On July 2, 2026, the Florida Supreme Court decided Trace Elements, Inc. v. Mackensen, No. SC2024-1274, and in doing so closed a door that the Fourth District Court of Appeal had briefly held open. The Court held that Florida Rule of Civil Procedure 1.442(c)(3) requires apportionment of every joint proposal for settlement, including a proposal that resolves a single, unified claim. For any practitioner who serves or receives proposals for settlement on behalf of more than one party, the decision is required reading before your next offer goes out.
The Setup
The facts are the kind that make the rule feel absurd, which is precisely why the case matters. Wolfgang and Nadja Mackensen, a married couple, hired Trace Elements, Inc., a design company, to oversee renovations of their Vero Beach vacation rental. After the company terminated performance early, the Mackensens sued for breach of contract and unjust enrichment, and the company countersued. Before trial, the couple served a single proposal for settlement offering to accept a lump sum of $10,000 to resolve the entire action, with mutual dismissals. The company rejected it. The jury returned a verdict for the Mackensens of $41,273.70, comfortably more than 25% above their offer, and the company took nothing on its counterclaims.
The Mackensens moved for fees under section 768.79, Florida Statutes. The trial court denied the motion, holding the proposal invalid because it did not state an amount attributable to each spouse under Rule 1.442(c)(3). The Fourth District reversed, reasoning that apportionment is unnecessary for "a joint proposal regarding a unified, single claim." That holding conflicted with the Second District's decision in Cobb v. Durando, 111 So. 3d 277 (Fla. 2d DCA 2013), and the Supreme Court took the case to resolve the split.
The Holding
The Court quashed the Fourth District's decision, approved Cobb, and remanded. Writing for a four-to-three majority, Justice Muñiz held that Rule 1.442(c)(3) requires apportionment of a joint proposal even where the underlying claim is single and unified. The "unified, single claim" exception, traceable to the Fourth District's earlier decision in Hall v. Lexington Insurance Co., 895 So. 2d 1161 (Fla. 4th DCA 2005), does not survive.
The reasoning is a reaffirmation of the strict-construction line the Court has followed for two decades, and it leaves little daylight for creative argument:
- A "joint proposal" means only a proposal made by or to multiple parties. Under Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So. 2d 276 (Fla. 2003), the multiplicity of parties is the whole test. The parties' relationships, their theory of liability, and the number or nature of the claims are irrelevant to whether apportionment is required.
- Apportionment is required even when it is illogical or impossible. Quoting Pratt v. Weiss, 161 So. 3d 1268 (Fla. 2015), the Court reiterated that "[e]ven where no logical apportionment can be made, it is nonetheless required where more than one offeror or offeree is involved."
- The absence of ambiguity does not cure a failure to apportion. Trace Elements never argued the offer was unclear. It did not matter. As the majority put it, borrowing from the First District, the Court "has made the test strict compliance, not the absence of ambiguity."
- Purpose-based arguments do not excuse noncompliance. The Mackensens argued that enforcing the rule on these facts elevated form over substance and defeated the settlement purpose of section 768.79. The Court declined to condition enforcement on a case-by-case assessment of whether the rule's purpose is served, emphasizing that section 768.79 is a penalty statute and that predictable application is itself the value.
- Tenancy by the entireties changes nothing. The Court was unpersuaded that the couple's joint ownership of the property made apportionment impractical, citing the Second District's rejection of the same argument in Cobb and again in Watkins v. Corbett, 2026 WL 816637 (Fla. 2d DCA Mar. 25, 2026).
The Court also distinguished Kuhajda v. Borden Dairy Co. of Alabama, LLC, 202 So. 3d 391 (Fla. 2016), which had excused noncompliance with the attorney's-fee-disclosure provision of the rule. The distinction turns on substance. Rule 1.442(c)(3) implements a substantive requirement of the statute — namely section 768.79(2)(b)'s command that a proposal "name the party making it and the party to whom it is being made" — whereas the fee-disclosure provision at issue in Kuhajda did not. Finally, the majority signaled that if the rule is overbroad, the remedy is a rule amendment, not a judicial exception. That is the very path the Court took after Lamb v. Matetzschk produced Rule 1.442(c)(4) for vicarious-liability scenarios.
The Dissent
Justice Sasso, joined by Justices Francis and Tanenbaum, would have affirmed the Fourth District. The dissent is worth attention because it maps the arguments most likely to drive any future rule-amendment effort. It contends that a married couple asserting a factually and legally undifferentiated entireties claim presents a scenario the Court's prior cases never actually decided, and that only holdings — not broad statements of principle — bind. It argues that the apportionment requirement's stated purpose (letting each offeree evaluate the offer as it pertains to him or her) is simply not implicated when there is a single offeree and one indivisible claim. And it revisits a recurring critique: that applying the "derogation of common law" canon to a procedural rule is analytically unsound, and that the Court's more recent decisions in Kuhajda and Wheaton v. Wheaton point back toward honoring the substantive requirements of section 768.79 rather than enforcing consistency in "illogical, impractical, and unworkable" case law.
Practice Pointers
The doctrinal debate is interesting; the operational consequence is stark. Until and unless the rule is amended, treat the following as firm rules of the road:
- Apportion whenever there is more than one offeror or offeree, with no exceptions. Spouses, joint owners, tenants by the entireties, jointly and severally liable defendants, parties with coextensive liability: all of them. State a specific dollar amount and the terms attributable to each named party.
- Do not rely on any "unified claim," "single indivisible claim," or "impossibility of apportionment" theory. Those arguments are now foreclosed, and the Hall exception is gone. An unapportioned joint proposal is invalid regardless of how sensible non-apportionment might seem on the facts.
- Where the claim genuinely belongs to one person, consider a single-offeror proposal. If only one client is the real party in interest, an offer from that client alone avoids the joint-proposal problem entirely. Just confirm the proposal does not purport to resolve claims of parties it fails to name. Audiffred v. Arnold, 161 So. 3d 1274 (Fla. 2015), invalidated a proposal for exactly that defect.
- Clarity is not a safe harbor. Do not talk yourself into skipping apportionment because your offer is unmistakably clear. The test is strict compliance.
- Audit your templates now. Any office form or letter that generates joint proposals should be reviewed to ensure it forces an explicit allocation between named parties. The downside of getting this wrong is total forfeiture of fee entitlement even after a decisive trial win, as the Mackensens learned after beating their offer by roughly four times.
The larger lesson is the one the Court itself drew. Rule 1.442 rewards parties who follow its text and punishes those who bet on an equitable exception. Draft to the rule, not to the equities.