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Hess v. Walton3/16/2005
Dr. Alfred Vincent Hess and Florida Orthopaedic Institute (FOI) appeal a final judgment entered in favor of Noreen Walton in a medical malpractice action. They challenge an award of attorneys' fees that was entered against FOI pursuant to Florida Rule of Civil Procedure 1.442 and section 768.79, Florida Statutes (2003). Although the settlement strategy employed by the plaintiff in this multi-defendant case may not have been foreseen by the legislature when it enacted section 768.79, we affirm. We also certify a question to the supreme court in hopes that confusion generated by Barnes v. The Kellogg Co., 846 So. 2d 568 (Fla. 2d DCA 2003), and Matetzschk v. Lamb, 849 So. 2d 1141 (Fla. 5th DCA 2003), can be eliminated.
I. THE AWARD OF FEES IN THIS CASE
Ms. Walton sued Dr. Hess for injuries arising from surgery that he performed on March 31, 2000. Prior to surgery, Ms. Walton had consented to undergo surgery to release the first dorsal compartment of the right wrist. Instead of this surgery, Dr. Hess performed a carpel tunnel release on her right wrist. Dr. Hess acknowledged his error. Ms. Walton sued Dr. Hess for this unauthorized surgery and also sued FOI as his employer. Ms. Walton sued FOI only for its vicarious liability under the doctrine of respondeat superior. She did not allege any separate or independent active negligence on the part of FOI. From the earliest stages of this litigation, it was conceded that Dr. Hess had been negligent and that FOI was vicariously liable. The primary dispute in the lawsuit centered on the value of this claim.
Because the value of the claim was the primary issue, the parties submitted several offers of judgment or proposals for settlement pursuant to rule 1.442 and section 768.79. The two most significant proposals were: (1) Ms. Walton's proposal, as plaintiff, to settle with Dr. Hess for $100,000 and with FOI for $15,000, and (2) Dr. Hess and FOI's joint offer to settle all claims for $25,000. All proposals for settlement were rejected. Thereafter, the case proceeded to trial by jury, and the jury returned a verdict in favor of Ms. Walton for $23,500.
Based on this verdict, Ms. Walton filed a motion to tax attorneys' fees against FOI because the verdict was at least 25% greater than her offer to settle with FOI for $15,000. After a hearing on the motion to tax attorneys' fees, the trial court awarded Ms. Walton $99,425 in attorneys' fees against FOI. As a result, the trial court entered an amended final judgment that awarded damages in the amount of $21,169.89 and costs in the amount of $16,791.28 against both FOI and Dr. Hess, and attorneys' fees against FOI alone in the amount of $99,425. This is the judgment on appeal.
FOI contests the award of attorneys' fees, arguing that two separate and unequal proposals to settle by a single plaintiff made to an active tortfeasor and to a party vicariously liable for the active tortfeasor are impermissible under rule 1.442 and section 768.69. FOI suggests that the tactic of submitting bookend offers-one very low and one quite high-is somehow improper when one defendant is only vicariously liable for the tortious conduct of the other defendant. While we agree with FOI that such offers may often, if not always, be contrary to the public policies that caused the legislature to create these fee-shifting provisions, they are permitted by the language of both the statute and the rule. Moreover, there are logical, strategic reasons why a plaintiff might settle cheaply with one of these parties while demanding a more reasonable settlement from the other. Thus, it cannot be argued that the offers were made in bad faith. We are simply unable to articulate and announce any rule barring
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