H

SUPREME COURT OF FLORIDA
CASE NO: SC03-1483
Lower Tribunal No: 5D01-3851
STATE FARM MUTUAL
AUTOMOBILE INSURANCE COMPANY, Petitioner,
vs.
SHANNON NICHOLS, Respondent.

APPELLEE'S ANSWER BRIEF ON THE MERITS

 THOMAS P. HOCKMAN, Esquire
 Law Offices of Hockman,  Hockman & Hockman
 2670 West Fairbanks Ave.  Winter Park, FL 32789  tel(407) 647-3200
 fax(407) 647-3252  Florida Bar No: 0057710  Attorney for Plaintiff-Appellant
ii
TABLE OF CONTENTS
TABLE OF CONTENTS ......................................... ii
TABLE OF CITATIONS ......................................... iii
PRELIMINARY STATEMENT .................................... v
STATEMENT OF THE CASE AND FACTS ........................... vi
SUMMARY OF THE ARGUMENT ................................. ix
ARGUMENT .................................................. 1
I. STATE FARM'S PROPOSAL FOR SETTLEMENT WAS
DEFECTIVE ON ITS FACE. ............................. 2
II. IF STATE FARM'S PROPOSAL FOR SETTLEMENT WAS NOT
DEFECTIVE, IT WAS OFFERED IN BAD FAITH. ............ 7
III. STATE FARM'S CASE LAW AND ARGUMENT DOES NOT
SUPPORT ITS POSITION. ............................. 8
CONCLUSION ............................................... 16
CERTIFICATE OF SERVICE ..................................... 17
CERTIFICATE OF FONT ....................................... 17
iii
TABLE OF CITATIONS
Cases
Bd. of Trustees of Florida Atlantic Univ. v. Bowman, 853 So.2d 507 (Fla. 4th
DCA 2003) ................................................... 12
Bennet v. American Learning Systems of Boca Delray, Inc., 857 So.2d 986 (Fla.
4th DCA 2003) ................................................ 16
BMW of North America, v. Krathen, 471 So.2nd 585 (Fla. 4th DCA 1985) ..... 11,
12, 14
Cahuasqui v. U.S. Security Co., 796 So.2d 531 (Fla. 2001) ................ viii
Delissio v. Delissio, 821 So.2d 359 (Fla. 1st DCA 2002) ................ 12, 14
Earnest &. Stewart, Inc. v, Codina, 732 So.2d 364 (Fla. 3d DCA 1999) . . 5, 13, 14
Hales v. Advanced Systems Design, Inc., 855 So.2d 1232 (Fla. 1st DCA 2003)
............................................................ 13
Jamieson v. Kurland, 819 So.2d 267 (Fla. 2d DCA 2002) ............... 11, 14
Martin v. Brousseau, 564 So.2d 240 (Fla. 4th DCA 1990) ............... 11, 12
Nationwide v. Pinnacle, 753 So. 2d 55 (Fla. 2000) ....................... viii
Nichols v. State Farm Mutual Automobile Insurance Company, 851 So.2d 742
(Fla. 5th DCA 2003) ..................................... viii, 1, 9, 16
Schussel v. Ladd Hairdressers, Inc., 736 So.2d 776 (Fla. 4th DCA 1999) ....... 2
Triple E Development Co. v. Floridagold Citrus Corp., 51 So.2d 435 (Fla. 1951)
............................................................ 14
U.S. Security Co. v. Cahuasqui, 760 So.2d 1101(Fla. 3d DCA 2000) ......... vii
iv
Zalis v. M.E.J. Rich Corp, 797 So.2d 1289 (Fla. 4th DCA 2001) ........ 7, 12, 13
Statutes
F.S. 627.736(7)(a) ............................................... 5
F.S. 768.79(a) ................................................. 12
Florida Rules of Civil Procedure
1.442 (c)(2)(B) ................................................ 16
1.442(c)(2)(C) ........................................... 11, 12, 14
1.442(c)(2)(D) ................................................ viii
1.442(c)(2)(f) .............................................. 12, 14
1.442(c)(1) .............................................. 5, 13, 14
1.442 ....................................................... 13
Other Authorities
Thomas D. Masterson, Re: Standard Language for Release Preparation, The
Advocate, Vol. XXXII, No. 2, April 2002, at p.8. .................... 11, 14
v
PRELIMINARY STATEMENT
Respondent, Shannon Nichols, is the Petitioner in a separate brief on a
question of certified to this Court. That appeal number is SC 03-1653.
Respondent, Shannon Nichols, was the plaintiff insured in the trial court and
the appellant in the appeal below. She will be referred to as Shannon Nichols.
State Farm = Petitioner = Insurer = Defendant at trial
Shannon Nichols = Respondent = Insurer = Plaintiff at trial
1F.S. 627.736(7)(a) Whenever the mental or physical condition of an injured
person covered by personal injury protection is material to any claim that has been
or may be made for past or future personal injury protection insurance benefits,
such person shall, upon the request of an insurer, submit to mental or physical
examination by a physician or physicians.
vi
STATEMENT OF THE CASE AND FACTS
 Shannon Nichols provides her own statement of the case and facts because
State Farm improperly begins argument in its statement of the case and facts and
provides commentary and incorrect characterization of argument and opinion.
Shannon Nichols was injured in a vehicle collision in September 1996. (R. 1-
4). She was insured for PIP by State Farm. (R. 1 - 4). She received the total value
of her car and policy limits of the tortfeasor’s bodily injury policy, making her
eligible for an underinsured motorist claim from State Farm, as well as for PIP. (R.
1- 4, 347). Shannon received chiropractic and orthopaedic treatment. (R. 8 -12,
478). In December, State Farm contracted with DRS, Inc. to schedule Shannon to
submit to an examination by Dr. Westergan, M.D.1
 (R. 472 - 73). The examination
time was rescheduled twice by agreement. (R. 147 - 49, 472 -73, 478). The last
date for the examination was to be January 20, 1997 at 9:30 a.m. (R. 474).
Shannon had been having lower abdominal pain over her right ovary area. (R.
487). Her ob-gyn doctor ordered an ultrasound to diagnose the pain. (R. 490 -
vii
95). Shannon Nichols had 3 abnormal pap smears the prior year. (R. 175 - 77).
The ultrasound was scheduled for January 20, 1997, at 10:30, the same day as State
Farm's examination. (R. 178). Shannon attended the ultrasound, instead of State
Farm’s medical examination. (R. 183).
State Farm paid the ambulance, hospital, and prior medical and chiropractic
bills, but due to the missed appointment with their orthopaedist, State Farm refused
to pay further PIP benefits for any further treatment, and Shannon sued in Orange
county court. (R. 8 - 12, 120 ln 4 - 6). State Farm served a Proposal for
Settlement of $250 to cover both benefits and attorneys fees in February 1999,
about a year after the start of the case. (R. 288 - 89).
At trial, the existence of a contract and properly submitted bills were
stipulated to, as well as bills not paid and interest of about eleven hundred dollars.
Shannon Nichols lost after a 2 day trial, on the question of whether she
unreasonably refused to attend the January 20, 1997 medical examination. (R. 263).
State Farm moved for and was denied attorneys fees based on its proposal for
settlement. (R. 290 - 91). Based on the holding of the newly published opinion in
U.S. Security Co. v. Cahuasqui , 760 So. 2d 1101 (Fla 3d DCA 2000), State Farm
moved for reconsideration which was granted. (R. 300 -30). A hearing was held
on the amount of fees. (R. 382 - 404). Judgment was entered against Shannon
viii
Nichols for $23,199.00. (R. 374 -76). Collection proceedings were stayed pending
resolution of Cahuasqui before the Supreme Court. (R. 405). In Cahuasqui v.
U.S. Security Co., 796 So.2d 531 (Fla. 2001), the Supreme Court decided that
there was no actual conflict between the offer of judgment in Cahuasqui and the
mandatory arbitration decision for doctor’s bills in Nationwide v. Pinnacle, 753 So.
2d 55 (Fla. 2000). The trial court then certified the following question to the 5th
DCA. (R. 406 -07):
Are proposals for settlement pursuant to Section 768.79, Florida Statutes,
and Florida Rule of Civil Procedure 1.442 in actions to recover personal
injury protection benefits valid and enforceable or applicable to PIP suits?
The 5th District court rephrased the question to read:
May an insurer recover attorney’s fees under rule 1.442, Florida Rules of
Civil Procedure, and section 768.79, Florida Statutes, in an action brought
by its insured to recover under a personal injury protection policy?
In Nichols v. State Farm Mutual Automobile Insurance Company, 851 So.2d
742 (Fla. 5th DCA 2003), the 5th District Court reversed the award of attorneys
fees in its opinion, but separately affirmed the application of the offer of judgment
in accordance with Cahuasqui, and certified that question to the Supreme Court.
That is the subject of Shannon Nichols’ separate appeal, SC 03- 1653. This appeal
by State Farm is unrelated to that appeal.
ix
SUMMARY OF THE ARGUMENT
No jurisdiction argument has been provided by Shannon Nichols because the
parties were instructed not to by this court.
The opinion of the 5th DCA should be affirmed because the proposal for
settlement served on Shannon Nichols by State Farm was ambiguous, it violated
Fla. R. Civ. P. 1.442(c)(1), 1.442 (c)(2)(B), 1.442(c)(2)(C), 1.442(c)(2)(D), and
1.442(c)(2)(f) because it was not entirely written and testimony was needed to
clarify it, it did not identify the claim or claims the proposal was attempting to
resolve because it referred to the PIP suit and/or the UIM claim, it was ambiguous,
it referred to a document which did not exist, it was vague in that it used words
such as "et cetera," it referred to claims in the future, and did not give the required
30 days to accept it.
1
ARGUMENT
This Court should affirm the decision of the Fifth District Court, that the
proposal for settlement delivered from State Farm to Shannon Nichols was
defective because it violated Fla. R. Civ. P. 1.442 in that it was not particular in
conditions and non-monetary terms, it was ambiguous, and vague. State Farm
rejects the reasoning provided by the 5th DCA that a proposal for settlement is
supposed to be an end to judicial labor. Nichols, 851 So. 2d at 746. Its
justification for voiding the Rule's applicability is that there would still be judicial
oversight available because of the good faith requirement of F.S. 768.79(a) for a
refused proposal, and to determine the best conditions and non-monetary terms for
an accepted proposal.
In response to argument I of State Farm's brief, the parties were instructed
that jurisdiction briefing was deferred. Shannon Nichols therefore does not
respond to the jurisdictional argument of State Farm, although reading the opinion
below shows that it did not express a conflict with any other district and this
Answer brief shows that there is no conflict with any other case.
The opinion of the Fifth District Court on the issue of State Farm's offered
proposal for settlement was correct because the Proposal was defective on its face
and/or was offered in bad faith. 
2Fla. R. Civ. P. 1.442(c) Form and Content of Proposal for Settlement.
(1) A proposal shall be in writing and shall identify the applicable Florida law under
which it is being made.
(2) A proposal shall:
 (A) name the party or parties making the proposal and the party or parties to
whom the proposal is being made;
 (B) identify the claim or claims the proposal is attempting to resolve;
 (C) state with particularity any relevant conditions;
 (D) state the total amount of the proposal and state with particularity all
nonmonetary terms of the proposal;
 (E) state with particularity the amount proposed to settle a claim for punitive
damages, if any;
 (F) state whether the proposal includes attorneys' fees and whether attorneys'
fees are part of the legal claim; and
 (G) include a certificate of service in the form required by rule 1.080(f).
3736 So.2d 776 (Fla. 4th DCA 1999), citing TGI Friday's v. Dvorak, 663
So.2d 606, 614 (Fla. 1999), also, Foreman v. E.F. Hutton & Company, Inc., 568
So.2d 531 (Fla. 3d DCA 1990).
2
I. STATE FARM'S PROPOSAL FOR SETTLEMENT WAS DEFECTIVE
ON ITS FACE.
The proposal for settlement was defective in that it violated Fla. R. Civ. P.
1.4422
; it was ambiguous as to the identity of claims, it referred to an extraneous
document (the General Release), it was vague, had undefined terms, and tried to
obtain extra concessions that are not allowed in a valid proposal for settlement.
Because proposals for settlement are punitive in nature and run contrary to
the common law, they must be strictly construed. Schussel v. Ladd Hairdressers,
Inc.3
3
The proposal for settlement fails because it was defective in the five clauses
of Fla. R. Civ. P. 1.442(c)(1), (c)(2)(B), (c)(2)(C), (c)(2)(D); and (f)(1).
It does not identify that claim or claims that the proposal attempts to
resolve, in violation of R. 1.442(c)(2)(B), does not state with particularity any
relevant conditions, in violation of the R. 1.442(c)(2)(C), and does not state with
particularity all nonmonetary terms of the proposal, specifically the terms of the
General Release, in violation of R. 1.442(c)(2)(D).
It fails in B, stating the claims involved, because paragraph 3 of the Proposal
seeks release of more claims than it seeks to settle in paragraph 1 of the Proposal.;
and C, stating with particularity any relevant conditions, and D, stating with
particularity all non-monetary terms. The appendix is a copy of the proposal for
settlement (R. 288-89).
The proposal for settlement was for $250 to settle "any and all claims and
causes of action in, or arising out of, the above styled case," (R. 288, paragraph 1,
emphasis added).
The proposal for settlement set a condition of filing a joint release for
voluntary dismissal with prejudice for the lawsuit, which is acceptable, as the
format for a dismissal is set in the rules. This would have totally disposed of the
case, but the proposal then demanded, "and Nichols will execute a General Release
4763 So.2d 1106, 1107 (Fla. 4th DCA 1999).
4
in favor of State Farm, which will be expressly limited to all claims, causes of
action, etc., that have accrued through the date of Nichols's acceptance of this
Proposal." (R. 289, paragraph 3, emphasis added). This fails the test of
subparagraph B of R. 1.442(c)(2).
The purpose of the "General Release" could only be to obtain more
concessions from Shannon Nichols, because State Farm would pay nothing
beyond $250, but Shannon Nichols would be required to continue to give up
undefined claims and causes of action which were not stated with particularity.
Shannon Nichols still had an outstanding claim against State Farm for underinsured
motorist coverage, which was not settled until June 1999 for $13,000. (R. 347)
As discussed in J.J. Mae, Inc., v. Milliken & Co.,
4
 certain conditions are
allowable in a proposal for settlement. However, uncertain conditions should not
be allowed.
In the instant case, the proposal for settlement demanded that Shannon
Nichols settle all claims that are not particularly or individually identified, but which
would have included at least her uninsured motorist claim.
A release with an insurance company is not always "rather mechanical and
5Earnest & Stewart v. Codina, 732 So.2d 364 368 (Fla. 3d DCA 1999). 5
legally inconsequential" as remarked in Earnest & Stewart,  5
 which State farm cites,
but is often a long and protracted affair with a company that has already sensed
victory and has unlimited assets. If the terms of the "General Release" are not
agreed to after acceptance, hearings must be held that can be drawn out for
months, creating further judicial labor and further labor by the attorneys. In such a
case, a plaintiff, having tried to settle a suit, cannot get out of it, as the terms are not
yet determined. In the instant case, litigating the terms of the release would wipe
out the $250 to be paid by State Farm upon acceptance of the Proposal.
The controversy of releases has become so contentious that the Trial Section
of the Florida Bar published a Suggested Standard Language for Release
publication stating "It is our hope that adopting the Standard Release Language
regarding a specific issue will have the net result of helping to minimize controversy
or contention in arriving at acceptable language for a release of claims." Thomas
D. Masterson, Re: Standard Language for Release Preparation, The Advocate,
Vol. XXXII, No. 2, April 2002, at p.8.
State Farm required a "General Release" from Shannon Nichols.
However, a "General Release" does not have separate legal existence. No release, 
6
partial, full, special, or General exists in statute, rule, or code. Since there is no
standard available, State Farm should have at least attached its required "General
Release" to the proposal for settlement. Then Shannon Nichols and the courts
could at least look at the actual language, and not speculate on what language would
satisfy State Farm. State Farm’s need for judicial interpretation of its General
Release terms amounts to requesting the courts to provide an advisory opinion for
its "General Release."
Fla. R. Civ. P. 1.442(f)(1) is "A proposal shall be deemed rejected unless
accepted by delivery of a written notice of acceptance within 30 days after service
of the proposal." Notice that State Farm’s language , “. . . that have accrued
through the date of Nichols’s acceptance of this Proposal.”, makes the Proposal
one that is not determinable on the date it was served on Nichols. Nichols had a 30
day window for evaluating the offer. With this wording, the Proposal sought
release of any claim that Nichols might accrue in the future 30 days. Nichols might
easily have accrued new claims by the mere act of returning to her treating
physician and incurring treatment bills.
Stating the proposal in that open ended manner denied Nichols the 30 days
that she was allowed by statute to consider the offer. If any new claim accrued
during those 30 days, it would be included in the release, and Nichols’ time to then
7
consider the offer would be limited to the date of the expiration of the offer, which
would be something less than 30 days for her to consider the offer against the new
value of what she was required to give up. The inclusion of that new claim is
necessarily a future claim that is prohibited in a proposal for settlement and "is
intrinsically a condition which is incapable of being stated with the required
particularity. Zalis v. M.E.J. Rich Corp, 797 So.2d 1289, 1290 (Fla. 4th DCA
2001).
II. IF STATE FARM'S PROPOSAL FOR SETTLEMENT WAS NOT
DEFECTIVE, IT WAS OFFERED IN BAD FAITH.
If the proposal for settlement was not defective because it was ambiguous,
then it did attempt to settle the outstanding UIM claim. If it did so, it was a bad
faith attempt to settle a case that it later agreed to settle for $13,000, without
bringing to the attention of plaintiff that accepting the $250 would kill off the UIM
claim.
Only by the trial court accepting parole testimony that the proposal for
settlement was not intended to include the UIM claim, could it find that the proposal
was not filed in bad faith. However, the fact that parole testimony was required
from State Farm’s attorney means that the Proposal was vague as written, and that it
failed to meet the "must be in writing" of Rule 1.422(c)(1). 
8
If Shannon Nichols accepted the proposal for settlement, and later brought
suit against State Farm for the UIM claim, State Farm would or could have brought
out the proposal for settlement, the General Release, and any other paper it had
later demanded she sign, and her chances of persuading the trial court, and an
appellate court that they did not apply would have been slim.
Rather than agree with the argument of State Farm, it would be the better rule
that if a general release is required, the actual proposed general release should be
provided to the releasor. It is more probable that a fair release will be offered at
that time, than after the offeree has accepted the proposal for settlement, when the
victorious offeror is able to dictate the terms after the fact. If the release is actually
mechanical and inconsequential, then it should not have been mentioned.
III. STATE FARM'S CASE LAW AND ARGUMENT DOES NOT SUPPORT
ITS POSITION.
The important issue is: Does the offer on the date of its service advise the
recipient of what she is being asked to accept. If she has to ask what it means, it is
defective. Shannon Nichols as the offeree had no duty, whatsoever, to telephone
the offeror to ask exactly what it meant. There is no such requirement in the rule
or in the statute.
State Farm argues that its language in the Proposal means something that it
9
does not say it means. In fact, State Farm argues that it means the opposite of what
it says.
State Farm argues that the Nichols opinion and the position of Shannon
Nichols is inconsistent with the “standard protocol for, and practicalities of settling
lawsuits. (Initial Brief of Petitioner, pg. 12, para. 3). However there is no such
thing as a “standard protocol” for settling lawsuits. State Farm has not referenced
any such authority, and cannot because none exists.
Sate Farm complains that, “Nichols has placed the validity of literally
hundreds, if not thousands, of outstanding proposals for settlement in question.
(Initial Brief of Petitioner, p. 7, fn 5). If Nichols requires that hundreds or
thousands of outstanding proposals for settlement be made more specific, so that
the offerees can know exactly what they mean, and so that there will be no further
judicial labor or wrangling by attorneys over them, then, that is a good thing, not a
bad thing.
The time for acceptance of the proposal runs for 30 days from the day it is
served. R.1.442(f)(1). It does not run from the day it is clarified by telephone, or
from the day on which the telephone agreement as to the meaning is confirmed by
letter, or from the date on which the confirming letter is responded to with
corrections, and so on, ad infinitum.
10
Placing a clarification requirement on the offeree would mean that the offeree
would have less than the statutory time to consider acceptance or rejection. After
clarification, a rule should be made to give the offeree 30 days to accept.
Defendants like to use the broadest possible language in their releases, and
this time Petitioner is caught in a trap which it set itself. It is ensnared in its own
overly broad, overreaching language.
Shannon Nichols could not reach the conclusion that Petitioner argues for
without ignoring the language of paragraph 3 of the Proposal for Settlement, which
reads, in pertinent part, “. . . Nichols will execute a General Release in favor of
State Farm which will be expressly limited to all claims, causes of action, etc., that
have accrued through the date of Nichol’s acceptance of this Proposal.” (Italics
provided.)
This paragraph’s reference to all claims removes it from the limited realm of
“this lawsuit”. If it meant this claim only, the language should have been this claim,
not all claims.
The reference to all causes of actions applies to all other causes of action,
which necessarily included the UM cause of action. If it meant only to kill off this
cause of action, the language would have been this cause of action.
If State Farm meant to kill off only the PIP claim, and if it intended to
11
negotiate a release to do that after acceptance of the proposal, as it now argues in
its brief, then it needed nothing more in its Proposal than its paragraph number 1, or
the Voluntary Dismissal with Prejudice specified in the first 3 lines of its paragraph
3. But, Nichols could not ascertain that intent on the face of the offer because in
the rest of paragraph 3, State Farm went further and demanded release of all
claims, causes of actions, etc. (Italics provided).
State Farm claims that the 5th DCA violates a hornbook rule of contract
construction, but does not cite the hornbook reference.
State Farm bootstraps from Jamieson v. Kurland, 819 So.2d 267 (Fla. 2d
DCA 2002) which paraphrases from BMW of North America v. Krathen, 471
So.2nd 585 (Fla. 4th DCA 1985) to argue that a proposal for settlement is in the
nature of contract, and it should be read in pari materia with all other terms in the
proposal to arrive at a general meaning. Reading in pari materia does not mean
that a party can safely ignore a specific term which expands on or contradicts any
other more general term.
However, the cases state that only an accepted proposal for settlement is in
the nature of a contract. In Martin v. Brousseau, 564 So.2d 240,241 (Fla. 4th DCA
1990), the 4th District Court explained that its holding in BMW, supra, was “only
that once an offer of judgment was accepted, the resulting contract should be
12
construed according to contract law, and governed solely by the language used by
the parties if that language is without ambiguity.” Martin, 564 So. 2d at 241. In
BMW, it was an accepted proposal for settlement which had been entered by the
clerk as a judgment for the accepting party that was like a contract. BMW, 471 So.
2d at 587.
Delissio v. Delissio, 821 So.2d 359 (Fla. 1st DCA 2002) is distinguished
because the construction of arriving at a reasonable interpretation of the entire
contract is predicated on the terms of the contract being unambiguous. Delissio
relates to how the courts should interpret contracts in that the offeree cannot be
sure of what the value of the offer is and what her obligations are under it. If court
interpretation is required, then it is self evident that the proposal in question was
ambiguous.
There is little similarity to Bd. of Trustees of Florida Atlantic Univ. v.
Bowman, 28 Fla. L. Weekly D1825 (Fla. 4th DCA 2000). In Bowman, the trial
court denied the validity of the proposal for settlement because it held that it did not
meet the particularity requirement of Zalis v. M.E.J. Rich Corp, 797 So. 1289 (Fla.
4th DCA 2001) as to the phrase "and its agents, employees, and servants" referring
to the University's employees. But as held by the appellate court, the rule in Zalis is
properly only applied to future unspecified claims, and "agents, employees and
13
servants" is a specific term. In Hales v. Advanced Systems Design, Inc., 855
So.2d 1232 (Fla. 1st DCA 2003), the court properly used Zalis as precedent that a
proposal for settlement that refers to future claims, "not accrued" is not particular
enough.
Here, the 5th DCA has found the contract to be ambiguous. State Farm’s
argument is self-defeating. The mere fact that the contract needed interpretation in
the trial court and the appellate court and that they reached different conclusions
establishes that Nichols could not read the plain language of the contract and know
exactly what rights she would relinquish if she accepted the offer.
The plain language, however, established that she was required to give up all
accrued causes of action for a payment to her of $250. The included UM action
was ultimately settled for $13,000. Accepting $250 to relinquish $1,100 in claims is
a different kettle of fish than accepting $250 to relinquish $14,100 in claims.
If, as State Farms' lead authority, Earnest &. Stewart, Inc. v, Codina, 732
So.2d 364 (Fla. 3d DCA 1999), states, "the releases referred to in the offer were
not “conditions” of the settlement, but rather mechanical and legally inconsequential
means of effecting it,” then it should not be included in the offer, whatsoever. This
holding does not comport with the reality that many conscientious and competent
attorneys work out the release before accepting or proposing settlement. One can
651 So. 2d 435 (Fla. 1951). 14
argue that it is negligent for an attorney not to do so. The diligent party provides a
desired release with their first offer of settlement. This prudent policy should not
be abrogated just because a proposal for settlement is involved.
The Earnest decision requires the offeree and her attorney to selectively
ignore various paragraphs, sentences, phrases, and words in the offer. This goes
against the grain of all of the attorney’s legal training. How is the offeree to know
which parts of the offer to ignore as “mechanical and inconsequential”?
Earnest is distinguished because, in Earnest, there was no separate accrued
cause of action which was included by the plain language of the Proposal's
requirement of the release, that is comparable with the UM claim that Nichols had
outstanding, and there was no vague language like "etc.," and there was no question
of the full 30 days to accept the proposal.
If, as stated in Earnest, the “tail [of] additional documents [should not] wag
the dog” of the rejected offer then the “tail” should not be included in the offer,
whatsoever.
State Farm cites 4 cases, Jamieson, BMW, Triple E Development6 , and
Delissio, for the proposition that courts can ignore specific parts of contracts in
15 favor of court determining its own view of what the overall objective of the contract
was.
The fallacy in State Farm’s position is that it requires judicial rulings on the
meanings of the contracts, which is contrary to the objective which State Farm
itself admits, of settling cases without further judicial labor.
Nichols had every right to interpret the proposal as meaning exactly what it
said. Nichols had no duty, whatsoever, to telephone State Farm’s attorney for
clarification and correction of a defect in the Proposal. It was State Farm’s duty, if
it meant something other than what it said in the plain language of the Proposal, to
submit a new, corrected proposal that would trigger, anew, the running of the 30
days time for acceptance.
If State Farm intended to limit the demanded release to all claims and causes
of action that were brought or that were required to have been brought in the instant
lawsuit, that is exactly the language it should have used, not the all inclusive
language, “ . . .all claims, causes of action, etc., that have accrued through the date
of Nichols’s acceptance of this Proposal.
The opinion below is consistent with rule and caselaw. It has already been
summarized by another court, which in upholding a proposal for settlement as
particular enough under Fla. R. Civ. P. 1.442, held that it was not necessary for a
16 proposal for settlement to refer to claims that did not exist, stating:
The purpose of the rule is provide an efficient mechanism to convey
an offer of settlement to the opposing party free from ambiguities so
that the recipient can fully evaluate its terms and conditions. See
Nichols v. State Farm Mut., 851 So. 2d 742, 746 (Fla. 5th DCA
2003). Bennet v. American Learning Systems of Boca Delray, Inc., 28 Fla. Law Weekly
D2477 (Fla. 4th DCA 2003).
CONCLUSION
Shannon Nichols requests this Court to either
a) deny review of this appeal, and grant appellate fees and costs to Shannon
Nichols for the preparation of this answer. or,
b)dismiss review of this appeal as improvidently granted and grant appellate fees
and costs to Shannon Nichols for the preparation of this answer. or,
c) affirm the opinion of the 5th DCA as to the reversal of the judgment of attorney's
fees against Shannon Nichols and grant appellate fees and costs to Shannon
Nichols for the preparation of this answer or,
d) notice the parties to provide briefs as to jurisdiction.  17
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to Ken Hazouri, Esq., of
deBeaubien, Knight, Simmons, 332 N. Magnolia Ave., Orlando, FL, 32802, tel.
422-2454, fx 849-1845, by_____ this___day of ______, 2003.
 _________________________________________
THOMAS P. HOCKMAN, ESQ., FBN: 0057710
Law Offices of Hockman, Hockman & Hockman
2670 West Fairbanks Ave., Winter Park, FL 32789
(407) 647-3200 Attorneys for Petitioner
CERTIFICATE OF FONT
I certify that this brief is submitted in Times New Roman 14-point font,
which is proportionately spaced, and complies with the font requirements of Fla. R.
App. P. Rule 9.210.
_________________________________________
THOMAS P. HOCKMAN, ESQ.