All entries filed under “Florida Law”

Technical requirements for fees under 57.105

A recent court decision took a page from the (perhaps now abandoned) book of hyper-technical requirements preceding the award of attorneys' fees in cases that has long been the purview of the Offer of Judgment/Proposal for Settlement statutory and rule scheme. 

In the case of Estimable v. Prophete, 42 Fla. L. Weekly D1312 (Fla. 4th DCA June 7, 2017), the Fourth District considered the technical prerequisites for awarding fees under the "frivolous claims" statute--S. 57.105, Florida Statutes.  In Estimable, the Court determined that, though the prevailing party had properly followed the statutory requirements of 57.105, it had failed to meet the technical requirements of Florida Rule of Judicial Administration 2.516 in that it had failed to include the language "SERVICE OF COURT DOCUMENT" followed by the case number in the subject line of the letter, did not include the name of the initial party and title of the document served in the body, and did not attach a copy of the document in PDF format (or a link to the document on the clerk's website).  Therefore, the Court determined sanctions were not appropriate and were not enforceable and reversed the trial court's order for attorneys' fees. 

This case stands as a reminder to practitioners that attorneys' fee awards without the prior agreement of the parties is still considered to be rendered in derogation of common law and will continue (at least in some statutory schemes) to be strictly construed by courts. 

If you have questions about a frivolous lawsuit claim or wish to find out your rights and risks in litigation, contact one of our experienced litigation attorneys today.


Legislative-Judicial battle over damage caps for medical malpractice claims

Another salvo was recently launched in the ongoing battle between the State's legislators and its judiciary (and, likely, personal injury lobbyists as well) on the issue of damage caps.  In this instance, the action dealt with caps on medical malpractice claims.  N. Broward Hosp. Dist. v. Kalitan, 42 Fla. L. Weekly S642 (Fla. June 8, 2017).

In Kalitan, the Supreme Court of Florida considered and dismissed notions of a "continuing medical malpractice insurance crisis" listed and argued by the State in support of damage caps on medical malpractice claims for personal injury non-economic (i.e., 'pain and suffering') damages.   The Court found that the caps violated the Equal Protection Clause, citing its own opinion in a previous case where it determined that a similar cap was unconstitutional because it "'imposes unfair and illogical burdens on injured parties' and 'does not bear a rational relationship to the stated purpose that the cap is purported to address, the alleged medical malpractice insurance crisis in Florida.'"  

It seems strange to say that damage caps, which aim to reduce potential exposure for insurers, is not rationally related to that aim, however, the Court pointed out that there was a lack of evidence to suggest the caps "that were intended to reduce instances of doctors leaving Florida, retiring early, or refusing to perform high risk procedures" were actually having that effect or were even resulting in lower premiums.  The Court noted that Insurance company profits were up following the caps, but that the savings were not being passed on to individual insured physicians. 

This case certainly seems to be a situation where insurers may have made their own bed and are now being forced to lie in it.  If the insurers had been able to produce evidence that they had actually reduced premiums and increased the number of insured physicians, they may have been able to preserve the caps.  Yet, instead it appears the insurers took the stance that putting money directly into their coffers now made more business sense. 

It is unlikely this decision will end the debate (or legislation) on damage caps, especially given the State's finding that "Florida is in the midst of a medical malpractice insurance crisis of unprecedented magnitude." Ch. 2003-416, § 1, Laws of Fla., at 4035