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Smoker Fights to Keep Fee Award Against Philip Morris

August 24, 2017 | Posted in : Expenses / Costs, Fee Award, Fee Entitlement / Recoverability, Fee Issues on Appeal

A recent Law 360 story by Carolina Bolado, “Smoker Fights to Keep Fee Award in $35M Case,” reports that a smoker who won an award of attorneys' fees and costs on top of a $35 million jury award asked the Florida Supreme Court to reject an appeal of the fee award by Philip Morris and Liggett, arguing that there is no divide in the lower courts on whether or not email service is required to comply with the offer of judgment statute.
 
Richard Boatright and his wife urged the Florida Supreme Court to deny the petition by Philip Morris USA Inc. and Liggett Group LLC and leave in place a Second District ruling that said the trial court erred in denying a motion for attorneys' fees and costs because the Boatrights had served the defendants' attorneys by mail and not email.

The Boatrights had sent four settlement proposals to the tobacco companies before trial.  Under the offer of judgment law, they would be entitled to attorneys' fees and costs after their win at trial, but the judge ruled that they had not strictly complied with the law because they did not send the proposals via email.  The Second District reversed the decision, ruling that mandatory email service requirement does not apply to pretrial proposals for settlement.

The tobacco companies argue that the decision directly conflicts with a February 2017 ruling from the Third District and conflicts with a Fourth District ruling in an analogous case from 2014.

But in their brief, the Boatrights said the Third District's decision was limited to specific requirements of the email service rule and does not directly conflict with the Second District's decision in their case.  The couple added that the Fourth District's decision does not concern proposals for settlement.

Instead of taking up this case, the Boatrights urged the court to ask the Florida Bar’s Rules of Judicial Administration and Civil Rules Committees to propose amendments to clarify the rules regarding email service.  “Amendments to the rules will afford greater certainty to litigants and ensure statewide uniformity in the rules' interpretation and application,” they said in the brief.

The case is Philip Morris USA Inc. et al. v. Boatright et al., case number SC17-897, in the Supreme Court of Florida.