In Florida, the “general rule” is that a prevailing party to a lawsuit ordinarily only has a right to recover its reasonable attorneys’ fees if such right is provided for in a written agreement between the parties or pursuant to a statute.  However, in the event that there is no such written agreement or statute, a prevailing party has the potential to recover its reasonable attorneys’ fees in an action for damages by utilizing an offer of settlement (i.e. a proposal to settle the matter).  However, an offer of settlement must strictly comply with Fla. Stat. §768.79 and Fla. R. Civ. P. 1.442, and are disfavored by Florida courts.  As this statute and Rule are contrary to the “general rule,” Florida courts have routinely rejected the validity of an offer of settlement on the basis that it does not comply with the strict terms of the statute and/or Rule.

Recently, although certain District Courts of Appeal in Florida previously held to the contrary, the Supreme Court of Florida, in Kuhajda v. Borden Dairy Co. of Alabama, LLC, 2016 WL 6137289 (Fla. Oct. 20 2016), held that if attorneys’ fees are not sought in the pleadings, an offer of settlement is not considered invalid simply by failing to state whether the offer includes attorneys’ fees and whether attorneys’ fees are part of the legal claim.  This is contrary to various prior decisions in Florida which have repeatedly held that if the strict terms set forth in the applicable statute and Rule are not complied with (the statute and Rule require the offer to state whether it includes attorneys’ fees and whether attorneys’ fees are part of the legal claim), the offer of settlement will be deemed invalid.  This will hopefully evidence a turn in how offers of settlement are construed and permit the courts to inject a “reasonableness” analysis in construing these offers.

To learn more about offers of settlement, contact Michael Traficante at or call 239-514-1000.

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Michael Traficante is a shareholder of Grant Fridkin Pearson, P.A. He has practiced law in Southwest Florida since 2006 and has an AV rating from Martindale-Hubbell. Michael’s practice is concentrated in complex commercial and civil litigation involving real property, business, construction, wills/trusts, and commercial issues.