During the litigation, Geico served two proposals for settlement on Mr. Dowd.

The proposals for settlement provided in part:

The Defendant, GEICO GENERAL INSURANCE COMPANY, claims this proposal is attempting to resolve all of the claims for affirmative relief made by the Plaintiff, KEVIN DOWD, as against Defendant, GEICO GENERAL INSURANCE COMPANY, in the above-styled action and all claims for affirmative relief which could have been raised as compulsory claims by KEVIN DOWD to this action, as well as any current counter-claims.

The releases attached to each proposal for settlement, however, contained noticeably broader language:

[Geico] is released on account of and from any or all manner of action and actions, cause and causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments executions, claims demands and liability whatsoever, including any and all claims for personal injuries, medical expenses or property damage, in law or equity, which against [Geico], [Mr. Dowd] ever had, now has, or may have in the future (including any claim for wrongful death), or which his heirs, executors/administrators, successors/assigns, statutory survivors, and/or personal representatives, hereafter can, shall, or may have, arising on account of or in connection with any of the issues that were raised or could have been raised in Case Number: 2011 23508 CA 01 now pending in the Circuit Court of the Eleventh Judicial Circuit of Florida in and for Miami, Dade County, Florida as well as any future action arising on account of or in connection with the accident which allegedly occurred on or about March 27, 2010.

[Mr. Dowd] understands and agrees that in accepting the sum stated above he does so in full settlement of any and all claims that he now has or which he may have in the future, or which might accrue to him or his heirs, statutory survivors, personal representatives, executors/administrators, successors/assigns, as against any of the herein Releasee [Geico] for damage or injuries as a result of or in connection with the incident described above, as well as for all consequences, effects, and results of any such injury or damages, whether the same is now known or unknown, expected or unexpected, or have already occurred or developed, or may be latent, or may in the future occur or develop.

The case was tried and the jury returned a verdict finding Mr. Dowd and the driver that struck him to each be 50 percent responsible. The jury awarded Mr. Dowd $110,000 for past medical expenses, but did not award future damages or past or future pain and suffering.

Following a hearing on post-trial motions filed by both parties, the trial court entered final judgment in favor of Mr. Dowd in the amount of $5,000.

Geico moved for attorneys' fees based on its proposals for settlement.

Mr. Dowd argued that the proposals for settlement were ambiguous due to a discrepancy in the language between the actual proposals and the respective releases attached to each one.

The trial court subsequently held a hearing on Geico's motion for fees and found that the proposals for settlement were not ambiguous. It granted Geico attorneys' fees. An amended final judgment awarding Geico $45,000 was entered.

Mr. Dowd appealed. He argued that language in Geico's proposals for settlement could not be reconciled with the language of the releases, thereby resulting in ambiguity.

The Appellate Court's Decision

The appellate court reversed.

In its decision, the appellate court explained that Florida Rule of Civil Procedure 1.442 required that proposals for settlement be described with particularity. It added that although “perfection” was not required, “clarity” was. The appellate court said that the rule required that a settlement proposal “be sufficiently clear and definite to allow the offeree to make an informed decision without needing clarification.” If ambiguity within the proposal could reasonably affect the offeree's decision, the appellate court added, the proposal did not satisfy the particularity requirement.

Here, the appellate court ruled, the discrepancy between a limited proposal of settlement and a “much broader release” created the type of ambiguity that violated the particularity requirement in the rule.

The appellate court reasoned that Mr. Dowd still may have had a viable personal injury protection (“PIP”) claim against Geico and it was “unclear under the terms of the releases whether such a claim was intended to be included among those being released.” The appellate court noted that it was not a “compulsory” claim as set forth in the settlement proposals, but said that it might fall under the “umbra of the broader release language.”

Accordingly, the appellate court declared, Mr. Dowd's decision to accept or reject the proposals had been “reasonably affected by the ambiguity created among the documents.”

The appellate court concluded that because Geico's entitlement to attorneys' fees was based on the proposals for settlement, and the proposals were unenforceable because of the ambiguity created between the releases and the proposals, the trial court's order had to be reversed.

The case is Dowd v. Geico General Ins. Co., No. 3D15-1725 (Fla. Ct.App. June 28, 2017). Attorneys involved include: DEEHL PLLC, and David L. Deehl; Mandina & Ginsberg, LLP, and Marc R. Ginsberg, for appellant. Cole, Scott & Kissane, P.A., and Scott A. Cole and Kathryn L. Ender, for appellee.