Ortega v. All Dade Fences Inc.
3d DCA, 3/6/24
No. 3D22-1483, 2024 WL 948629
Judge Gordo
Topics: Attorney’s Fees, Proposal for Settlement; Rear Offender
Full Take: Mr. Ortega rear-ended a vehicle being driven by Palacios. In May 2018, the Ortegas filed a complaint against Palacios and All Dade, the owner of the vehicle, for negligence, vicarious liability and loss of consortium.
In Florida, there is a rebuttable presumption of negligence that attaches to the rear driver in a rear-end motor vehicle collision case. Under this presumption, the driver of the rear vehicle that collides with the back of the lead vehicle is presumed negligent unless the rear driver presents evidence that fairly and reasonably tends to show that the presumption is misplaced. Unless this presumption is rebutted, the beneficiary of the presumption is entitled to judgment thereon as a matter of law.
Palacios and All Dade filed a motion for final summary judgment, primarily arguing that the Ortegas had failed to rebut the presumption of negligence that attaches to the rear driver in a rear-end collision. Following a hearing, the trial court granted the motion.
Palacios and All Dade moved for section 768.79 attorney's fees based on their rejected proposals for settlement. The trial court held a hearing and subsequently denied the request for fees after concluding that the proposals were ambiguous. Both parties appealed.
The trial court properly granted the motion because it is uncontroverted that Palacios did not make an abrupt, arbitrary and unexpected stop. Only affirmative testimony of a sudden and unexpected stop is sufficient evidence to rebut the presumption of negligence. Even a sudden stop, without more, is insufficient to overcome the presumption of negligence.
The DCA reversed denial of fee. The trial court found the proposals for settlement were ambiguous for their failure to “state that a judgment would be entered in the amounts offered” and “provide a timeframe for payment.” Under recent Third District precedent (SDG Dadeland Assocs., Inc. v. Arias, 49 Fla. L. Weekly D186 (Fla. 3d DCA January 17, 2024)), neither section 768.79 nor rule 1.442 require that a proposal for settlement contain any such language.
Summary judgment was AFFIRMED, and the denial of fees was REVERSED. Remanded.
