The Court turned to Article V, section 2(a) of the Florida Constitution in determining thestatus of Fla. Stat. § 768.79. The Court noted that Article V, section 2(a) grants the Court theexclusive authority to adopt rules of judicial practice and procedure for state actions brought inFlorida. Alternatively, the Legislature is charged with the responsibility of enacting substantivelaw. Southeast, at 78.
Allen v. Butterworth, 756 So.2d 52, 59 (Fla. 2000); TGI
Friday’s, Inc. v. Dvorak
, 663 So.2d 606, 611 (Fla. 1995). However, as is the case with Offers of Judgment, both the Legislature and the Court have enacted measures controlling their use andavailability. In situations where two branches of government are both given authority to enactrules and laws on a subject, the Court must look to the requirements placed on the Court by theLegislature in determining the nature of the statute and rule. Massey v. David, 979 So.2d 931(Fla. 2008).The Court had previously determined that the Offer of Judgment statute was bothsubstantive and procedural in nature.
Knealing v. Puelo, 675 So.2d 593 (Fla. 1996); TGI
663 So.2 at 611. The Court noted that because the statute sets out the circumstancesunder which a party was entitled to fees and costs under which a court must award fees andcosts, the Legislature had created a substantive right to the fees and costs. Id. Additionally, theCourt relied on its ruling in
, noting that since the Offer of Judgment statue altered
the common law rule that a party is responsible for its own attorney’s fees, it was “clear that thecircumstances under which a party is entitled to costs and attorney’s fees
Southeast, 82 So.3d at 79. Finally, the Court relied on the plain language of the statue in
determining that due to the statute’s express limiting of judicial discretion as to the calculation of
the fees and costs awarded when the provided requirements are met, the statue is substantive innature as it relates to both constitutional and conflict of law issues. Id.The Court stated
that, “[a]n agreement between parties to be bound by the substantive
laws of another jurisdiction is presumptively valid, and this Court will enforce a choice-of-lawprovision un
less applying the chosen forum’s law would contravene a strong public policy of thisState.”
Id at 80. It is undisputed that there is a public policy concern with the enforcement of theOffer of Judgment statute as it has been widely held that the statue was enacted to deter partiesfrom rejecting reasonable settlement offers by imposing sanctions through a requirement to pay
the opposing party’s fees and costs incurred in
either bringing or defending an action.
Attorneys’ Title Ins. Fund, Inc. v. Go
rka, 36m So.3d 646 (Fla. 2010); and,
, 663So.2d at 611. However, the public policy at play in the desire for litigants to accept reasonableoffers does not out way the even greater public policy of protecting ones freedom to contract.Southeast, 82 So.3d at 81. Accordingly, the Court determined that the Offer of Judgment statuewas a substantive right and that in an instance where parties mutually agree, through contract, tobe bound by the substantive laws of another jurisdiction, Fla. Stat. § will not apply. Id at 82.