A plaintiff received an award from the jury which was 25% more than her proposal for settlement sent to defendant Costco. The trial court denied the plaintiff’s motion for fees based on Costco’s objections that (1) the offer did not specify whether punitive damages were to be resolved as part of the proposal for settlement and (2) the offer was fatally ambiguous because it purported to settle all claims inclusive of any and all attorney’s fees and costs incurred as of the date of the acceptance of the offer, further stating that attorney’s fees were part of the legal claim. However, the complaint did not seek an award of attorney’s fees.

Quoting the Florida Supreme Court who had recently analyzed the relationship between section 768.79 and rule 1.442, the court noted that the procedural rules should no more be allowed to trump the statute than the tail should be allowed to wag the dog.

In looking at the plaintiff’s offer under section 768.79, the court found the offer unambiguous. The defendant’s contention that the offer was ambiguous related to a provision of rule 1.442, which the court said was trumped by the provision of the statute, and rendered the ambiguity totally irrelevant. The court reversed with an order to enforce the plaintiff’s proposal.