The Week in Torts – Cases from the Week of March 22, 2019
Consortium Plaintiff Pays All The PFS Fees
FLORIDA LAW WEEKLY
VOLUME 44, NUMBER 12
CASES FROM THE WEEK OF MARCH 22, 2019
COURT RULES CONSORTIUM CLAIM INEXTRICABLY INTERTWINED WITH MAIN CLAIM FOR ATTORNEY’S FEES PURPOSES.
Conte v. Auchter, 44 Fla. L. Weekly D719 (Fla. 5th DCA March 15, 2019):
The defendant served proposals for settlement on the plaintiff and his wife for her loss of consortium. After the jury concluded that the plaintiff had not suffered a permanent injury, it also did not award the wife any damages for her loss of consortium claim.
The defendant moved for attorney’s fees for defending both claims (the defendant did not defeat the proposal on the injured husband’s claim), arguing that the plaintiff’s injury claim was “inextricably intertwined” with the wife’s loss of consortium claim.
The court wrote that the party seeking fees has the burden to allocate them to issues for which fees are awardable, or to show that the issues were so intertwined that allocation is not feasible.
The claims are inextricably intertwined when the determination of the issues in one action would necessarily be dispositive of the issues raised in the other. In other words, where the claims involve a common core of facts and are based on related legal theories, a full fee may be awarded unless it can be shown that the attorney spent a separate and distinct amount of time on counts as to which no attorney’s fees were sought.
While the loss of consortium claim is a separate cause of action and is of a derivative nature, it still supports the conclusion that injury and consortium claims are often inextricably intertwined. Both claims in this case were based on a core set of facts and determination of the permanency issue was dispositive in the consortium claim in this case. Therefore, when a defendant successfully defeats a loss of consortium claim by proving a lack of permanency on the plaintiff’s spouse’s injury, the claims are inextricably intertwined.
Despite the plaintiff’s arguments regarding the decisions in Saunders v. Dixon (4th DCA) and Blanton v. Godwin (2nd DCA) where the courts refused to find consortium claims could always be inextricably intertwined, and where those courts carved out fees for the consortium claim, the Fifth District agreed that such a blanket rule is unwise. However, it wrote that unlike the party seeking fees in those cases, the defendant in this case had presented both legal argument and expert testimony that established that the claims in the case were inextricably intertwined because the defendant had challenged the permanency of the injured plaintiff’s injury to successfully defeat the wife’s loss of consortium claim. Thus, in this case, in the face of the evidence, the lower court erred when it concluded that the claims were not inextricably intertwined.
COURT REVERSES AWARD OF FEES TO A DISCHARGED LAW FIRM FOR LITIGATING ITS ENTITLEMENT TO QUANTUM MERUIT FEES.
Corominas v. Libre, 44 Fla. L. Weekly D682 (Fla. 4th DCA March 13, 2019):
The plaintiff in the underlying lawsuit settled her wrongful death claim shortly after firing one law firm and retaining another. The predecessor law firm sought fees for the work it had performed before it was discharged.
After two evidentiary hearings were held, the trial court found that the successor law firm’s position that the predecessor was entitled to no fees was a bad faith position, and that the predecessor firm was entitled to fees for litigating its entitlement to quantum meruit fees, under both the “inequitable conduct” doctrine and/or Florida case law contesting entitlement for litigating the issue of entitlement.
The trial court did not state what case law it relied on, but the record indicated it was relying on a case that did not apply to facts like this, under a statute permitting fees. Here, the predecessor firm’s request for fees litigating entitlement was not based on a statute.
The trial court also based its award for fees on litigating entitlement on the “inequitable conduct” doctrine. That conduct permits an award of attorney’s fees in extreme cases where a party acts in bad faith, vexatiously, wantonly or for oppressive reasons. A finding of bad faith conduct must be predicated on a high degree of specificity in the factual findings.
Because the written order did not contain the required detailed factual findings, the predecessor firm could not rely on a statement that the trial court made at the second hearing, especially because those statements were not actually supported by the record, and were not the sort of findings predicated on a high degree of specificity. The court reversed and remanded for entry of an amended order.
ORDER DENYING MOTION TO DISQUALIFY JUDGE QUASHED WHERE FACTS ALLEGED WOULD PUT A REASONABLY PRUDENT PERSON IN FEAR OF NOT RECEIVING A FAIR AND IMPARTIAL HEARING–THE TRIAL COURT’S STATEMENTS THAT ALLEGATIONS WERE FACTUALLY BASELESS WENT BEYOND A DETERMINATION OF THE LEGAL SUFFICIENCY OF THE MOTION.
Poirier v. Poirier, 44 Fla. L. Weekly D721 (Fla. 5th DCA March 15, 2019):
The trial court stated that the allegations in the motion were factually baseless, which the court found went beyond a determination of the mere legal sufficiency of the motion, contrary to the procedure set forth in Florida Rule of Judicial Administration 2.330(f). Accordingly, the court granted the petition and quashed the order denying the petitioner’s motion to disqualify.