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FLORIDA LAW WEEKLY

VOLUME 45, NUMBER 21

CASES FROM THE WEEK May 29, 2020

MOST RECENT LEGAL GUIDANCE REGARDING CONTINGENCY FEE MULTIPLIERS.

Wesson v. Florida Peninsula Insurance Co, 45 Fla. L Weekly D1217 (Fla. 1st DCA May 20, 2020):

Citing to Joyce v. Federate National Insurance Co, 228 So.3d 112 (Fla. 2017), the court outlined the three factors that trial judges analyze before determining whether a contingency fee multiplier is required in a case: (1) whether the relevant market requires a contingency fee multiplier to obtain competent counsel; (2) whether the attorney was able to mitigate the risk of non-payment in any way; and (3) whether any of the factors set forth in Rowe are applicable.

In considering the relevant market, the court should not look to the plaintiff’s “actual difficulty” in locating an attorney, but rather to the “relevant market’ in general.

As far as the mitigation of the risk of non-payment, the controlling consideration under Joyce is whether the plaintiff can afford a retainer or hourly fees. In this case, instead of relying on the undisputed evidence that the plaintiffs could not afford an hourly fee, the trial court relied on the likelihood of success for obtaining fees under a different portion of the insurance policy than the one at issue. Likelihood of success is something that is considered in determining therange of the multiplier, rather than whether the risk of non-payment is mitigated.

Finding that the trial court had relied on several improper considerations in this case, the court reversed for a reconsideration of whether a multiplier was in fact appropriate.

FPL OWED NO DUTY TO RESIDENTS OF A NURSING HOME TO RESTORE POWER AFTER A HURRICANE—PLAINTIFF’S COMPLAINT ALLEGED NO SPECIFIC DUTY, ONLY A DUTY TO THE GENERAL PUBLIC—COMPLAINT ALSO FAILED TO STATE A CLAIM BASED UPON THE UNDERTAKER’S DOCTRINE.

Rehabilitation Center of Hollywood Hills v. FPL, 45 Fla. L Weekly D1186 (Fla. 4th DCA May 20, 2020):

After Hurricane Irma in 2017, FPL had failed to restore power to a nursing home for several days. When the nursing home called 911 reporting a resident in cardiac distress, emergency personnel responded, and discovered dozens of elderly residents suffering in the heat, many of whom had died.

The complaint alleged that FPL owed a general duty to the public (which included the plaintiff), to exercise a high degree of care in the operation and maintenance of its power lines and power grids, and that FPL failed to comply with its duty by failing to maintain the lines in working order, failing to sufficiently trim trees to prepare for foreseeable hurricane events, and several other allegations. The plaintiff did not allege facts to show how those various negligent acts or omissions had contributed to the continued loss of power to the air conditioning system.

FPL moved to dismiss the complaint based on two things: (1) its Tariff provision, and (2) the fact that it did not owe a generalized duty to the public to provide continuous electricity after a hurricane.

The court found there was no specific duty of care (beyond a generalized duty to provide electricity) that plaintiff had alleged was breached (unlike in other cases, where the utility had failed to repair downed power lines in a negligent manner, or had assumed a legally recognized duty via a contract to maintain streetlights before they failed).

To comply with the undertaker’s doctrine, a plaintiff must allege an undertaking made either “voluntarily” or for consideration. In this case, the plaintiff simply alleged FPL had a general duty to the public to maintain and operate its power grid. Without a narrow and specific undertaking, the doctrine does not apply.

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The court punctuated its ruling by noting that public policy is a consideration courts may use when assessing whether a legal duty of care exists. The court explained that if it were to find the duty that the plaintiff alleged existed, it would open up public utilities to enormous liability for every conceivable injury, both personal and property, which could occur during a power outage. This would have a jury assess the adequacy of the utilities’ plans and performance during an event such as a hurricane outage, thereby interfering with the extensive regulation of public utilities required through the public service commission.

Because the court found there was no duty at all, it never addressed the Tariff issue.

SUMMARY JUDGMENT REVERSED WHEN COURT BASED IT ON A STATUTORY BAR NOT RAISED AS AN AFFIRMATIVE DEFENSE—EVEN IF DEFENDANT HAD BEEN PERMITTED TO ARGUE AN UNPLED AFFIRMATIVE DEFENSE AT THE SUMMARY JUDGMENT HEARING, PLAINTIFF SHOULD HAVE BEEN GIVEN AN OPPORTUNITY TO AMEND HER PLEADINGS TO ADDRESS THE AFFIRMATIVE DEFENSE AS SHE REQUESTED.

Griffin v. Palm Beach County Board of Commissioners, 45 Fla. L Weekly D1193 (Fla. 4th DCA May 20, 2020):

Plaintiff sued Palm Beach County for injuries she suffered after falling into a hole found in a path maintained by the County, while she was rollerblading. The trial court granted summary judgment based upon the application of §316.0085(4), Fla. Stat., a statute explicitly immunizing the County against actions based upon such activities engaged in the areas designated (in this case rollerblading).

However, it was not until the summary judgment hearing that the County moved for the first time that §316.0085(4) applied. The court explained that the failure to raise an affirmative defense prior to a plaintiff’s motion for summary judgment constitutes a waiver of the defense, and reversed.

The court explained, however, that its reversal should not be construed as denying the County the opportunity to request an amendment to assert the statutory bar. It also wrote that the plaintiff should be allowed to amend her pleadings as requested (the trial court refused to allow the plaintiff to amend her complaint to address the newly raised affirmative defense, which the court found, was an abuse of discretion). There was no showing that an amendment would have prejudiced the County, and plaintiff had no opportunity to respond when defendant first raised the statute, even though she asked to amend her pleadings.

ACTION ARISING OUT OF DEFENDANTSALLEGED FAILURE TO ADMINISTER MEDICATIONS TO PATIENT AFTER HER TRANSFER FROM HOSPITAL TO RESIDENTIAL TREATMENT FACILITY, SOUNDED IN MEDICAL NEGLIGENCE AND NOT ORDINARY NEGLIGENCE, THEREBY REQUIRING PARTICIPATION IN PRESUIT.

Henderson Behavioral Health v. Cortes, 45 Fla. L Weekly D1198 (Fla. 4th DCA May 20, 2020):

The decedent was transferred from a hospital to a residential treatment facility. At the time of her transfer, she was being given seven different medications by the hospital. The hospital provided the treatment facility with prescriptions for the medications, but not the medications themselves, and the facility never administered the medications. The deceased died four days after the transfer, allegedly “from a severe withdrawal syndrome.”

The plaintiff sued for ordinary negligence, and not for medical malpractice, which would have required compliance with the presuit notice requirements. Because the acts from which the claims arose related to the failure to render medical care or services (as set forth in §766.106(1)(a)), the claims were clearly for medical malpractice, requiring compliance with presuit.

WHEN THE VERIFIED RETURN OF SERVICE IS PROPER ON ITS FACE, THE BURDEN SHIFTS TO THE DEFENDANT TO SHOW SERVICE WAS DEFECTIVE—UNSWORN ARGUMENT BY COUNSEL IS NOT EVIDENCE.

Morales Law Group v. Rodman, 45 Fla. L Weekly D1213 (Fla. 3rd DCA May 20, 2020):

The plaintiff sued a law firm, but the firm failed to respond to the complaint. After entry of a default, the court entered final judgment for the plaintiff for $50,000.00.

Nine months later, the law firm filed a Motion to Quash Service and to Dismiss, alleging that the service was not properly effected on its employee. At the hearing, the firm presented no evidence, relying solely on the argument of its counsel.

The party invoking the court’s jurisdiction has the burden of proving proper service of process. If there is a return of service which is proper on its face, then service is presumed to be valid, and the party challenging has the burden of overcoming that presumption by clear and convincing evidence. Also, the validity of the summons may not be impeached with a simple denial, but there must be a presentation of clear and convincing evidence to corroborate the denial.

In this case, counsel’s unsworn argument did not provide the evidence needed to rise to the level of clear and convincing evidence that service was not validly executed, and therefore, the court affirmed the judgment for the plaintiff.

TRIAL COURT’S RULINGS PREVENTING DEFENDANT FROM MAKING AN EMPTY CHAIR DEFENSE AND FROM PRESENTING A CAUSATION DEFENSE, NECESSITATED A FOURTH TRIAL IN THIS CATASTROPHIC MEDICAL MALPRACTICE CASE.

Board of Trustees of the University of South Florida v. Carter, 45 Fla. L Weekly D1224 (Fla. 2nd DCA May 22, 2020):

A woman underwent outpatient laparoscopic abdominal surgery. Her surgeon was employed by USF. When the plaintiff did not recover as expected following the surgery, she was admitted to the hospital for observation, where she continued to deteriorate, until she almost died.

Throughout her care, both the surgeon and a critical care team oversaw the plaintiff. Eventually, the critical care providers came to believe that the plaintiff’s condition was probably the result of an abdominal infection, and began to administer antibiotics. During a second surgery, a perforation of her small bowel was seen, requiring multiple additional surgeries, and resulting in catastrophic lasting injuries.

The plaintiff sued the surgeon for perforating her bowel, and further alleged that her injuries were caused by the failure of everyone involved, including the critical care team, who failed to timely diagnose her condition and administer antibiotics. She presented the testimony of an ICU expert, who opined that had antibiotics been administered in a timely manner, she would not have sustained the injures for which she sought to recover.

The defense was twofold: USF said its surgeon did not depart from the standard of care, and even if he had, the injuries were the result of the critical care team’s failure to timely administer the antibiotics.

The first two trials resulted in hung juries. At the third trial, the judge ruled that USF could not place the critical care team on the verdict form or present evidence regarding its negligence. That ruling was based on the court’s erroneous understanding that a directed verdict entered in favor of the hospital for vicarious liability at an earlier trial, was actually a directed against the hospital onliability.

In the third trial, Plaintiff’s counsel decided not to call the ICU expert (he testified that the failure to timely administer antibiotics was indeed a causative factor in her injuries). When the defendant wanted to read the expert’s testimony, the trial court refused to allow it to. The third trial resulted in a verdict for the plaintiff.

On appeal, the defendant argued it wanted to present an “empty chair” defense, which simply requires a defendant to answer the complaint with a general denial, and argue to the jury that an injury was due to the negligence of a non-party. Unlike with a Fabre defendant, the non-party is not placed on the verdict form, and there is no apportionment of fault.

However, by granting the motion in limine, and refusing to allow the defendant to present the testimony of the ICU expert, the trial court deprived the defendant of its causation defense, which was a denial of due process.

Also, the court refused to find that Stuart v. Hertz, applied, because there was not an “initial” and “subsequent” act as to the failure to timely diagnose (and the failure to timely diagnose ended up being the only evidence of “negligence,” as there was no evidence that the perforated bowel was the actual cause of the injuries). As such, even though whether parties are joint tortfeasors is generally a fact question, it was error to give the standard jury instruction 501.5(c) on Stuart v. Hertz, because regardless of when the bowel was perforated, this particular injury could not constitute an “initial injury” under Stuart. On to the fourth trial.