Founding Attorney
A Florida proposal for settlement is a written offer served under section 768.79, Florida Statutes, and Florida Rule of Civil Procedure 1.442. If the other side rejects it, the court compares the offer with the final judgment. A miss of 25 percent or more shifts reasonable attorney’s fees and costs to the rejecting party from the date of service.
What a Florida Proposal for Settlement Does
Florida generally follows the American rule in civil litigation, so each party pays its own lawyer. However, the Legislature changed that rule for rejected settlement offers. The Florida Supreme Court confirmed this in TGI Friday’s, Inc. v. Dvorak, 663 So. 2d 606 (Fla. 1995). Under that decision, section 768.79 creates a substantive right to fees once its conditions occur. The statute applies to any civil action for damages filed in Florida courts.
Rule 1.442 of the Florida Rules of Civil Procedure supplies the procedure. It applies to every settlement proposal authorized by Florida law, whatever the label. In practice, lawyers use several names for the same device. A defendant serves an “offer of judgment,” while a plaintiff serves a “demand for judgment.” In Florida practice, the rule calls both a proposal for settlement.
Because fee statutes depart from the common law, Florida’s appellate courts construe both the statute and the rule strictly. For example, in Campbell v. Goldman, 959 So. 2d 223 (Fla. 2007), the court invalidated a proposal that cited the rule but not the statute. Therefore, drafting details decide whether fees shift at all.
The 25 Percent Rule for an Offer of Judgment
The statute sets two mirror-image tests. First, a defendant’s offer of judgment triggers fees in two situations. The plaintiff obtains a judgment of no liability at trial, or the plaintiff’s judgment is at least 25 percent less than the offer. The court then awards the defendant reasonable costs and attorney fees from the date of service. It sets that amount off against the plaintiff’s award. If the fees exceed the judgment, the court enters judgment for the defendant for the difference.
Second, a plaintiff’s demand for judgment triggers fees if the plaintiff recovers a judgment at least 25 percent greater than the demand. Again, the fees run from the date of service, so plaintiffs gain leverage by serving early. Section 768.79(7) defines the “judgment obtained” for each comparison. For a defendant’s offer, it means the net judgment plus post-offer collateral source payments and post-offer settlement setoffs. For a plaintiff’s demand, it means the net judgment plus post-offer settlement setoffs.
Consider a simple example. A defendant offers $100,000, and the plaintiff rejects it. At trial, the plaintiff recovers a net judgment of $70,000. Because $70,000 is at least 25 percent below $100,000, the defendant may recover fees from the date of the offer. In contrast, a plaintiff who demanded $100,000 and recovered $130,000 would meet the test from the other direction.
Moreover, the comparison runs offer by offer. In Anderson v. Hilton Hotels Corp., 202 So. 3d 846 (Fla. 2016), the court addressed separate offers to several defendants. Courts do not add those offers together when comparing them with the plaintiff’s judgment. Entitlement depends only on a sufficient offer and the judgment obtained.
Deadlines for Serving and Accepting Proposals for Settlement
Timing rules are strict from the first filing through trial, and mediation does not pause them. The table below collects the key dates for a Florida proposal for settlement under the current rule and statute.
| Step | Deadline | Source |
|---|---|---|
| Earliest service on a defendant | 90 days after service of process on that defendant | Rule 1.442(b) |
| Earliest service on a plaintiff | 90 days after the action was commenced | Rule 1.442(b) |
| Latest service | 45 days before the trial date or the first day of the trial docket, whichever is earlier | Rule 1.442(b) |
| Acceptance | Written acceptance within 30 days after service; no extra days for mail or e-mail service | Rule 1.442(f)(1); § 768.79(4) |
| Withdrawal | In writing, before a written acceptance is delivered | Rule 1.442(e); § 768.79(5) |
| Motion for fees and costs | Served within 30 days after the judgment is filed | Rules 1.442(g) and 1.525; § 768.79(7) |
An offer of judgment is served, not filed. Indeed, the rule bars filing unless filing becomes necessary to enforce it. For litigants, silence counts as rejection, because the rule treats a proposal as rejected unless the offeree accepts in writing within 30 days. Oral communications are not an acceptance, a rejection, or a counteroffer. Finally, a rejected proposal is inadmissible except in proceedings to enforce an accepted proposal or to decide sanctions.
Required Contents of a Valid Settlement Proposal
Rule 1.442(c) of the Florida Rules of Civil Procedure lists what every Florida proposal for settlement must contain. The current text, as amended effective January 1, 2026, appears in The Florida Bar’s rules pamphlet. Courts enforce these requirements strictly, so litigants who serve defective settlement proposals shift no attorney fees at all. A compliant proposal must:
Be in writing and identify the Florida law that authorizes it, including section 768.79.
Name the party or parties making it and the party or parties receiving it.
State that it resolves all damages a final judgment could otherwise award.
Exclude nonmonetary terms, except a voluntary dismissal of all claims with prejudice and any other terms a statute permits.
State its total amount.
State with particularity any amount proposed to settle a punitive damages claim.
State whether it includes attorneys’ fees and whether fees are part of the legal claim.
Include a certificate of service in the form Rule 2.516 requires.
Nonmonetary Terms and Recent Amendments
The ban on nonmonetary terms took effect on July 1, 2022. Before then, the rule allowed nonmonetary conditions stated with particularity. Now a release or confidentiality clause can void the proposal. However, the Florida Supreme Court has softened a few technical traps. Kuhajda v. Borden Dairy Co. of Alabama, 202 So. 3d 391 (Fla. 2016), is one example. There, in a negligence case, omitting the attorneys’ fee statement did not invalidate a proposal, because the pleadings never sought fees. Likewise, in Wheaton v. Wheaton, 261 So. 3d 1236 (Fla. 2019), the court held that a proposal need not follow the e-mail service formalities of Rule 2.516. In Allen v. Nunez, 258 So. 3d 1207 (Fla. 2018), it cautioned courts against hunting for ambiguity. Only an ambiguity that could reasonably affect the offeree’s decision defeats a proposal.
The January 1, 2026 amendments, adopted in case number SC2025-0045, mainly conformed the rule’s wording to the court’s drafting guidelines. For instance, “shall” became “must” throughout. The deadlines and the required contents did not change. In November 2025, the Civil Procedure Rules Committee also published a proposal to add an enforcement procedure for accepted proposals. As of the October 1, 2026 edition of the rules, Rule 1.442 had not been amended again.
Joint Offers of Judgment and the Apportionment Trap
Cases with several plaintiffs or defendants cause most proposal failures. Under Rule 1.442(c)(3), a joint proposal must state the amount and terms attributable to each party. In Pratt v. Weiss, 161 So. 3d 1268 (Fla. 2015), the court required apportionment even where no logical split existed between two related defendants. Similarly, Audiffred v. Arnold, 161 So. 3d 1274 (Fla. 2015), treated a single plaintiff’s offer as a joint proposal because it also resolved a spouse’s consortium claim. Rule 1.442(c)(4) carves out one exception for a party alleged to be solely vicariously, constructively, derivatively, or technically liable.
Conditions on acceptance are another trap. Attorneys’ Title Insurance Fund, Inc. v. Gorka, 36 So. 3d 646 (Fla. 2010), involved a joint offer that required both offerees to accept. The court held it invalid, because neither offeree could independently control the decision to settle. The Legislature later created a narrow exception. Since December 16, 2022, section 768.79(6) has allowed one specific joint offer. In a breach of contract action, a property insurer may condition a joint offer on mutual acceptance by all joint offerees. Consequently, most other litigants should serve separate, unconditioned proposals to each opposing party.
Limits on a Florida Proposal for Settlement
The Florida statute reaches only a “civil action for damages.” That phrase matters in commercial cases, where complaints often add claims for specific performance, an injunction, or a declaration. The leading case is Diamond Aircraft Industries, Inc. v. Horowitch, 107 So. 3d 362 (Fla. 2013). There, the plaintiff sought both equitable relief and damages, and the defendant served a general offer to release all claims. The Florida Supreme Court held that section 768.79 did not apply to that action. The court also refused to create an exception for equitable claims that lack serious merit. As a result, litigants should review how equitable counts affect their fee strategy before serving or rejecting an offer of judgment. Similar planning applies to the limitations periods for Florida contract claims, which control when a party can still sue.
Good faith is a further limit that litigants often overlook. Under section 768.79(8), the court may find that an offer was not made in good faith and disallow attorney fees entirely. According to TGI Friday’s, a lack of good faith is the sole basis for denying entitlement. The statutory factors then govern the amount. Those factors include the apparent merit of the claim, the closeness of the issues, and whether the offeror unreasonably withheld information. Additionally, Sarkis v. Allstate Insurance Co., 863 So. 2d 210 (Fla. 2003), bars a contingency fee multiplier on fees awarded under the statute.
Proposals for Settlement in Federal Court
Many Florida business disputes land in federal court through diversity jurisdiction, and a Florida proposal for settlement still matters there. The Eleventh Circuit treats section 768.79 as substantive law, so it applies to Florida-law claims in federal court. In Menchise v. Akerman Senterfitt, 532 F.3d 1146 (11th Cir. 2008), the court applied the statute to a Florida malpractice claim in federal court. It also held that Rule 68 of the Federal Rules of Civil Procedure does not preempt the statute. Later, in Horowitch v. Diamond Aircraft Industries, Inc., 645 F.3d 1254 (11th Cir. 2011), the court applied the rule’s fee-statement requirement in federal court. However, it held that the certificate-of-service requirement conflicts with Federal Rule 5(d)(1) and does not apply there. The Eleventh Circuit reaffirmed the diversity rule in an unpublished decision, Grayson v. No Labels, Inc., No. 24-10777 (11th Cir. Jan. 15, 2025).
Nevertheless, at least one Florida federal court has held that the statute applies only to state-law claims. See Design Pallets, Inc. v. GrayRobinson, P.A., 583 F. Supp. 2d 1282 (M.D. Fla. 2008). The Horowitch litigation itself began as a fee dispute under Florida’s consumer protection statute. We cover that statute in our guide to deceptive and unfair trade practice claims.
Practical Strategy for Florida Businesses
Used well, an offer of judgment changes the economics of a case for litigants on both sides. Our business litigation team treats the following points as a working checklist in Florida civil litigation and commercial cases:
Calendar the 90-day opening and the 45-day cutoff before trial as soon as the case begins.
Serve separate, unconditioned proposals to each party, and apportion any joint proposal.
Keep the terms monetary; a voluntary dismissal with prejudice is the only common nonmonetary term the rule allows.
Cite both section 768.79 and Florida Rule of Civil Procedure 1.442, and state the total amount and any punitive component.
Address attorneys’ fees expressly whenever the pleadings claim fees, by statute or by contract.
Document the valuation behind the number, because the other side may later challenge good faith.
Respond to incoming settlement proposals in writing within 30 days, and remember that mediation does not extend the clock.
Serve the fee motion within 30 days after the judgment’s filing.
Cross-border litigants face an added layer. A contract may carry its own prevailing-party fee clause, a forum clause, or an arbitration agreement. Each affects whether an offer of judgment under the Florida statute is available and how it interacts with other fee rights. Our Miami commercial counsel coordinate these tools so that one does not undercut the other.
Frequently Asked Questions
A party serves a written offer of judgment that meets section 768.79 and Rule 1.442, and the recipient has 30 days to accept in writing. If the recipient rejects it, the court compares the offer with the final judgment after trial. When the judgment is at least 25 percent worse for the recipient, the offeror becomes entitled to reasonable attorney fees and costs from the date of service. The court may still deny them for lack of good faith.
Generally, no. Since July 1, 2022, Rule 1.442(c)(2)(C) requires a proposal to exclude nonmonetary terms. The only exceptions are a voluntary dismissal of all claims with prejudice and any other nonmonetary terms a statute specifically permits.
The rule treats the proposal as rejected 30 days after service. If the final judgment then misses the offer by 25 percent or more, you may owe the other side’s reasonable attorney fees and costs. Those fees run from the date of service, and any excess becomes a judgment against you.
Yes. Under section 768.79(1), a judgment of no liability satisfies a defendant’s offer of judgment without any percentage calculation. The defendant may then seek fees and costs incurred from the date of the offer of judgment, subject to the court’s good-faith review.
Yes, for Florida-law claims. The Eleventh Circuit treats section 768.79 as substantive law in diversity cases. A federal court in Florida has held that it does not reach claims arising under federal law.
Conclusion
A Florida proposal for settlement is a powerful fee-shifting tool. Whether a party calls it an offer of judgment or a demand for judgment, its mechanics are unforgiving. The 90-day, 45-day, and 30-day deadlines, the 25 percent thresholds, and the drafting rules in Rule 1.442 all have to line up. Recent amendments removed nonmonetary terms and refined the rule’s wording, while the Legislature opened a narrow door for property insurers. In short, litigants who draft carefully and calendar precisely gain real leverage.
Transnational Matters PLLC advises Florida and international businesses on settlement strategy in Florida civil litigation and cross-border disputes. To discuss how these rules apply to your dispute, contact our team to schedule a consultation.