          Supreme Court of Florida
                                     ____________

                                    No. SC12-2377
                                    ____________

                                 VALERIE AUDIFFRED,
                                      Petitioner,

                                          vs.

                                 THOMAS B. ARNOLD,
                                     Respondent.

                                    [April 16, 2015]

LEWIS, J.

      Petitioner Valerie Audiffred seeks review of the decision of the First District

Court of Appeal in Arnold v. Audiffred, 98 So. 3d 746 (Fla. 1st DCA 2012), on the

basis that it expressly and directly conflicts with decisions of the Third, Fourth, and

Fifth District Courts of Appeal on a question of law. We have jurisdiction. See

art. V, § 3(b)(3), Fla. Const.

                                       FACTS

      Valerie Audiffred and her husband, Robert Kimmons, filed an action against

Thomas Arnold that arose from an automobile collision. Arnold, 98 So. 3d at 747.

In the complaint, Audiffred sought damages for her injuries and for vehicle repairs.
Id. Kimmons sought damages based upon loss of consortium. Id. On April 29,

2010, a settlement proposal was served upon Arnold which provided:

                    PROPOSAL FOR SETTLEMENT

             Plaintiff, Valerie Audiffred, by and through the undersigned
      counsel hereby make the following proposal for settlement pursuant to
      F.S. § 768.79 and Rule 1.442 F.R.C.P., to wit:

          1.  NAME OF PARTY OR PARTIES MAKING THIS
      PROPOSAL:
            Plaintiff: Valerie Audiffred

          2.  PARTY OR PARTIES TO WHOM THE
      PROPOSAL IS BEING MADE:
            Defendant: Thomas B. Arnold

          3.  IDENTIFY THE CLAIM OR CLAIMS THE
      PROPOSAL IS ATTEMPTING TO RESOLVE:
            Any and all claims Plaintiffs have brought against the
      Defendant set forth in the Complaint in the above captioned case and
      any other claim or claims that may have risen as a result of the subject
      incident set forth in Plaintiffs’ Complaint, including attorney’s fees
      and costs.

            4.     ANY RELEVANT CONDITIONS:

            Both Plaintiffs will dismiss this lawsuit, with prejudice, as to
      the Defendant.
            5.     TOTAL AMOUNT OF PROPOSAL:

            Seventeen Thousand Five Hundred Dollars and no cents
      ($17,500.00).
Arnold constructively rejected the proposal when he did not respond within thirty

days. Id.; see also Fla. R. Civ. P. 1.442(f)(1) (“A proposal shall be deemed


                                        -2-
rejected unless accepted by delivery of a written notice of acceptance within 30

days after service of the proposal.”).

      After a jury trial, a verdict was entered against Arnold in the amount of

$26,055.54 for Audiffred’s past medical expenses. Arnold, 98 So. 3d at 747.

However, the jury did not award anything to Audiffred for permanent damages or

to Kimmons for the loss of consortium claim. Id. at 747-48. Audiffred and

Kimmons then filed a motion that sought an award of costs and attorney’s fees

pursuant to section 768.79, Florida Statutes (2014),1 the offer of judgment statute,

and Florida Rule of Civil Procedure 1.442. Id. at 748. Arnold moved to strike the

settlement proposal on the basis that it was defective because it was filed only on

behalf of Audiffred, but offered to settle the claims of both Audiffred and

Kimmons. Arnold asserted that unapportioned settlement proposals that resolve

the claims of multiple parties are improper, even where one claim is a loss of

consortium claim filed by a spouse.

      After a hearing, the trial court denied the motion to strike and entered an

amended final judgment that awarded Audiffred and Kimmons costs and attorney’s

fees. The trial court explained:

      the offer in this case was clear and unambiguous in that it identified
      the parties and clearly identified the monetary and non-monetary

      1. Section 768.79 has not been amended since the incident in this case.
Therefore, we reference the current version of the statute.


                                         -3-
      conditions, that both plaintiffs would dismiss their lawsuit with
      prejudice. Regardless of whether or not Valerie Audiffred had the
      authority to bind Robert Kimmons to a voluntary dismissal in the
      event that the defendant had accepted the proposal for settlement, the
      defendant clearly had the ability to evaluate the proposal and accept it
      on its terms. . . . Under the circumstances of this case[,] where
      Kimmons was represented by the same attorney that represented
      Audiffred, the Court finds that the proposal for settlement, including a
      provision that both plaintiffs would dismiss their lawsuit against the
      defendant, was unambiguous and legally sufficient.

      On appeal, the First District reversed the award of costs and attorney’s fees.

Arnold, 98 So. 3d at 747. The district court concluded that the settlement offer

constituted a joint proposal because, when read as a whole, it clearly expressed that

Audiffred and Kimmons would dismiss their claims against Arnold with prejudice

upon acceptance. Id. at 748. The district court also noted:

             The Florida Supreme Court stated in Willis Shaw Express, Inc.
      v. Hilyer Sod, Inc. that “[a] strict construction of the plain language of
      rule 1.442(c)(3) requires that offers of judgment made by multiple
      offerors must apportion the amounts attributable to each offeror.” 849
      So. 2d 276, 278-79 (Fla. 2003). When multiple offerors make a
      proposal for settlement to a single offeree, that individual is entitled to
      know the amount and terms attributable to each offeror in order to
      properly evaluate the offer. Allstate Ins. Co. v. Materiale, 787 So. 2d
      173, 175 (Fla. 2d DCA 2001).
Id. Relying on Hilyer Sod, the First District held that the proposal was invalid for

failure to comply with section 768.79 and rule 1.442 because it did not apportion

the settlement amount between Audiffred and Kimmons. Id. at 747-48.

      We granted review of Arnold based upon express and direct conflict with

decisions that hold a proposal for settlement made by a single offeror to a single


                                         -4-
offeree which upon acceptance will dismiss the entire action, including claims for

or against a party who is neither an offeror nor offeree, is not an undifferentiated

“joint proposal” that renders the offer invalid and unenforceable. See, e.g.,

Andrews v. Frey, 66 So. 3d 376 (Fla. 5th DCA 2011); Eastern Atl. Realty & Inv.

Inc. v. GSOMR LLC, 14 So. 3d 1215 (Fla. 3d DCA 2009); Alioto-Alexander v.

Toll Bros., Inc., 12 So. 3d 915 (Fla. 4th DCA 2009).

                                    ANALYSIS

                                Relevant Provisions

      Section 768.79, Florida Statutes, governs offers of judgment, and rule 1.442

delineates the procedures that implement this statutory provision. See Hilyer Sod,

849 So. 2d at 278. 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
      recover reasonable costs and attorney’s fees incurred by her or him or
      on the defendant’s 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 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. . . . 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. . . .

            (2) The making of an offer of settlement which is not accepted
      does not preclude the making of a subsequent offer. An offer must:


                                         -5-
            (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.

      The offer shall be construed as including all damages which may be
      awarded in a final judgment.

Rule 1.442 provides, in relevant part:

      (c) Form and Content of Proposal for Settlement.
            ....
            (2) A proposal shall:

             (A) name the party or parties making the proposal and the party
      or parties to whom the proposal is being made;
             ....
             (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;
             ....
             (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 (emphasis supplied).2




      2. In 2011, the rule was amended to add subdivision (c)(4). The new
subdivision, which is not applicable to this case, states:

             Notwithstanding subdivision (c)(3), when a party is alleged to
      be solely vicariously, constructively, derivatively, or technically
      liable, whether by operation of law or by contract, a joint proposal
      made by or served on such a party need not state the apportionment or

                                         -6-
      In the recent case Pratt v. Weiss, No. SC12-1783 (Fla. Apr. 16, 2015), we

articulated the standards under which motions for costs and attorney’s fees sought

pursuant to section 768.79 and rule 1.442 are evaluated:

             The eligibility to receive attorney’s fees and costs pursuant to
      section 768.79 and rule 1.442 is reviewed de novo. See Frosti v.
      Creel, 979 So. 2d 912, 915 (Fla. 2008). This Court has held that
      subdivision (c)(3) of rule 1.442, which requires a joint proposal to
      state the amount and terms attributable to each offeror or offeree, must
      be strictly construed because it, as well as the offer of judgment
      statute, is in derogation of the common law rule that each party is
      responsible for its own fees. See Hilyer Sod, 849 So. 2d at 278; see
      also Gershuny v. Martin McFall Messenger Anesthesia Prof. Ass’n,
      539 So. 2d 1131, 1132 (Fla. 1989) (“[T]he rule in Florida requires that
      statutes awarding attorney’s fees must be strictly construed.”). [n.4]
      Thus, to be valid, an offer of judgment presented by multiple offerors
      must apportion the amount that is attributable to each offeror. Hilyer
      Sod, 849 So. 2d at 278-79.

            [N.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).
             The purpose of the apportionment requirement in the rule is to
      allow each offeree to evaluate the terms and the amount of the offer as
      it pertains to him or her. See id. at 278 (quoting Allstate Ins. Co. v.
      Materiale, 787 So. 2d 173, 175 (Fla. 2d DCA 2001)). On more than
      one occasion, the Fourth District has referred to the requirement as a
      “bright line rule,” to be applied without exception. See Cano v.


      contribution as to that party. Acceptance by any party shall be
      without prejudice to rights of contribution or indemnity.
In re Amends. to Fla. Rules of Civ. Pro., 52 So. 3d 579, 588 (Fla. 2010).

                                        -7-
      Hyundai Motor America, Inc., 8 So. 3d 408, 411 (Fla. 4th DCA
      2009); Graham v. Yeskel, 928 So. 2d 371, 373 (Fla. 4th DCA 2006).
      Strict application of the requirement has resulted in the invalidation of
      offers of judgment where two plaintiffs presented an unapportioned
      settlement offer to one defendant, see Hilyer Sod, 849 So. 2d at 277;
      where one plaintiff presented an unapportioned settlement offer to two
      defendants, even though one defendant was alleged to be only
      vicariously liable, see Lamb[ v. Matetzschk, 906 So. 2d 1037, 1040
      (Fla. 2005)]; [n.5] and where one defendant presented an offer to two
      plaintiffs that was conditioned upon the acceptance of both plaintiffs,
      see Attorneys’ Title Insurance Fund, Inc. v. Gorka, 36 So. 3d 646,
      647-48 (Fla. 2010). We held that the proposal in Gorka was invalid
      because the conditional nature of the offer divested each plaintiff of
      independent control over the decision to settle. Id. at 649.
             [N.5.] Lamb was decided prior to the 2011 amendment
             to rule 1.442.
Id. at 6-8. Further, in Materiale, the Second District Court of Appeal noted that

apportionment of the settlement amount can be particularly important where a loss

of consortium claim is involved because a defendant may elect to settle the

consortium claim for a minimal amount, but proceed to trial on the primary claim.

787 So. 2d at 175; see also id. at 176 (Casanueva, J., concurring) (“[W]here a

consortium claim is joined with a claim for personal injuries, the former claim may

be more amenable to settlement than the latter because it may involve less

money.”).

      Also relevant to our analysis today is subdivision (c)(2)(C) of rule 1.442,

which requires that a proposal state “with particularity” any relevant conditions.

While the rule does not require an offer to be completely free of ambiguity, we



                                        -8-
have explained that the proposal must be sufficiently clear to permit the offeree to

reach an informed decision without the need of clarification. State Farm Mut.

Auto. Ins. Co. v. Nichols, 932 So. 2d 1067, 1079 (Fla. 2006). If ambiguity within

a proposal could reasonably affect the decision of an offeree, the proposal will not

satisfy the particularity requirement. Id.

                                       This Case

      Based upon these standards, we hold that the proposal for settlement did not

comply with section 768.79 and rule 1.442. The complaint in this case involved

separate claims by Audiffred and Kimmons. Although the proposal lists Audiffred

as the sole offeror, if accepted by Arnold, the offer would have resolved all

pending claims by both Audiffred and Kimmons. Thus, the proposal had the effect

of settling claims by two plaintiffs against one defendant. Under the required strict

construction of the rule and the statute, this ultimate effect of the offer requires that

it be treated as a joint proposal.3 Accordingly, for the proposal to be valid, it was




      3. Not only did the offer have the effect of a joint proposal, but the
subsequent motion for costs and attorney’s fees filed after rendition of the verdict
supports a conclusion that the offer was a joint proposal because it expressly
provided:
            Plaintiffs, VALERIE AUDIFFRED and ROBERT KIMMONS,
      by and through undersigned counsel, and pursuant to Florida Statute §
      768.79, as well as Florida Rules of Civil Procedure, 1.442 and 1.525,
      hereby respectfully requests this Court to enter judgment against the
      Defendant in the amount of Plaintiff’s attorneys’ fees . . . which have

                                          -9-
necessary for the amount offered to be apportioned between Audiffred and

Kimmons.

      The proposal, however, does not describe what portion of the amount

offered would be applicable to Audiffred, and what portion would be applicable to

Kimmons. As written, the proposal does not clearly convey whether the settlement

amount would be divided evenly between Audiffred and Kimmons, whether one

plaintiff would take nothing while the other would receive the full amount offered,

or whether some measure between the two was intended. Although Audiffred

asserts that the intent of the proposal was for Kimmons not to receive any portion

of the settlement amount for his loss of consortium claim, the actual language of

the proposal is not at all clear on this matter. Instead, the proposal states only that

upon payment of $17,500, Audiffred and Kimmons would “dismiss this lawsuit,

with prejudice, as to the Defendant.”

      We conclude that due to this patent ambiguity, the offer lacked sufficient

clarity to permit Arnold to reach an informed decision with regard to the settlement

amount against the pending claims by Audiffred and Kimmons. See generally

Nichols, 932 So. 2d at 1079. Accordingly, the settlement proposal was fatally



      accrued since the date Plaintiffs served their Proposal for Settlement
      on Defendant.
(Emphasis supplied.) Thus, the motion recognized that the proposal, had it been
accepted, would have settled the claims of two plaintiffs.

                                         - 10 -
ambiguous and, therefore, invalid because it failed to state with particularity this

critical condition of the offer. Fla. R. Civ. P. 1.442(c)(2)(C). Accordingly, the

First District properly reversed the award of costs and attorney’s fees to Audiffred

and Kimmons.

                                   CONCLUSION

      Based on the foregoing, we approve the decision in Arnold. We hold that

when a single offeror submits a settlement proposal to a single offeree pursuant to

section 768.79 and rule 1.442, and the offer resolves pending claims by or against

additional parties who are neither offerors nor offerees, it constitutes a joint

proposal that is subject to the apportionment requirement in subdivision (c)(3) of

the rule. We conclude that the statute and the rule mandate apportionment under

such circumstances to eliminate any ambiguity with regard to the resolution of

claims by nonofferor/nonofferee parties. The decisions in Frey, GSOMR, and

Alioto-Alexander are disapproved to the extent they are inconsistent with this

opinion.

      It is so ordered.

LABARGA, C.J., and PARIENTE, QUINCE and PERRY, JJ., concur.
CANADY, J., dissents with an opinion, in which POLSTON, J., concurs.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.




                                         - 11 -
CANADY, J., dissenting.

      Because there is no express and direct conflict of decisions underpinning the

Court’s review, I would dismiss this case for lack of jurisdiction under article V,

section 3(b)(3) of the Florida Constitution.

      Although the proposal for settlement in the case before us stated at the outset

that it was submitted only by Audiffred, the First District concluded that it actually

constituted a joint proposal. Arnold v. Audiffred, 98 So. 3d 746, 748 (Fla. 1st

DCA 2012). The district court reasoned that the proposal was jointly made

because, when read as a whole, it clearly expressed a promise that both plaintiffs

Audiffred and Kimmons would dismiss their individual claims against Arnold

upon acceptance. Id. Because the joint proposal did not apportion the amount

offered between Audiffred and Kimmons, the district court held that the proposal

was invalid. Id. at 747.

      The majority granted review of this case based upon express and direct

conflict with the decisions of the other district courts in Andrews v. Frey, 66 So. 3d

376 (Fla. 5th DCA 2011), Eastern Atlantic Realty & Investment Inc. v. GSOMR

LLC, 14 So. 3d 1215 (Fla. 3d DCA 2009), and Alioto-Alexander v. Toll Brothers,

Inc., 12 So. 3d 915 (Fla. 4th DCA 2009). Majority op. at 4-5. However, the

district courts concluded that the proposals in each of those cases were made by a

sole offeror, and therefore they were not required to state the amount and terms


                                        - 12 -
attributable to each party. Frey, 66 So. 3d at 379; Eastern, 14 So. 3d at 1222;

Alioto-Alexander, 12 So. 3d at 916-17.

      In Frey and Alioto-Alexander, the proposals at issue were made by a single

defendant and were conditioned on the plaintiff releasing from liability both the

offeror defendant and a second nonofferor defendant. Frey, 66 So. 3d at 378;

Alioto-Alexander, 12 So. 3d at 916. The district courts in both cases found that the

proposals were not jointly made and that a proposal from one party conditioned on

the offeree also releasing another party from liability does not transform an offer

into a joint proposal. Frey, 66 So. 3d at 378; Alioto-Alexander, 12 So. 3d at 917.

However, the First District distinguished the proposals in Frey and Alioto-

Alexander from the instant case because the proposals in those cases “did not

promise that another individual would take affirmative action upon acceptance of

the proposal,” but here Audiffred’s proposal promised that another individual,

Kimmons, would take affirmative action—i.e., dismiss his claims against Arnold—

upon acceptance of the offer. Arnold, 98 So. 3d at 749.

      In Eastern, both Biscayne Joint Venture, Ltd. (“BJV”) and GSOMR, LLC

(“GSOMR”) filed claims against Eastern Atlantic Realty and Investment, Inc.

(“Eastern”). 14 So. 3d at 1218. Eastern then counterclaimed against BJV, and the

cases were consolidated. Id. BJV served a proposal for settlement offering

$20,000 and dismissal of both BJV’s and GSOMR’s claims against Eastern, in


                                        - 13 -
exchange for Eastern’s dismissal of its claims against BJV. Id. The Third District

held that the proposal was not a joint proposal that failed to apportion the amount

offered between BJV and GSOMR because it “explicitly state[d] that BJV was the

party making the offer to pay Eastern $20,000.” Id. at 1221.

      The cases on which the majority relies to establish this Court’s jurisdiction

based on express and direct conflict are factually distinguishable from Arnold.

While the proposal in Arnold was determined to be a joint proposal that failed to

apportion the settlement amount between the two offerors, the proposals in Frey,

Eastern, and Alioto-Alexander were found to be made by a single offeror.

Consequently, the First District did not reach an opposite holding based on the

same or closely similar controlling facts to those in Frey, Eastern, or Alioto-

Alexander. Therefore, I conclude that this Court is without jurisdiction to review

Arnold based on express and direct conflict. Accordingly, I dissent.

POLSTON, J., concurs.

Application for Review of the Decision of the District Court of Appeal - Direct
Conflict of Decisions

      First District - Case No. 1D11-6583

      (Escambia County)



Marcus Joseph Michles, II of Michles & Booth, P.A, Pensacola, Florida, and Louis
Kahn Rosenbloum of Louis K. Rosenbloum, P.A, Pensacola, Florida,


                                        - 14 -
      for Petitioner

Jeffrey Errol Bigman of Smith, Hood, Loucks, Stout, Bigman, & Brock, P.A.,
Daytona Beach, Florida, and Michelle Lynn Hendrix of Vernis & Bowling,
Pensacola, Florida,

      for Respondent




                                     - 15 -
