           Case: 15-14612   Date Filed: 09/29/2016   Page: 1 of 12


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-14612
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 3:13-cv-00064-TJC-MCR



WILLIAM PRIMO,

                                                          Plaintiff - Appellant,

versus

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,
a Florida insurance corporation,

                                                         Defendant - Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                            (September 29, 2016)

Before HULL, MARCUS, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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      Plaintiff William Primo appeals the district court’s order awarding

Defendant State Farm Mutual Automobile Insurance Company $21,070.10 in fees

and costs under Fla. Stat. § 768.79. After reviewing the briefs and the record, we

affirm.

I.    Background

      In September 2010, Plaintiff sustained personal injuries in a car accident

with an uninsured motorist. He later sued Defendant, his insurer, alleging that it

breached their insurance contract by wrongfully refusing to pay claims for

underinsured motorist coverage. On June 20, 2014, Defendant served on Plaintiff

a Proposal for Settlement pursuant to Florida’s offer of judgment statute, which

provides that if a defendant’s offer is not accepted by the plaintiff within 30 days,

and the subsequent “judgment obtained” by plaintiff is at least 25% less than the

amount defendant offered, then the court shall set off the defendant’s costs and

attorney’s fees incurred from the date of the offer against the plaintiff’s award.

Fla. Stat. § 768.79(1). The statute defines “judgment obtained” as “the amount of

the net judgment entered,” which includes a plaintiff’s costs incurred up to the date

of the offer. See White v. Steak & Ale of Fla., Inc., 816 So.2d 546, 551 (Fla. 2002).

      Plaintiff did not accept the Proposal, and he later obtained a jury verdict in

the amount of $57,560.00. The district court then set off the jury award to account




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for various collateral-source and settlement payments made by third parties,

resulting in a judgment in Plaintiff’s favor for $16,221.80.

      As the prevailing party, Plaintiff sought over $63,000 in costs pursuant to

Federal Rule of Civil Procedure 54(d). But according to Defendant, Plaintiff was

entitled to only $9,383.48 in costs, and that amount combined with the $16,221.80

judgment equaled $25,605.28—over 25% less than Defendant’s $40,000.00 offer.

Defendant therefore argued that it was entitled under Fla. Stat. § 768.79 to recover

its own attorney’s fees and costs, which it claimed amounted to $49,622.50 and

$24,449.72, respectively.

      As a threshold matter, Plaintiff argued that Fla. Stat. § 768.79 did not apply

because Defendant’s Proposal for Settlement failed to strictly comply with Florida

Rule of Civil Procedure 1.442, which “provides procedural guidelines for making a

proposal pursuant to [Fla. Stat. § 768.79].” Floyd v. Smith, 160 So.3d 567, 568 n.1

(Fla. Dist. Ct. App. 2015). The Rule governs the form and content of a proposal

for settlement by requiring that it be in writing and that it shall, among other

things, “state that the proposal resolves all damages that would otherwise be

awarded in a final judgment in the action in which the proposal is served.” Fla. R.

Civ. P. 1.442(c)(2)(B). Courts have held that “the language of the statute and rule

must be strictly construed because the offer of judgment statute and rule are in




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derogation of the common law rule that each party pay its own fees.” Campbell v.

Goldman, 959 So.2d 223, 226 (Fla. 2007).

      The Proposal for Settlement provided:

      1.     Defendant, STATE FARM, will pay Plaintiff, WILLIAM
      PRIMO, the total amount of $40,000.00 in settlement of all Plaintiff’s
      claims pending against this Defendant, STATE FARM, in the above-
      styled lawsuit.

      2.     In consideration therefore, Plaintiff, WILLIAM PRIMO, will
      dismiss with prejudice the claims said Plaintiff has asserted against
      Defendant, STATE FARM, in the Complaint filed in the above-styled
      cause.

      3.     The $40,000.00 total amount to be paid includes any taxable
      costs and interest.

      4.     This proposal does not include anything for punitive damages
      in that said Plaintiff has not made a claim for punitive damages
      against Defendant, STATE FARM.

      5.    This proposal does not include attorneys’ fees as attorneys’ fees
      are not a part of the claims asserted by Plaintiff, WILLIAM PRIMO.

      Plaintiff stressed that the provision for the “settlement of all Plaintiff’s

claims pending against this Defendant” fell short of Rule 1.442(c)(2)(B)’s

requirement that a proposal state “that [it] resolves all damages.” The district

court rejected Plaintiff’s argument, found no material difference between resolving

all claims and resolving all damages, and held that the Proposal for Settlement

complied with Fla. Stat. § 768.79 and Rule 1.442.




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      Before the court could award Defendant fees, though, it had to decide

whether the total judgment obtained (again, including Plaintiff’s costs) was 25%

less than the settlement offer. Although the parties stipulated that Plaintiff was

entitled to $9,343.48 of his claimed costs, Plaintiff further claimed tens of

thousands of dollars in expert witness fees. However, the court concluded that

these fees were limited by 28 U.S.C. § 1821 to $40 per day per witness. As a

result, the court awarded $160 in expert witness attendance fees. Thus, the

judgment obtained for purposes of Fla. Stat. § 768.79 was $25,725.28 (the

$16,221.80 judgment plus $9,503.48 in costs)—over 25% less than the $40,000.00

Proposal for Settlement. For that reason, the district court found that Defendant

was entitled to costs and attorney’s fees incurred from the date of the Proposal in

the amount of $46,795.38. Accordingly, the court entered an amended final

judgment in favor of Defendant and against Plaintiff in the amount of $21,070.10,

which was the balance of Defendant’s fee award minus Plaintiff’s judgment

obtained. See Fla. Stat. § 768.79(6)(a) (“When such costs and attorney’s fees total

more than the amount of 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 award to the plaintiff.”).




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II.     Discussion

        Plaintiff appeals the district court’s findings that the Proposal for Settlement

complied with Fla. Stat. § 768.79 and Florida Rule of Civil Procedure 1.442 and

that Plaintiff’s taxable costs for expert witnesses were limited by statute to $40 per

day per witness.

        A.     Proposal for Settlement

        We review a district court’s interpretation of state law de novo. McMahan v.

Toto, 311 F.3d 1077, 1081 (11th Cir. 2002). Section 768.79 governs offers of

judgment, while Rule 1.442 sets forth procedures implementing the statute. 1

Audiffred v. Arnold, 161 So.3d 1274, 1277 (Fla. 2015). Under § 768.79, 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.


1
  Defendant argues that the specific rule at issue here, Rule 1.442(c)(2)(B), is procedural and
therefore does not apply in federal court for purposes of Erie R. Co. v. Tompkins, 304 U.S. 64
(1938). Because we conclude that Defendant would win even if the rule were substantive and
applied, we do not decide this issue. In any case, we observe that Rule 1.442(c)(2)(B) is likely
substantive. Cf. Horowitch v. Diamond Aircraft Indus., Inc., 645 F.3d 1254, 1258 (11th Cir.
2011) (holding that Rule 1.442(c)(2)(F)’s requirement that the proposal state whether attorney’s
fees are included is substantive because it “prescribes specific, substantive terms that an offer of
judgment must include” and which are material to an offeree’s ability to evaluate an offer).
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         The offer shall be construed as including all damages which may be
         awarded in a final judgment.

Fla. Stat. § 768.79(2).

         Before the 2013 amendments to the Florida Rules of Civil Procedure, Rule

1.442(c)(2)(B) required a proposal to “identify the claim or claims the proposal

[was] attempting to resolve.” In re Amendments to Fla. R. Civ. P., 131 So.3d 643,

644 (Fla. 2013) (emphasis added) (citing the former version of Rule

1.442(c)(2)(B)). Now Rule 1.442(c)(2)(B) 2 requires that a proposal for settlement

“state that the proposal resolves all damages that would otherwise be awarded in a



2
    The full text of Rule 1.442(c)(2) provides that the proposal shall:

         (A) name the party or parties making the proposal and the party or parties to
         whom the proposal is being made;

         (B) state that the proposal resolves all damages that would otherwise be awarded
         in a final judgment in the action in which the proposal is served, subject to
         subdivision (F);

         (C) state with particularity any relevant conditions;

         (D) state the total amount of the proposal and state with particularity all
         nonmonetary terms of the proposal;

         (E) state with particularity the amount proposed to settle a claim for punitive
         damages, if any;

         (F) state whether the proposal includes attorneys’ fees and whether attorneys’ fees
         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).


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final judgment in the action in which the proposal is served.” 3 Fla. R. Civ. P.

1.442(c)(2)(B) (emphasis added). But the Proposal for Settlement here said

Defendant would pay “$40,000.00 in settlement of all Plaintiff’s claims pending

against this Defendant, STATE FARM, in the above-styled lawsuit,” and that in

return Plaintiff would dismiss those claims with prejudice. By failing to specify

that the proposal resolved all damages, Plaintiff argues, Defendant failed to strictly

comply with Rule 1.442(c)(2)(B). Plaintiff does not contend that the Proposal

failed to comply with any other parts of Rule 1.442.

       While we must strictly construe both § 768.79 and Rule 1.442, see

Campbell, 959 So.2d at 226, we find no authority requiring that a proposal recite

the specific words used by the statute or rule. The rule commands that certain

information be conveyed but does not dictate the words to be used. For example, a

proposal must “state with particularity any relevant conditions” and “all

nonmonetary terms of the proposal,” and it must “state whether the proposal

includes attorneys’ fees.” Fla. R. Civ. P. 1.442(c)(2)(C), (D), (F). Furthermore,
3
  The amendment took effect on January 1, 2014, after this action was filed but before
Defendant made the Proposal for Settlement. In re Amendments, 131 So.3d at 645. Defendant
argues that an amendment to a substantive law cannot apply to cases already filed. Defendant
cites a case holding that a statute creating a new substantive right cannot be applied retroactively.
See Fla. Patient’s Comp. Fund v. Scherer, 558 So.2d 411, 414 (Fla. 1990). But this change in
language did not create a new substantive right, and Florida courts have instead applied new
amendments to Rule 1.442 as long as the proposals were made after the amendments took effect.
See, e.g., Allstate Indem. Co. v. Hingson, 808 So.2d 197, 199 n.2 (Fla. 2002) (amendment did not
apply because it took effect “after the offers of settlement were made”); Dudley v. McCormick,
799 So.2d 436, 440 n.4 (Fla. Dist. Ct. App. 2001) (amendment applied when a “proposal for
settlement was served after . . . the effective date of amendment”). Therefore, the current version
of Rule 1.442 applies to this case.
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“[a] joint proposal shall state the amount and terms attributable to each party.” Fla.

R. Civ. P. 1.442(c)(3). While a proposal must strictly comply with these terms, the

statute leaves the wording up to the offeror. And unlike Rule 1.442(c)(2)(E),

which requires a proposal to “state with particularity the amount proposed to settle

a claim for punitive damages, if any,” Rule 1.442(c)(2)(B) contains no particularity

requirement that would effectively require a proposal to detail how other types of

damages are allocated (e.g., general or special damages). Cf. R.J. Reynolds

Tobacco v. Ward, 141 So.3d 236, 237–39 (Fla. Dist. Ct. App. 2014) (because

punitive damages are required to be stated with particularity, a proposal for

settlement was required to specify what portion of the total settlement would be

allocated to punitive damages). We thus reject Plaintiff’s argument that Rule

1.442(c)(2)(B) supplies specific “mandatory” language.

      In fact, Fla. Stat. § 768.79(2) states that “[t]he offer shall be construed as

including all damages which may be awarded in a final judgment.” In light of that

language, we construe the Proposal for Settlement as including all damages. We

agree with the district court that there is no material difference, in the

circumstances of this case, between an offer to resolve “all claims” in a lawsuit and

an offer to resolve “all damages” in a lawsuit. Here, one plaintiff brought a single

claim against a lone defendant. Because Defendant offered “$40,000.00 in

settlement of all Plaintiff’s claims” and further required Plaintiff to dismiss his suit


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with prejudice, the Proposal for Settlement necessarily stated that it “resolve[d] all

damages that would otherwise be awarded in a final judgment” in this action. Fla.

R. Civ. P. 1.442(c)(2)(B).

      The Florida Supreme Court’s order adopting the 2013 amendment to Rule

1.442 also supports our conclusion. The court explained that the Florida Bar’s

Civil Procedure Rules Committee proposed deleting the “requirement that the

proposal for settlement ‘identify the claim or claims the proposal is attempting to

resolve’ and replace it with the requirement that the proposal ‘state that [it]

resolves all damages that would otherwise be awarded in a final judgment in the

action.’” In re Amendments, 131 So.3d at 644. In adopting the amendment, the

court agreed with the Committee “that the amendment was needed to curtail partial

proposals for settlement” and to comport with the similar language in § 768.79(2).

Id. The Proposal for Settlement here complied with Rule 1.442 by offering a

complete settlement consistent with the amendment’s purpose.

      Furthermore, the Committee itself apparently sees no distinction between

resolving “all claims” and resolving “all damages.” Significantly, the committee

notes to Rule 1.442 explain that the 2013 amendment was intended “to clarify that

a proposal for settlement must resolve all claims between the proponent and the

party to whom the proposal is made except claims for attorneys’ fees, which may

or may not be resolved in the proposal.” Fla. R. Civ. P. 1.442 (committee notes)


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(emphasis added). Of course, “[t]he committee notes are offered for explanation

only and are not adopted as an official part of the rules,” In re Amendments, 131

So.3d at 645, but we find them persuasive. And Plaintiff fails to explain how the

proposal to settle “all Plaintiff’s claims” failed to communicate that the settlement

would resolve all damages. For these reasons, Defendant’s Proposal for Settlement

complied with Fla. Stat. § 768.79 and Rule 1.442.

      B.     Taxable Costs

      Plaintiff next challenges the amount of costs the court awarded him for

expert witness fees. We will uphold a district court’s award of costs in the absence

of a clear abuse of discretion. Tech. Res. Servs., Inc. v. Dornier Med. Sys., Inc.,

134 F.3d 1458, 1468 (11th Cir. 1998). “However, a court may only tax costs as

authorized by statute.” EEOC v. W&O, Inc., 213 F.3d 600, 620 (11th Cir. 2000).

Plaintiff argues that the district court abused its discretion by awarding only $160

of the $37,835 sought for expert witness fees. We disagree.

      Under 28 U.S.C. § 1821(b), “[a] witness shall be paid an attendance fee of

$40 per day for each day’s attendance.” The Supreme Court has held that “when a

prevailing party seeks reimbursement for fees paid to its own expert witness, a

federal court is bound by the limit of § 1821(b), absent contract or explicit

statutory authority to the contrary.” Crawford Fitting Co. v. J.T. Gibbons, Inc.,

482 U.S. 437, 439 (1987); see also Kivi v. Nationwide Mut. Ins. Co., 695 F.2d


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1285, 1289 (11th Cir. 1983) (“[I]t is well settled that expert witness fees cannot be

assessed in excess of witness fees provided in § 1821.”).4 This limit must be

observed despite “the disparity between economic reality and statutory

imperative.” Morrison v. Reichhold Chem., Inc., 97 F.3d 460, 463 (11th Cir. 1996)

(reversing district court award of over $3,300 in expert witness fees and instructing

the district court to reduce taxable costs for each witness to $40 per day). Because

no contract or other statute 5 authorizes fees in excess of $40 in this case, we find

no error.

III.   Conclusion

       For all the foregoing reasons, we affirm the district court’s entry of judgment

in favor of Defendant in the amount of $21,070.10.

       AFFIRMED.




4
   In contrast, “a federal court may tax expert witness fees in excess of the $[40]-per-day limit set
out in § 1821(b) only when the witness is court-appointed.” Crawford, 482 U.S. at 442. But that
is not the case here.
5
  To the extent Plaintiff argues that 42 U.S.C. § 1988 authorized the district court to award
reasonable expert witness fees above the $40 limit, that statue is inapplicable because it applies
only to cases brought under certain civil rights statutes. See 42 U.S.C. § 1988(b)–(c).
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