Under Florida law, "[t]he validity and effect of a settlement and release are governed by contract law." Travelers Insurance Co. v. Horton, 366 So.2d 1204 (Fla. 3rd DCA 1979). "A party is bound by, and a court is powerless to rewrite, the clear and unambiguous terms of a voluntary contract." Medical Center Health Plan v. Brick, 572 So.2d 548, 551 (Fla. 1st DCA 1990).

The construction and enforcement of a release or settlement agreement are governed by general principles of contract law. Florida Educ. Ass'n, Inc. v. Atkinson, 481 F.2d 662, 663 (5th Cir. 1973); Travelers Ins. Co. v. Horton, 366 So.2d 1204, 1205 (Fla.App. 1979). Where the language of a contract is unambiguous and not subject to conflicting inferences, construction of the contract is a question of law for the court, not a question of fact for the jury.

See Mergens v. Dreyfoos, 166 F.3d 1114, 1117 (11th Cir. 1999) ("Under Florida law, 'the validity and effect of a settlement and release are governed by contract law.'") (quoting Travelers Ins. Co. v. Horton, 366 So. 2d 1204, 1205 (Fla. 3d DCA 1979)); Schwartz v. Fla. Bd. of Regents, 807 F.2d 901, 905 (11th Cir. 1987) ("A settlement agreement is a contract and, as such, its construction and enforcement are governed by principles of Florida's general contract law."). Florida uses an objective test to determine whether a settlement agreement is enforceable.

Several contract principles come into play. "Under Florida law, '[t]he validity and effect of a settlement and release are governed by contract law.'" Mergens v. Dreyfoos, 166 F.3d 1114, 1117 (11th Cir. 1999) (quoting Travelers Ins. Co. v. Horton, 366 So. 2d 1024 (Fla. 3d DCA 1979)) (alteration in original). Nevertheless, "contractual terms may be waived, both expressly and implicitly, by the party to whom the term benefits."

(Doc. 1:26 ¶ 17; Doc. 1:39 ¶ 4.3.) "Under Florida law, `the validity and effect of a settlement and release are governed by contract law.'" Mergens v. Dreyfoos, Jr., 166 F.3d 1114, 1117 (11th Cir. 1999) (quoting Travelers Ins. Co. v. Horton, 366 So. 2d 1204, 1205 (Fla.Dist.Ct.App. 3rd 1979)). "A party is bound by, and a court is powerless to rewrite, the clear and unambiguous terms of a voluntary contract."

In support of its argument, PTI cites cases in which fees have been awarded under section 627.428(1) to insureds who prevailed in declaratory judgment actions brought by their insurers. (Doc. No. 81 at 7) ( citing Aries Ins. Co. v. Espino, 736 So.2d 792 (Fla. 3rd Dist.Ct.App. 1999); Travelers Ins. Co. v. Horton, 366 So.2d 1204 (Fla. 3rd Dist.Ct.App. 1979); Johnson v. Atlantic Nat'l Ins. Co., 163 So.2d 340 (Fla. 3rd Dist.Ct.App. 1964); Nat'l Fire Ins. Co. v. Bd. of Public Instruction, 239 F.2d 370 (5th Cir. 1957)). General asserts that section 627.428(1) is inapplicable because PTI did not obtain a judgment on the merits.

The Court further notes that Florida law provides for the payment of attorneys fees should an insured either successfully defend or prosecute a declaratory judgment action involving a question of insurance coverage. See Florida Statute § 627.428; and Travelers Insurance Company v. Horton, 366 So.2d 1204 (Fla. 3d DCA 1979). Therefore, if a declaratory action concludes with a finding favorable for the insured, the policyholder will be fully compensated for all costs and expenses incurred.

"The validity and effect of a settlement and release are governed by contract law." Travelers Ins. Co. v. Horton, 366 So.2d 1204, 1205 (Fla. 3d DCA 1979). Where the language in a release is "clear and unambiguous, the contract is the best evidence of the parties' intent and the ... court should look to the document's plain meaning when interpreting it."

"The validity and effect of a settlement and release are governed by contract law." Travelers Inc. Co. v. Horton, 366 So.2d 1204, 1205 (Fla. 3d DCA 1979). A court may look beyond the language of a contract only when the document's terms are ambiguous.

Neither could a discharge of the common tortfeasors be effected. Furthermore, the mere signing of the release by the executor did not effect such a discharge, because it required delivery in order to be effective. See, Travelers Insurance Co. v. Horton, 366 So.2d 1204 (Fla. 3d DCA 1979) (uninsured motorist had the right to proceed with arbitration where, although she did sign a release furnished by the insurer and was actually issued a draft, she neither presented the draft for payment nor returned the signed release to the insurer; and having failed to communicate her acceptance of the settlement by mailing the release to the insurer, uninsured motorist did not bind herself to the terms of the proposed agreement of settlement). The circumstances here are such that the executor was free, as was the uninsured motorist in Horton, supra, at any time to reject the tendered draft for $100,000.00, and to withhold delivery of the executed release, had the settlement been disapproved by the court, or had the executor decided for some reason not to request approval.