upon the opposing party's offer to settle. Further, nothing in the language of section 768.79 authorizes the modification of a contractual right to attorney's fees....

...a party's entitlement to post-offer contractual fees and costs. See Giglio v. Weaner, 503 So.2d 1380 (Fla. 2d DCA 1987); see also Fixel Enterprises Inc. v. Theis, 507 So.2d 697 (Fla. 1st DCA 1987). Tierra also cites to several cases which interpret section 768.79 and recognize that a valid proposal for settlement, under the offer-of-judgment statute, cuts-off a party's entitlement to post-offer costs under section 57.041, see Goode v....

...We read the Fixel majority opinion to stand for the proposition that a contractual attorney's fee provision does not implicate the same policy concerns as a statutory fee provision. [5] In Goode, the appellee had failed to obtain a judgment greater than 75% of the offer made by appellant pursuant to section 768.79, yet the trial court denied the appellant's motion for fees and costs and awarded costs to appellee pursuant to section 57.041, Florida Statutes (1991). After concluding that appellant should have been awarded fees and costs under section 768.79, unless the offer was not made in good faith, the Fourth District reversed the trial court's award of costs incurred after the appellant's offer was filed, concluding that section 768.79 controlled over section 57.041....

..."the best sense out of [the] legislative entanglements." Id. (quoting Moore v. State, 343 So.2d 601, 604 (Fla.1977)). In the case before us, however, there is tension between a statute and a contractual provision. *566 Because the purpose underlying section 768.79 fees and costs is different than the purpose of a contractual fee and cost provision, this court cannot resort to the canon of statutory construction utilized in Goode and is constrained by the admonition of the Florida Supreme Court that it may not extend section 768.79 by construction....

...s in harmony with the statutory purposes behind § 627.428, Fla. Stat., that same rationale does not strike the proper balance between the purpose behind contractual provisions that provide for prevailing party attorney's fees and the purpose behind § 768.79, Fla....

...ecause any attorney's fees awarded to the opposing party will diminish the overall recovery for the prevailing party at the conclusion of litigation or, quite possibly, even result in a final judgment against the prevailing party. The sanction under § 768.79, Fla....

...ntemplated by the terms of the contract. Finally, turning to Tierra's reliance on White v. Steak and Ale of Florida, Inc., 816 So.2d 546 (Fla.2002), we find White distinguishable as it was concerned with *567 the definition of "judgment obtained" in section 768.79....

...d fees and costs." Id. at 551. The White court did reference Danis in a footnote stating that "[a]lthough Danis ... involved an award of fees under 627.428, we see no reason why this rationale should not apply equally to offers or demands made under section 768.79(6)." Id....

...y way, factor into the White decision. The statement in White approving of the reasoning in Danis does not extend to every aspect of the Danis opinion, nor does it mean that Danis should control in every situation that calls for an interpretation of § 768.79....

...der that allowed discovery of the billing records of opposing counsel. 93 So.3d at 1187 . In Estilien , the plaintiff prevailed during trial and subsequently filed a motion for attorney’s fees pursuant to the offer of judgment statute. Id. (citing § 768.79(6)(b), Fla....

...The amount being offered does not specifically include attorneys’ fees because attorneys’ fees are not part of the claim in this case. 4. The figure against-which the Defendant intends to measure-this proposal for settlement is the amount of the “judgment obtained,” as this term is defined in Section 768.79, Florida Statutes....

...ndant’s] proposed releases is not ambiguous.” Analysis Our review of this argument is de novo. See Kuhajda v. Borden Dairy Co. of Ala., LLC, 202 So.3d 391, 393-94 (Fla. 2016) (“The eligibility to receive attorney’s fees and costs pursuant to section 768.79 and rule 1.442 is reviewed de novo.”) (citation omitted)....

MARSTILLER, J. After receiving a defense verdict in Appellants’ medical malpractice lawsuit, Ap-pellees successfully sought costs and attorney’s fees pursuant to section 768.79(1), Florida Statutes, * the offer of judgment statute....

...e believe, “effectively eliminates the ability to make joint offers.” Gorka 36 So.3d at 654 (Polston, J., dissenting). The Final Judgment as to Fees and Costs is REVERSED. VAN NORTWICK, J., Concurs. THOMAS, J., Specially Concurring With Opinion. Section 768.79(1) provides, in pertinent part: In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to reco...

...he courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff . . . the defendant shall be entitled to recover reasonable costs and attorney's fees . . . if the judgment is one of no liability." Fla. Stat. § 768.79....

...small relative to Marsh's potential exposure and made before the parties conducted any discovery. "The court may, in its discretion, determine that an offer was not made in good faith [and] disallow an award of costs and attorney's fees." Fla. Stat. § 768.79(7)(a)....

...ihood that Plaintiff would have prevailed in its interpretation of the policy had it not opted to settle with Citizens. With the instant motion, Defendant seeks recovery of legal fees and costs incurred since making its offer of judgment pursuant to Section 768.79 of the Florida Statutes ("Section 768.79")....

...s Offer of Judgment. [3] Thereafter, the Court will consider the reasonableness of the attorneys' fees sought by Defendant. 2. Defendant's Offer of Judgment On June 26, 2008, Defendant served its Offer of Judgment on Plaintiff pursuant to Fla. Stat. § 768.79. See Defendant's Offer (DE 183, Exhibit 1). Section 768.79 of the Florida Statutes provides in relevant part, [i]n any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney's fees incurred ....

...(b) Name the party making it and the party to whom it is being made. (c) State with particularity the amount offered to settle a claim for punitive damages, if any. (d) State its total amount. The offer shall be construed as including all damages which may be awarded in a final judgment. Fla. Stat. § 768.79(1), (2) (2005). [4] The statute also states that a court can disallow an award of attorney's fees and costs if it finds that the offer was not made in good faith. Fla. Stat. § 768.79(7)(a). In addition to this statute, Florida has also adopted a corollary rule which largely duplicates § 768.79, but includes additional procedural requirements for offers of judgment that are not contained in the statute....

...R. Civ. P. 1.442(d). The rule also states that an offer of judgment must include a certificate of service. Fla. R. Civ. P. 1.442(c)(2)(G). A. Validity of Defendant's Offer Plaintiff does not dispute that the contents of Defendant's offer comply with § 768.79....

...sues. See Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996) ( citing Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)). The Eleventh Circuit has already deemed Florida's Statute § 768.79 to be substantive for Erie purposes and, therefore, it is applicable to this case....

...upport an application for attorney's fees was "only a minor part" of the proceeding, it was not outcome determinative, and therefore, "merely procedural for Erie purposes"). Given that the Court finds that Defendant's offer of judgment complied with § 768.79 and the substantive portions of Rule 1.442, Plaintiff's claims of invalidity should be rejected....

..."[A]bsent a finding that a party's offer of judgment was not made in good faith, the trial court cannot disallow an entitlement to an award of fees." Downs v. Coastal Systems Intern., Inc., 972 So.2d 258, 261 (Fla.Dist.Ct. App.2008). See also DuPont Builders, Inc. v. Baker, 987 So.2d 146, 147 (Fla.Dist. Ct.App.2008) (Section 768.79 mandates an award of attorney's fees to a defendant when there is a rejected offer of judgment and a finding of no liability)....

...on on a scale that we are unwilling to consider"); Downs, 972 So.2d at 262 (where defendants prevailed on summary judgment, court found they had a reasonable basis for believing their liability was limited). The Court is mindful that "the purpose of § 768.79 is to encourage settlement of lawsuits, and `[a]n award of fees under the statute is a sanction against a party who refuses to accept a reasonable offer and unnecessarily continues the litigation.'" New York Life Ins....

...he instant motion. The case law is clear that a prevailing party is entitled to recover their attorney's fees going back to the date the offer of judgment was served. See Baker v. Miami-Dade County, 2006 WL 566720, *1 (S.D.Fla. March 1, 2006) (under § 768.79 defendant is entitled to attorney's fees "from the date of the offer"); Walker v. Bozeman, 243 F.Supp.2d 1298, 1303 (N.D.Fla.2003) (same). See also Fla. Stat. § 768.79(6)(a) (defendant is entitled to reasonable attorney's fees and costs "incurred from the date the offer was served"). The law in Florida is equally clear that although a party cannot recover fees generated in litigating the amount of attorney's fees to be awarded, a party can recover fees generated in litigating their entitlement to attorneys' fees under § 768.79. Steffen v. Akerman, Senterfitt & Edison, P.A., 2009 WL 1117390, *1 (M.D.Fla. April 24, 2009) (fee award "extends to fees generated in litigating the entitlement to attorneys' fees . . . [but] the statute [§ 768.79] is inapplicable to fees generated in litigating the amount of attorneys' fees to which one is entitled") ( citing McMahan v....

...Once this "lodestar" amount is calculated, the Court has the discretion of adjusting it up or down depending on the results obtained. See Barnes, 168 F.3d at 427 ( citing Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir.1994)). Florida's statute, § 768.79(7)(b), also states that "the court shall consider, along with all other relevant criteria, the following additional factors" in determining the reasonable amount of an attorney's fee award: 1....

...Whether the suit was in the nature of a test case presenting questions of far-reaching importance affecting non-parties. 6. The amount of the additional delay cost and expense that the person making the offer reasonably would be expected to incur if the litigation should be prolonged. Fla. Stat. § 768.79(7)(b). See Strait v. Busch Entertainment Corp., 2007 WL 788919, 81 (M.D.Fla. March 14, 2007) (court noted that it "must consider" § 768.79 factors in determining reasonableness of attorney's fee award)....

...for Humanities, Inc., 518 U.S. 415, 427, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996) ( citing Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)). This concept extends to awards for attorney's fees. The Eleventh Circuit has deemed Florida's Statute § 768.79 to be substantive for Erie purposes and, therefore, it must be applied in diversity actions, such as this, where the court is considering a prevailing party's entitlement to attorney's fees following an offer of judgment. See McMahan v. Toto, 311 F.3d 1077 (11th Cir.2002). [4] Although § 768.79 refers to the "date of filing," courts have interpreted this to mean the date the offer was served on the plaintiff, since there is no requirement that an offer of judgment be filed with the court until it becomes necessary as a means of recovering attorney's fees....

...See Exemar v. Urban League of Greater Miami, Inc., 2009 WL 259677, 83 (S.D.Fla. Feb. 4, 2009). [6] The Court notes that in McMahan, the Eleventh Circuit considered whether the defendant had complied with Rule 1.442 in making its offer of judgment under § 768.79....

...ff's claim that the offer was invalid because it was ambiguous. The Court did not address the defendant's technical compliance with the procedural aspects of Rule 1.442. See, generally, Campbell v. Goldman, 959 So.2d 223, 227 (Fla.2007) (noting that § 768.79 and Rule 1.442 contain both substantive and procedural aspects)....

...Although finding that provision to be substantive for Erie purposes, the court noted that the issue of whether Rule 1.442 is substantive or procedural is an "uncertain question." Id. at *2-3. See Saenz v. Campos, 967 So.2d 1114, 1116 (Fla.Dist.Ct.App.2007) (noting that § 768.79 "provides the substantive law," while Rule 1.442 "provides its procedural mechanism")....

...ed in federal court. But the result would be the same either way. The Florida courts have adopted the federal lodestar approach . . . [and] consider [factors] in setting a lodestar that are essentially the same as those considered by federal courts. Section 768.79(7)(b), Florida Statutes, lists factors for consideration that do not substantively change the analysis." Watson v....

...For the reasons stated above, the Court also rejects any entries that are completely redacted. See Cambridge Electronics Corp., 2005 WL 927179 at *6; Vitug, 883 F.Supp. at 223-24. [16] The Court has also considered the factors for determining a reasonable fee as set forth in § 768.79(7)(b) and finds that this was not a "close case." Even early on, Plaintiff should have realized that its lawsuit against Defendant lacked merit, particularly in light of the multiple expert opinions Plaintiff obtained that supported Defendant's position....

...Based on these facts, Plaintiff's rejection of Defendant's offer was unreasonable and an award in the amount as reduced by the Court is appropriate. See Central Motor Co. v. Shaw, 3 So.3d 367, n. 3 (Fla.Dist.Ct. App.2009) (although reasonableness of rejecting an offer has no bearing on entitlement to fees, § 768.79(7)(b)'s factors are relevant to the amount of fees awarded)....

...esent time. At the close of the trial below, a verdict was entered in Jenkins' favor in the combined total of $119,237.99. The parties agree that, after set-offs, the net verdict was $94,717.59. Jenkins filed a motion for attorney's fees pursuant to section 768.79 of the Florida Statutes (2005) based on Jenkins' previously filed demand for settlement in which he offered to settle his uninsured motorist claims for the combined policy limits of $75,000.00....

...attorney's fees does not become final, and, therefore, appealable until the amount is set by the trial court). Jenkins has filed with this court a motion for a conditional award of appellate attorney's fees, seeking an award of attorney's fees under section 768.79 of the Florida Statutes (2005) conditioned upon his recovery of a judgment sufficiently exceeding the amount of his demand for settlement....

...ive hundred and six thousand, two hundred fifty-four and 12/100 dollars ($1,506,254.12) from Defendants, JAMES WALLACE McELROY, and PROGRESSIVE AMERICAN INSURANCE COMPANY ...." (emphasis added). The Whittingtons timely served a motion for fees under section 768.79, Florida Statutes, and rule 1.442....

...ing the amount offered between them). Lastly, we reject the Whittingtons' argument that any defect in the form and content of the proposal was waived because McElroy failed to set his motion to strike the offer for hearing prior to trial. Nothing in section 768.79 or rule 1.442 requires that an offeree object to a defective settlement proposal, or set the issue for hearing prior to trial....

...Hugh McConnell, Coral Gables, for appellant. Randy D. Ellison (West Palm Beach), for appellees. Before JORGENSON, GERSTEN, and SORONDO, JJ. CONFESSION OF ERROR PER CURIAM. We reverse the order denying appellate attorney's fees based upon the respondent's proper confession of error. Section 768.79(1), Florida Statutes (2001), provides for mandatory recovery of reasonable costs and attorney's fees by a plaintiff who has prevailed upon the merits, providing the plaintiff has complied with the requirements of the statute. See Hartley v. Guetzloe, 712 So.2d 817 (Fla. 5th DCA 1998). This Court, along with all district courts in Florida, has ruled that Section 768.79 also applies to fees incurred on appeal....

...Nat'l Lumber Brokers, Inc., 642 So.2d 576 (Fla. 1st DCA 1994); Westfield Ins. Co. v. Mendolera, 647 So.2d 223 (Fla. 2d DCA 1994); Schmidt v. Fortner, 629 So.2d 1036 (Fla. 4th DCA 1993); Williams v. Brochu, 578 So.2d 491 (Fla. 5th DCA 1991). Under Sections 768.79 and 59.46, Florida Statutes (2001), attorney's fees are not discretionary....

...ias based on his proposal for settlement. The separate appeal was stayed until resolution of the appeal of the underlying verdict. The Ledesmas argue Iglesias' proposals for settlement were invalid as a matter of law because they did not comply with section 768.79, Florida Statutes, and Florida Rule of Civil Procedure 1.442, and because acceptance of the proposals would have required them to lie under oath. "The question of whether a proposal for settlement complies with section 768.79, Florida Statutes (2005), and Florida Rule of Civil Procedure 1.442 is reviewed de novo." Papouras v. BellSouth Telecomms., Inc., 940 So.2d 479, 480 (Fla. 4th DCA 2006). "[R]ule 1.442 and section 768.79 are in derogation of the common law rule that parties are responsible for their own attorney's fees, and thus the statute and rule must be strictly construed." Campbell v....

...Sherman, Fort Lauderdale, and Samuel Tyler Hill of Hill & Lemongello, P.A., Fort Lauderdale, for appellee. *1265 TAYLOR, J. Clivens Goldman, the plaintiff below, timely appeals the denial of his motion for attorney's fees and costs. His motion for fees and costs was filed pursuant to section 768.79, Florida Statutes, after he recovered a net verdict/judgment in an amount twenty-five percent greater than his Proposal for Settlement....

...Campbell, with a notice of filing of plaintiff's proposal for settlement for $10,000. The proposal was never accepted, nor was it filed with the court. Although the proposal referenced Florida Rule of Civil Procedure 1.442, it did not cite the applicable statute, section 768.79, Florida Statutes....

...Subsequently, on May 27, 2004, the plaintiff was awarded a jury verdict in the amount of $18,900, which was twenty-five percent more than was offered in the settlement proposal. A final judgment for the same amount was rendered. An offer of settlement must comply with both rule 1.442 and section 768.79. Rule 1.442(c)(1) (1999) states: "A proposal [for settlement] shall be in writing and shall identify the applicable Florida law under which it is being made." (Emphasis added). Section 768.79(6)(b) (1999) reads: "If a plaintiff serves an offer which is not accepted by the defendant, and if the judgment obtained by the plaintiff is at least 25 percent more than the amount of the offer, the plaintiff shall be awarded reasonab...

...(b) Name the party making it and the party to whom it is being made. (c) State with particularity the amount offered to settle a claim for punitive damages, if any. (d) State its total amount. (Emphasis added). The Florida Supreme Court has recognized that both rule 1.442 and section 768.79 are in derogation of the common law rule that parties are responsible for their own attorney's fees....

...The presumption is that no change in the common law is intended unless the statute is explicit and clear in that regard."); TGI Friday's, Inc. v. Dvorak, 663 So.2d 606, 615 (Fla.1995) (Wells, J., concurring in part and dissenting in part) (stating that statutes that award attorney's fees, such as 768.79, must be strictly construed)....

...s where it failed to expressly state that it was made pursuant to the statute and merely referred to "all applicable Florida statutes and the Florida Rules of Civil Procedure"); Murphy v. Tucker, 689 So.2d 1164, 1165 (Fla. 2d DCA 1997) (holding that section 768.79 must be strictly construed); Pippin v. Latosynski, 622 So.2d 566, 569 (Fla. 1st DCA 1993) (holding offer invalid because it failed to reference section 768.79; omitting reference "failed to adequately place defendants on notice that Latosynski was traveling under section 768.79 in addition to the rule"); see also Hess v....

...of Ocala, Inc. v. Drew, 746 So.2d 1109 (Fla. 5th DCA 1999). In Spruce Creek, the court noted that the issue of attorney's fees was moot, but, for guidance on remand, stated that the plaintiffs' settlement proposal was not void for failure to expressly reference section 768.79....

...We adopt the fifth district's position in Spruce Creek on this issue and certify conflict with the first and second district courts' decisions in Pippin and McMullen Oil Company. In this case, the plaintiff submitted his proposal for settlement on August 13, 1999, at a time when only one statute, section 768.79, existed under which offer of judgment/proposal for settlement attorney's fees were awardable....

...procedure is in derogation of the common law and is penal in nature. Florida follows the common law approach to attorney's fees under which each party pays its own fees, absent a statutory or contractual provision to the contrary...." "In addition, section 768.79 imposes a penalty for unreasonably rejecting a settlement offer....

...This rule is so well-cemented in Florida law that the Florida Supreme Court has applied the rule without a great deal of explanation.... The abundance of case law cited by both parties in this case demonstrates that courts have generally applied a strict construction to section 768.79 and Rule 1.442 by the frequency with which they invalidate unspecified offers." [e.s.] Hilyer Sod Inc....

...Walgreen Drug Stores, 151 Fla. 648, 10 So.2d 314, 316 (1942) ("Such statutes must always be construed strictly and are never to be extended by implication."). Omissions or gaps in the statutes should not be filled by judicial construction. In other words, section 768.79 should be read to allow fees only in the circumstances stated clearly in the statute....

...the proposal] is being made." Fla. R. Civ. P. 1.442(c)(1). Identification of the applicable law at that point helps give the offeree a signal — if one is truly needed — that the offeror may use the offer later as a basis for an award of fees under section 768.79....

...basis for awarding fees. Whether or not the statute is mentioned in the offer, the party will still have to show a qualifying offer and a precipitating result. To the contrary, overlooking such harmless procedural defects would simply vindicate both section 768.79's policy of imposing fees when litigation continues after an otherwise qualifying offer, as well as rule 1.010's interpretive command to apply the rules justly and equitably, not strictly....

...So the truth is that there is no justification for strict construction of rule 1.442. Actually, the real problem with this rigid interpretation in regard to issues of attorneys fees has nothing to do with hermeneutics anyway. The substantive provisions of section 768.79 as to the entitlement to fees are clear and unambiguous, requiring no interpretation....

...The statute is biased in favor of those who are being sued for money damages — who alone can make nominal offers merely to set up a claim for attorneys fees when the litigation is over. There is no comparable offering stratagem whereby claimants can make nominal offers without risk, merely to set up an entitlement under section 768.79 to attorneys fees....

...In a personal injury case involving disputed liability and significant damages, a lawyer's advice to reject a nominal offer served at the beginning of the lawsuit is not unreasonable. [8] Claimants' lawyers have understandably been arguing for a legal rationale to escape the application of section 768.79's bias and unfairness. I think many judges are discomfited by this unspoken truth. *1272 Yes, section 768.79 is clear but unavoidable when the qualifying facts appear....

...Unhappily, the plain text of the offer of judgment statute betrays a legislative purpose to have it mechanically and routinely applied whenever there is an offer followed by a qualifying outcome. See TGI Friday's Inc. v. Dvorak, 663 So.2d 606, 614 (Fla.1995) (Wells, J., dissenting) (section 768.79 eliminated any discretion in entitlement to attorneys fees)....

...nts who are deprived of fees because of a "technical defect" or "procedural irregularity" in an offer that had no effect on the offeree. [9] See Hauss v. Waxman, 914 So.2d 474, 475-79 (Fla. 4th DCA 2005) (Farmer, J., concurring) (failure to identify section 768.79 in otherwise qualifying offer had no effect on offeree who had preceded such offer with its own offer obviously intended merely to set up right to attorneys fees if outcome favorable to defendant). The decisional incoherence traces directly from conceiving awards of attorney fees under section 768.79 as penal....

...creation of the entitlement." [f.o.] ). The offeree is paying the cost of exercising the privilege of continuing to litigate after a qualifying offer has been made. [10] Although the attorneys fees can be onerously high, the imposition of fees under section 768.79 operates no more punitively (except for its inequality) than other consequences experienced routinely and frequently in ordinary litigation....

...Interest itself is a consequence borne by every losing party, but as Argonaut shows it is not imposed as punishment, only a consequence of being liable. This characterization of attorneys fees as penal is truly mystifying. The imposition of fees under section 768.79 is not based on misconduct by anyone....

...Guessing wrong in a hard case on liability or how much the jury will award is not misconduct. The conduct leading to an award of fees under this statute is not even malum prohibitum, let alone malum in se. It is not something for which the law is designed to punish a party or lawyer. The imposition of fees under section 768.79 really functions no differently than prevailing party attorneys fees provisions, except that it does not apply to all prevailing parties — only the party making a qualifying offer....

...execution, they can be held in contempt, they can be made to pay a fine, and they can even be incarcerated. All of this could surely be described as penal in the sense that Willis Shaw uses the term. Properly understood, the imposition of fees under section 768.79 is just one more legal coercion to vindicate a specified outcome fixed by the Legislature's choice of substantive policy in civil litigation....

...Could anyone reading the offer imagine that it was made under anything but the offer of judgment statute? No one in this case could have been under any misimpression as to the basis for the offer and that fees would be sought if the result warranted it. Inferring the statute from the context and circumstances does not extend section 768.79 beyond the circumstances specified by its drafters....

...trictly construed because they are in derogation of common law."). [6] See also Fla. R. Civ. P. 1.525 (setting time limit for filing motions for attorneys fees). [7] It is not uncommon for attorneys fee statutes to contain procedural provisions. See § 768.79(2)(a), Fla....

...ed by the supreme court under its rulemaking power in rules 1.442 or 1.525. See Art. V, § 2(a), Fla. Const.; see also Gulliver Academy Inc. v. Bodek, 694 So.2d 675 (Fla. 1997) (in spite of 30-day time limit for filing motion for fees established in section 768.79(6), trial court could grant open-ended extension of time for filing such motion under rule 1.090). [8] But see Hilyer Sod Inc. v. Willis Shaw Express Inc., 817 So.2d 1050, 1054 (Fla. 1st DCA 2002) ("section 768.79 imposes a penalty for unreasonably rejecting a settlement offer.")....

...ent. The Kroeners argue that FIGA’s offer was not terminated, as a matter of law, as a result of summary judgment. They contend they had thirty days from the time they received the proposal for settlement to either accept or reject it, pursuant to section 768.79(1), Florida Statutes; within those thirty days, on June 22, 2009, they accepted FIGA’s offer and it was binding notwithstanding entry of summary judgment. FIGA filed its proposal for settlement pursuant to section 768.79, Florida Statutes (2009), and Florida Rule of Civil Procedure 1.442. Section 768.79(1) provides that a plaintiff has a thirty-day window to *918 accept or reject an offer. “An offer shall be accepted by filing a written acceptance with the court within 30 days after service. Upon filing of both the offer and acceptance, the court has full jurisdiction to enforce the settlement agreement.” § 768.79(4). However, “[a]n offer may be withdrawn in writing which is served before the date a written acceptance is filed. Once withdrawn, an offer is void.” § 768.79(5)....

...s set for trial, whichever is earlier.” Here, the Kroeners contend that the trial was set for August 9, 2009, and that their June 22 acceptance, in accordance with Rule 1.442(b), was well within the statutory thirty-day window. Noting that neither section 768.79 nor Rule 1.442(b) “address[es] or shortens the time for acceptance in relation to interlocutory orders which may terminate the litigation,” the Kroeners contend that FIGA’s offer was “irrevocable” at the point when summary judgment was entered....

...e to attempt to accept it); Braham v. Carncross, 514 So.2d 71 (Fla. 2d DCA 1987) (refusing to allow acceptance of offer after jury verdict rendered); O'Brien v. Russell, 698 So.2d 642 (Fla. 3d DCA 1997) (rejecting plaintiff's contention that because section 768.79, Florida Statutes, allows him a full thirty days to accept the defendant’s offer of judgment, he could, immediately after a defense verdict, accept the offer made twelve days before trial)....

...ng appellee attorney’s fees and costs following appellant’s voluntary dismissal of her lawsuit without prejudice. We reverse the fee award, as the voluntary dismissal was not a second voluntary dismissal that would entitle appellee to fees under section 768.79, Florida Statutes....

...“[W]hen entitlement to attorney’s fees is based on the interpretation of ... a statute, as a pure matter of law, the appellate court undertakes a de novo review.” *93 Bauer v. DILIB, Inc., 16 So.3d 318, 320 (Fla. 4th DCA 2009) (quoting Hirschenson v. Hirschenson, 996 So.2d 905, 907 (Fla. 4th DCA 2008)). Section 768.79, Florida’s offer of judgment statute, provides in pertinent part as follows: (6) Upon motion made by the offeror within 30 days after the entry of judgment or after voluntary or involuntary dismissal, the court shall determine the fo...

...incurred from the date the offer was served.... The supreme court interpreted this statutory language in MX Investments, Inc. v. Crawford, 700 So.2d 640, 642 (Fla.1997), as follows: We construe the terms “voluntary dismissal” and “involuntary dismissal” in section 768.79(6), Florida Statutes (1991), to mean a dismissal with prejudice so that the dismissal is the basis for a judgment of no liability as contemplated in section 768.79(1), Florida Statutes (1991). Thus, only when a plaintiffs voluntarily [sic] dismissal is with prejudice or is a second voluntary dismissal is the defendant entitled to attorney fees in accord with section 768.79, Florida Statutes (1991)....

...claratory relief and conversion arising out of a dispute regarding ownership of a particular bank account. Before an appeal was filed, Fels filed a motion for attorney’s fees and costs pursuant to Florida Rule of Civil Procedure 1.442 and sections 768.79 and 733.106(3), Florida Statutes (2009)....

...During this hearing, Fels argued entitlement to fees on the grounds listed in his motion as well as under sections 733.609 and 733.619, Florida Statutes (2009), which were not discussed in his motion. At the conclusion of the hearing, the trial court denied the fee request under Rule 1.442 and section 768.79, pertaining to offers of settlement....

fees under the demand for judgment statute, Section 768.79, Florida Statutes (1993). The hospital claims

...Estate of Stuckey, 749 So.2d 490 (Fla.1999)(trial judge is not to substitute his or her own verdict for that of the jury, but to avoid what, in the judge's trained and experienced judgment, is an unjust verdict). Lee's cross-appeal of the order that granted him his attorney's fees pursuant to section 768.79, Florida Statutes (2001), but refused to apply a multiplier to said award, is stayed pending the Florida Supreme Court's resolution of this issue (whether or not a contingency multiplier may be applied to a fee award pursuant to section 768.79), currently before the Court on conflict jurisdiction in Allstate Ins....

...5th DCA 2001), rev. granted, Sarkis v. Allstate Ins. Co., 826 So.2d 992 (Fla. Sept.11, 2002). The underlying verdict in all other respects is affirmed. Lee is entitled to his appellate attorney's fees for successfully defending this appeal pursuant to section 768.79....

...iling of the judgment in a nonjury action, the court may impose sanctions equal to reasonable attorneys fees and all reasonable costs of the litigation accruing from the date the relevant offer of judgment was made.... (footnote omitted). Similarly, section 768.79(6), Florida Statutes (1991), read: "Upon motion made by the offeror within 30 days after the entry of judgment or after voluntary or involuntary dismissal...." Here, the motion was filed five months after the verdict and final judgment....

...Travelers Indem. Co., 438 So.2d 1045 (Fla. 1st DCA 1983); Lowe v. State Farm Mut. Auto. Ins. Co., 420 So.2d 318 (Fla. 5th DCA 1982). Second, we conclude that the trial court erred in entering an attorney's fee award in favor of the defendant/insurer under Section 768.79(1)(a), Florida Statutes (1987)....

...The subject statute authorizes an attorney's fee award for the defendant only in the event "the judgment obtained by the plaintiff is at least 25 percent less than [an] offer [of judgment]" made by the defendant pretrial, and refused by the plaintiff, § 768.79(1)(a), Fla....

...Security of the acquisition of the pickup truck prior to the accident, and (2) that Rabatie's eventual notification to the insurer did not meet policy requirements. The trial court ruled in favor of the insurer and also granted attorney's fees pursuant to the offer of judgment statute, paragraph 768.79(1)(a), Florida Statutes (1987)....

...We therefore reverse the final judgment on the coverage issue and remand for further proceedings consistent herewith. [2] As the underlying judgment on the merits is reversed, we also reverse the related judgment in favor of the insurer for attorney's fees and costs under the offer of judgment *1332 statute, section 768.79, Florida Statutes (1989)....

...R A NEWLY ACQUIRED VEHICLE PROVIDED THAT THE INSURER IS NOTIFIED WITHIN THIRTY DAYS, DOES SUCH A POLICY PROVIDE IMMEDIATE COVERAGE SUBJECT TO THE CONDITION SUBSEQUENT THAT THE INSURER BE NOTIFIED WITHIN THE PRESCRIBED PERIOD? [3] The panel held that section 768.79(1)(a), Florida Statutes (1989), comes into play only where the plaintiff recovers an affirmative judgment, and not where, as here, there is a judgment for defendant....

...eview, pursuant to Florida Rule of Appellate Procedure 9.400(c), of an order denying their respective motions for attorneys' fees. We affirm. Where, as here, a plaintiff seeks both monetary damages and injunctive relief as part of the same claim(s), section 768.79, Florida Statutes, does not apply....

...That decision was also affirmed by this court. See Winter Park Imports, Inc. v. JM Family Enters., Inc., 24 So.3d 633 (Fla. 5th DCA 2009). Thereafter, defendants filed their motions for attorneys' fees based on plaintiff's rejection of their respective offers of judgment. Section 768.79 provides the substantive law concerning offers and demands of judgments, while Florida Rule of Civil Procedure 1.442 provides for its procedural mechanism....

...amounts by which the verdict was reduced. For purposes of the determination required by paragraph (b), the term "judgment obtained" means the amount of the net judgment entered, plus any postoffer settlement amounts by which the verdict was reduced. § 768.79, Fla....

...on and no money damages or payment of money was directly requested in suit). The issue in this case is whether a party can serve an offer of judgment directed to a claim for which both monetary and injunctive remedies are requested. We conclude that section 768.79 does not authorize a party to serve an offer of judgment in this situation. An award of attorney's fees under section 768.79 is a sanction against the rejecting party for the refusal to accept what is presumed to be a reasonable offer....

...Allstate Ins. Co., 863 So.2d 210, 222 (Fla.2003). Because the statute is penal in nature, it must be strictly construed in favor of the one against whom the penalty is imposed and is never to be extended by construction. Id. at 223. Strict construction of section 768.79 is also required because the statute is in derogation of the common law rule that each party is to pay its own attorney's fees. Campbell v. Goldman, 959 So.2d 223, 226 (Fla.2007). Section 768.79 makes no provision for a court to determine the value of any injunctive relief obtained in calculating the "judgment obtained." The statute speaks only in terms of "amount." While we recognize that, as in the instant case, an "amount"...

...o costs and attorney's fees is substantive and that our rule can only control procedural matters.") Accordingly, defendants' purported compliance with rule 1.442 does not create a right to an attorney's fees award; entitlement to fees only exists if section 768.79 applies....

...So.3d at 143. As in the instant case, the defendant served an offer of judgment tendering a monetary amount to the plaintiff with a condition of acceptance being that the plaintiffs dismiss all of its pending claims. The court concluded that because section 768.79 only applied to "civil actions for damages," it would not apply where an action sought both monetary and nonmonetary relief: Similarly, strict construction of the statute and rule should not allow an application of a general offer of s...

...a party has included separate claims for monetary and non-monetary relief in the same pleading and the offer (or demand) is directed only to the monetary claim, we do agree with the Palm Beach Polo Holdings decision to the extent that it holds that section 768.79 is inapplicable where a party's general offer of settlement is directed to a claim in *342 which both damages and non-monetary relief is sought....

...Bohdan Neswiacheny and Glenn J. Webber, Ft. Lauderdale, for appellee. Before JORGENSON, LEVY and SHEVIN, JJ. SHEVIN, Judge. Vivian Jones appeals a final judgment reducing her jury award and awarding defendant, Budget Rent-A-Car Systems, Inc., attorney's fees pursuant to section 768.79(6)(a), Florida Statutes....