Florida’s proposal-for-settlement law remains a fertile source of litigation, and the Florida Supreme Court’s July 2, 2026, decision in Trace Elements, Inc. v. Mackensen 1 is the latest example. In Trace Elements, the court held that Rule 1.442(c)(3) requires apportionment of a joint proposal even when multiple plaintiffs assert what the lower court characterized as a unified, single claim. Because the homeowners’ $10,000 proposal did not allocate the amount between them, the proposal was unenforceable for purposes of recovering attorney’s fees and costs under section 768.79.
Trace Elements is an important reminder that proposal-for-settlement practice remains technical and that enforceability must be addressed before any fee-shifting analysis begins.
But once the proposal is valid, a different and often overlooked question becomes more practical: how much does the plaintiff actually need to recover at trial to avoid the defendant’s proposal for settlement?
We have previously written about the mechanics of Florida proposals for settlement and their use as litigation leverage. See What Is a Proposal for Settlement Pursuant to Florida Statute? and When Settlement Becomes Leverage: State Farm’s New Proposal for Settlement Tactic.
The answer to the threshold question is not necessarily 75% of the proposal.
Under section 768.79, a defendant may seek post-proposal attorney’s fees and costs if the plaintiff’s “judgment obtained” is at least 25% less than the proposal. But Florida law does not equate the “judgment obtained” with the jury’s damages verdict alone.
In White v. Steak & Ale of Florida, 2 the Florida Supreme Court held that the calculation includes the net damages judgment plus qualifying attorney’s fees and taxable costs that could have been included in a final judgment had judgment been entered on the date of the proposal.
The court reaffirmed that framework in CCM Condominium Association, Inc. v. Petri Positive Pest Control. 3 CCM also confirms that prejudgment interest accrued through the date of the proposal is included, while post-proposal prejudgment interest is excluded.
That gives us the working formula:
Judgment Obtained = Net Damages + Qualifying Pre-Proposal Attorney’s Fees + Pre-Proposal Taxable Costs + Pre-Proposal Prejudgment Interest
One Example
Assume the insurer serves a $100,000 proposal for settlement.
The statutory threshold is:
$100,000 × 75% = $75,000
Now assume that, as of the date of the proposal, the plaintiff has:
$15,000 in qualifying attorney’s fees,
$5,000 in taxable costs, and
$10,000 in prejudgment interest.
Those amounts total $30,000.
The plaintiff therefore does not necessarily need a $75,001 damages judgment. Instead:
$75,000 threshold
− $30,000 in qualifying pre-proposal amounts
= $45,000
Under those assumptions, the plaintiff needs a net damages judgment greater than $45,000 to push the “judgment obtained” above $75,000.
For example:
**$46,000 damages
- $15,000 fees
- $5,000 costs
- $10,000 interest
= $76,000 judgment obtained**
That would defeat the defendant’s attempt to trigger the statutory 25% differential.
A recent property insurance case illustrates the same principle. In SFR Services, LLC v. Florida Department of Financial Services o/b/o Avatar Property & Casualty Insurance Company, 4 the insurer served a $15,000 proposal. The plaintiff ultimately had a $9,000 net damages judgment, but $2,384.90 in pre-offer taxable costs had to be added under White. That pushed the “judgment obtained” above the $11,250 statutory threshold and defeated the insurer’s fee claim.
The practical lesson is straightforward. When evaluating a defendant’s proposal for settlement, counsel should first determine whether the proposal is enforceable. Then the analysis should shift immediately to the actual threshold calculation.
Do not compare the proposal only to the expected jury verdict. Calculate the net damages realistically recoverable, add qualifying attorney’s fees and taxable costs through the proposal date, and add prejudgment interest only through that same date.
In a close case, those pre-proposal amounts can be the difference between defeating a PFS and facing a substantial post-proposal fee claim.
1 Trace Elements, Inc. v. Mackensen, — So.3d —, 2026 WL 1901612 (Fla. July 2, 2026).
2 White v. Steak & Ale of Florida, Inc., 816 So. 2d 546 (Fla. 2002).
3 CCM Condominium Association, Inc. v. Petri Positive Pest Control, Inc., 330 So. 3d 1 (Fla. 2021).
4 SFR Services, LLC v. Florida Department of Financial Services o/b/o Avatar Prop. & Cas. Ins. Co., 412 So. 3d 179 (Fla. 6th DCA 2025).
