Fla. Court Sees Conflict In 'Offer Of Settlement' Fee Rulings in Medical Malpractice Case

Recently, the First District Court of Appeals denied a women’s motion to collect attorneys’ fees based on precedent in a medical malpractice case where she had successfully sued a clinic but which had earlier rejected her settlement proposal.  Even though the appeals court denied her motion, it notified the state Supreme Court of a conflict with another court’s approach to fees in such cases.  The court noted to its’ recent ruling in a similar case that was accepted for review by the state’s highest court over how strict procedural rules must be applied when it comes to the so-called “Offer of Settlement” statute, which states if a plaintiff ends up recovering at least 25 percent more than an earlier rejected settlement proposal, he/she is entitled to collect reasonable attorneys’ fees from the date of the rejection. Plaintiff Jan Colvin’s counsel said her case could be headed to the Florida Supreme Court too.
In the underlying suit, plaintiffs Colvin and her husband successfully sued Clements and Ashmore PA, doing business as North Florida Women’s Care, claiming that the practice and two of the doctors were negligent in failing to remove surgical clamps during a procedure. Their complaint originally did not seek punitive damages or attorneys’ fees.  After a successful recovery, the Colvins attorneys filed a motion for attorneys fees following a jury’s verdict for compensatory damages that was more than 25 percent of the amount that they had proposed in a settlement offer that had been rejected by Clement and Ashmore.  The trial court denied that motion for attorneys’ fees. The trial court sided with the provider’s argument that Colvin had failed to follow the procedural rules because her settlement offer did not specify whether the attorneys’ fees were part of her legal claim and whether she had sought punitive damages in the suit.
Subsequently, Jan Colvin filed an appeal. On appeal, Colvin pointed the First District  to the Fourth District’s 2003 decision in Bennett v. American Learing Systems of Boca Delray Inc., in which that court found that a proposal for settlement did not perfectly follow the settlement rule, but said, “It would make no sense to require a defendant to state in its offer of judgment that the offer does not include attorneys’ fees, when plaintiff did not claim an entitlement to them and could not recover them because of failure to plead.”
The First District could not ignore that the Plaintiff did not plead for attorneys’ fees and punitive damages as part of their original legal claim.  “The trial court recognized the absurdity of requiring the proposal to state whether attorneys’ fees and punitive damages were part of the legal claim where the plaintiff had not sought fees or damages in the complaint, nor could she have,” the First District recounted. But the lower court also found that the rule of law, as stated in the 2013 case Diamond Aircraft Industries Inc. v. Horowitch, called for strict compliance with Rule 1.442 of the Rules of Civil Procedure on settlements and the pertinent law, Section 768.79 of the Florida Statutes, and ultimately denied the fees request,.  “While Bennett seems like a very logical approach, we are mindful of this court’s recent decision in Borden Dairy Co. v. Kuhajda … which reaffirmed the holding that Rule 1.442 and Section 768.79 must be strictly construed,” the First District panel said. “In light of Borden, we affirm.”
The majority, consisting of Judges L. Clayton Roberts and Robert T. Benton II, said it continued to recognize a conflict with the Bennett case, which it already certified to the Supreme Court in the Borden Dairy case. Judge Susan L. Kelsey concurred with the majority per curiam opinion but said she found it correct to require Rule 1.442 and Section 768.79 to be strictly construed because it is possible for a settlement proposal to vary from the demands made in an original complaint.
Colvin counsel Philip J. Padovano of Brannock & Humphries told Law360 that he intends to take her case to the Florida Supreme Court and seek its review in conjunction with the Borden Dairy case. The high court recently said it would review the First District’s ruling in that matter, which he said is very similar.
Read entire opinion here: http://caselaw.findlaw.com/fl-district-court-of-appeal/1723138.html

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