Early v. Carnival Corporation: Liability Case with MSA Issue

In Susan Early v. Carnival Corporation, 2013 U.S. Dist. LEXIS 16711 (decided February 7, 2013), the parties mediated a liability case in November and believed that they had reached a settlement agreement.  Specifically, the parties agreed that the defendant would pay plaintiff an undisclosed sum, that each party would be responsible for its own fees and costs, that plaintiff would execute a release, and that defendant would be responsible for the mediator's fees.  The parties could not agree, however, on the issue of whether an MSA was required, but they did "agree" to submit the issue to the court for resolution.  The mediator believed the case settled and noted this to the court, and the parties then filed their respective arguments that an MSA was (or was not) required.

Upon a review of the issue, the court found that no settlement agreement had been created.  Under Florida law, settlements must "be sufficiently specific and mutually agreeable on every essential term," and an agreement to agree is not enough (Id. at *4).  Ultimately, an agreement to disagree was not enough, either.  The court refused to create an essential settlement term - in this case, whether or not to include an MSA in the settlement - and it refused to issue an advisory opinion.  This case was not one in which the parties had agreed upon an MSA and needed the court's assistance as to the amount of the MSA, nor was it one in which the parties had an agreement but, after the fact, disagreed as to whether the settlement included an MSA.  Thus, no agreement existed and the court declined to assist the parties in creating one.   

It is important to note that, in many ways, this is a decision about procedure.  The court notes that, in this case, the MSA (or lack thereof) is an essential term of an enforceable settlement agreement.  The court's refusal to create an essential settlement term does not mean that the court will never assist the parties on this issue, however.  It is simply premature to do so at this stage of the proceedings.  If the case's remaining issue in dispute - whether or not Medicare's future interests need to be protected - cannot be resolved by agreement between the parties, it can be resolved by the court on March 25, 2013, when the case goes to trial.