The Week in Torts – Cases from the Week of April 13, 2018
FLORIDA LAW WEEKLY
VOLUME 43, NUMBER 15
CASES FROM THE WEEK OF APRIL 13, 2018
COURT REVIEWS ARBITRATION AWARD IN MEDICAL MALPRACTICE CASE–AFFIRMS PART, REVERSES PART FINDING SOME NON-ECONOMIC DAMAGES AWARDED ERRONEOUSLY AS “ECONOMIC” CLAIMS.
Plantation General Hospital Limited Partnership v. Belzi, 43 Fla. L. Weekly D697 (Fla. 4th DCA April 4, 2018):
This medical malpractice case involved the death of a 24-year-old woman who was a wife and eight months pregnant when she died. The hospital requested voluntary binding arbitration pursuant to section 766.207, and the plaintiffs accepted.
The issues at the arbitration hearing involved the assessment of both economic and non-economic damages.
The Fourth District explained that the proper standard of review is set forth in section 120.68(7), which itemizes how factual findings and legal findings are reviewed. The Fourth District followed that standard. The court rejected the plaintiffs’ argument that the court had to engage in a limited appellate review requiring a showing of “manifest injustice” to reverse, finding that was not the standard.
The arbitration panel issued an award of over $3.7 million. The $250,000 in non-economic damages awarded to both the husband and their baby was agreed to be the maximum at $250,000 for each. However, the big issue on appeal involved an assessment of damages for the past and present money value of future loss of support and the loss of household services.
The panel awarded lost “household services,” but erroneously included non-economic damages considerations for those items allowing the plaintiff to do an “end-around” on the statutory limit on the non-economic damages. In other words, the arbitration panel included lost companionship and lost advice, as well as lost guidance and counsel as economic damages, but did so erroneously.
In both the arbitration statute, section 766.207(7)(b) and the wrongful death statute, section 768.21, recoverable damages are set forth, and none of those elements are included in economic damages. Thus, the Fourth District ruled that the damages for loss of companionship and guidance were “non-economic” and included within the $250,000 agreed to award (because these damages were termed a common law the “loss of consortium” and not non-economic in nature).
As to the loss of support, the hospital had argued that the chief arbitrator erred in admitting evidence of the 24-year-old decedent’s intentions with respect to her future occupation under the “state of mind” exception to the hearsay rule. The court found the statements were offered to prove her intent and plan, which were relevant to ascertaining her career progression for the purposes of lost support, not to prove the truth of the matter. In addition, there was competent substantial evidence to support the award. Thus, the Fourth District affirmed the loss of support award.
Finally, on the attorneys’ fees, the chief arbitrator had awarded 15% of the total amount of the award without receiving any documentation of what a “reasonable” award should be. However, prior to the deliberations, the chief arbitrator asked if both parties had agreed to the fee, and the hospital’s attorney accepted.
It was not until the motion for rehearing that the hospital objected to the fee in its motion, and because new matters may not be addressed in a motion for rehearing, the Fourth District rejected the argument and affirmed.
CONTINGENCY FEE CONTRACT SIGNED BY PARTY’S MOTHER WHILE HE WAS IN A COMA HELD UNENFORCEABLE WHERE THE PARTY HAD NOT EXECUTED POWER OF ATTORNEY, OR BEEN APPOINTED LEGAL GUARDIAN–AND THE PARTY HAD NOT BEEN DECLARED LEGALLY INCOMPETENT.
O’Malley v. Freeman, 43 Fla. L. Weekly D701 (Fla. 4th DCA April 4, 2018):
In a bit of a scary case, a woman entered into a contingency fee agreement with a law firm while her son was in a coma (for months). Unfortunately, he had not executed a power of attorney (because the coma was accidental and unexpected), had not been declared legally incompetent, and she had not been appointed his legal guardian.
The mother signed the agreement on behalf of her son, the attorney resolved the case on her son’s behalf. After the son was able, he fired that lawyer. When the case resolved, the client challenged the contingency fee awarded (less money for the work after discharge).
The trial court had initially ruled that the son/appellant had ratified the contingency fee contract his mother signed after waking up from his coma. However, the Fourth District noted there was no testimony, let alone competent substantial evidence, that he ever saw the written contingency fee agreement or that he signed it as required by the bar rule 4-1.5(f)(2). Contingency fee agreements that do not comply with the regulations are “void against public interest.”
While a promise to honor contingent fee contract after competency is restored may suffice for ratification, the promise must be “positive and explicit”; a mere acknowledgment is not sufficient.
Here, the lawyer never argued that the client was given a copy of the personal injury contingency fee contract or had its terms explained to him, let alone that he signed it or that it should apply retroactively. In fact, there was no evidence that the client ever had knowledge of the details of the agreement signed by his mother. Therefore, leaving no basis to conclude that he ever ratified the fee agreement, the agreement was not valid.
Nevertheless, even without a valid agreement, the law firm could still recover on a quantum meruit basis, which is the basis upon which an attorney with no contingency fee agreement may recover for work done.
The Fourth District admonished that on remand, in calculating the proper amount of fees for work performed on the client’s basis prior to being discharged, the trial court would have to consider the “totality of the circumstances” surrounding the professional relationship and take into account the actual value of the services to the client.
In this particular case, on remand, the trial court will have to take into account (1) the lack of a ratified fee agreement; (2) the circumstance under which the firm commenced legal services on behalf of the client appellant with an agreement signed by the mother of an incapacitated adult who had not signed a power of attorney agreement; and (3) the initial miscommunication between the attorney and the client’s second set of attorneys as to the time and services expended by the firm prior to its discharge, resulting in the new attorneys duplicating work that the previous attorney had already completed in the case.
ERROR TO DISMISS COUNTERCLAIM-CO-DEFENDANT WHERE THE COUNTERCLAIMANT JOINED THE COUNTER CO-DEFENDANT UNDER RULE 1.170(h), WHICH PERMITS A PARTY TO ADD ADDITIONAL PARTIES TO A COUNTERCLAIM WHEN NECESSARY TO GRANT COMPLETE RELIEF.
Finest Known, LLC v. Weiss Research, Inc., 43 Fla. L. Weekly D707 (Fla. 4th DCA 2018).
TRIAL COURT ERRED IN AWARDING PLAINTIFFS’ ATTORNEY’S FEES BASED ON AN UNAPPORTIONED PROPOSAL FOR SETTLEMENT MADE BY MULTIPLE PLAINTIFFS–THERE WAS NO ERROR HOWEVER IN AWARDING PLAINTIFFS’ ATTORNEY’S FEES BASED ON THE DEFENDANT’S DENIAL OF REQUEST FOR ADMISSIONS–ALSO, THERE IS NO REQUIREMENT THAT A PROPOSAL FOR SETTLEMENT BE FILED PRIOR TO THE TIME A PARTY SEEKS TO ENFORCE AN ENTITLEMENT TO ATTORNEY’S FEES.
Haas Automation, Inc. v. Fox, 43 Fla. L. Weekly D725 (Fla. 3rd DCA April 4, 2018):
In this contract case, the plaintiffs engaged the services of an auction house to sell two oceanfront homes. There were certain minimum requirements that a party needed to demonstrate in order to participate in the bidding. As part of the auction, the top bidder was given the option to pay double for both homes, which this top bidder chose to do. However, when the issue was reduced to writing, the defendant bidder only had to pay the bidding price (rather than twice that number) and still got both homes. The home owners then sued the bidder/buyer. The seller prevailed.
The trial judge had awarded the plaintiffs’ attorney’s fees based on the contract, on the defendant’s rejection of the plaintiff’s joint proposal for settlement and on the defendant’s denial of certain of the plaintiff’s requests for admissions.
The court found that the trial court erroneously awarded fees under the contract. Alternatively, the trial court also found that the plaintiffs and the auction house were entitled to recover attorney’s fees from the defendant buyer.
Because the plaintiffs had served a single unapportioned proposal for settlement to the defendant, the court refused to enforce the proposal. The plaintiffs had argued that 1.442(c) on joint proposals in cases of “indirect liability” applied to rule 1.442(c)(3) because the two buyer couples were treated as one plaintiff throughout the litigation.
However, the rule only excuses the apportionment requirement when the tortfeasor is allegedly to be solely vicariously, constructively, derivatively, or technically liable. Here, the plaintiffs’ joint proposal sought to settle both couples’ liquidated damages in a case where there was no issue of indirect liability. As such, the proposal was invalid because it did not apportion the offer.
However, the plaintiffs were entitled to recover attorney’s fees based on the denial of certain requests for admission pursuant to rule 1.380(c). Based on those denials, under the rule, there was an entitlement to fees on those denials. While the rule does not apply to “hotly contested” issues, some of the subject requests were not so hotly contested and thus furnished an entitlement to fees.
Finally, the defendant argued that a proposal for settlement must be filed prior to the time a party seeks to enforce the entitlement to fees. The court said there is no authority for such a rule. Rule 1.442(d)(2) provides that a proposal shall be served on the party, but not filed unless necessary to enforce the provisions of the rule. The only requirement in the law is to file the proposal “when necessary.”
NO ABUSE OF DISCRETION IN AWARDING PLAINTIFF NEW TRIAL WHEN DEFENDANT VIOLATED ORDER IN LIMINE, THERE WAS AN IMPROPER CLOSING ARGUMENT, AND THE JURY’S AWARD OF ZERO DAMAGES FOR FUTURE PAIN AND SUFFERING WAS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE.
Esca Investment v. Tarraza, 43 Fla. L. Weekly D731 (Fla. 3rd DCA April 4, 2018):
Without many facts, the court observed that the trial judge’s seven-page order carefully describing the individual and cumulative effect of the defendant’s violation of an order in limine, its counsel’s improper closing argument, and a determination that the jury’s award of zero damages for future pain and suffering, was contrary to the manifest weight of the evidence, and granting a new trial for the plaintiff was not an abuse of discretion. Citing to Brown v. Stuckey, the court reminded us that when reviewing an order granting a new trial, an appellate court must recognize the broad discretionary authority of the trial judge and apply the reasonableness test to determine whether the trial judge committed an abuse of discretion.