A proposal for settlement in Florida is a formal written offer served under Florida Statute 768.79 and Rule of Civil Procedure 1.442 that carries a sharp consequence: if the receiving party rejects it and the trial result misses the offer by at least 25%, the rejecting party pays the other side’s attorney’s fees and costs from the date the offer was served.1Florida Senate. Florida Code Title XLV – Torts, Chapter 768, Section 768.79 – Offer of Judgment and Demand for Judgment That 25% threshold is what gives the device its weight, and the drafting rules around it are unforgiving.
How the 25% Threshold Actually Works
The math runs in both directions, but the trigger depends on who made the offer.
When a plaintiff serves a proposal and the defendant rejects it, the defendant owes the plaintiff’s post-offer fees and costs if the final judgment is at least 25% greater than the offer. A $100,000 demand followed by a $125,000 verdict puts the defendant on the hook for fees on top of the judgment.1Florida Senate. Florida Code Title XLV – Torts, Chapter 768, Section 768.79 – Offer of Judgment and Demand for Judgment
When a defendant serves a proposal and the plaintiff rejects it, the plaintiff owes the defendant’s post-offer fees and costs if the judgment ends up at least 25% below the offer, or if the defendant wins outright. A $100,000 defense offer followed by a $75,000 verdict flips the fee obligation onto the plaintiff.
Those fees and costs are offset against the judgment. If a defendant’s fee award exceeds what the plaintiff recovered, the court enters a net judgment against the plaintiff for the difference. A plaintiff who technically wins at trial can walk away owing money.
Who Can Use It, and Where It Does Not Apply
Both plaintiffs and defendants in any civil action for damages in Florida courts can serve a proposal. The statute labels them “offers of judgment” when defendants make them and “demands for judgment” when plaintiffs make them, but the mechanics run the same in either direction. Proposals can also be served on or between co-parties in multi-party cases.1Florida Senate. Florida Code Title XLV – Torts, Chapter 768, Section 768.79 – Offer of Judgment and Demand for Judgment
Workers’ compensation claims and certain family law disputes fall outside the statute. Government entities have additional restrictions on nonmonetary terms tied to property-rights disputes under Section 70.001. Courts also retain discretion to deny fee awards if the proposal was not made in good faith.
Drafting Requirements That Void Defective Proposals
Florida courts routinely invalidate proposals for technical defects. Rule 1.442 lists every required element, and a missing one can void the whole thing.
A proposal must be in writing and identify the Florida law under which it is being made.1Florida Senate. Florida Code Title XLV – Torts, Chapter 768, Section 768.79 – Offer of Judgment and Demand for Judgment It also must:
- Name the party making the proposal and the party receiving it.
- Identify which claims the proposal resolves.
- State the total amount in clear, unambiguous terms.
- State whether the amount includes attorney’s fees and whether fees are part of the underlying legal claim.
- Separately state any amount allocated to settle a punitive damages claim.
The purpose behind every requirement is the same: let the receiving party make a fully informed decision. Proposals that leave the offeree guessing about how fees or punitive damages fit into the number rarely survive review.
The 2022 Change on Nonmonetary Terms
Before July 2022, proposals often carried nonmonetary conditions like confidentiality clauses or broad releases. The Florida Supreme Court amended Rule 1.442 to strip nonmonetary terms out. The only nonmonetary condition a standard proposal can now include is a voluntary dismissal of all claims with prejudice. Government entities in Section 70.001 property-rights disputes have a narrow exception. Attach anything else, and the proposal is at risk.
Joint Proposals in Multi-Party Cases
When a proposal is made by or to more than one party, it must break the amount and terms down for each party individually. A lump-sum offer to two defendants without an allocation between them is ambiguous and will likely be struck. Each offeree needs enough detail to evaluate their own portion on its own.
Deadlines You Cannot Miss
The timing rules are strict on all three ends.
A proposal to a defendant cannot be served until at least 90 days after that defendant was served with the lawsuit. A proposal to a plaintiff cannot be served until at least 90 days after the action was commenced. Both sides get time to investigate before the pressure of a formal offer arrives.1Florida Senate. Florida Code Title XLV – Torts, Chapter 768, Section 768.79 – Offer of Judgment and Demand for Judgment
On the other end, no proposal can be served later than 45 days before the scheduled trial date or the first day of the trial docket, whichever comes first. Ambush offers right before trial are not allowed.
Once served, the receiving party has 30 days to accept in writing. No extension, no grace period, no late acceptance. If the 30 days pass without a written acceptance, the proposal is deemed rejected.1Florida Senate. Florida Code Title XLV – Torts, Chapter 768, Section 768.79 – Offer of Judgment and Demand for Judgment
Withdrawal and Acceptance
A proposal can be withdrawn if the written withdrawal is delivered before a written acceptance. Once withdrawn, the proposal is void.2Online Sunshine. Florida Statutes Section 768.79 – Offer of Judgment and Demand for Judgment Rejecting one proposal does not stop the same party from making another later, and each new proposal starts its own 30-day clock and its own fee-accrual date.
If the offer is accepted within 30 days, the parties file the proposal and the written acceptance with the court. The court then has jurisdiction to enforce the settlement, and the case ends with either a voluntary dismissal with prejudice or a consent judgment.2Online Sunshine. Florida Statutes Section 768.79 – Offer of Judgment and Demand for Judgment Once accepted, the settlement is enforceable as a contract.
The Good Faith Requirement
Even when the 25% threshold is met, a court can deny the fee award if it finds the proposal was not made in good faith. The statute directs courts to consider the apparent merit of the claim at the time the offer was made and the number and nature of offers exchanged between the parties.2Online Sunshine. Florida Statutes Section 768.79 – Offer of Judgment and Demand for Judgment
Nominal offers draw the most scrutiny. A $1 offer on a clear-liability case with real damages is not a genuine settlement attempt. Courts look at whether the offer bore a reasonable relationship to the case’s value based on what was known at the time. The good faith test keeps the statute from turning into a fee-generation tool.
When a court does award fees, it separately assesses reasonableness, weighing the same two factors alongside all other relevant criteria.
Does It Apply in Federal Court
Florida cases sometimes land in federal court through diversity jurisdiction, and the question of whether Section 768.79 travels with them matters. Federal Rule of Civil Procedure 68 covers offers of judgment federally, but it is narrower: only defendants can make offers, it shifts costs rather than attorney’s fees in most cases, and it has no 25% mechanism.
Federal courts sitting in diversity have generally treated Florida’s fee-shifting provision as substantive state policy rather than a purely procedural rule. Because Rule 68 does not cover the same ground, federal courts applying Florida law have applied the state statute in diversity cases. Parties litigating state-law claims federally should not assume the proposal for settlement is off the table.
Strategy Around the Statute
A proposal changes the economics of a case the moment it is served. A plaintiff with a strong liability case still has to weigh a defense offer carefully, because a partial win can convert into a net loss after fee-shifting. Defendants have to calibrate too. An offer that is too low may not survive good faith review; one that is too generous undermines the mechanism.
Timing plays into the same calculation. A proposal served right at the 90-day mark maximizes the window over which post-offer fees can accumulate. A proposal closer to the 45-day cutoff limits fee exposure but arrives when both sides know more about the case. Serving multiple proposals over the life of the case is common and explicitly permitted.
The fee-shifting piece can also create tension between attorney and client, particularly on contingency. A contingency lawyer whose client receives a defense proposal may have financial interests that diverge from the client’s, since the fee award runs from the date of the proposal and can materially change what the client actually keeps. Florida’s Rules of Professional Conduct require attorneys to keep their own financial interests from adversely affecting representation, and any client evaluating a proposal should understand how the numbers work on both sides of the table.