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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
ALFRED VINCENT HESS, M.D., and
)
MUSCULOSKELETAL INSTITUTE
)
CHARTERED, d/b/a FLORIDA
)
ORTHOPAEDIC INSTITUTE, a
)
Florida corporation,
)
)
Appellants,
)
)
v.
)
Case No. 2D04-758
)
NOREEN WALTON,
)
)
Appellee.
)
)
Opinion filed March 16, 2005.
Appeal from the Circuit Court for
Hillsborough County; Robert J. Simms,
Judge.
Brendan M. Lee of Macfarlane Ferguson
& McMullen, Tampa, for Appellants.
Stephen A. Barnes of Abramson,
Uiterwyk & Barnes, Tampa; and Gary A.
Magnarini of Hicks & Kneale, P.A.,
Hollywood, for Appellee.
ALTENBERND, Chief Judge.

Dr. Alfred Vincent Hess and Florida Orthopaedic Institute (FOI) appeal a
final judgment entered in favor of Noreen Walton in a medical malpractice action. They
challenge an award of attorneys' fees that was entered against FOI pursuant to Florida
Rule of Civil Procedure 1.442 and section 768.79, Florida Statutes (2003). Although the
settlement strategy employed by the plaintiff in this multi-defendant case may not have
been foreseen by the legislature when it enacted section 768.79, we affirm. We also
certify a question to the supreme court in hopes that confusion generated by Barnes v.
The Kellogg Co., 846 So. 2d 568 (Fla. 2d DCA 2003), and Matetzschk v. Lamb, 849 So.
2d 1141 (Fla. 5th DCA 2003), can be eliminated.
I. THE AWARD OF FEES IN THIS CASE
Ms. Walton sued Dr. Hess for injuries arising from surgery that he per-
formed on March 31, 2000. Prior to surgery, Ms. Walton had consented to undergo
surgery to release the first dorsal compartment of the right wrist. Instead of this surgery,
Dr. Hess performed a carpel tunnel release on her right wrist. Dr. Hess acknowledged
his error. Ms. Walton sued Dr. Hess for this unauthorized surgery and also sued FOI as
his employer. Ms. Walton sued FOI only for its vicarious liability under the doctrine of
respondeat superior. She did not allege any separate or independent active negligence
on the part of FOI. From the earliest stages of this litigation, it was conceded that Dr.
Hess had been negligent and that FOI was vicariously liable. The primary dispute in the
lawsuit centered on the value of this claim.
Because the value of the claim was the primary issue, the parties sub-
mitted several offers of judgment or proposals for settlement pursuant to rule 1.442 and
-2-

section 768.79. The two most significant proposals were: (1) Ms. Walton's proposal, as
plaintiff, to settle with Dr. Hess for $100,000 and with FOI for $15,000, and (2) Dr. Hess
and FOI's joint offer to settle all claims for $25,000. All proposals for settlement were
rejected. Thereafter, the case proceeded to trial by jury, and the jury returned a verdict
in favor of Ms. Walton for $23,500.
Based on this verdict, Ms. Walton filed a motion to tax attorneys' fees
against FOI because the verdict was at least 25% greater than her offer to settle with
FOI for $15,000. After a hearing on the motion to tax attorneys' fees, the trial court
awarded Ms. Walton $99,425 in attorneys' fees against FOI. As a result, the trial court
entered an amended final judgment that awarded damages in the amount of $21,169.89
and costs in the amount of $16,791.28 against both FOI and Dr. Hess, and attorneys'
fees against FOI alone in the amount of $99,425. This is the judgment on appeal.1
FOI contests the award of attorneys' fees, arguing that two separate and
unequal proposals to settle by a single plaintiff made to an active tortfeasor and to a
party vicariously liable for the active tortfeasor are impermissible under rule 1.442 and
section 768.69. FOI suggests that the tactic of submitting bookend offers­one very low
and one quite high­is somehow improper when one defendant is only vicariously liable
1 Dr. Hess and FOI were represented by the same law firm. Following the
verdict, Ms. Walton filed a motion to add MAG Mutual Insurance Company to the
judgment. The trial court granted this motion and the entire $136,686.27 judgment was
entered against MAG. The notice of appeal was filed by Dr. Hess and FOI. At least
from a monetary standpoint, the challenged portion of the judgment is adverse only to
FOI. MAG has never filed a formal appearance in this appeal and, thus, this insurance
company is in the odd, and probably unintentional, posture of being a technical appellee
aligned against the interests of its insureds. Although we affirm the judgment in this
case, had we decided to reverse the judgment, we would have had authority to reverse
only the judgment for attorneys' fees against FOI.
-3-

for the tortious conduct of the other defendant. While we agree with FOI that such
offers may often, if not always, be contrary to the public policies that caused the legis-
lature to create these fee-shifting provisions, they are permitted by the language of both
the statute and the rule. Moreover, there are logical, strategic reasons why a plaintiff
might settle cheaply with one of these parties while demanding a more reasonable
settlement from the other. Thus, it cannot be argued that the offers were made in bad
faith. We are simply unable to articulate and announce any rule barring such proposals
to settle. Accordingly, we affirm the judgment and leave to the legislature the task of
reviewing its policies as they relate to defendants who are merely vicariously liable for
the acts of another.
II. REASONS EXIST TO "CONSTRUE" RULE 1.442 AND
SECTION 768.79 IN FAVOR OF A COMMON LAW OUTCOME
If this trial had been a game of horseshoes, Dr. Hess and FOI would
clearly have been the victors because their proposal to settle for $25,000 was closest to
the jury's verdict. They were actually willing to pay Ms. Walton about 6% more than the
jury awarded.
In horseshoes, Ms. Walton's offer to settle with Dr. Hess for $100,000
would have been farthest from the mark. Because FOI was vicariously liable for Dr.
Hess, a settlement with it for $15,000 would not have ended this lawsuit. The State
would still have been required to provide a courtroom, a judge, and jury to resolve the
dispute. Thus, it seems odd--to say the least--for Ms. Walton's attorneys to receive
$99,425 from the defendants when their client rejected the defendants' offer to settle at
an amount that was higher than the jury's verdict. It seems unfair that the defendants
-4-

are penalized or sanctioned with an award of attorneys' fees when they offered the
plaintiff more than the jury awarded.2 The American common law long required parties
to pay their own lawyers. The circumstances of this case do not seem to fit within any
scenario that would warrant or justify an outcome different from that envisioned by the
common law.
Given that the common law outcome would seem to be the better
approach in this case, the question is whether rule 1.442 and section 786.79 give us the
option to announce a common law outcome and refuse to impose the attorneys' fees as
a penalty or sanction against FOI. We recognize that the rule and statute are in
derogation of the common law and that they create a penalty. As a result, there are two
bases upon which to strictly construe both the rule and the statute.3 See Sarkis v.
Allstate Ins. Co., 863 So. 2d 210 (Fla. 2003); Willis Shaw Express, Inc. v. Hilyer Sod,
Inc., 849 So. 2d 276 (Fla. 2003).
As explained in the next section of this opinion, we find no confusion in the
rule or statute. This would usually cause us to end any effort to "construe" the rule or
2 It seems equally unfair to award fees against FOI for its prosecution of this
appeal. Despite the serious issues presented in this appeal, we are required to grant
Ms. Walton's motion for fees.
3 We confess some reservations about the concept of strictly interpreting a rule
of procedure in favor of the common law when the rule of procedure is itself created by
a common law court. Normally, under separation of powers, we interpret a legislative
enactment to embody or embrace the common law unless the legislature clearly
demonstrates an intention to override the common law. In the context of a judicial rule,
separation of powers plays no role. Presumably, we interpret rules strictly in favor of
the common law on the theory that judges, valuing stare decisis, do not depart from the
common law unless they do so expressly and purposefully.
-5-

the statute to reach a common law outcome and avoid the statutory rule permitting fee-
shifting. As the supreme court recently stated:
It is well settled that legislative intent is the polestar that
guides a court's statutory construction analysis. See State v.
Rife, 789 So. 2d 288, 292 (Fla. 2001); McLaughlin v. State,
721 So. 2d 1170, 1172 (Fla. 1998). In determining that
intent, we have explained that "we look first to the statute's
plain meaning." Moonlit Waters Apartments, Inc. v. Cauley,
666 So. 2d 898, 900 (Fla. 1996). Normally, "[w]hen the
language of the statute is clear and unambiguous and con-
veys a clear and definite meaning, there is no occasion for
resorting to the rules of statutory interpretation and
construction; the statute must be given its plain and obvious
meaning." Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984)
(quoting A.R. Douglass, Inc., v. McRainey, 137 So. 157, 159
(1931)).
Knowles v. Beverly Enters.-Fla., Inc., 29 Fla. L. Weekly S788, S789 (Fla. Dec. 16,
2004).
However, in Sarkis, the supreme court reaffirmed its position that a strict
construction of this rule and statute is required because the award of attorneys' fees is a
sanction. In his concurring opinion, Justice Wells stated:
The reason that the statute and rule are to be strictly
construed is not because either is ambiguous but because
the statute authorizes and the rule implements an award of
attorney fees and because the assessment of attorney fees
pursuant to the statute and rule is a sanction. It is the long-
standing precedent of this Court that statutes and rules
authorizing attorney fees or imposing penalties are to be
strictly construed as written and not extended by implication.
Sarkis, 863 So. 2d at 224. This language suggests that even a clear and unambiguous
statute which imposes attorneys' fees or another penalty must be "construed" in favor of
the common law.
-6-

We do not believe that the court or Justice Wells intended such an
unlimited rule of construction. When we refer to a statute as "clear and unambiguous,"
we are relying on both the concept of ambiguity and the separate concept of vague-
ness. A statute is normally regarded as "ambiguous" when its language may permit two
or more outcomes. See William D. Popkin, Materials on Legislation: Political Language
and the Political Process 185 (2d ed. 1997). It is "vague" when it does not clearly
announce any required outcome. Id. Courts construe an ambiguous statute strictly in
favor of the common law when they require a common law outcome in a circumstance
where two or more outcomes are possible under the language of the statute. They use
the rule of strict construction when a statute is vague to assure that the statutory rule,
which is in derogation of the common law, is not extended to govern any factual
scenario other than those clearly covered by the statute. In Sarkis, Justice Wells was
explaining that rule 1.442 and section 768.79 were vague on the issue of whether the
fee would be determined with or without a multiplier. The outcome most compatible
with the common law was an outcome that did not include a multiplier within the shifted
fee.
Accordingly, Justice Wells was correctly explaining that he would not
"extend" the statute to require multiplied fees when the statute was, at best, vague on
that issue. The rule of strict construction in favor of the common law is probably used
much more often in the context of a vague statute than in the context of an ambiguous
statute.
We recognize that we could invoke the rule of strict construction to hold
that neither the rule nor the statute expressly addresses cases in which one defendant
-7-

is liable only on a vicarious basis for the tortious acts of the other. In the absence of
such language and given that a settlement with one such defendant does not fully
resolve a claim in the manner contemplated by the rule or statute, we could declare the
rule and statute to be "vague" and refuse to extend the fee-shifting statute into this
portion of the common law. As Chief Justice Pariente has observed, however, there is
a point at which a strict construction of a statute to preserve the common law is merely
a "forced" construction. Sarkis 863 So. 2d at 228 (Pariente J., dissenting). We
conclude that a holding in favor of FOI in this case would require such a forced
construction.
III. SECTION 768.79 AND RULE 1.442, WHEN READ TOGETHER,
ARE NEITHER VAGUE NOR AMBIGUOUS
Section 768.79(1) allows attorneys' fees and costs to be awarded against
a defendant when a plaintiff files a demand for judgment which is not accepted by the
defendant and the plaintiff recovers a judgment in an amount at least 25% greater than
the offer. § 768.79(1), Fla. Stat. (2003). Section 768.79(1) does not explicitly discuss
the complexities that arise in multiparty lawsuits. However, it uses the terms "a plain-
tiff," "the plaintiff," "a defendant," and "the defendant" in a manner that would allow a
plaintiff to make an offer to a specific defendant. Section 768.79(2) describes the
content of an offer and requires that the offer "[n]ame the party making it and the party
to whom it is being made." This language, of course, suggests that offers can be party
specific. By itself, this language might arguably be vague when applied to multiparty
cases. The language of the statute may allow for an interpretation limiting the statute to
two-party cases.
-8-

Rule 1.442 implements section 768.79 and leaves no doubt about the out-
come required in this case. See Hilyer Sod, 849 So. 2d at 278. Rule 1.442 expressly
states:
A proposal may be made by or to any party or parties and by
or to any combination of parties properly identified in the
proposal. A joint proposal shall state the amount and terms
attributable to each party.
Thus, the relevant rule clearly and unambiguously permits Ms. Walton to make
differentiated offers to two defendants, even when one is liable only on a vicarious basis
for the negligence of the other.
When the trial court granted fees in this case, the Fifth District had already
issued its decision in Matetzschk v. Lamb, 849 So. 2d 1141 (Fla. 5th DCA 2003), which
supported the trial court in this case. In Matetzschk, the Fifth District held that two
undifferentiated offers of judgment made by a plaintiff to defendants, one of whom was
only vicariously liable, were invalid because they failed to apportion the offer between
the two defendants.
In Matetzschk, the Fifth District relied on Hilyer Sod's strict construction of
rule 1.442, specifically the portion that states, "A joint proposal shall state the amount
and terms attributable to each party." Matetzschk, 849 So. 2d at 1144. The Fifth
District even went so far as to say that because of the strict construction required by
Hilyer Sod, there was a logical basis for requiring differentiated offers of settlement,
even in cases of vicarious liability. Id.
The trial court may not have fully appreciated the applicability of
Matetzschk because the Fifth District certified conflict with this court's earlier decision in
-9-

Barnes, 846 So. 2d 569. We confess that the conflict is not entirely obvious to us. In
Matetzschk, the Fifth District misstated the facts in Barnes. The Matetzschk court
stated, "We recognize that our instant opinion conflicts with Barnes v. The Kellogg Co.,
846 So. 2d 568 (Fla. 2d DCA 2003), which held that an undifferentiated offer of settle-
ment from a plaintiff to two defendants, one of whom was only vicariously liable, was
proper." Id. (emphasis added). However, this is not what this court held in Barnes. In
Barnes, this court allowed two vicariously liable defendants to make a single, un-
differentiated proposal to a plaintiff. 846 So. 2d at 572. This decision is justified
because defendants are logically and legally unable to apportion damages between
themselves when one of them is liable on only a vicarious basis.4
In the case before us today, the defendants not only wished to have the
option of making a joint, unified proposal to settle but also wanted this court to hold that
the plaintiff is prohibited from making any other type of offer to the two of them. Nothing
in Barnes, rule 1.442, or section 768.79 supports that position. In fact, such a position
is properly and expressly prohibited by Matetzschk.
It is worth explaining that the plaintiff may have a logical, strategic reason
to make such differentiated offers. It forces one defendant to settle. The plaintiff
obtains money that can be used to further prosecute the lawsuit or which can be
safeguarded from the risk of a future judgment if the defendants obtain the right to a
4 We note that the Fourth District has decided a case that directly conflicts with
Matetzschk. In Hall v. Lexington Insurance Co., No. 4D04-963, 2005 Fla. App. LEXIS
1643 (Fla. 4th DCA Feb. 16, 2005), the Fourth District agreed that rule 1.442 must be
strictly construed, but held that a unified joint proposal served by a plaintiff on vicari-
ously liable defendants was proper and did not need to be apportioned because the
defendants' claims were unified, not separate and distinct.
-10-

judgment for their fees. The plaintiff can eliminate the defendant for whom the jury may
have sympathy, or the defendant who may be on the brink of bankruptcy. If more than
one lawyer is involved, the plaintiff can remove the defendant with the best lawyer. We
doubt that these are considerations addressed by the legislature when enacting these
fee-shifting provisions, but they are logical considerations and we cannot rule that they
are matters that a plaintiff's attorney should disregard when making a good faith offer to
settle a case.5
It should be noted that the current rule does not leave a pair of defendants
such as Dr. Hess and FOI defenseless against the tactic of bookend offers to settle. In
this case, the verdict was $23,500. If our math is correct, the 25% safe haven for both
parties existed between $17,625 and $29,375. See § 768.79, Fla. Stat. (2003). Thus,
Dr. Hess could have made an offer to settle this case for $29,376. If Dr. Hess had done
so, this case would have been placed into a posture where Ms. Walton was entitled to
fees from FOI, and Dr. Hess would have been entitled to fees from Ms. Walton. Those
fees, presumably, would have roughly offset one another.
We emphasize again that we did not create these rules. We are merely
the messenger. The legislature and the supreme court collectively have clearly and
5 These proposals under rule 1.442 and section 768.79 are not immune from
the rule announced in section 768.041, Florida Statutes (2003). Section 768.041
requires the trial court to offset funds received in any pretrial settlement with a party
such as FOI from the damages later awarded in the verdict. This statute is designed to
prevent a double recovery for a single injury. Both parties in this action agree that the
offers by Ms. Walton were designed to comply with section 768.041. Thus, if FOI had
settled with Ms. Walton, the judgment ultimately entered against Dr. Hess would have
been reduced by the $15,000 settlement.
-11-

unequivocally overruled the common law relating to attorneys' fees under these cir-
cumstances, and the result we reach is required by their efforts.
We are well aware that the conflict surrounding Barnes has created a
"dilemma" for trial lawyers. See V. Julia Luyster & Jennifer Lodge, "When is a Joint
Proposal For Settlement a Valid Proposal For Settlement: Apportionment, Avoiding
Ambiguity in Release Language, and the Barnes Dilemma," 24 Trial Advocate Quarterly
12 (2005). If our reading of Matetzschk is correct, the certified conflict in that case may
give the supreme court no jurisdiction to resolve the confusion. We conclude that the
issue presented by this case is a question of great public importance, and we certify to
the supreme court the following question:
DOES A STRICT CONSTRUCTION OF RULE 1.442 AND
SECTION 768.79, FLORIDA STATUTES (2003), REQUIRE
A COMMON LAW OUTCOME WHEN A PLAINTIFF MAKES
TWO SEPARATE PROPOSALS OF SETTLEMENT TO
TWO DEFENDANTS WHEN ONE DEFENDANT IS ONLY
VICARIOUSLY LIABLE FOR THE OTHER?
Affirmed.
CASANUEVA, J., and DANAHY, PAUL W., SENIOR JUDGE, Concur.
-12-

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