More bombs in the minefield

FLORIDA LAW WEEKLY

VOLUME 45, NUMBER 45

CASES FROM THE WEEK NOVEMBER 13, 2020

COURT REMITS LEGAL MALPRACTICE VERDICT FINDING THAT ONLY A FRACTION OF IT WAS COLLECTABLE AGAINST THE ORIGINAL DEFENDANT.

Morgan & Morgan v. Roc Pollock, 45 Fla. L Weekly D2499 (Fla. 2nd DCA November 6, 2020):

Following a jury trial on a legal malpractice case, the jury awarded the plaintiffs $5,000,000 in a legal malpractice action. However, because the underlying plaintiffs introduced evidence that only established that a judgment of $250,000 was collectable, the court reversed and remanded for that judgment.

The plaintiffs retained Morgan & Morgan to pursue their medical negligence claims on behalf of their son against a physician and her group, along with Sarasota Memorial Hospital. The plaintiffs’ baby was born brain damaged. The plaintiffs’ attorney served the notice of intent upon the defendants as required by §766.106(2)(a), but stated that it was being served only on the baby’s behalf, saying nothing about the mother (who had suffered significant injuries in her delivery).

When the plaintiffs filed their lawsuit in the Circuit Court, defendants raised NICA. The plaintiffs did not seek to sever or bifurcate the mother’s individual medical negligence claim. While the NICA proceeding was pending, the plaintiffs and their attorneys experienced irreconcilable differences, plaintiffs’ counsel withdrew, and the statute of limitations had expired to bring the mothers claim.

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Plaintiffs sued for legal malpractice alleging that their attorneys failed to perform a proper pre-suit investigation, failed to obtain a proper corroborating opinion, failed to draft and serve a proper notice of intent, and negligently stipulated to abatement of the civil case.

After a legal malpractice trial, the jury returned a verdict finding liability in the underlying case, specifically finding that $4,500,000 would have been “collectible” against the doctor’s group.

However, the Morgan & Morgan lawyers argued that the jury’s verdict had to be remitted to $250,000, which was the amount of the group’s insurance coverage, because the plaintiffs’ failed to put on any evidence that they “could have collected” any money from the defendants individually.

A rule of a legal malpractice action is that the plaintiff must prove both that a favorable result would have been achieved in the underlying litigation but for the negligence of the attorney/defendant and that, any judgment that could have been recovered would have been collectible (FSJI) 402.12(a).

The only evidence of collectability that the plaintiff presented at trial was the existence of the OB GYN group’s insurance policy of $250,000. There was no other evidence regarding financial status, solvency, interest in property or other assets, income, or profits. While the plaintiffs offered testimony from their expert that such a medical practice with four doctors and three midwives must be worth more than $250,000 and that members of the practice should have the ability to pay any judgment in excess of the policy limits, such speculation could not justify a finding of collectability.

In addition to granting the remittitur, the court also rejected the plaintiffs’ request that the court adopt decisions from other jurisdictions which would shift the burden of collectability to legal malpractice defendants. Florida courts have weighed the equities in legal malpractice and have shifted the burden to the attorney in cases where the attorney’s negligence has made it impossible to prove the collectability of a claim.

In this case, the trial court weighed the equities and instructed the jury that the burden of proving the collectability of a claims bill against Sarasota Memorial Hospital belonged to the underlying plaintiffs’ attorney. The plaintiffs themselves did not contend that the attorney’s negligence made it impossible for them to prove collectability as to the group, and at the charge conference, they concluded the burden remained on them to prove collectability.

NO ERROR IN FAILING TO GIVE THE STATUTORY FELONY DEFENSE INSTRUCTION UNDER THE FACTS OF THIS NEGLIGENT SECURITY CASE.

Pride of St. Lucie Lodge v. Reed, 45 Fla. L Weekly D2469 (Fla. 4th DCA November 4, 2020):

The plaintiff’s mother was fatally shot in a parking lot owned and operated by the defendant. The evidence showed that on the night of the incident, a brawl between some members of the decedent’s party and some members of the shooters’ party had occurred inside the Lodge, and then again in the parking lot. Importantly, the brawl in the parking lot ended, and both the people in the shooters’ party as well as the members of the decedent’s party, got inside their vehicles in the parking lot and left.

However, before the decedent’s group could leave the parking lot, someone from the shooter’s party returned, opened fire on their vehicle and fatally shot and killed the decedent who was sitting in the front passenger seat.

During the charge conference, the Lodge sought an instruction pursuant to §768.075(4), Fla. Stat. which provides that a person or organization owning real property shall not be held liable for negligence resulting in the death of or injury to a person “attempting to commit a felony or whois engaged in the commission of a felony” on the property.

The Fourth District observed that the plain language of the instruction is in the present tense, and that the decedent was shot after the brawl had continued so the instruction did not apply. The trial court’s refusal to give the instruction was correct and the verdict was upheld.

ANOTHER COURT CERTIFIES WHETHER THE ANALYSIS AND DECISION IN WORLEY SHOULD ALSO APPLY TO PRECLUDE A DEFENSE FIRM THAT IS NOT A PARTY TO THE LITIGATION, FROM HAVING TO DISCLOSE ITS FINANCIAL RELATIONSHIP WITH THE EXPERTS THAT IT RETAINS.

Routhier v. Barns, 45 Fla. L Weekly D2496 (Fla. 5th DCA November 6, 2020):

Defendants in a medical malpractice case sought relief from a discovery order entered by the trial court, that essentially compelled their attorneys to disclose the amount of money that the law firm had paid to its retained trial expert over the last three years.

Notwithstanding that the disclosure of this type of financial information was consistent with earlier decisions, the court observed how it has noted that the law has not been applied in an evenhanded manner to all litigants. Accordingly, the Fifth District once again certified the question to the Florida Supreme Court about whether the analysis and decision in Worley should also apply to defense law firms as it does to plaintiffs’ law firms.