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Proposal For Settlement Attorney's Fees Can Be Recovered Even If Not Prevailing Party on Appeal

In an opinion issued on June 15, 2023, the Florida Supreme Court ruled that a party can be awarded its appellate attorney's fees under a proposal for settlement even if that party does not prevail in its appeal. This ruling expands the availability of attorney's fee awards on appeal.

In Coates v. R.J. Reynolds Tobacco Co. (Fla. Jun. 15, 2023), a plaintiff in a tobacco wrongful death case served two proposals for settlement on the defendant. The defendant did not accept either proposal. At trial, the plaintiff obtained a verdict for compensatory and punitive damages. The punitive damages award was reversed by the District Court of Appeal. The District Court's opinion was then approved by the Florida Supreme Court.

After the Florida Supreme Court issued its opinion, the plaintiff argued that it was still entitled to an award of appellate attorney's fees under the proposal for settlement statute. Even though the plaintiff did not prevail on appeal, the plaintiff argued that the resulting judgment still triggered entitlement to fees under the proposal for settlement statute. The defendant argued that the plaintiff could not be entitled to an attorney's fee award if the plaintiff did not prevail on appeal.

The Florida Supreme Court agreed with the plaintiff. The Court held that the Proposal for Settlement statute, Section 768.79, Florida Statutes, is not a prevailing-party attorney's fee statute. The text of the statute contemplates the possibility that a party may be awarded attorney's fees even if it does not prevail in a proceeding. The proposal for settlement statute penalizes a party who does not accept a reasonable settlement offer.

Thus, the only requirement for a party to recover its attorney's fees is for the amount of the final judgment to trigger entitlement to attorney's fees under the statute. As a result, a party can recover its attorney's fees even if it does not prevail at trial or in appellate proceedings.

That being said, the Florida Supreme Court observed that an attorney's fee award under the proposal for settlement statute is limited to an award of "reasonable" fees. Thus, an opposing party has the right to claim that appellate attorney's fees are not reasonable by arguing that the appeal is frivolous.


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