Opinion
Case No. 2D19-11
11-06-2020
MORGAN & MORGAN, P.A.; Armando T. Lauritano, Esquire; and Ironshore Insurance Services, LLC, Appellants, v. Rock POLLOCK, Sr. and Shawna M. Pollock, Appellees.
Dinah S. Stein, Mark Hicks, and Patrick H. Todd of Hicks, Porter, Ebenfeld & Stein, P.A., Miami; and Thomas Saieva and Lesley A. Stine of La Cava & Jacobson, P.A., Tampa, for Appellants. Michael J. Korn of Korn & Zehmer, P.A., Jacksonville; and Donald W. St. Denis and Eric M. Bradstreet of St. Denis & Davey, P.A., Jacksonville, for Appellees.
Dinah S. Stein, Mark Hicks, and Patrick H. Todd of Hicks, Porter, Ebenfeld & Stein, P.A., Miami; and Thomas Saieva and Lesley A. Stine of La Cava & Jacobson, P.A., Tampa, for Appellants.
Michael J. Korn of Korn & Zehmer, P.A., Jacksonville; and Donald W. St. Denis and Eric M. Bradstreet of St. Denis & Davey, P.A., Jacksonville, for Appellees.
SLEET, Judge. Morgan & Morgan, P.A., and Armando T. Lauritano, Esq. (collectively Lauritano), and their insurer, Ironshore Insurance Services, LLC, appeal the final judgment entered in favor of Rock Pollock, Sr., and Shawna Pollock. Following a jury trial, the Pollocks were awarded $5,000,000 in this legal malpractice action. Because the Pollocks introduced evidence that only established that a judgment of $250,000 was collectable, we reverse and remand for a remittitur of the damages award in the amount of $250,000. We affirm the judgment in all other respects.
Lauritano did not appeal the issue of collectability of the $500,000 verdict against Sarasota County Public Hospital District.
In 2006, Lauritano was retained by the Pollocks to pursue medical negligence claims on behalf of Rock Pollock, Sr., Shawna Pollock, and their son, Rock Pollock, Jr., against Laura Danner and Gulf Coast Obstetrics & Gynecology, Ltd. (collectively Gulf Coast), and Sarasota Memorial Hospital for injuries to Shawna and Rock, Jr. In 2006, while a patient of Gulf Coast, Shawna gave birth to Rock, Jr., at Sarasota Memorial. During labor and delivery, Shawna suffered a uterine rupture and vaginal laceration, which caused neurological injuries to Rock, Jr. The Pollocks subsequently retained Lauritano to pursue medical negligence claims on their behalves as well as on behalf of Rock, Jr. In September 2007, Lauritano served the notice of intent to initiate medical negligence litigation upon the medical defendants that is required by section 766.106(2)(a), Florida Statutes (2007). But the notice stated that it was served only on Rock, Jr.'s behalf; Lauritano failed to serve a notice of intent on Shawna's behalf.
Because Rock, Sr.'s claim was purely derivative, notice of intent was not required to be sent on his behalf. Pavolini v. Bird, 769 So. 2d 410, 413 (Fla. 5th DCA 2000) (holding that a spouse who seeks damages for loss of consortium is not required to comply with the presuit notice and investigation requirements of section 766.106 ).
In May 2008, Lauritano filed a complaint for medical negligence against Gulf Coast and Sarasota Memorial naming Rock, Sr., Shawna, and Rock, Jr., as plaintiffs. A few months later, he stipulated to abate the entire action, without the consent of the Pollocks, in order to determine whether Rock, Jr.'s claim was subject to the exclusive remedy provided by the Florida Birth-Related Neurological Injury Compensation Plan (NICA). See § 766.303. Lauritano did not seek to sever or bifurcate Shawna's individual medical negligence claim or Rock, Sr.'s derivative claim from Rock, Jr.'s NICA claim or seek to otherwise preserve their claims. While the NICA proceeding was pending, the Pollocks and Lauritano experienced irreconcilable differences and Lauritano withdrew as counsel for the Pollocks. By the time Rock, Jr.'s claim was resolved via NICA in 2011, the two-year statute of limitations for filing an action on behalf of Shawna and Rock, Sr., had expired. See § 95.11(4)(b), Fla. Stat. (2007).
The Pollocks then filed this legal malpractice action, alleging that Lauritano failed to perform a proper presuit investigation of Shawna's injuries, obtain a proper corroborating opinion, draft and serve a proper notice of intent to initiate medical malpractice litigation, and properly draft and file a civil complaint for Shawna's claim and that he negligently stipulated to abatement of the civil case. The case went to trial, and the jury returned its verdict finding liability as follows: Danner, thirty percent; Gulf Coast, sixty percent; and Sarasota Memorial, ten percent. The jury awarded $4,000,000 to Shawna and $1,000,000 to Rock, Sr. In answering the specific interrogatory verdict form, the jury found $4,500,000 would have been collectible against Gulf Coast. The trial court entered final judgment on the jury's verdict.
On appeal, Lauritano argues that the jury's finding of $4,500,000 against Gulf Coast must be remitted to $250,000, the amount of their insurance coverage, because the Pollocks failed to put on any evidence that they could have collected any money from those defendants individually. We agree.
"[T]he client/plaintiff in a legal malpractice action must prove both that a favorable result would have been achieved in the underlying litigation but for the negligence of the attorney/defendant and that any judgment which could have been recovered would have been collectible." Fernandes v. Barrs, 641 So. 2d 1371, 1375 (Fla. 1st DCA 1994), disapproved of on other grounds by Chandris, S.A. v. Yanakakis, 668 So. 2d 180, 185 (Fla. 1995) ; see also Fla. Std. Jury Instr. (Civ.) 402.12(a). At issue here is collectability. The collectability burden is satisfied with evidence of the underlying defendant's "financial status, insurance coverage, [or] property ownership." Fernandes, 641 So. 2d at 1376 (citing McDow v. Dixon, 138 Ga.App. 338, 226 S.E.2d 145, 148 (1976) ). Requiring proof of collectability "prevents a windfall to the client by preventing him from recovering more from the attorney than he could have actually obtained from the tortfeasor in the underlying action." Id. A jury cannot award a greater amount of damages than that which is reasonably supported by the evidence. See Truelove v. Blount, 954 So. 2d 1284, 1287 (Fla. 2d DCA 2007) (reversing trial court's refusal to remit jury's $220,000 award for future damages that was not supported by the evidence); Wal-Mart Stores, Inc. v. Thornton, 241 So. 3d 867, 868 (Fla. 4th DCA 2018) (reversing trial court's refusal to remit jury's award of $150,000 for future medical expenses where evidence, at most, supported $75,000); Fravel v. Haughey, 727 So. 2d 1033, 1038 (Fla. 5th DCA 1999) (reversing trial court's refusal to remit jury's award of $200,000 for future medical expenses that was not supported by the evidence).
The only evidence of collectability that the Pollocks presented at trial was the existence of Gulf Coast's insurance policy with a shared $250,000 limit per claim. There was no other evidence regarding financial status, solvency, interest in property or other assets, income, or profits. The Pollocks offered testimony from their expert that such a medical practice with four doctors and three midwives must be worth more than $250,000 and that the members of the practice should have the ability to pay any judgment in excess of the insurance policy limit. However, such speculation cannot justify a finding of collectability. See Fernandes, 641 So. 2d at 1375 ("[A] plaintiff ... is not entitled to speculative damages."); see also United Auto. Ins. Co. v. Colon, 990 So. 2d 1246, 1248 (Fla. 4th DCA 2008) ("Economic damages may not be founded on jury speculation or guesswork and must rest on some reasonable factual basis."). The Pollocks did not offer testimony from anyone from Gulf Coast, nor did they introduce any evidence that Gulf Coast was solvent during the time in which the Pollocks would have obtained a judgment against it.
Remittiturs should be granted where an award "exceeds a reasonable range of damages," "it appears that the trier of fact ignored the evidence in reaching a verdict or misconceived the merits of the case relating to the amounts of damages recoverable," the amount awarded does not "bear[ ] a reasonable relation to the amount of damages proved," or the amount awarded is not "supported by the evidence and is such that it could [not] be adduced in a logical manner by reasonable persons." § 768.74(5)(b), (d), (e), Fla. Stat. (2007). Absent admissible evidence of collectability, a jury is not permitted to speculate that a medical practice of multiple physicians is financially able to satisfy a judgment in excess of its liability insurance limits. See Fernandes, 641 So. 2d at 1375. The $4,500,000 award is eighteen times greater than the $250,000 policy limit proven at trial. Accordingly, the verdict against Lauritano bore no reasonable relationship to the amount of damages proved and was impermissibly based upon conjecture that all medical professionals can satisfy judgments in excess of their liability insurance policy limits.
Additionally, we reject the Pollocks' request that this court adopt decisions from other jurisdictions which shift the burden of collectability to the legal malpractice defendants. Florida courts have weighed the equities in legal malpractice and have shifted the burden to the attorney in cases wherein the attorney's negligence has made it impossible to prove the collectability of a claim. See Fernandes, 641 So. 2d at 1376. In Fernandes, the trial court found that the clients would have obtained a judgment in the underlying action in excess of the statutory cap. The First District held that shifting the burden to the legal malpractice defendant was appropriate "under the unusual facts of this case" because it was impossible for the clients to prove the collectability of a claims bill that would be subject to the discretion of the Florida Legislature via the claims relief act. Id.
Here, the trial court weighed the equities and instructed the jury that the burden of proving the collectability of a claims bill against Sarasota Memorial belonged to Lauritano. The Pollocks did not contend that Lauritano's negligence made it impossible for them to prove collectability as to Gulf Coast. At the charge conference, the Pollocks conceded the burden remained on them to prove collectability as to Gulf Coast. Accordingly, we reverse the judgment for $4,500,000 against Lauritano for the damages related to Gulf Coast, and we remand for entry of an amended final judgment remitting the award for damages attributable to the medical negligence of Gulf Coast to $250,000.
Affirmed in part, reversed in part, and remanded with instructions.
SILBERMAN and SMITH, JJ., Concur.