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A proposed shift for survivors: Proposing settlement to non-parties in wrongful death actions

10/8/24

By: Todd J. Murgo

In Florida, the application of Fla. Stat. § 768.79, which governs Proposals for Settlement, has been subject to ongoing judicial and legislative scrutiny. As recent as 2022, the legislature amended this statute to further impose specific limitations on the use and enforceability of such proposals. A recent decision out of the Florida Second District Court of Appeal adds further considerations for defendants when assessing a proposal for settlement strategy.  

This new challenge was set forth by the appellate panel in City of Sarasota v. Soucy. In that case, the personal representative of an estate filed a wrongful death lawsuit, based upon a motor vehicle accident, against three (3) separate Defendants. The personal representative brought the claim on behalf of herself, the estate of the decedent, and two minor children. Each Defendant served a proposal for settlement to each of the respective individuals upon which the claim was brought – for a total of twelve (12) proposals. The issue on appeal turned on the validity of the proposals directed to the non-party survivors. 

The Court pointed out a basic principle of Florida’s Wrongful Death Act – that an estate’s personal representative is the only permissible plaintiff. Additionally, the Court acknowledged the well-founded principle that proposals for settlement are only valid when they are served by a party to a lawsuit upon another party. In other words, proposals to non-parties, such as the individual representative and two minor children, are generally void and unenforceable.  

That said, the Court emphasized that the governing purpose of proposals for settlement is to encourage settlement of lawsuits and to reduce judicial labor. The Court also recognized the long-standing principle that proposals for settlement must be structured in a fashion that an offeree can independently evaluate his or her respective claim (in cases involving numerous offerees).  

With this in mind, the Court opined that beneficiaries and survivors, despite their technical status as non-parties pursuant to the Florida Wrongful Death Act, should be considered “parties” for the limited purpose of responding to a proposal for settlement. In fact, the Court suggested a “textual modification” of § 768.79 to reflect this holding. 

The drastic modification requested by the Court would certainly change how defendants in wrongful death actions strategically utilize proposals for settlement. Defendants would be able to individually address the substantive claim related to each survivor or beneficiary – which helps further narrow issues and claims prior to trial. On the other hand, each survivor or beneficiary would have more direct involvement in the case, which could lead to increased internal conflict amongst those individuals. This would result in additional complexity in resolving these claims.  

Please contact Todd J. Murgo at todd.murgo@fmglaw.com or your local FMG relationship partner to learn more.