Fox v. McCaw Cellular Communications of Florida, Inc., 4th DCA of FL (1998)
Author: Bram

Cause of action: The following is a cause of action for damages as the result of tortious interference, defamation, a for group boycott under FL antitrust law.

Procedural History: Trial judge found $100 nominal damages fee to be in good faith. This court affirms.

Facts: PL employed by FL Cellular.  When AT&T Wireless terminated the dealership with FL Cellular, his employer sold its store to another AT&T dealer and that he was fired within one week.  He was hired by another AT&T dealer but was fired within three days as well.  PL alleges they combined to prevent him from getting a job with any AT&T dealer.  PL argues there was no way DF could have possibly figured out how much his damages were going to be, and this was just a bad faith attempt to assure a damages recovery on their part.

Issue(s): Under FL rules of civil procedure, is a $100 offer to settle all claims by PL reasonable as per FLCP when PL did not file answers and instead filed amended claims in each motion for summary judgment by DF?

Court's Rationale/Reasoning: PL's reliance on Eagleman is flawed.  The premise there was that all nominal offers are prima facie in bad faith, but this court says this was not in bad faith, as there was true assessment on the part of DF.  Eagleman also held that the assessment by DF in each case should be reasonable based on evaluation of potential liability and damages.

Good faith assessment is on a case-by-case basis.  The determination of good faith is determined by the surrounding facts and circumstances of the case, and should be considered by the trial judge, as was done in Eagleman.  So, on this question, court certifies the following question for the FL Supreme Court:  Here, the determination is there was no bad faith.

"Is a mere purpose to shift fees by making a nominal offer of settlement, regardless of the objective indications at the time of making the offer or after the final disposition of the case, alone indicative of bad faith under FL statutory law?

Rule: If DF has a reasonable basis at the time the offer is made to conclude that their exposure was nominal, then there is a good faith offer of a nominal settlement.

Holding: Yes.  DF's had reasonable time to calculate their exposure in this matter, and therefore should not be held accountable for their nominal offer to PL.

Concurring: An offeror has several circumstances to look at when they make their pitch (judge, venue, claim, evidence, merits of PL's claim) which do not necessarily mean a person making a nominal offer is not in good faith.  The term "good faith," since it originated out of contract law, might have been misconstrued by the legislature to mean as such when determining whether nominal damage offers fell into this category.  Or it could mean honesty.  What was the legislature's intent?

Damages claims resulting in no liability or if the judgment obtained by PL is less than 25% is what this judge comes up with.  So if the claim is for modest damages or none at all, DF should be able to offer a modest amount.  So there is, like the appellant wife in Eagleman, a means to set up a fees award, however unlike the appellant in Eagleman, if the nominal offer is in good faith.

Also, this judge has concerns over how easy defendants can state an offer for nominal damages, whereas claimants do not get this same benefit of the doubt in their rejections.

Concurring: The legislatures may not have intended that parties could make nominal offers of settlement solely for the purpose of shifting fees.  The purpose of the statute was to discourage preliminary stages of the litigation by encouraging realistic views of the claims made.  But again there is a double standard as the previous judge says.

This judge also thinks it might be better to eliminate nominal damages all together.  The whole intent thing bothers him, as an attorney may just concoct a story for the judge why they make an offer, as opposed to really checking it out.  Standard for making an offer should be whether the offeror would reasonably think the offeree would accept it.