Section 768.79 is a powerful tool in a Florida litigator's arsenal because it permits the offeror to create a basis for fee-shifting if the offeree does not accept a proposal for settlement, and certain conditions are met. The statute is implemented by Florida Rule of Civil Procedure 1.442, which allows a proposal to be made by or to any party or parties and by or to any combination of parties. Rule 1.442(c)(3) requires a joint proposal—that is, a proposal by or to two or more parties—to state the amount and terms attributable to each party. The sole exception to Rule 1.442(c)(3)'s apportionment requirement is found in Rule 1.442(c)(4), which applies when a party is alleged to be solely vicariously, constructively, derivatively, or technically liable, whether by operation of law or by contract. The Florida Supreme Court has made clear time and again that Section 768.79 and Rule 1.442 must be strictly construed.

This article explores the conflict between the Second District Court of Appeal and the Fourth District Court of Appeal about whether a proposal for settlement must be apportioned when made by or to a husband and wife bringing a claim for damages.