On May 26, 2022, the Florida Supreme Court amended Florida Rule of Civil Procedure 1.442(c), which governs the procedural requirements for making proposals for settlement. The change goes into effect July 1, 2022, after which a proposal for settlement cannot include nonmonetary terms. The only exceptions are for voluntary dismissal of all claims with prejudice and other nonmonetary terms which are expressly permitted by statute (see, e.g., Florida Statute § 70.001(4)(c)). The purpose of the change is to align the rule with Florida's settlement proposal statutes. The court's opinion specifically cited Section 768.79, Florida Statute, which does not provide for the inclusion of nonmonetary terms in an authorized proposal for settlement.
As a result of the amendment, a proposal for settlement can no longer include a release as a condition of settlement. A party's ability to secure a confidentiality agreement, a written release of all claims, or the other party's cooperation – important negotiation tools for litigants – will be severely limited by the court's amendment to Rule 1.442.
The purpose of Rule 1.442, to encourage settlement, will be frustrated if a defendant cannot secure certain releases in conjunction with a proposal for settlement, keep the terms of its settlement confidential, or rely on future cooperation of the plaintiff. The amendment also leaves some questions unanswered, like whether the proposal for settlement can include any form of a settlement agreement with payment terms or other accepted "boilerplate" terms that would practically accompany any settlement agreement.
A party will now need to carefully consider how much it values and desires certain non-monetary settlement terms such as a release of claims, confidentiality, or agreement to cooperate.