Opinion
No. 88-1765.
August 10, 1989. Rehearing Denied November 2, 1989.
Appeal from the Circuit Court for Alachua County, Chester B. Chance, J.
Diana Santa Maria, of Sheldon J. Schlesinger, P.A., Ft. Lauderdale, for appellants.
John D. Jopling, of Dell, Graham, Willcox, Barber, Henderson Cates, Gainesville, for appellees.
Appellants seek review of an order awarding attorney's fees to appellees for their successful defense of appellants' medical malpractice action. We find that the fees were properly awarded under section 768.56, Florida Statutes (1983), and we affirm the order appealed.
Appellants filed a medical malpractice action against appellees and several individual physicians. A summary judgment was entered for two of the doctors, but was overturned by this court in DeRosa v. Shands Teaching Hospital Clinic, Inc., 468 So.2d 415 (Fla. 1st DCA 1985), in order to permit additional discovery. After further discovery a summary judgment was again entered for two of the doctors, and was affirmed by this court in DeRosa v. Shands Teaching Hospital Clinics, Inc., 504 So.2d 1313 (Fla. 1st DCA 1987). A subsequent summary judgment for another doctor was affirmed without opinion in DeRosa v. Shands Teaching Hospital Clinics, Inc., 538 So.2d 1256 (Fla. 1st DCA 1989). The claim against appellees proceeded to trial, and after the parties presented evidence the jury returned a verdict finding no actionable negligence on the part of appellees or their agents, the individual doctors. The judgment entered for appellees in accordance with this verdict was affirmed without opinion in DeRosa v. Shands Teaching Hospital Clinics, Inc., 538 So.2d 1256 (Fla. 1st DCA 1989).
After judgment was entered for appellees they moved for an award of costs and attorney's fees pursuant to section 768.56, Florida Statutes (1983). The lower court granted this motion, awarding costs and attorney's fees.
The parties are in agreement that section 768.56, Florida Statutes (1983) is the applicable attorney's fee provision. The statute states that:
1) Except as otherwise provided by law, the court shall award a reasonable attorney's fee to the prevailing party in any civil action which involves a claim for damages for reason of injury, death, or monetary loss on account of alleged malpractice by any medical or osteopathic physician, podiatrist, hospital, or health maintenance organization. . . .
As an enactment providing for attorney's fees the statute must be strictly construed, and authorizes a fee only upon a malpractice claim involving the specified health providers. See Finkelstein v. North Broward Hospital District, 484 So.2d 1241 (Fla. 1986); Tappan v. Florida Medical Center, Inc., 488 So.2d 630 (Fla. 4th DCA 1986). Appellee Shands, as a hospital, is within the express statutory language, and appellants do not challenge the attorney's fee award on behalf of Shands. Appellants contend that a fee may not be awarded on behalf of appellee Board of Regents, which is not an entity specified within section 768.56(1), Florida Statutes (1983).
Appellee Board of Regents was nevertheless a "prevailing party" as identified in the statute. The individual doctors, on account of whose alleged malpractice appellants sought to hold appellee Board of Regents liable, were all medical physicians as specified in the statute. Section 768.56, Florida Statutes (1983), does not require that the prevailing party be one of the specified health care providers. Since appellee Board of Regents was a prevailing party upon a claim involving alleged malpractice of medical physicians, attorney's fees were properly awarded pursuant to section 768.56(1), Florida Statutes (1983).
Appellants further assert that any fee awarded under section 768.56(1), Florida Statutes (1983), must be restricted by the provisions of section 768.28(8), Florida Statutes. This enactment is contained within the statute waiving sovereign immunity in tort actions against the state, and provides that attorney's fees may not exceed 25% of any judgment or settlement. This limitation has been applied to fees awarded in a successful claim against Shands and the Board of Regents. See Shands Teaching Hospital Clinics, Inc. v. Lee, 478 So.2d 77 (Fla. 1st DCA 1985). Appellants contend that since their unsuccessful claim in the present case resulted in a judgment producing no recovery, the 25% limitation under section 768.28(8) likewise produces no attorney's fee. However, we conclude that section 768.28(8), as an aspect of the state's sovereign immunity waiver, does not preclude an attorney's fee for appellee's successful defense of this medical malpractice action. No issue is presented in this case as to the constitutional impact of the statute as applied to these parties, and appellees were properly awarded attorney's fees pursuant to section 768.56(1), Florida Statutes (1983).
The order appealed is affirmed.
BOOTH, J., concur, and ERVIN, J., dissenting with opinion.
I cannot agree to the affirmance of the award of attorney's fees in the amount of $76,786.00 to appellee Board of Regents, as a prevailing party in a medical malpractice claim, because the provisions of Section 768.56(1), Florida Statutes (1983), authorizing an award of attorney's fees to prevailing parties, must be read in pari materia with the provisions of Florida's limited waiver of sovereign immunity act, Section 768.28, Florida Statutes (1983). Section 768.28(8) explicitly restricts any attorney's fee award to 25 percent of any judgment or settlement. Because there is no provision in section 768.28 authorizing an award of attorney's fees in the absence of an award of damages, the claim for fees must fail under the circumstances presented.
The statute expressly conditions such awards with the language: "Except as otherwise provided by law. . . ."
Before trial on the merits, Doctors Feldman, Hill and Lane were granted summary judgment on the ground that at the time the alleged act of malpractice occurred, they were acting as employees of the Board of Regents, and therefore were entitled to the immunity provided by Section 768.28, Florida Statutes. The Board of Regents was therefore a prevailing party, however, it merely escaped liability and recovered no damages.
This court in Shands Teaching Hosp. and Clinics, Inc. v. Lee, 478 So.2d 77, 78 (Fla. 1st DCA 1985), observed that the Board of Regents is a state agency within the scope of section 768.28, and that any award of attorney's fees is subject to the limitations provided in subsection (8) thereof. It is a well-established maxim of statutory construction that sovereign immunity is the rule, rather than the exception, and a waiver of sovereign immunity should be strictly construed. Windham v. Florida Dep't of Transp., 476 So.2d 735, 739 (Fla. 1st DCA 1985), review denied, 488 So.2d 69 (Fla. 1986). See also Tampa-Hillsborough County Expressway Auth. v. K.E. Morris Alignment Serv., Inc., 444 So.2d 926 (Fla. 1983); Carlile v. Game Fresh Water Fish Comm'n, 354 So.2d 362 (Fla. 1977). Applying the rule of strict construction to the instant case, I find no statutory authorization for the award of fees to the defendant Board of Regents in the absence of a damage award and, accordingly, would reverse.
I would also reverse the award of costs in favor of the Board in the amount of $6,296.66. As the Florida Supreme Court observed in Berek v. Metropolitan Dade County, 422 So.2d 838, 840 (Fla. 1982), the maximum amount of the state's liability to pay any one claimant arising out of an accident is that amount established by the statute per claim and per incident, as set forth in Section 768.28(5), Florida Statutes. Berek states that if the damages recovered are less than the statutory maximum provided, then costs and postjudgment interest are recoverable, but only up to the maximum liability established. Id. Conversely, if the damages recovered are in excess of the statutory maximum allowed, there is no authorization for the assessment of costs and postjudgment interest. Reasoning from Berek's interpretation of the statute, and applying as well the above-stated rule of strict construction, I conclude that costs may only be awarded in the event of a recovery of damages by a prevailing party. Therefore, because no damages were awarded below, there is simply no basis for the award of costs to the Board.
I would therefore REVERSE that portion of the judgment awarding the Board of Regents both fees and costs.