Florida Offer of Judgment: The 25% Rule and Fee Shifting

A Florida Offer of Judgment, formally called a Proposal for Settlement, is a written settlement offer that either party in a civil case can serve on the other under Florida Statute § 768.79 and Florida Rule of Civil Procedure 1.442. Its power comes from a fee-shifting penalty: if the recipient rejects it and the final judgment ends up at least 25 percent worse for them than the offer, they pay the offering party’s attorney fees and costs incurred after the offer was served. The statute creates the right to recover fees; the rule dictates the exact format.

How the 25 Percent Rule Works

Fee-shifting cuts both directions, and the math depends on who made the offer.

When a defendant makes the offer and the plaintiff rejects it, the defendant recovers post-offer fees and costs if the plaintiff wins nothing at trial or wins a judgment at least 25 percent below the offer. If the defendant offered $100,000 and the jury returns $74,000, the threshold is crossed. The court then offsets the defendant’s fees and costs against the plaintiff’s award. If the fees exceed the award, a net judgment gets entered in the defendant’s favor, meaning a plaintiff who technically won at trial can walk out owing the defendant money.¹

When a plaintiff serves the demand and the defendant rejects it, the plaintiff recovers post-offer fees and costs if the final judgment exceeds the demand by at least 25 percent. A plaintiff who demanded $100,000 and won $125,000 triggers the penalty, and the defendant pays for the plaintiff’s litigation expenses from the date of the demand forward.

Only expenses incurred after the offer was served are recoverable. And the offering party must file a motion for fees within 30 days after entry of judgment. Miss that deadline and the fee-shifting right is gone regardless of how badly the other side missed the mark.

Who Can Make One and When

Either side. The statute is not limited to any particular claim type, so proposals show up in car accident cases, commercial disputes, and everything in between.

Timing is fixed. A proposal directed at a plaintiff cannot be served until at least 90 days after the lawsuit was filed. A proposal directed at a defendant cannot be served until at least 90 days after that defendant was served with the lawsuit. The window closes 45 days before trial or the first day of the trial docket, whichever comes first.

Multiple offers within that window are allowed. Parties often revise their proposals as discovery progresses or the trial date approaches.¹

What a Valid Proposal Must Say

Florida courts are unforgiving about format. A defective proposal is unenforceable, and the offering party loses fee-shifting rights entirely even if the rejection later looks unreasonable. The written proposal must:

State that it is being made under Florida Statute § 768.79 and Rule 1.442.
Identify the party making the offer and the party it is directed to.
State a specific dollar amount, not a range or formula.
Separately state any amount allocated to a punitive damages claim.
State whether attorney fees are included and whether fees are part of the underlying legal claim.
Contain no non-monetary conditions other than a voluntary dismissal of all claims with prejudice. Confidentiality clauses, broader releases, and side agreements void the offer.
Include a proper certificate of service.¹

Multi-party cases add a trap. A joint proposal directed at more than one plaintiff or defendant must break out the amount and terms for each party individually. Without that breakdown, the court cannot run the 25 percent comparison for each party, and the whole proposal fails. A narrow exception exists when one party’s liability is purely vicarious or derivative, such as an employer sued only for an employee’s conduct.

Responding to an Offer

You have 30 days from service to deliver a written acceptance. Silence is legally sufficient rejection; no formal rejection needs to be served. If no written acceptance arrives within 30 days, the offer is deemed rejected.¹

Acceptance ends the dispute between the parties involved. The accepting party files the written acceptance and the original proposal with the court, which then enters judgment on the settlement terms.

The offering party can withdraw the proposal at any point before a written acceptance arrives. The withdrawal must be in writing and delivered before the acceptance. Once withdrawn, the offer is void and carries no fee-shifting consequences.

A rejected or unanswered offer cannot be used as evidence at trial. It comes back into the record only when a party moves to enforce the fee-shifting penalty after judgment.

When Courts Refuse to Shift Fees

Fee-shifting is not automatic even when the 25 percent math works out. The court retains discretion to reduce or deny the award if it finds the offer was not made in good faith. A nominal offer of $100 in a case obviously worth six figures can be found to lack good faith even if it satisfies every formatting requirement.

In deciding whether the fee award is reasonable, the court weighs factors the statute lists:

How strong the claim appeared when the offer was made.
The number and nature of offers exchanged between the parties.
Whether the legal and factual issues were genuinely close.
Whether the offering party unreasonably withheld information the other side needed to evaluate the offer.
Whether the case raised test-case questions of broader importance.
The additional delay and expense the offering party reasonably expected to face if the case continued.¹

Separate from the good-faith review, appellate courts have thrown out proposals on purely technical grounds. Joint offers without a per-party breakdown top the list. Offers conditioning acceptance on a general release broader than the lawsuit’s claims fail. So do offers described as “exclusive” of interest, costs, or fees, because the recipient cannot pin down the actual total value. Precision matters more here than in almost any other litigation document.

Federal Cases Follow a Different Rule

If your case is in federal court, Florida’s statute does not straightforwardly apply. Federal Rule of Civil Procedure 68 covers the same territory but with narrower reach:

Only the defending party can serve an offer under Rule 68. Florida allows either side to serve.²
The federal offer must be served at least 14 days before trial, and the recipient has 14 days to accept. Florida uses 45 days and 30 days.
Rule 68 shifts “costs” only, not attorney fees, unless the statute creating the claim defines fees as costs. Florida shifts both fees and costs, making the financial exposure much larger.
Rule 68 penalizes any judgment “not more favorable” than the offer, with no buffer. Florida requires a 25 percent gap.

For state-law claims brought in Florida federal court through diversity jurisdiction, § 768.79’s fee-shifting can sometimes still apply, but that intersection is complicated and worth working through with counsel familiar with both regimes.

Why Insurers Pay Close Attention

When a defendant is being defended by an insurance company, a proposal for settlement creates layered pressure. If a plaintiff serves a reasonable offer within policy limits and the insurer refuses it, a trial judgment above those limits can expose the insurer to a bad-faith claim by its own policyholder. The statute anticipates the insurance context, allowing a defendant to recover fees incurred “on the defendant’s behalf pursuant to a policy of liability insurance or other contract.”¹

A carefully drafted plaintiff’s proposal serves double duty. It puts direct fee-shifting pressure on the defendant, and it sets the groundwork for a bad-faith claim against the insurer if the offer is unreasonably refused and the eventual judgment exceeds coverage. That combined leverage is why so many Florida cases resolve shortly after a proposal for settlement lands.

1
The 2025 Florida Statutes. Florida Statutes 768.79 – Offer of Judgment and Demand for Judgment
2
Legal Information Institute. Rule 68 – Offer of Judgment