IN THE SUPREME COURT OF FLORIDA. Petitioner, L.T. Nos.: 3D PETITIONER S JURISDICTIONAL BRIEF

Transcription

1 IN THE SUPREME COURT OF FLORIDA MIGUEL A. FONSECA, v. Petitioner, Case No.: SC L.T. Nos.: 3D MERCURY INSURANCE COMPANY OF FLORIDA, Respondent. / PETITIONER S JURISDICTIONAL BRIEF Proceeding to Invoke Discretionary Jurisdiction from the Third District Court of Appeal of Florida Submitted by: SHEA T. MOXON Florida Bar No.: SWOPE, RODANTE P.A. ANGELA E. RODANTE Florida Bar No.: East 5 th Avenue Tampa, Florida (813) Attorneys for the Petitioner

2 TABLE OF CONTENTS Table of Citations.....iii Statement of the Case and of the Facts....1 Summary of the Argument 3 Argument: The Decision of the District Court of Appeal Expressly and Directly Conflicts with this Court s Decisions in Pierpont v. Lee County, 710 So. 2d 958 (Fla. 1998) and Atlantic Coast Line Railroad Co. v. Turman, 86 So. 199 (Fla. 1920)..3 A. Introduction B. Basis for Jurisdiction...5 C. Express and Direct Conflict with Pierpont. 5 D. Express and Direct Conflict with Turman..8 Conclusion....9 Certificate of Service Certificate of Compliance ii

3 TABLE OF CITATIONS Cases Aravena v. Miami-Dade County, 928 So. 2d 1163 (Fla. 2006)....9 Atlantic Coast Line Railroad Co. v. Turman, 86 So. 199 (Fla. 1920)..passim Bateski v. Ransom, 658 So. 2d 630 (Fla. 2d DCA 1995)..6 Blackhawk Heating & Plumbing Co. v. Data Lease Fin. Corp., 302 So. 2d 404 (Fla. 1974)..7 Cheverie v. Geisser, 783 So. 2d 1115 (Fla. 4 th DCA 2001)..4, 6, 7 Crossley v. State, 596 So. 2d 447 (Fla. 1992)...9 Ford Motor Co. v. Kikis, 401 So. 2d 1341 (Fla. 1981)...5 Nichols v. Martell, 612 So. 2d 657 (Fla. 3d DCA 1993)... 2 Peraza v. Robles, 983 So. 2d 1189 (Fla. 3d DCA 2008)... 2 Pierpont v. Lee County, 710 So. 2d 958 (Fla. 1998)....passim Robbie v. City of Miami, 469 So. 2d 1384 (Fla. 1985)...4, 7 State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So. 2d 1067, 1079 (Fla. 2006)...7 Strong & Trowbridge Co. v. H. Baars & Co., 54 So. 92 (Fla. 1910)....6, 7 Tampa v. Port Tampa, 127 So. 2d 119 (Fla. 2d DCA 1961).8 Constitutional Provisions, Statutes, and Court Rules Art. V, 3(b)(3) Fla. Const , 9 iii

4 73.092, Fla. Stat. (Supp. 1994)... 6 Fla. R. App. P (a)(2)(A)(iv). 5, 9 Other Authorities Arthur Linton Corbin, Corbin on Contracts (Joseph M. Perillo ed., rev. ed. 1993)..6 iv

5 STATEMENT OF THE CASE AND OF THE FACTS The Petitioner, Miguel Fonseca (hereafter Fonseca ), was injured in a car accident allegedly caused by a policy holder of the Respondent, Mercury Insurance Company of Florida (hereafter Mercury ). (Appendix, p. 2). After the accident, an attorney representing Fonseca sent a letter to Mercury stating, This letter shall serve as a formal demand for a tendering of any and all policy limits including umbrella coverages. (Appendix, p. 2). Two days later, Mercury responded with a letter stating, As requested, this carrier is tendering it s [sic] bodily injury policy limits. Accordingly, enclosed is this carrier s settlement check in the amount of $10, Also enclosed is a proposed settlement release which is not intended to be a final instrument until you have approved. If you should require any changes or additions, please advise. Otherwise, please see that [Fonseca] executes the release.... (Appendix, p. 2). Fonseca later filed suit against Mercury s insured. (Appendix, p. 2). Mercury s insured raised an affirmative defense that Fonseca s claim had been settled. (Appendix, p. 2). Mercury filed a separate action seeking a declaratory judgment that the claim had been settled, and the two cases were consolidated. (Appendix, p. 2). The trial court entered summary judgment in favor of Fonseca, ruling that the correspondence between Fonseca and Mercury was not sufficient to 1

6 form a settlement. (Appendix, p. 2). Mercury appealed to the Third District Court of Appeal. In an opinion issued February 11, 2009, the District Court of Appeal reversed and held that there was an enforceable settlement. (Appendix). It held that Fonseca s initial letter demanding tender of the policy limits was a settlement offer, stating, The demand letter sent by Fonseca s counsel is not unique and the question of whether it constitutes an offer has already been answered by this Court. Peraza v. Robles, 983 So. 2d 1189, 1190 (Fla. 3d DCA 2008); see Nichols v. Martell, 612 So. 2d 657, 658 (Fla. 3d DCA 1993) (finding that a similar demand letter was more than a mere invitation to settle). The demand letter in Peraza stated Please tender the policy limits within fifteen (15) days or we will consider [the insurance company] is acting in bad faith. Here, as was the case in Peraza, the demand letter constituted an offer to settle. (Appendix p. 3) (footnote omitted). This holding is the basis for Fonseca s request for discretionary review. Having concluded that Fonseca s initial letter was a settlement offer, the District Court went on to hold that Mercury s response was an acceptance which resulted in an enforceable settlement. (Appendix, pp. 3 4). Fonseca filed a motion for rehearing on February 27, The District Court denied the motion on March 25, Fonseca filed a notice to invoke the discretionary jurisdiction of this Court on April 20,

7 SUMMARY OF THE ARGUMENT The District Court s decision holds that Fonseca s letter to Mercury demanding a tender of Mercury s policy limits was a settlement offer, although it did not contain any language expressing an assent to the settlement of Fonseca s claim. This holding expressly and directly conflicts with this Court s decision in Pierpont v. Lee County, 710 So. 2d 958 (Fla. 1998), which defined an offer as an expression by a party of assent to certain definite terms. It also expressly and directly conflicts with this Court s decision in Atlantic Coast Line Railroad Co. v. Turman, 86 So. 199 (Fla. 1920), which held that a similar letter in which a plaintiff demanded a certain sum as compensation for his injuries did not constitute an offer of compromise. The Court should accept jurisdiction to correct the inconsistency in Florida law that the District Court s decision has created on the question of what constitutes an offer. ARGUMENT THE DECISION OF THE DISTRICT COURT OF APPEAL EXPRESSLY AND DIRECTLY CONFLICTS WITH THIS COURT S DECISIONS IN PIERPONT V. LEE COUNTY, 710 SO. 2D 958 (FLA. 1998) AND ATLANTIC COAST LINE RAILROAD CO. V. TURMAN, 86 SO. 199 (FLA. 1920) A. Introduction. The District Court s opinion holds that Fonseca s initial letter to Mercury, which demanded that Mercury tender its limits, constituted a settlement offer even 3

8 though it did not contain any language stating that Fonseca would settle his claim or release Mercury s insured in exchange for the policy limits. This holding expressly and directly conflicts with the Court s decisions in Pierpont v. Lee County, 710 So. 2d 958 (Fla. 1998) and Atlantic Coast Line Railroad Co. v. Turman, 86 So. 199 (Fla. 1920), as will be shown. The question of whether the letter constituted an offer arose because an offer is necessary to the formation of a settlement agreement. Settlements are governed by the law of contracts. Robbie v. City of Miami, 469 So. 2d 1384, 1385 (Fla. 1985). As with any other contract, the making of a settlement requires an offer and an acceptance. See Cheverie v. Geisser, 783 So. 2d 1115, (Fla. 4 th DCA 2001) (holding that no enforceable settlement was formed because there was not a valid acceptance of a settlement offer). Therefore, when a party raises a claim or defense alleging that there has been a settlement, the court must first determine whether there was ever an offer to settle. Without a settlement offer, there can be no settlement. The District Court s holding that Fonseca s letter constituted a settlement offer will have a far-reaching impact on how courts will resolve claims and defenses alleging settlement. Every case filed in Florida may potentially be settled, so it is essential that Florida courts have a consistent body of law to guide their determinations of whether and when an enforceable settlement has been 4

9 reached, including the determination of whether a particular communication constitutes a settlement offer. Because the Third District s decision in this case conflicts with this Court s decisions in Pierpont and Turman regarding the proper definition of an offer, the Court should accept jurisdiction to correct the inconsistency in Florida law that results from the Third District s decision B. Basis for Jurisdiction. This Court has discretionary jurisdiction under Article V, section 3(b)(3) of the Florida Constitution and Florida Rule of Appellate Procedure 9.030(a)(2)(A)(iv) to review decisions of district courts of appeal that expressly and directly conflict with a decision of another district court of appeal or of the Supreme Court on the same question of law. In order for the conflict to be express, the district court s opinion must discuss the basis for its decision. See Ford Motor Co. v. Kikis, 401 So. 2d 1341, 1342 (Fla. 1981). It is not necessary that the district court s opinion explicitly identify conflicting district court or Supreme Court decisions in order to create an express conflict. Id. C. Express and Direct Conflict with Pierpont. In Pierpont, the Court set forth the following definition of an offer: An offer is an expression by a party of assent to certain definite terms, provided that the other party involved in the bargaining transaction will likewise express assent to the same terms. 5

10 Pierpont, 710 So. 2d at 960 (citing Arthur Linton Corbin, Corbin on Contracts 1.11, at 28 (Joseph M. Perillo ed., rev. ed. 1993)). Based on this definition, the Court held in Pierpont that in eminent domain proceedings, the condemning authority s good-faith estimate of the value of the property does not constitute a written offer for the purpose of determining whether the property owner is entitled to attorney s fees under section , Florida Statutes (Supp. 1994). In this case, Fonseca s letter to Mercury demanding tender of the policy limits did not meet the Pierpont definition of offer because it did not express assent to any definite terms of a settlement. It did not state in any fashion that Fonseca assented to settling his claim if the policy limits were paid. The full import of Pierpont s definition of an offer becomes clearer when it is viewed in the context of other principles of Florida contract law that govern the formation of settlements. To be enforceable, a settlement must be sufficient specific and the parties must mutually agree on every essential element. Cheverie, 783 So. 2d at 1118; Bateski v. Ransom, 658 So. 2d 630, 631 (Fla. 2d DCA 1995). There must be a meeting of the minds or mutual assent to a certain and definite proposition. Strong & Trowbridge Co. v. H. Baars & Co., 54 So. 92, 93 (Fla. 1910); Bateski, 658 So. 2d at 631. The parties must actually give their assent, and the assent must be to precisely the same thing at the same instant of time. Strong & Trowbridge Co., 54 So. at 93. To determine whether an enforceable contract 6

11 has been formed, Florida courts apply an objective test, which as been stated as follows: The making of a contract depends not on the agreement of two minds in one intention, but on the agreement of two sets of external signs not on the parties having meant the same thing but on their having said the same thing. Blackhawk Heating & Plumbing Co. v. Data Lease Fin. Corp., 302 So. 2d 404, 407 (Fla. 1974), quoted in Robbie, 429 So. 2d at An acceptance of a settlement offer must be absolute, unconditional, and identical with the terms of the offer. Strong & Trowbridge Co., 54 So. at 93; Cheverie, 783 So. 2d at The purpose of each of these rules is to ensure that courts will find an enforceable settlement only when the parties have explicitly communicated to each other their complete agreement to a set of definite terms, including all terms that are essential to an enforceable agreement. It follows that an offer must contain a clear and definite statement of all essential terms of the proposed agreement, so that if the offer is accepted, the parties will have given their assent to precisely the same terms at the same time. See Strong & Trowbridge Co., 54 So. at Under the District Court s reasoning, however, any bare demand for payment of money, with nothing more, will be construed to be a settlement offer 1 In an analogous area of the law, a statutory proposal for settlement is required to state all relevant conditions and non-monetary terms with particularity so that the proposal will be capable of immediate execution without judicial clarification if it is accepted. State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So. 2d 1067, 1079 (Fla. 2006). 7

12 even though it states nothing about any other essential terms of a proposed settlement, such as which claims will be settled; the identities of the parties to the settlement; what type of release will be given, if any; and who will be released. The approach taken by the District Court in this case leaves it to the courts to fill in these terms, contrary to the principle that a court does not have a right to make a contract for the parties. See Tampa v. Port Tampa, 127 So. 2d 119, 120 (Fla. 2d DCA 1961). Most significantly, the District Court s opinion permits courts to infer a party s assent to settle his claim based on a demand letter that does not contain any expression of assent to settlement. This conflicts with Pierpont s definition of an offer, which requires that an offer express assent to certain definite terms. D. Express and Direct Conflict with Turman. Turman held that a letter which was virtually identical to Fonseca s demand letter to Mercury was not an offer of compromise. In that case, Turman, who was injured in an accident involving a railroad, wrote a letter to the railroad s law agent that summarized his injuries and wage loss, and concluded, I expect the railroad to pay me $2, for my damages. Turman, 86 So. at 286. At trial, the trial court admitted into evidence the portions of the letter describing Turman s injuries and wage loss, but excluded the portion demanding payment of $2,000 on the ground that it was an offer of compromise. This Court reversed, and held, It appears from the letter that it was not an offer to accept a reduced amount as a compromise, but a statement of the injuries 8

13 received and the value thereof. The letter should have been admitted as an entirety. Id. Like Turman s letter, Fonseca s letter to Mercury only demanded payment of a sum of money for his injuries, and did not express any offer to accept that amount as a compromise or settlement. Turman is not distinguishable in any material respect. Because the District Court reached the opposite result from Turman based on virtually identical controlling facts, there is a sufficient conflict of decisions to warrant this Court s accepting jurisdiction. Crossley v. State, 596 So. 2d 447, 449 (Fla. 1992); see also Aravena v. Miami-Dade County, 928 So. 2d 1163, 1166 (Fla. 2006) (one of the tests for conflict jurisdiction is whether the decisions are irreconcilable). CONCLUSION This Court has discretionary jurisdiction under Article V, section 3(b)(3) of the Florida Constitution and Florida Rule of Appellate Procedure 9.030(a)(2)(A)(iv) to review the decision of the Third District Court of Appeal based on express and direct conflict with this Court s decisions in Pierpont and Turman. For the reasons argued herein, the Court should exercise its discretion to accept jurisdiction. 9

14 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via U.S. Mail to Elizabeth K. Russo of Russo Appellate Firm, P.A., 6101 SW 76 th Street, Miami, FL and Evan Lubell of Berke, Lubell & Brunner, P.A., 1003 Del Prado Boulevard, Suite 300, Cape Coral, FL on this _30th_ day of April, CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that the font used herein is fourteen-point Times New Roman. Respectfully Submitted, Shea T. Moxon Florida Bar No.: Swope, Rodante P.A East Fifth Avenue Tampa, Florida Telephone: (813) Attorneys for the Petitioner 10