The Week in Torts – Cases from the Week of July 15, 2016

FLORIDA LAW WEEKLY

VOLUME 41, NUMBER 28

CASES FROM THE WEEK OF JULY 15, 2016

TRIAL COURT DID NOT ERR IN AWARDING ATTORNEY’S FEES AGAINST COUNSEL FOR PLAINTIFF WHO FAILED TO COMPLY WITH REASONABLE PRESUIT INVESTIGATION REQUIREMENTS–FAILURE TO PROVIDE ADEQUATE CORROBORATING AFFIDAVIT CONSTITUTED FAILURE TO COMPLY WITH REASONABLE PRESUIT REQUIREMENTS–BUT EXTENUATING CIRCUMSTANCES EXISTED.

Bery v. Fahel, 41 Fla. L. Weekly D1572 (Fla. 3^rd DCA July 6, 2016):

A doctor successfully challenged the plaintiff’s compliance with presuit requirements and obtained dismissal of the plaintiff’s claim for medical malpractice.

As part of the presuit investigation, plaintiff’s counsel obtained the affidavit of an emergency medical physician to corroborate the merits of the plaintiff’s claim against a board-certified family practitioner. When the plaintiff filed the action, the physician claimed the notice of intent served on him was defective and improper under the statute. Following two evidentiary hearings, the trial court agreed that plaintiff’s expert did not meet the criteria set forth by the legislature as it related to testifying against the general practitioner. Thus, because the plaintiff failed to comply with the medical malpractice presuit requirements, dismissed the claim.

The Third District had already affirmed the dismissal, finding that the doctor was “unqualified” as an expert against the defendant physician. On remand, the trial court also held an evidentiary hearing, and awarded the doctor’s attorneys $6,600 in fees and costs that the defense had to incur in responding to the plaintiff’s deficient notice of intent.

Because the issue of the dismissal had already been decided by an earlier panel, the issue before this court was only whether the failure to provide an adequate corroborating adequate constituted failure to comply with reasonable presuit investigation requirements, which allows for an award of fees and costs as a sanction.

The court held that a party’s failure to provide a corroborating affidavit from a qualified medical expert constitutes prima facie evidence of a lack of a reasonable basis to bring suit. In this case, substantial credible evidence supported the trial court’s determination that a reasonable investigation was not performed by the plaintiff’s counsel, not only because of plaintiff’s failure to satisfy the statutory requirements, but also because the attorney persisted in using the affidavit after it was disclaimed and withdrawn by the affiant, and before the presuit period had ended.

Once the trial court found that the presuit affidavit did not meet the presuit requirements and dismissed the claim, section 766.206(2) mandated a finding that the presuit investigation was unreasonable for the purpose of imposing fees and costs.

TRIAL COURT DID NOT ABUSE ITS DISCRETION IN FINDING THAT DEFENDANT FAILED TO ESTABLISH EXCUSABLE NEGLECT OR A MERITORIOUS DEFENSE WHICH WOULD JUSTIFY SETTING ASIDE THE DEFAULT–TRIAL COURT ALSO ERRED IN ENTERING DEFAULT FINAL JUDGMENT AND AWARDING DAMAGES WHERE THEY WERE UNLIQUIDATED.

Winding Wood Condominium Association v. Walls, 41 Fla. L. Weekly D1578 (Fla. 2^nd DCA July 8, 2016):

Writing that “it would add nothing to the jurisprudence of the state to detail the extensive factual background underlying Winding Wood’s assertions of excusable neglect and a meritorious defense,” the court stated it was sufficient to say that it concluded that the trial court did not abuse its discretion in finding that the Association failed to establish either of the prerequisites for setting aside the default.

Still, the trial court did improperly enter default final judgment for damages and attorney’s fees, for those damages which were unliquidated. A jury must decide the issue of damages when they are unliquidated.