Opinion
No. 1D19-118 Nos. 1D19-120 1D19-846
08-07-2020
Mohamad R. SAMIIAN, M.D., Appellant, v. Bradley R. JOHNSON and Foley & Lardner, LLP, Appellees. Mohamad R. Samiian, M.D., Appellant, v. First Professionals Insurance Company, Inc. Appellee.
Jonathan R. Mayes of Law Office of Jonathan R. Mayes, PLLC, Gulf Breeze; Michael S. Rywant of Rywant, Alvarez, Jones, Russo & Guyton, P.A., Gainesville; Louis K. Rosenbloum of Louis K. Rosenbloum, P.A., Pensacola, for Appellant. John A. DeVault, III, R.H. Farnell II, and Michael E. Lockamy of Bedell, Dittmar, DeVault, Pillans & Coxe, P.A., Jacksonville for Appellees Bradley R. Johnson and Foley & Lardner LLP. Scott A. Cole and Alexandra Valdes of Cole, Scott & Kissane, P.A., Miami; Joseph T. Kissane and Zachary J. Brewer of Cole, Scott & Kissane, P.A., Jacksonville, for Appellee First Professionals Insurance Company, Inc.
Jonathan R. Mayes of Law Office of Jonathan R. Mayes, PLLC, Gulf Breeze; Michael S. Rywant of Rywant, Alvarez, Jones, Russo & Guyton, P.A., Gainesville; Louis K. Rosenbloum of Louis K. Rosenbloum, P.A., Pensacola, for Appellant.
John A. DeVault, III, R.H. Farnell II, and Michael E. Lockamy of Bedell, Dittmar, DeVault, Pillans & Coxe, P.A., Jacksonville for Appellees Bradley R. Johnson and Foley & Lardner LLP.
Scott A. Cole and Alexandra Valdes of Cole, Scott & Kissane, P.A., Miami; Joseph T. Kissane and Zachary J. Brewer of Cole, Scott & Kissane, P.A., Jacksonville, for Appellee First Professionals Insurance Company, Inc.
LEWIS, J.
In these three consolidated appeals, Appellant, Mohamad R. Samiian, M.D., a retired plastic surgeon, appeals the final judgment entered in favor of Appellee First Professional Insurance Company ("FPIC") in his bad faith insurance action against it, the final judgment entered in favor of Appellees Attorney Brad R. Johnson and Foley & Lardner, LLP ("Foley Defendants") in his legal malpractice action against them, and the order granting the Foley Defendants attorney's fees pursuant to section 768.79, Florida Statutes (2017). Appellant argues on appeal that: (1) the trial court erred in submitting the issues of causation and damages to the jury in the bad faith case; (2) the trial court abused its discretion in making various evidentiary rulings; (3) the trial court erred in directing a verdict in FPIC's favor on the issue of its duty to investigate the death of one of Appellant's patients as soon as Appellant gave it notice of the incident; (4) the cumulative errors complained of warrant a new trial; and (5) the trial court erred in awarding the Foley Defendants attorney's fees pursuant to the offer of judgment statute when their proposal for settlement did not apportion the amount of the offer attributable to each offeror. For the reasons that follow, we find no merit in Appellant's arguments and, therefore, affirm the final judgments and the attorney's fee order.
FACTUAL BACKGROUND
On the day following the April 2004 death of Martin J. Gottlieb, Appellant's patient who was left in the care of an unlicensed technician following a surgical procedure, Appellant notified FPIC, his professional liability insurer, of the incident. In April 2005, Appellant received a notice from the Gottlieb estate informing him of its intent to file a medical malpractice claim against him. FPIC hired Attorney Johnson to defend Appellant against the claim. After conducting an investigation into the allegations and realizing that he would be unable to secure an expert witness who would testify on Appellant's behalf, Attorney Johnson, with FPIC's approval, offered the estate the $250,000 policy limits under Appellant's policy. Steve Pajcic, the estate's attorney, returned the $250,000 check to Attorney Johnson, notifying him of his desire to investigate Appellant's financial situation before any settlement offer could be accepted. Prior to Attorney Johnson's receipt of the check, he sent a written offer of arbitration to the estate. Mr. Gottlieb's estate agreed to arbitrate the case, and an arbitration judgment was entered against Appellant in the amount of $35,415,789, plus interest.
In 2011, Appellant filed a bad faith action against FPIC and a legal malpractice action against the Foley Defendants. In the bad faith action, Appellant alleged in part that FPIC should not have waited to investigate the medical incident resulting in his patient's death until the estate filed its notice of intent to initiate a medical malpractice action, especially where the patient was in his thirties and earned in excess of $1,000,000 per year. Appellant further alleged that had FPIC not extended the offer of binding arbitration, the case would have settled for the $250,000 policy limits. Appellant demanded a judgment for damages, "including the arbitration award entered against [him] with interest, and all attorney's fees and costs incurred by [him]."
Appellant also filed a legal malpractice action against the Foley Defendants. In his complaint, Appellant alleged in Count I that Attorney Johnson committed malpractice by allowing the case to go to arbitration before the estate had the opportunity to accept the policy limits offer. Count II was a malpractice claim against Foley & Lardner in which Appellant alleged in part that Foley & Lardner, "by and through the attorneys employed by it," breached the standard of care that was ordinarily exercised by attorneys defending medical negligence claims."
FPIC moved for summary judgment, arguing that it did not control, nor was it responsible for, the decision to arbitrate the claim, that it was not responsible for the litigation strategy adopted and advocated by a physician's own legal team, and that the action was barred by the safe harbor provisions of section 766.1185, Florida Statutes, because it had tendered its policy limits. The trial court granted the motion, finding that FPIC was not liable for bad faith for failure to pay its policy limits because it tendered the limits within the time period provided for by statute. This Court reversed and remanded. See Samiian v. First Prof'ls Ins. Co. , 180 So. 3d 190 (Fla. 1st DCA 2015). We reasoned that Appellant's bad faith claim did not allege that FPIC failed to pay or tender its policy limits, but instead alleged that FPIC breached duties owed to Appellant and acted in bad faith in making an offer to arbitrate that entailed admitting liability, without making the offer contingent upon a limit of general damages. Id. at 193.
After the case was remanded, the trial court granted Appellant's request to consolidate the two cases. In its consolidation order, the trial court noted that it had not found and FPIC had not cited any case holding that a bad faith claim against an insurer could not be joined with a professional negligence claim against counsel retained by the insurer in the underlying case where "the alleged damages – the excess judgment – are the same."
FPIC subsequently filed Defendant's Motion for Partial Summary Judgment, wherein it argued that it was entitled to partial summary judgment as a matter of law in its favor: (1) as to Appellant's allegations that he would have obtained a more favorable result if the underlying litigation had proceeded to a jury trial, (2) that he had available comparative negligence and/or Fabre defenses, (3) that his right to pursue defenses was prejudiced, and/or (4) that the underlying matter should have been investigated sooner and/or differently by FPIC. In its order, the trial court granted the motion as to the first and second grounds, but denied the motion as to the third and fourth grounds.
In its Second Motion for Partial Summary Judgment, FPIC argued that it was entitled to summary judgment on Appellant's claim that: (1) the decision to arbitrate, including the timing thereof, prevented the settlement of the underlying action and (2) on any claim that is based, in whole or in part, upon the timing of the offer and/or tender by FPIC of the available insurance policy limits. In its order on the motion, the trial court granted the motion as to the second claim, but denied the motion "as to the remaining presented issues."
In his Plaintiff's Motion in Limine Regarding Measure of Damages and Admissible Evidence of Damages, Appellant sought an order "[1] ruling that the proper measure of damages in his claims against [Appellees] ... is the difference between the underlying judgment against [him] and FPIC's $250,000 policy limit plus accrued interest" and "[2] excluding evidence, argument, and comment concerning matters irrelevant to the proper measure of damages, including whether [he] has made any payments on the judgment, whether and to what extent the judgment is collectible, and whether or not the judgment debt is dischargeable in bankruptcy." The trial court granted the motion as to Paragraph 5, which pertained to evidence or statements of counsel regarding Appellant's right to be discharged from the judgment debt under the bankruptcy laws. The court denied the motion as to Paragraphs 1 through 4 and 6, which addressed evidence of Appellant's financial resources from the date of arbitration forward, evidence of statements of counsel regarding whether Appellant had made any payment on the arbitration award or the judgment, evidence or statements of counsel regarding whether Appellant had, has, or will ever have the ability to make any such payments, evidence or statements of counsel regarding any agreement, negotiations, or communications between Appellant and his deceased patient's wife regarding conditions under which she could attempt to collect the judgment or forbear from such attempts, and argument or statements by counsel suggesting to the jury that the damages at issue would be a question of fact for resolution by the jury.
The Foley Defendants filed a Motion in Limine to Exclude Speculative Testimony by Steve Pajcic, wherein they requested an order preventing Pajcic from testifying as "to his intended or possible actions regarding the unaccepted settlement offer in the underlying medical malpractice case, as well as his past actions in other unidentified and unspecified cases." According to the Foley Defendants, Appellant planned to rely upon Attorney Pajcic's deposition testimony to prove that the estate would have accepted the $250,000 policy limits in exchange for dismissal of claims worth tens of millions of dollars had arbitration not been offered.
In its Order on the Foley Defendants’ Motion in Limine, the trial court granted in part and denied in part the motion, ruling that Attorney Pajcic "will not be permitted to testify that in all medical malpractice cases except [this case] his firm has accepted offers of policy limits." The court would, however, allow him "to testify that had arbitration not been offered in [this case], he would have recommended acceptance of the $250,000 FPIC policy limits."
Thereafter, Appellant filed Plaintiff's Motion to Strike or, in the Alternative, in Limine Relative to Proceedings Before the Florida Board of Medicine in 2007. Therein, Appellant represented that the Florida Board of Medicine ("Board") filed an administrative complaint against him in 2007 as a result of the incident and that a final order was entered by the Florida Department of Health in 2010. Appellant argued that it was undisputed that the proceeding did not play a part in the handling, adjustment, or evaluation of the claim made by the estate against him and that it would be highly prejudicial to allow evidence or testimony of the Board proceedings to be introduced at trial.
At the hearing on the motion, the trial court stated, "I think that the Board of Medicine proceedings was part of the overall ball of wax that Mr. Johnson had to evaluate; however, there are a couple of statements that I think are over the top and should not come in." In its order, the trial court granted the motion as to testimony regarding statements made during the Board proceedings about a "clean kill" and speculation about "whether the police should be called." The motion was otherwise denied.
During the multi-day trial, Appellant first called Eric Roberts, an employee of FPIC since 1996, who testified that there was no claim reported to FPIC in 2004; it was "simply a medical incident" at that point. When asked if there was anything that prevented FPIC from sending the records that Appellant sent it in April 2004 to a reviewing physician, Roberts replied, "Yes, absolutely, a lot of things preventing ... them from doing that, right. I mean, we don't have any – first of all, there's no claim made. What are we going to tell him to review?" He later testified, "I'm sorry I must be explaining it wrong, because, you know, a medical incident or precautionary report ... there's no claim, you know. The doctor can't make a claim, I can't make a claim. A plaintiff or a patient or claimant has to make a claim, and then with allegation, that can be investigated." When asked if Appellant's goals would have been accomplished by settling the case, Roberts replied, "Well, we knew the claim wasn't going to settle. He [Appellant] wasn't going to turn over his financials. ... You know, as it turns out now, we know there was [sic] unprotected assets, but he was never going to turn his financials over." When asked if Appellant bid against himself by the premature offer to arbitrate, Roberts replied, "Absolutely not. ... The plaintiffs rejected the policy limits and said, ‘Dr. Samiian, give us your financial records and we might consider it.’ They rejected it before that offer was made. And, even still, Dr. Samiian can't let that pre-suit expire and not take advantage of the statute."
When asked on cross-examination whether any lawyers involved in the case suggested to him at any point that there was any prejudice by not investigating the case "in the first year," Roberts replied, "Not at all ... none." When asked if any lawyers suggested that the facts of the case may have been different had an investigation been done during the first year, he replied, "No, they all opined it would've changed nothing." When asked if he, on behalf of FPIC, was concerned "about going out and waking this claim up," he replied, "Absolutely. I'm not ... going to ... if a claim, especially a claim of this magnitude, has not been filed, I'm not going to go and try to invite it or stir it up."
Beth Rominger, FPIC's senior vice-president of claims in 2004 and 2005 who authorized the $250,000 policy limits offer, testified that a precautionary file is also known as an incident report, whereas a "claim is a demand for compensation or a notice under the [medical malpractice] statute." When asked about the provision in the FPIC policy that states, "We consider a claim to be made on the date you first contact us regarding a medical incident or injury that you reasonably believe will result in a claim being made against you" and whether it did not "kick in any of FPIC's obligations under the policy," Rominger replied, "It kicks in the obligation to provide coverage to the physician, to note that he has reported it, or she, and that there is coverage that's available for this claim. It is not a claim under the statute made by the patient. Patients make claims." When asked if it was a general business practice at FPIC to not investigate or evaluate a claim until it receives a notice of intent, she replied, "That's an industry practice. Insurance companies, medical malpractice insurance companies, that's how insurance – medical malpractice companies investigate." When asked when she was first asked for authority to offer policy limits to the estate, she replied, "Probably right about that time when Brad [Attorney Johnson] kept getting ... one negative review after another and we could not find an expert."
When asked on cross-examination if she saw anything in the file that indicated that the failure to conduct an investigation during the first year in any manner impacted the defensibility of the claim as to Appellant, Rominger replied, "Not at all." She testified of Attorney Johnson that "he left no stone unturned" and that "he got ... eight to ten experts on this case. And he went to pathologists. He went to plastic surgeons. He went to nursing experts. ... He kept going and going and going and trying to find an expert for [Appellant]." According to Rominger, although the estate requested five years of Appellant's financial records, Appellant never turned over a single record, despite his attorneys recommending that he do so. Rominger testified that Attorney Tromberg, Appellant's private attorney, described Appellant as being "bulletproof," which meant that "nobody could get at [his] assets, they were protected, and he had done all of the right things to protect his assets from a claim made by a patient." It was later discovered, however, that Appellant's assets were not fully protected "[s]o they were unwilling to give out the financial information because they were concerned that ... this would be a road map for how they could get to [Appellant's] money." Rominger testified that FPIC "felt there was no other option [other than arbitration]. Because we'd offered the policy limits, which is what we were obligated to do, and they had been turned down."
Appellant next called Dennis K. Larry, a "semi-retired lawyer" who practiced personal injury and "pharmaceutical cases" and had served on a board of a legal malpractice insurance company for approximately nineteen years. When asked what FPIC could have done during an investigation in the year between the incident and when the estate's notice of intent was sent, Larry testified that it could "send the medical records to doctors that they know of who are experts in their field, to look at those records and see whether ... his surgery or the postoperative care could be defended by qualified medical doctors." Larry acknowledged that FPIC did just that after the notice of intent was filed. Larry opined that "by offering arbitration so close to the offer to settle, it really took away any realistic possibility that the case would settle."
When asked on cross-examination if the conditions of Attorney Pajcic's counteroffer were ever fulfilled, Larry replied, "They weren't." Larry acknowledged that Appellant's lawyers encouraged him to turn over his financial records. Larry believed that Appellant's case was indefensible. When asked if Pajcic's return of the settlement check was a rejection or not, Larry testified, "Could be viewed as such, yes." When asked if there was anything in the FPIC insurance policy that required FPIC to investigate a notice of incident, Larry replied, "It doesn't require them to do that. That requirement comes from the Florida law." When asked the question again, he replied, "It [the policy] does not say that."
Attorney Johnson next testified that the case was "horrible" and "had the worst liability facts [he] had in 31 years, and it had the biggest damages [he had] seen in 31 years." He also testified that Attorney Pajcic called him, "[s]aying if they want – if they got the financials, maybe they would take the $250,000 settlement check." Johnson testified that "plaintiffs’ lawyers don't take policy limits without financials." He further testified, "We knew we were coming up on the end of 90 days; this was a – the case was indefensible, inflammatory, really just a tragic situation; and we needed to explore every option we had under the statute." Arbitration, according to Johnson, "took punitives out of the picture completely." When asked if Appellant was willing to put in any of his own money above the policy limits to settle the case, Johnson replied, "I think we talked about 25 to $50,000 of his own money above the $250,000 policy limits, and he just said, ‘No way.’ " While Johnson asked Appellant to provide his financial information to the estate, Appellant "[d]idn't want to." When asked if the decision "to lie low during the first year after the report of the notice of incident" did "in any manner hamper or prejudice the investigation [he] did later during the presuit," Johnson replied, "Not at all." It was Johnson's understanding that the estate rejected the $250,000 policy limits offer when it returned the check. Johnson believed the arbitration award was a good result because it was $20 million less than what the estate was seeking.
Fred Tromberg, Appellant's personal attorney, testified about the "handshake agreement" he and Attorney Pajcic had that there would be a bad faith suit filed and that, in the interim, there would not be an attempt to collect against Appellant. When asked if he thought it was the best strategy after Mr. Gottlieb died for Appellant to "lie low," he replied, "For [Appellant] to do so, yes." When asked if the reason was because he was not certain that a claim would be filed, he replied, "That's correct." Tromberg thought that Attorney Johnson did a good job in his investigation of the case, and Tromberg was in full agreement with the decision to arbitrate. When asked if he told Appellant that he could not "give up" his financial records to Pajcic given the state of his asset protection plan, Tromberg, who knew that a condition of the settlement was the disclosure of Appellant's finances, replied, "I don't know if I used those terms, but I certainly – that was the gist of what I was talking about."
William Edward Hahn, a "plaintiff's lawyer" since 1972 and an expert witness for Appellant, testified that it was not reasonable to offer arbitration in this case. When asked on cross-examination by counsel for the Foley Defendants whether "[t]he Navarro case down in Tampa was a big deal," Appellant's counsel objected, arguing, "It's a case that was decided years after the decision was made on whether or not to offer to arbitrate. It's irrelevant." He also argued, "[I]t's an egregious case where a doctor purportedly changed his file and/or lied, depending upon the version of reality you accept. It happened [in 2006] way after this case." The Foley Defendants’ counsel argued:
Navarro v. Austin , No. 02-CA-006154 (Fla. 13th Cir. Ct. Oct. 3, 2006).
[T]he point is, Brad Johnson believed punitive damages were a possibility in this case. Mr. Hahn pooh-poohed the possibility of punitive damages.
This case occurred in 2006, a year after Brad was involved in the case. He got a $100 million compensatory award – a $100 million punitive award. They've been saying – they've been saying "You can't get the punitive damages award, a big punitive damages award, when there's a big compensatory case." Yes, you can. Navarro's the case.
The trial court overruled the objection, stating, "Well, I don't think the point is Johnson taking it into consideration. I think it's this witness giving his opinion, you know, punitive damages don't happen in med-mal cases." No further questions about the Navarro case were asked of Mr. Hahn.
Attorney Steve Pajcic next testified that medical malpractice cases were very hard to win, especially in Jacksonville, that he did not seek punitive damages in such cases, and that he expected this case to settle. Pajcic opined that he had a twenty-five to fifty percent chance of success had the case gone before a jury. When asked about his response to the settlement offer and check, he replied, "We're not either going to accept it or reject it. Give us a little bit more information and we'll figure this out." After noting that he returned the check, Pajcic stated, "But I requested financial information from [Appellant]. The idea is here that the insurance was inadequate." Pajcic was quite surprised when he received the arbitration offer because that meant that "they were throwing in the towel" and "[t]hey were admitting liability, accepting full responsibility." According to Pajcic, he had never seen that done before because insurance companies do not do that. The trial court sustained FPIC's counsel's objection to the testimony and instructed the jury to disregard it. The trial court overruled Appellant's objection to admission into evidence of Pajcic's contract with the estate.
During FPIC's cross-examination of Pajcic, he testified, "So I'm not saying that we wouldn't have tried to get more, but we would, if it had been – without the admission of liability and acceptance of responsibility. Without that, it would – we would have settled the case." Pajcic never received a single financial record from Appellant from 2004 to 2018. After the arbitration award was entered, Pajcic and Attorney Tromberg "had a handshake agreement that [they] would defer collection attempts while this case, this bad faith case, was pursued." When asked if it was his testimony that he would have "taken the money from the doctor without requiring him to give any financials because all the doctors go in a big bucket" and because the doctors are "generally protected," Pajcic replied, "That's probably what would have happened, yes." When later asked if this "$250,000 settlement, would have been on a case you later asked $55 million for," Pajcic affirmatively responded. When asked how he makes an informed decision on whether to settle, he replied in part, "I would have gotten the best information I could, and we would have made the best decision we could and tried to get as much money as we could. The case would have settled. I feel confident. That's what we – that's what has happened in all of these cases."
On cross-examination by the Foley Defendants’ counsel, Pajcic testified that he did not know about the arbitration offer when he sent the settlement check back. When asked if he had a right to seek financial information about Appellant while the case was in arbitration, he replied, "I did. And I deferred that right based upon the conversation and agreement between Mr. Tromberg and I." Pajcic entered into a new contract with Mr. Gottlieb's widow after entry of the arbitration award. When counsel asked Pajcic if he knew that Appellant was seeking $90 million in this case, Appellant's counsel objected, and the trial court's consolidation order was addressed. Specifically, Appellant's attorney argued, "[W]hen you consolidated these cases, you said the damages are the same in both cases." The trial court responded, "I didn't mean to imply that the damages measure was the same, but the damages claimed arise out of the same judgment." When questioning resumed, Pajcic acknowledged that the estate had a right under the Florida Constitution to receive no less than seventy percent of the first $250,000 of a judgment and ninety percent of all damages in excess of $250,000. Following the arbitration award, Pajcic asked the estate to waive that right. He testified, "We do this, yes, with all medical malpractice clients, as I believe all plaintiffs’ attorneys do." When asked if his firm would receive $17.2 million after Mrs. Gottlieb waived her constitutional right, Pajcic replied, "That sounds right to me."
After Appellant rested his case, FPIC moved for a directed verdict on two issues raised by Appellant: (1) that it acted in bad faith by failing to investigate, evaluate, and negotiate the estate's claim prior to the filing of the notice of intent to initiate the medical malpractice claim and (2) that it acted in bad faith regarding the decision to arbitrate. FPIC argued that it was entitled to a directed verdict because there was "simply nothing in any provision of FPIC's policy issued to Plaintiffs, any case or any portion of the medical malpractice statute that mandates that a defense be provided to [Appellant] by FPIC after receiving a notice of incident but before the filing of the Notice of Intent." The trial court ruled on the motion later during trial.
During its case, FPIC first called Anthony Dapore, a lawyer retained as an expert by it in the area of good faith claims handling, who testified that FPIC had no obligation to investigate until the estate's notice of intent was filed. When asked about the provision in the policy that "[w]e consider a claim to be made on the date you first contacted us," Dapore testified, "It's an explanation to the insured of what the claims-made policy is. ... [I]f you have reported that incident within the policy period, if and when a claim is made after that policy period, that claim relates back to the original incident report, meaning it triggers the coverage ...." Dapore testified that the files confirmed that Attorneys Johnson and Dennis were not impeded in their representation of Appellant as a result of FPIC not investigating in the first year. He testified, "They were able to do whatever it was that they needed to do to investigate the case. ... And, quite frankly, the – if they had started in 2004, they would've ended up at the same place they did at the same time in 2005, and that is, this case was completely indefensible." Dapore, who testified that the policy limits offer was rejected by the estate when Pajcic sent the check back to Appellant's attorneys, opined that "taking this case to arbitration was the appropriate course of action ...." He also opined that the "case did not settle because [Appellant] refused to supply his financial documents as required by the Pajcic firm."
Craig Dennis, the attorney who represented Appellant after Attorney Johnson withdrew, next testified that Johnson's investigation was "very thorough, very extensive." Dennis, who continued investigating the case after he began representing Appellant, found only one doctor, Appellant's friend, who was willing to sign an affidavit in support of Appellant as to the surgery that he performed, "not the one-hour time period" following the surgery. Attorney Tromberg told Dennis that Appellant would under no circumstances release his financial information to the estate.
After FPIC rested its case, Appellant renewed his objection to the testimony of Dr. Laurie Davies and the evidence of the Board of Medicine proceeding against him. The trial court stated:
I know I already ruled, but I am having second thoughts because, I mean, I think [Appellant's counsel] is right. If we were trying the underlying case, that would probably not be admissible. And I know I said previously it was all part of the ball of wax that Mr. Johnson was dealing with, but I think that I was under the impression that the Board of Medicine proceedings had happened prior.
After the Foley Defendants’ attorney argued that if the court did not permit Dr. Davies to testify, "we have no refutation of Mr. Pajcic's opinion as to the difficulty of this case" and that "she, more than any other witness, as a fact and an expert witness, has reviewed the facts and is able to tell this jury very briefly why this case was so egregious," the trial court stated, "I will stick with the previous ruling."
Thereafter, the videotaped deposition of Dr. Davies was played for the jury. Dr. Davies, who was employed with the University of Florida's Department of Anesthesiology and was the "OR medical director," testified that Appellant's actions of leaving his patient in the overnight care of a surgical technician, who was not a licensed registered nurse and who was not trained in advanced cardiac life support, and permitting that person to administer five milligrams of IV valium to the patient fell below the standard of care and substantially contributed to the death of the patient. When asked how she would rate this case in terms of the nature of Appellant's actions, she replied, "I found this case to be very egregious with regard to the violation of the standard of care in the State of Florida. ... I think it was probably in the top ten of all of the 1,000 or more cases that I saw." Dr. Davies then testified that Appellant went before the Board of Medicine, of which she was a member, in 2007 and described how Appellant had been disciplined.
When the Foley Defendants’ attorney subsequently addressed certain exhibits, Appellant's counsel argued, "[W]e oppose the introduction or the injection of Navarro into this case. The operative facts in this matter happened in 2004.... Navarro had not happened. It could not have played a role in any type of deliberative process. ..." The Foley Defendants’ attorney argued that when Attorney Pajcic gave his testimony "last week," he was "certainly ... aware of the Navarro case, yet he testified punitive damages are never a possibility in medical malpractice cases." The trial court overruled Appellant's objection.
The videotaped deposition of Shelley Leinicke, an appellate attorney, was then played. Leinicke worked on the case on FPIC's behalf "because of an anticipated appeal if a ruling did not go as trial counsel was hoping it might." Leinicke recommended to Appellant and the other attorneys that the matter be arbitrated. After noting that "the plaintiff's counsel had indicated willingness to accept the [policy] limits, if there were no other financial sources," Leinicke testified, "[Appellant] and, I believe, Mr. Tromberg, as well, were reluctant to produce any such information under any scenario." When asked about a letter she had written and whether it discussed the Navarro case, she testified:
And I was told about this decision having been reached by a jury over in, I believe, Tampa. And there was a concern that there were some factual similarities to our case and – because there was, it looks like, $117 million damage, both compensatory and punitive in combination, that this was something that might be worth discussing with [Appellant] in terms of whether he really did want to go forward with trying to litigate this case rather than arbitrate it.
After her letter "went out," Appellant called Leinicke and told her, "Thank you for advising me of this. I still want to arbitrate."
Following the testimony of other attorneys who opined that offering arbitration was reasonable and prudent and that a plaintiff's attorney would not generally accept a settlement offer without knowing the financial status of a defendant, Appellant moved for a directed verdict on the issue of the "measure of damages being the excess judgment against [him]." He also moved for a directed verdict as to FPIC's "duties under the policy [being] governed by the contract language" with regard to its duty to investigate in the first year.
During the charge conference, the trial court ruled that chapter 766 of the Florida Statutes, the "framework" for "handling medical negligence cases," did not impose a duty upon an insurer to investigate a medical malpractice claim "during the first year." A discussion later ensued between the attorneys and the trial court about the proper measure of damages in a bad faith case. Appellant's counsel argued that because the law in Florida was clear that "in an excess situation, the damages in the bad faith case are the excess judgment," the trial court, rather than the jury, should determine the damages in the case. He argued as well, "And that is why a causation instruction is not necessary in this particular case, and not appropriate." FPIC's attorney argued, "It wouldn't make any sense, Judge, because Foley has got a separate case. They're going to determine damages as to Foley. They have to determine damages as to me. This isn't just an excess judgment case .... It doesn't make any sense unless I get the same damage instruction as Foley gets." After counsel argued that "this is a somewhat unique case because it isn't simply an excess case," the trial court stated, "Right, I agree it is not. I would probably have entered a directed verdict or whatever if this had been a standard, you know, failure to tender and then there's a – there's an excess judgment. But that's not what this is." The court later ruled, "We're going to have two separate verdict forms. They are going to have a place for damages. To the extent that either or both is a plaintiff's verdict, if I'm wrong about the damages, that's easily correctable."
The trial court later instructed the jury in part that Foley & Lardner was "responsible for the actions of Brad Johnson." It further instructed:
The Court has determined and now instructs you that FPIC had no duty to investigate the Gottlieb claim prior to the notice of intent. ...
For [Appellant] to prevail in his bad faith claim, he must show by the greater weight of the evidence that FPIC acted in bad faith and that FPIC's bad faith caused damages to [him].
....
If your verdict is for FPIC, you will not consider the matter of damages. But if you find for [Appellant], you should determine and write on the verdict form, in dollars, the total amount of damages that the greater weight of the evidence
shows [Appellant] sustained as a result of the actions of FPIC.
The measure of damages is the amount of loss suffered by [Appellant] as a result of FPIC's bad faith.
The issue for your determination on the claims of [Appellant] against Brad Johnson and Foley & Lardner for legal malpractice is whether Brad Johnson was negligent in his handling of the Gottlieb estate's claim and whether that negligence caused [Appellant] harm.
....
If your verdict is for Brad Johnson and Foley & Lardner, you will not consider the matter of damages.
....
The measure of damages is the amount of loss suffered by [Appellant] as the result of Brad Johnson's negligence.
The Foley Defendants’ verdict form asked first whether the jury "find[s] by the greater weight of the evidence that defendants Brad Johnson and Foley & Lardner were negligent in the handling of the Gottlieb Estate's claim against [Appellant]." The jury answered "no" to that question. The form instructed the jury that if it answered "no" to that question, "do not answer any further questions."
The FPIC verdict form asked in Question 1 whether the jury "find[s] by the greater weight of the evidence that ... FPIC acted in bad faith and its bad faith was a legal cause of damages to [Appellant]." The jury answered "no" to that question. The verdict form instructed the jury that if it answered "no" to Question 1, "do not answer any further questions."
Following the entry of the final judgments in Appellees’ favor, Appellant filed a motion to set aside the verdict and for a new trial. During a hearing on the motions, the trial court stated:
I'm going to deny the plaintiff's motions for a new trial on the Pajcic issue. And given the fact that Mr. Pajcic was a central witness in the case and that I felt like I was – I questioned whether I should let him testify about what would he have done, and what I ended up doing there was allowing him to testify to that but also at the same time allowing the defendants to robustly cross examine him on that issue, so I felt that that was the best course to take.
Let's see. On the legal cause issue, I just felt like that was a question for the jury.
....
As far as the board of medicine and Navarro , again I think both sides had good arguments on that. But especially since Navarro was sort of part of this case through Ms. Leinicke's advice and it did bear out what the concerns were and justified the concerns, I thought the jury should be able to hear it.
As to the Foley Defendants’ motion for attorney's fees, which was based upon Appellant's rejection of their settlement offer, the trial court stated:
And I didn't see anything, and I don't see anything here where there's anything other than just vicarious liability on the part of Foley for one of its attorneys working for it.
And so I think it does fall within the amended rule where you don't have to differentiate between tortfeasors where one is alleged to be vicariously liable. So I think, because of that and it's otherwise a valid proposal that follows the rule and the statute, that I have no discretion to do anything other than grant the motion.
Thereafter, the trial court entered an order denying Appellant's post-trial motions and an order granting attorney's fees to the Foley Defendants. These three consolidated appeals followed. ANALYSIS
Issue 1 - Submitting Issues of Causation & Damages to the Jury
Appellant first argues that the trial court erred in allowing the jury to determine causation and damages in the bad faith action against FPIC, which, according to him, resulted in the jury hearing irrelevant and prejudicial evidence and receiving erroneous jury instructions and verdict forms. We review this issue de novo. See Chacon v. Philip Morris USA, Inc. , 254 So. 3d 1172, 1175 (Fla. 3d DCA 2018) (noting that while a trial court's rulings on jury instructions are generally reviewed for an abuse of discretion, when an analysis turns on a question of law, the de novo standard of review applies); Elliott v. Elliott , 58 So. 3d 878, 880 (Fla. 1st DCA 2011) (noting that the standard of review of a trial court's order denying a directed verdict motion is de novo).
In support of his argument that Florida law is settled that the measure of damages in a bad faith case is the excess judgment awarded in the underlying case and that the issue of causation in the bad faith case should not have been submitted to the jury, Appellant relies in part upon our opinion in Swamy v. Caduceus Self Insurance Fund, Inc. , 648 So. 2d 758, 759 (Fla. 1st DCA 1994), where we set forth, "It is true that in most bad faith cases the excess judgment constitutes the extent of the provable damages." Appellant also relies upon the Florida Standard Jury Instructions addressing bad faith failure-to-settle cases, including instruction 404.9, which instructs, "If your verdict is for (claimant), the court will award damages in an amount allowable under Florida law." See also Fla. Std. Jury Instr. (Civ.) 404.2 (instructing that "(Claimant) claims that (defendant/insurer) acted in bad faith in (describe alleged bad faith) [which caused [him] [her] [it] harm]" and explaining in the Note that the bracketed clause on causation should be used "if the issue of damages is going to be submitted to the jury" and that "[i]f the court is going to determine damages (see instruction 404.9) ... then the bracketed clause ... should be omitted"); Fla. Std. Jury Instr. (Civ.) 404.6 (explaining in the Note that no part of the legal cause instruction "should be given if the court is going to determine damages (see instruction 404.9)").
FPIC argues that the trial court did not err in instructing the jury on causation given the fact that this was not a failure-to-settle case, but a case where the offer to arbitrate allegedly undercut Appellant's ability to settle the case for policy limits. FPIC relies upon Perera v. United States Fidelity & Guaranty Co. , 35 So. 3d 893, 894–95 (Fla. 2010), wherein the Florida Supreme Court set forth that an "insured or a third-party claimant may bring a third-party bad-faith cause of action when an insurer has breached its duty of good faith and that breach results in an excess judgment being entered against its insured," that an "excess judgment, however, is not always a prerequisite to a bad-faith action," and that the "damages claimed by the insured or its assignee must be caused by the insurer's bad faith." FPIC also relies upon Taylor v. GEICO Indemnity Co. , No. 8:12-CV-2448-T-AEP, 2015 WL 6750821, at *5 (M.D. Fla. Nov. 5, 2015), where the district court addressed a jury verdict in a bad faith action and found that sufficient evidence in the record supported a "causal connection between the damages claimed and GEICO's bad faith." The district court cited Perera in support of its finding and included a "but cf." citation to instruction 404.6 and its Note, which, as stated, provides in part that "no part of the legal cause instruction should be given if the court is going to determine damages." Id. As FPIC argues, the trial court did not err in submitting the issue of causation to the jury under the circumstances presented in this case. As the trial court recognized, this was not the typical failure-to-settle case where the damages claimed by the insured were clearly caused by the insurer's failure to tender a settlement offer. Instead, the issue of what caused Appellant's alleged damages was in dispute. Although Appellant claimed that the excess judgment resulted from FPIC's alleged bad faith in offering arbitration, which, according to him, effectively precluded any settlement from happening, FPIC contended that it was Appellant's refusal to turn over his financial records that prevented a settlement and led to arbitration being offered. As such, whether FPIC's alleged bad faith caused the excess judgment was, as the trial court determined, a question for the jury.
With respect to the issue of damages, FPIC's attorney conceded during oral argument that had the bad faith action against it proceeded separately from the legal malpractice action against the Foley Defendants, it would have been proper for the trial court to determine the issue of damages in the bad faith case. However, it was pursuant to Appellant's request that the trial court consolidated the bad faith and legal malpractice actions. Thus, while Appellant is correct that the damages he sought was the excess judgment that resulted from arbitration, a fact also conceded by FPIC's attorney during oral argument, we find no error in the trial court submitting the issue of damages to the jury in the bad faith action because the jury would have had to decide what portion of any damages FPIC was responsible for. Indeed, the trial court instructed the jury as to the bad faith case that the "measure of damages is the amount of loss suffered by [Appellant] as a result of FPIC's bad faith," and it instructed the jury as to the legal malpractice case that the "measure of damages is the amount of loss suffered by [Appellant] as the result of Brad Johnson's negligence." Ultimately, the jury never reached the issue of damages given its determination that FPIC did not act in bad faith and that the Foley Defendants were not negligent. Therefore, even if it could be said that the trial court committed error as to the issue of damages, any error would be harmless. See Bradley v. S. Baptist Hosp. of Fla., Inc. , 943 So. 2d 202, 206 (Fla. 1st DCA 2006) ("[W]e find that the trial court's error [of giving an instruction on the borrowed servant defense] did not result in a miscarriage of justice because the jury found that the Hospital was not negligent through its nurses; therefore, it never considered the borrowed servant instruction.").
FPIC made no such concession as to the issue of causation.
Issue 2 - Evidentiary Rulings
Appellant challenges a number of evidentiary rulings in his second issue on appeal. As we have explained, "[M]any issues pertaining to the admission or exclusion of evidence are subject to review by the abuse of discretion standard." Shands Teaching Hosp. & Clinics, Inc. v. Dunn , 977 So. 2d 594, 598 (Fla. 1st DCA 2007). "However, the de novo standard applies if the issue presented on appeal is whether the trial court erred in applying a provision of the Florida Evidence Code." Id.
Attorney Pajcic's Testimony
Appellant first asserts that the trial court erred in refusing to admit Attorney Pajcic's testimony that his firm's standard practice has always been to accept policy limit settlement offers in medical malpractice cases even when a defendant refuses to provide financial information. Appellant argues that the testimony was admissible pursuant to section 90.406, Florida Statutes (2018), which provides that "[e]vidence of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is admissible to prove that the conduct of the organization on a particular occasion was in conformity with the routine practice." See Shands Teaching Hosp. & Clinics, Inc. , 977 So. 2d at 599 (noting that, under section 90.406, "[t]he existence of a routine practice creates an inference that an agent or employee of the organization acted according to the practice" and that "[i]n the absence of contrary evidence, jurors may properly assume that an employee has adhered to established procedures"). Whether the trial court erred in excluding evidence of a routine practice is an issue of law. Id. at 598.
We find Appellant's reliance upon section 90.406 to be misplaced in that this case did not present a situation where Pajcic's conduct of not accepting the settlement offer was in conformity with any prior or routine practice. Moreover, Pajcic testified during his deposition, "But when I say it's our policy to accept policy limits, I don't mean that we automatically – they hand us a check and the case is over. We do a little what we consider to be due diligence." As Appellees contend, this testimony supports the argument that the testimony Appellant sought to have admitted did not fall within section 90.406. Appellees are also correct that even if we were to find that the trial court erred as to this issue, any error would be harmless. See Campbell v. Dep't of Transp. , 267 So. 3d 541, 548 (Fla. 1st DCA 2019) (noting that the test for harmless error in a civil appeal requires the beneficiary of the error to prove that the error complained of did not contribute to the verdict). Pajcic testified in part on cross-examination, "The case would have settled. I feel confident. That's what we – that's what has happened in all of these cases." Through this testimony, Appellant's desire for the jury to hear what had happened in Pajcic's other cases was fulfilled.
Attorney Pajcic's Fee Agreement
Appellant next contends that although Appellees were entitled to show Pajcic was biased because he held a pecuniary interest in the outcome of the case, the written fee agreement with Mrs. Gottlieb's waiver was cumulative with little probative value because Pajcic's compensation under the agreement was not in dispute. According to Appellant, the Foley Defendants used the documents improperly during cross-examination to impugn Pajcic's character by creating the impression that Pajcic breached his fiduciary duty to Mrs. Gottlieb. As Appellant notes, section 90.403, Florida Statutes (2018), provides that "[r]elevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence." However, cumulativeness alone is not a sufficient ground to exclude evidence. Gutierrez v. Vargas , 239 So. 3d 615, 625 (Fla. 2018). Rather, the probative value of the evidence must be substantially outweighed by the danger of needless presentation of cumulative evidence. Id. Courts should exercise their discretion to avoid the needless waste of time through unnecessary presentation of cumulative evidence. Id.
Appellees contend that the trial court did not abuse its discretion in allowing the fee agreement into evidence because it was relevant to Pajcic's financial interest and because it did not constitute a needless waste of time. We agree. As Appellees also contend, Appellant's counsel never objected to any of the questions asked of Pajcic regarding Mrs. Gottlieb's waiver of her rights. Moreover, when Appellant's attorney objected to the admission of the agreement, he did so on the basis that "it's far more prejudicial than probative" and that it was "unrelated to [Appellant] and the issues he's bringing before this jury." Counsel did not argue during trial that the matter would improperly tell the jury about Mrs. Gottlieb's waiver or imply that Pajcic breached his fiduciary duty to his client. Indeed, Appellant admits on appeal that "his attorney's section 90.403 objection did not explain what was obvious – that prejudice would result from admitting the contract because defendants would use the constitutional waiver to impugn [Appellant's] character." As we have explained, in order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved. LaCoste v. LaCoste , 58 So. 3d 404, 405 (Fla. 1st DCA 2011) ; see also Cabrera v. Outdoor Empire Inc. , 134 So. 3d 573, 576 (Fla. 1st DCA 2014) ("[T]o properly preserve an issue for appeal, a party must make a timely, contemporaneous objection."). Because the argument raised on appeal with respect to this issue was not contemporaneously raised when the objection was made, it was not preserved.
Board of Medicine Evidence
Appellant next argues that Dr. Davies’ testimony about the Board of Medicine proceedings that occurred in 2007 was not relevant to the issue of whether FPIC acted in bad faith and whether Attorney Johnson was negligent when binding arbitration was offered. While Appellant relies upon the trial court's pretrial statement that the proceeding "was part of the overall ball of wax that Mr. Johnson had to evaluate," the trial court later corrected itself by stating that it had been under the impression that the proceedings had happened prior to 2007. Nevertheless, the trial court reaffirmed its ruling to admit the testimony in response to the argument that Dr. Davies was able to tell the jury "why this case was so egregious, why she and the board arrived at the conclusion they did and why [Appellant's] actions fell below the standard of care."
We see no issue with Dr. Davies’ testimony about how egregious she found Appellant's actions or inactions to be given that the strength of the estate's case against Appellant had to be evaluated by the jury in determining the issues of bad faith and legal malpractice, especially in light of Attorney Pajcic's testimony that the medical malpractice case was "iffy." While Dr. Davies’ testimony about the Board proceeding and Appellant's discipline is a closer issue in our opinion, we are unable to say that the trial court abused its discretion in admitting the evidence. With that said, even if the admission of evidence concerning the Board proceeding was erroneous, any error would be harmless as Appellant's negligence in the underlying case was undisputed.
Navarro Testimony
In his last evidentiary issue, Appellant asserts that the trial court erred in admitting evidence concerning the Navarro case. We disagree. As Appellees contend, Attorney Pajcic testified that he did not believe punitive damages would be a potential in this case and that his firm never seeks punitive damages in a medical malpractice case. Given that the potential for punitive damages was a disputed issue and a factor that led to the offer of arbitration and that Attorney Leinicke testified that the Navarro case was a basis for her assessment of this case and advice she gave to Appellant, the trial court did not abuse its discretion in admitting testimony concerning the Navarro case. Alternatively, any error as to this issue would be harmless, as several witnesses testified in Appellees’ favor that punitive damages were a possibility and that, as a result, arbitration was a reasonable option.
Issue 3 - Directed Verdict in FPIC's Favor
In his third issue on appeal, Appellant contends that the trial court erred in directing a verdict for FPIC and instructing the jury that FPIC had no duty to investigate prior to the filing of the estate's notice of intent to initiate a medical malpractice action. As we have explained, granting a motion for directed verdict is proper only if there is no evidence upon which a jury could find against the party for whom the verdict is directed. Ferguson v. Universal Prop. & Cas. Ins. Co. , 46 So. 3d 1037, 1038 (Fla. 1st DCA 2010). This issue is reviewable de novo. Christensen v. Bowen , 140 So. 3d 498, 501 (Fla. 2014).
It has been held that an insurer, in handling the defense of claims against its insured, must act in good faith and must "investigate the facts." Boston Old Colony Ins. Co. v. Gutierrez , 386 So. 2d 783, 785 (Fla. 1980). Section 766.1185, Florida Statutes (2011), which addresses bad faith actions against medical malpractice insurers, provides in part:
In all actions for bad faith against a medical malpractice insurer relating to professional liability insurance coverage for medical negligence, and in determining whether the insurer could and should have settled the claim within the policy limits had it acted fairly and honestly towards its insured with due regard for her or his interest, whether under statute or common law:
(1)(a) An insurer shall not be held in bad faith for failure to pay its policy limits if it tenders its policy limits and meets other reasonable conditions of settlement by the earlier of either: ...
....
(2) When subsection (1) does not apply, the trier of fact, in determining whether an insurer has acted in bad faith, shall consider:
(a) The insurer's willingness to negotiate with the claimant in anticipation of settlement.
(b) The propriety of the insurer's methods of investigating and evaluating the claim.
Subsection (1)(a) is not at issue in this case. As previously stated, we held that Appellant's bad faith action against FPIC was controlled by section 766.1185(2). Samiian , 180 So. 3d at 191.
Appellant did not allege below that FPIC failed to investigate during the presuit investigation phase of the medical malpractice claim provided for in section 766.106(3), Florida Statutes. Instead, he asserted that FPIC failed to investigate Mr. Gottlieb's death in the year before the estate provided him with its notice of intent of filing a medical malpractice action. However, nothing in Appellant's liability insurance agreement with FPIC created a duty to investigate a potential claim. While the policy defined "claim" to mean "any expression of an intent to hold you responsible for damages arising from the rendering or failure to render professional services by you or by someone for whom you are legally responsible," Appellant's reporting of the "incident" was not an expression by the estate to hold him responsible for Mr. Gottlieb's death. Appellant does not point to any provision in the agreement that required FPIC to begin investigating the claim when he notified it of the medical incident. FPIC's witnesses testified that no such duty existed under the policy. Indeed, Mr. Larry, Appellant's expert, conceded that the FPIC policy did not require FPIC to investigate a notice of incident.
Moreover, Appellant failed to prove that FPIC violated its "fiduciary obligation to protect its insured from a judgment exceeding the limits of the insurance policy" by failing to investigate the notice of incident. See Berges v. Infinity Ins. Co . 896 So. 2d 665, 668 (Fla. 2004) (noting that an insured has a fiduciary obligation to protect its insured from a judgment exceeding the limits of the insurance policy). Appellant presented no testimony or evidence showing how FPIC's investigative inaction prior to the estate's notice of intent being filed had any damaging effects on Appellees’ handling of the case or the outcome. On the contrary, the evidence showed that nothing could have been accomplished during the year following Mr. Gottlieb's death that was not done after the notice of intent was filed. As such, a directed verdict on the duty to investigate issue was proper in this case.
Issue 4 - Cumulative Error
In his fourth issue, Appellant contends that the cumulative impact of the trial court's errors warrants a new trial. Given our analysis as to the foregoing issues, we find no merit in this argument.
Issue 5 - Attorney's Fees
In his fifth and final issue on appeal, Appellant challenges the Foley Defendants’ attorney's fee award because their proposal for settlement failed to apportion the amount of the settlement offer attributable to each offeror. A trial court's ruling on a motion for attorney's fees and costs pursuant to the offer of judgment statute and Florida Rule of Civil Procedure 1.442 is reviewed de novo. Cassedy v. Wood , 263 So. 3d 300, 302 (Fla. 1st DCA 2019). Rule 1.442(c), which addresses proposals for settlement, provides in part:
(3) A proposal may be made by or to any party or parties and by or to any combination of parties properly identified in the proposal. A joint proposal shall state the amount and terms attributable to each party.
(4) Notwithstanding subdivision (c)(3), when a party is alleged to be solely vicariously, constructively, derivatively, or technically liable, whether by operation of law or by contract, a joint proposal made by or served on such a party need not state the apportionment or contribution as to that party. Acceptance by any party shall be without prejudice to rights of contribution or indemnity.
Under the doctrine of respondeat superior, an employer may be liable for an employee's acts that are committed within the course and scope of employment. City of Boynton Beach v. Weiss , 120 So. 3d 606, 611 (Fla. 4th DCA 2013) ; see also Univ. of Miami v. Ruiz , 164 So. 3d 758, 767 (Fla. 3d DCA 2015) ("[A]ssuming that any negligent acts occurred within the scope of the employment, an employer will be held liable for the negligence of its employees to the extent those claims rely on vicarious liability through the doctrine of respondeat superior.").
As Appellant acknowledges, the question of Foley & Lardner's liability was submitted to the jury based solely on its vicarious liability for Attorney Johnson's alleged negligence. Appellant is correct, however, that offers of judgment must be evaluated as of the time of the offer. See Palmentere Bros. Cartage Serv., Inc. v. Copeland , 277 So. 3d 729, 732 (Fla. 1st DCA 2019). In rejecting Appellant's argument below concerning the invalidity of the proposal, the trial court reasoned, "I don't see anything here where there's anything other than just vicarious liability on the part of Foley for one of its attorneys working for it." As a result, it found that the proposal "does fall within [ rule 1.442(c)(4) ] where you don't have to differentiate between tortfeasors where one is alleged to be vicariously liable." Appellant has failed to show any error in the trial court's determination. While Appellant's complaint against the Foley Defendants contained separate counts against Attorney Johnson and Foley & Lardner, Count II against Foley & Lardner alleged acts of malpractice by and through its attorneys. The Foley Defendants correctly contend that the fact that the parties tried the case on a vicarious liability theory confirms that the complaint only pled a theory of vicarious liability against Foley & Lardner. As such, the trial court did not err in awarding attorney's fees to the Foley Defendants. See Saterbo v. Markuson , 210 So. 3d 135, 138–39 (Fla. 2d DCA 2016) (holding that apportionment was not necessary under rule 1.442(c)(4) and that the proposal was sufficient where the only claim made against one of the parties was based on his status as the owner of the vehicle at issue, "that is, one solely of vicarious liability").
CONCLUSION
For the reasons set forth herein, we affirm the final judgments entered in Appellees’ favor and the order awarding attorney's fees to the Foley Defendants.
AFFIRMED .
B.L. Thomas, J., concurs; Bilbrey, J., concurs in part and dissents in part with opinion.
Bilbrey, J., concurring in part, and dissenting in part.
While I appreciate the majority's thorough analysis, I am nonetheless compelled to disagree with certain of the majority's legal conclusions. I agree with the majority that affirmance is appropriate as to Appellees Bradley R. Johnson and Foley & Lardner, LLP (Foley Defendants) and concur in that part of the majority's opinion. However, I would reverse for further proceedings as to Appellee First Professional Insurance Company (FPIC) as discussed below and therefore respectfully dissent from the majority's decision to affirm as to FPIC. Finally, because I contend that we should reverse and remand for further proceedings as to FPIC, it is necessary to discuss the directed verdict entered in its favor regarding its duty to investigate. I agree we are correct to affirm on that issue, although I disagree with the trial court's rationale, and write to note that an insurer's duty to an insured arises from both the policy and common law.
Submitting Causation and Damages to the Jury
The majority holds that there was no error by the trial court when it submitted the issues of causation and damages to the jury. As to FPIC, I do not agree.
Although Appellant's third-party bad faith action against FPIC was consolidated with his legal malpractice action against the Foley Defendants, the consolidation did not result in the actions being "merged." OneBeacon Ins. Co. v. Delta Fire Sprinklers, Inc. , 898 So. 2d 113, 115 (Fla. 5th DCA 2005). "[C]onsolidated cases do not lose their individual identities as distinct, separately-filed causes of action." Id. at 116. "Consolidation affects the procedure of the cases, but has no effect on the substantive rights of the parties in an individual case, and does not destroy their separate identities." CDI Contractors, LLC v. Allbrite Elec. Contractors, Inc. , 836 So. 2d 1031, 1033 (Fla. 5th DCA 2002).
A third-party bad faith cause of action is premised on an insured suffering damages, usually an excess judgment, due to the insurer's improper handling of a third-party's claim against the insured. See Macola v. Government Employees Ins. Co ., 953 So. 2d 451, 458 (Fla. 2006). Here, Appellant alleged that FPIC undermined any defense which Appellant may have had to the medical malpractice claim by offering arbitration to the Gottlieb Estate solely as to damages and thereby admitting liability. See § 766.106(3)(b) 3., Fla. Stat. (2004). Appellant also alleged that the offer to arbitrate so soon after FPIC tendered policy limits kept the Gottlieb Estate from accepting the policy limits. Finally, Appellant alleged that FPIC committed bad faith by not timely investigating the claim, but the trial court granted a directed verdict on that issue which is discussed below.
Even with consolidation, we must separately analyze the trial court's decision impacting the substantive rights of Appellant. The trial court appropriately used separate verdict forms for the bad faith and legal malpractice actions. The first question on the legal malpractice verdict form asked only if the Foley Defendants were negligent, and the jury answered "no." The majority correctly holds that we need not decide as to the Foley Defendants whether the issue of damages should have been submitted to the jury since the jury's finding of no negligence by the Foley Defendants makes any potential error harmless. See Zerwal v. State Farm Mut. Auto. Ins. Co. , 332 So. 2d 645 (Fla. 3d DCA 1976) (holding that if there was error in the jury instructions regarding damages, the error was harmless when the jury returned a verdict finding defendant not liable).
However, the jury instructions and verdict form in the bad faith case against FPIC must be analyzed separately, and in so doing, I conclude that error occurred. The jury was instructed that for Appellant "to prevail in his bad faith claim, he must show by the greater weight of the evidence that FPIC acted in bad faith and that FPIC's bad faith caused damages to Dr. Samiian." The jury was further instructed that the "measure of damages is the amount of loss suffered by Dr. Samiian as a result of FPIC's bad faith." The jury was then provided with a verdict form in the bad faith case which asked, "Do you find by the greater weight of the evidence that defendant FPIC acted in bad faith and its bad faith was a legal cause of damages to plaintiff Dr. Mohamad R. Samiian?" The jury answered "no" to this compound question, and I respectfully submit that the question of causation should not have been put to the jury. Appellant had previously objected to the instructions and verdict form thereby preserving the issue for appeal. See Fla. R. Civ. P. 1.470(b).
As the majority opinion points out, "in most bad faith cases the excess judgment constitutes the extent of the provable damages." Swamy v. Caduceus Self Ins. Fund, Inc ., 648 So. 2d 758, 759 (Fla. 1st DCA 1994). This rule remains unaltered even though this was not a failure-to-settle case. Bad faith is unsurprisingly the inverse of good faith, and there are many acts or omissions beyond bad faith failure to settle that may violate an insurer's duty to act in good faith towards its insured. See Boston Old Colony Ins. Co. v. Gutierrez , 386 So. 2d 783, 785 (Fla. 1980). I am unaware of any cases which hold that the excess judgment is not recoverable as damages in a bad faith cause of action because an insurer breached a duty of good faith other than failure to settle.
Here, the amount of the arbitration awarded in excess of the $250,000 policy limits entered for the Gottlieb Estate against the Appellant established the amount of damages to be awarded against FPIC in the event the jury found that it acted in bad faith. See Fridman v. Safeco Ins. Co. of Illinois , 185 So. 3d 1214, 1221 (Fla. 2016) ("Importantly, in both first- and third-party bad faith actions, an element of damages includes any amount in excess of the policy limits."). It is only when an insured claims damages for bad faith beyond the excess judgment that the issue of those damages should be submitted to the jury. See Fla. Std. Jury Instr. (Civ.) 404.9. The standard jury instructions provide, for instance, instructions for when a plaintiff has a claim for mental distress or punitive damages. Fla. Std. Jury Instr. (Civ.) 404.12 & 404.13.
In allowing the jury to decide the issue of causation, the trial court also allowed the jury to hear that Appellant had not paid the Gottlieb Estate any of the judgment resulting from the arbitration. But we have long held that prior satisfaction of the excess judgment is not a condition precedent to bringing a third-party bad faith claim. American Fire & Cas. Co. v. Davis , 146 So. 2d 615, 619 (Fla. 1st DCA 1962) ("[P]rior satisfaction of the excess judgment is not a prerequisite to bringing an action against one's insurer for damages due to negligence or bad faith in failing to settle a claim within the policy limits."). By being able to raise causation, FPIC was able to argue to the jury that Appellant was not harmed since he "hasn't paid a nickel of that 40-some-odd million dollar judgment." That argument was incorrect, and the harm Appellant suffered, if FPIC acted in bad faith, was exposure to the excess judgment. Even if Appellant had discharged the Gottlieb Estate's judgment in bankruptcy, the amount of the excess judgment remained the measure of the damage if FPIC acted in bad faith. See Camp v. St. Paul Fire & Marine Ins. Co ., 616 So. 2d 12, 15 (Fla. 1993).
In Appellant's prior case before us we determined that section 766.1185(2), Florida Statutes (2005), applied to Appellant's bad faith claim against FPIC. Samiian v. First Professionals Ins. Co., Inc. , 180 So. 3d 190, 194 (Fla. 1st DCA 2015). Section 766.1185(2), states,
When subsection (1) does not apply, the trier of fact, in determining whether an insurer has acted in bad faith, shall consider:
(a) The insurer's willingness to negotiate with the claimant in anticipation of settlement.
(b) The propriety of the insurer's methods of investigating and evaluating the claim.
(c) Whether the insurer timely informed the insured of an offer to settle within the limits of coverage, the right to retain personal counsel, and the risk of litigation.
(d) Whether the insured denied liability or requested that the case be defended after the insurer fully advised the insured as to the facts and risks.
(e) Whether the claimant imposed any condition, other than the tender of the policy limits, on the settlement of the claim.
(f) Whether the claimant provided relevant information to the insurer on a timely basis.
(g) Whether and when other defendants in the case settled or were dismissed from the case.
(h) Whether there were multiple claimants seeking, in the aggregate, compensation in excess of policy limits from the defendant or the defendant's insurer.
(i) Whether the insured misrepresented material facts to the insurer or made material omissions of fact to the insurer.
(j) In addition to the foregoing, the court shall allow consideration of such additional factors as the court determines to be relevant.
Causation is not listed as a factor to be considered under section 766.1185(2) in determining whether a medical malpractice insurer acted in bad faith.
Likewise, the standard jury instructions provide an instruction on causation only when the jury is determining the issue of damages beyond the excess judgment. Fla. Std. Jury Instr. (Civ.) 404.2 (note on use). If the jury was to be instructed at all on damages, it should have been instructed that the Appellant's damages against FPIC, if FPIC was proven to have acted in bad faith, was the amount of the excess judgment obtained by the Gottlieb Estate. As such, the jury should not have been instructed to determine causation when the only damages sought were the amount of the excess judgment. Cf. Perera v. U.S. Fidelity and Guar. Co. , 35 So. 3d 893 (Fla. 2010) (requiring that causation be proven when the plaintiff in a bad faith action seeks to recover damages other than the excess judgment).
As the majority opinion notes, FPIC's attorney conceded at oral argument that had the bad faith and legal malpractice actions proceeded separately, the trial court would assess damages in the bad faith case. Since the two causes of action were consolidated but not merged, this concession seems to me to mandate reversal as to FPIC.
If there was bad faith by FPIC, it had to have caused the excess judgment. The question for the jury in deciding a bad faith claim "is whether the insurer diligently, and with the same haste and precision as if it were in the insured's shoes, worked on the insured's behalf to avoid an excess judgment." Harvey v. GEICO Gen. Ins. Co ., 259 So. 3d 1, 7 (Fla. 2018). But the jury here was not asked that question from Harvey , and I respectfully submit the compound question which the jury was asked was error.
As to FPIC, if the verdict had separated the question of bad faith from causation, we could have considered whether the extraneous interrogatory on damages was harmless error. See Special v. West Boca Medical Center , 160 So. 3d 1251, 1254–55 (Fla. 2014). Here, however, since the jury was instructed on causation in Appellant's third-party bad faith claim and since the interrogatory verdict combined the questions of bad faith and causation, I believe we should reverse for a new trial as to FPIC.
Directed Verdict in FPIC's Favor
Because I would remand for a new trial against FPIC, it is necessary to discuss the directed verdict entered in its favor regarding its duty to investigate. I agree with the decision to affirm the directed verdict in favor of FPIC since there was no proof FPIC acted in bad faith in not conducting an earlier investigation of the claim from the Gottlieb Estate. But I note that an insurer's duties can arise from both the policy and from the common law.
The majority opinion discusses the relevant policy provisions regarding FPIC's duty to investigate the claim. I agree that FPIC did not violate its duty to investigate under the policy. But an insurer also owes various duties to an insured which arise from "an insurer's fiduciary obligation to protect its insured from a judgment exceeding the limits of the insurance policy." Berges v. Infinity Ins. Co . 896 So. 2d 665, 668 (Fla. 2004). "An insurer, in handling the defense of claims against its insured, has a duty to use the same degree of care and diligence as a person of ordinary care and prudence should exercise in the management of his [or her] own business." Gutierrez , 386 So. 2d at 785.
Among the various common law duties owed to an insured an "insurer must investigate the facts." Id. The common law duties an insurer owes an insured, as stated in Gutierrez , are not limited only to investigation once a claim is made. "[W]hether an insurer has acted in bad faith in handling claims against the insured is determined under the ‘totality of the circumstances’ standard." Berges , 896 So. 2d at 680 (citing State Farm Mut. Auto. Ins. Co. v. Laforet , 658 So. 2d 55, 63 (Fla. 1995) ).
Like many insurance policies, FPIC's policy required Appellant to notify FPIC "if policyholder hears of a potential claim or is made aware of having done something that may later result in a claim." I submit that there would be no point in requiring this of an insured if the insurer can, in all cases, wait until after the claim is made to commence any investigation. One can imagine a case where an insured notifies the insurer of a serious potential claim, the insurer does nothing to investigate, spoliation of evidence helpful to the insured occurs, the injured third-party files suit the day before the statute of limitations runs, and ultimately there is a judgment in excess of the policy limits. In such a case, I believe the insured could claim that the failure to investigate sooner breached the insurer's duty to act in good faith, and the jury would need to evaluate whether under the totality of the circumstance the insurer failed to act in good faith.
I agree, however, with the majority's conclusion that Appellant did not show that FPIC acted in bad faith in delaying its investigation into the claim or potential claim by the Gottlieb Estate. As the majority discusses, the evidence at trial showed that there was no prejudice to Appellant from FPIC not investigating sooner. Therefore, although I believe that the trial court erred in ruling that section 766.1185 had supplanted the common law for claims of third-party bad faith against a medical malpractice insurer, I believe this error is harmless since there was no showing that FPIC acted in bad faith in its investigation. See § 59.041, Fla. Stat. (2011) (prohibiting the reversal of a lower court judgment in a civil case unless there was harmful error); Special , 160 So. 3d at 1254–56 (same).
It should be noted that in affirming the directed verdict for FPIC on the issue of its alleged bad faith for not fulfilling its duty to the investigate, the majority appropriately does not rely on the trial court's holding that section 766.1185 has supplanted the common law regarding third-party bad faith claims against medical malpractice insurers.
"[C]ourts generally do not provide parties with an opportunity to retry their case upon a failure of proof." Cleveland v. Crown Financial, LLC , 212 So. 3d 1065, 1069 (Fla. 1st DCA 2017). So while I would remand for a new trial due to the improper jury instructions and verdict form on causation, I would affirm the directed verdict due to a failure of proof.
Conclusion
I agree with the majority that we are correct to affirm as to the Foley Defendants and join in the majority's opinion as it relates to them. But I would reverse for a new trial against FPIC due to incorrect jury instructions on causation in the third-party bad faith action, which despite consolidation, we must analyze separately. Because the majority affirms on all issues as to FPIC, I respectfully dissent in part. The new trial should not include the common law claim that FPIC acted in bad faith by not properly investigating since the directed verdict on that issue was the correct result, although I disagree with the trial court's reasoning.