The Plaintiffs in Gorka were a husband and wife who owned property insured under a title insurance policy. The insurer allegedly declined to defend the owners in a dispute with regard to the property, and the owners filed an action against the insurer seeking declaratory relief and damages for breach of contract. Before trial, the insurer served a proposal for settlement on the property owners pursuant to section 768.79, Florida Statutes (2004), and Florida Rule of Civil Procedure 1.442. The proposal offered a payment of $12,500 to each party in full settlement of all claimed damages, attorneys' fees, and costs. However, the proposal stated:

This offer is conditioned upon the offer being accepted by both John W. Gorka and Laurel Lee Larson. In other words, the offer can only be accepted if both John W. Gorka and Laurel Lee Larson accept and neither Plaintiff can independently accept the offer without their co-plaintiff joining in the settlement.

Neither respondent accepted the proposal.

    Following a bench trial, the trial court rendered a final judgment in favor of the insurer. Subsequently, the insurer filed a motion to tax fees and costs against the property owners pursuant to the unaccepted proposal for settlement. While the property owners sought review of the final judgment in the Second District Court of Appeal, the insurer filed a motion with the Second District for appellate attorneys' fees pursuant to the unaccepted proposal for settlement. The Second District remanded the fee issue to the trial court for a determination of whether the insurer was entitled to fees. The trial court concluded that the proposal was invalid and unenforceable based on the authority of Lamb v. Matetzschk, 906 So. 2d 1037 (Fla. 2005). The Second District Court of Appeal concurred. In reaching its decision, the District Court noted:

The purpose of section 768.79 is to encourage the settlement of lawsuits. See United Servs. Auto. Ass'n v. Behar, 752 So. 2d 663, 664 (Fla. 2d DCA 2000). An award of fees under the statute is a sanction against a party who refuses to accept a reasonable offer and unnecessarily continues the litigation. Sarkis v. Allstate Ins. Co., 863 So. 2d 210, 222 (Fla.2003). Such an award is in derogation of the common law rule that each party pay its own fees, and the statute and rule are strictly construed in favor of the party against whom the penalty is sought. Id. at 218, 223; Willis Shaw Express, 849 So. 2d at 278.

In Willis Shaw Express, the Florida Supreme Court considered the language in rule 1.442(c)(3) that "[a] joint proposal shall state the amount and terms attributable to each party." 849 So. 2d at 278. The court held that a joint proposal of settlement made by multiple plaintiffs "must apportion the offer among the plaintiffs." Id. at 279. Thus, attorneys' fees were not recoverable under a proposal that failed to specify the amount and terms that each plaintiff was requesting. Id. at 277, 279. In Lamb v. Matetzschk, 906 So. 2d 1037, 1040 (Fla. 2005), the court extended this analysis to a situation in which a plaintiff made an undifferentiated settlement offer to more than one person, holding that such an offer must state the amount and terms attributable to each of the offerees. The supreme court has also held that an offer made by a defendant to multiple plaintiffs must state the amount and terms attributable to each plaintiff. Allstate Indem. Co. v. Hingson, 808 So. 2d 197, 199 (Fla. 2002).

In summary, when a plaintiff serves a proposal of settlement to multiple defendants, each defendant is entitled to evaluate the proposal and "should be able to settle the suit knowing the extent of his or her financial responsibility." Lamb, 906 So. 2d at 1040. Similarly, when a defendant serves an offer of judgment or a proposal for settlement to multiple plaintiffs, each plaintiff must "have an independent right to evaluate and decide the conduct of" his or her claim. Behar, 752 So. 2d at 665.

    Significantly, in Gorka, the money offered to the plaintiffs was apportioned between the two plaintiffs, such that a separate amount was offered to each. However, the acceptance by either plaintiff was conditioned on both plaintiffs accepting the offer. In other words, one plaintiff could not accept the offer if the other one did not. In affirming the decision of the Second District Court of Appeal, the Florida Supreme Court held that a joint offer or proposal of settlement that is conditioned on the mutual acceptance of all joint offerees is invalid and unenforceable because it is conditioned such that neither offeree can independently evaluate or settle his or her respective claim by accepting the proposal.

    The Gorka Court further noted that their holding equally applies to factual scenarios involving a large number of parties, beyond the two-plaintiff, husband and wife situation presented in the case. The Court concluded, "[c]onditioning an offer on the mutual acceptance of a large number of parties who may legitimately evaluate and value their claims differently from each other allows an offeror to abuse this situation and subject all parties to the threat of the sanction."