The Florida Fourth District Court of Appeal, 110 South Tamarind Ave., West Palm Beach, Florida. Photo: J. Albert Diaz/ALM
Oops!
Florida's Fourth District Court of Appeal just overturned a $90,000 mistake made by a South Florida law firm in transmitting a settlement offer in a personal injury case.
Plaintiffs counsel Ryan M. Wechsler, who was then with the Law Offices of Berman & Berman in Boca Raton, said his paralegal meant to send a proposal for settlement seeking the defendant's policy limit of $100,000, according to a motion to withdraw the proposal for settlement.
But instead, the firm mistakenly entered $10,000 on the proposal, according to court records.
Once they received the offer, defendants Viktoria Schaub and State Farm Mutual Automobile Insurance Co. immediately filed a notice of acceptance. They sent the plaintiff a check for $10,000 the next day, which tipped plaintiffs counsel to the mistake, according to the Fourth DCA opinion.
Click here to read the full ruling
'Ultimate Responsibility'
When the plaintiff filed a motion to withdraw the proposal because of the "inadvertent error in preparing the offer," the Indian River Circuit Court denied the motion.
The plaintiff's motion pointed out that the $10,000 check was an "obvious error" because the plaintiff, Kyle Dale, had medical bills of more than $58,000.
Plus, defendant Schaub had already made offers to settle in excess of $10,000.
"I don't have my paralegal prepare them because I don't want errors like this to happen," the plaintiff's trial-level attorney said at the hearing on the motion to withdraw at the trial court, according to the Fourth DCA opinion. "I am not sure how she got confused in preparing her own [settlement proposal] and then filing them and serving them without my initial approval."
Schaub's counsel objected, claiming, "there was an offer, acceptance, and valid consideration." And the Indian River Circuit Court, in its denial of the motion, said the Fourth DCA required the trial court to accept a settlement proposal "on its face when it is clear and unequivocal on its face."
The trial court continued: "Your signature is on the document. You have the ultimate responsibility to review what goes out of your office."
Read the Fourth DCA opinion:
Reversal
But the appellate panel found that the circuit court judge had erred in denying the motion to withdraw the proposal, because the offer to settle at $10,000 was made due to a unilateral mistake, and plaintiff's counsel did not have any authority to settle the claim for the erroneous amount.
"The record is clear that this proposal for settlement was never authorized by plaintiff and that it was the result of a simple mistake, such that further proceedings on this issue would be a waste of time and pursued in bad faith," the Fourth DCA stated in its opinion.
Warren B. Kwavnick, a partner at Cooney Trybus Kwavnick Peets in Fort Lauderdale who represents defendant Schaub, did not respond to a request for comment.
Altamonte Springs attorney Chad Barr, the appellate attorney who represented the plaintiff before the Fourth DCA, said the trial judge just got it wrong and this sort of error happens occasionally.
"The focus was on the wrong factors in considering the proposal for settlement," Barr said. "Fortunately the appellate court saw and understood what the law was, and analyzed it from the correct perspective. We're very happy with the ruling."
Barr also said the case provided an important lesson: "Make sure you're reviewing everything that goes out of your office. We get complacent at times and we rely on our staff to do some of the things we're really responsible for."
Editors Note: This isn't the first time a comma or other punctuation mark has caused problems in insurance contracts. Read about some of those cases here:

