ERROR TO AWARD ATTORNEY’S FEES PURSUANT TO PROPOSAL FOR SETTLEMENT WHERE PROPOSAL APPLIED TO A CASE THAT INCLUDED CLAIMS FOR DAMAGES AND FOR DECLARATORY RELIEF

Palm Beach Polo Holdings v. Equestrian Club Estates, 34 Fla. L. Weekly D2394 (Fla. 4^th DCA November 18, 2009):

A property owner’s association owned a private road that plaintiff, Palm Beach Polo, wanted to use to access a landlocked parcel of property.  Plaintiff’s complaint sought both damages and equitable relief (Palm Beach Polo asserted it was entitled to 300 votes in the election of the board for the owner association).  Plaintiff also sought declaratory and injunctive relief. 

A non-jury trial resulted in a verdict for the defendant, and the defendant moved for attorney’s fees based on three proposals for settlement. 

The trial court had ruled that because plaintiff had sought 8.6 million dollars in damages, it defied common sense and logic to argue that the case was not one for damages.  The court subsequently conducted an evidentiary hearing and awarded the defendant over $500,000 in fees. 

The Fourth District found that the complaint contained two independent claims, and could be characterized both as an action for damages and non-monetary relief.  The question, then, according to the court, was whether a general offer applying to an entire case that includes both claims for damages and other claims (not set forth in §768.79) can be binding on the unsuccessful party. 

The court reminded us that the offer of judgment statute is in derogation of common law.  It then stated that the statute only applies to claims for damages, and thus could not be valid here.

However, the court’s opinion seems to suggest that no proposal for settlement could ever be valid in a case where there were claims for non-economic relief, even if the offering party somehow separated out the claims in making the offer.  A potentially wide-reaching decision, and another one in the recent trend of courts refusing to uphold attorney’s fees awards because of the proposal’s failure or inability to appropriately address all of the claims. 

LASER HAIR REMOVAL IS A MEDICAL PROCEDURE REQUIRING COMPLIANCE WITH MEDICAL MALPRACTICE PRESUIT REQUIREMENTS WHEN IT GOES AWRY

Dr. Navarro’s Vein Center of the Palm Beaches v. Miller, 34 Fla. L. Weekly D2396 (Fla. 4^th DCA November 18, 2009):

The defendant’s petitioned for writ of certiorari, to review an order denying a motion to dismiss the plaintiff’s complaint for non-compliance with medical malpractice presuit in a case involving laser hair removal.  Plaintiff alleged that the doctor’s negligence in performing the procedure caused severe burns, but specifically alleged that the doctor was not performing medical treatment but rather cosmetic electrolysis as defined by §478.42(5). 

The court granted the petition and quashed the order advising the trial court to dismiss the complaint. The court ruled that laser hair removal is a “medical” procedure because it must be performed by a physician or a non-physician supervised by a physician.  However, the court went out of its way to grant the petition, acknowledging that while it normally does not review orders denying motions to dismiss because there are adequate remedies at law in the final appeal, “declining to do so in this case would cause irreparable harm.”  The court said that the Medical Malpractice Reform Act was designed to provide cost-saving pretrial procedures as a response to the medical malpractice crisis and to allow this case to proceed to a possible judgment only to be reversed would eliminate the very cost-saving procedures for which the Act was created.  Quoting an earlier case, the court said that “relief by a direct appeal would be no relief at all.” 

This case seems to be another one where the court seems to flout well established procedure to achieve a desired result.

INSURER IS NOT REQUIRED TO OBTAIN AN INDEPENDENT MEDICAL EXAM BEFORE DENYING A PIP CLAIM – A VALID REPORT MAY BE BASED ON A PHYSICIAN’S REVIEW OF THE TREATMENT RECORDS OF THE INSURED

Central Magnetic Imaging v. State Farm, 34 Fla. L. Weekly D2396 (Fla. 4^th DCA November 18, 2009).

*Available to handle appellate and trial support matters for attorneys throughout the state.

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