- Court
- Florida Fourth District Court of Appeal
- Case Number
- 4D2025-0114
- Date Filed
- May 27, 2026
- Judge
- Sherman, James, Associate Judge
- Disposition
- Reversed
Background
Kuehne + Nagel (K+N) and OJ Commerce LLC (OJC) entered into a shipping agreement containing a New York choice-of-law provision. After a dispute, OJC sued K+N in Broward County. K+N initially responded with a motion to dismiss based on lack of personal jurisdiction, citing the agreement’s choice-of-law provision. K+N then answered and filed a counterclaim, asserting it was filed without prejudice to its pending motion to dismiss.
Shortly after K+N filed its amended counterclaim, OJC served a proposal for settlement pursuant to section 768.79, Florida Statutes. K+N took no action, and the proposal was deemed rejected by operation of law. K+N never raised New York law again until it filed its motion for summary judgment, well after the proposal expired. The case went to jury trial, and OJC prevailed. Post-judgment, OJC moved for attorney’s fees under section 768.79 based on the rejected proposal.
The trial court found that K+N had waived enforcement of the choice-of-law provision and awarded fees under section 768.79, though it did not specify when the waiver occurred.
Holding
The Fourth DCA reversed. Applying de novo review, the court held that because section 768.79 is substantive for conflict-of-law purposes (per Southeastern Floating Docks, Inc. v. Auto-Owners Insurance Co., 82 So. 3d 73 (Fla. 2012)), it is inapplicable where the parties have contractually agreed to be bound by the substantive laws of another state. The critical question was the timing of the waiver relative to the proposal for settlement.
The court held that a proposal for settlement must be valid when served, not when later enforced. Because K+N had not waived the New York choice-of-law provision at the time OJC served its proposal — the motion to dismiss was still pending and K+N’s filings expressly reserved the issue — the proposal was ineffective from inception. A subsequent waiver could not retroactively validate an invalid proposal. The court stated: “the validity of a PFS must be evaluated at the time it is served” and “a later waiver does not retroactively breathe life into a proposal that was invalid when served.”
Key Takeaways
- Section 768.79 is substantive for conflict-of-law purposes and is inapplicable when a valid out-of-state choice-of-law provision governs the dispute.
- The validity of a proposal for settlement must be evaluated at the time it is served, not at the time fees are sought.
- A subsequent waiver of a choice-of-law provision does not retroactively validate a proposal for settlement that was invalid when served.
- Parties should carefully evaluate whether a choice-of-law provision remains in effect before serving a proposal for settlement under Florida’s offer-of-judgment statute.
Why It Matters
This decision creates an important temporal limitation on proposals for settlement in cases involving contractual choice-of-law provisions. Litigants serving proposals for settlement must now evaluate the state of the choice-of-law question at the time of service — not merely at the time of enforcement. The ruling has significant practical implications in commercial litigation, where contracts frequently contain out-of-state choice-of-law provisions that may later be waived through litigation conduct. Practitioners must now assess whether the opposing party has affirmatively waived a foreign-law provision before serving a section 768.79 proposal, or risk having the proposal deemed ineffective regardless of the ultimate outcome of the choice-of-law question.