772 F.2d 1535 (11th Cir. 1985), 85-5240, Joe v. United States

Docket Nº:85-5240.
Citation:772 F.2d 1535
Party Name:Shirley C. JOE, as Personal Representative of the Estate of Samuel Lee Joe for the benefit of Shirley C. Joe, individually, etc., Plaintiff-Appellant, v. UNITED STATES of America, d/b/a Veterans Administration, etc., et al., Defendants-Appellees.
Case Date:October 07, 1985
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1535

772 F.2d 1535 (11th Cir. 1985)

Shirley C. JOE, as Personal Representative of the Estate of

Samuel Lee Joe for the benefit of Shirley C. Joe,

individually, etc., Plaintiff-Appellant,

v.

UNITED STATES of America, d/b/a Veterans Administration,

etc., et al., Defendants-Appellees.

No. 85-5240.

United States Court of Appeals, Eleventh Circuit

October 7, 1985

Robert Peltz, Miami, Fla., for plaintiff-appellant.

Stanley Marcus, U.S. Atty., Linda Collins-Hertz, David Leiwant, Susan Aprill, Asst. U.S. Attys., Miami, Fla., for defendants-appellees.

Page 1536

Appeal from the United States District Court for the Southern District of Florida.

Before JOHNSON and HENDERSON, Circuit Judges, and ALLGOOD [*], District Judge.

PER CURIAM:

This appeal arises from a wrongful death action brought by appellant Shirley Joe, in her individual capacity and as personal representative of the estate of Sam Lee Joe. Appellant brought this action against the United States and other defendants who committed medical malpractice resulting in the death of Sam Lee Joe, Shirley Joe's husband. The action was brought under the Federal Tort Claims Act ("FTCA"), 28 U.S.C.A. Sec. 2671 et seq. The case was tried under Florida substantive tort law, as required by the FTCA. Following a non-jury trial, the district court awarded $490,707 plus costs to appellant.

In a post-trial petition, appellant sought attorneys' fees pursuant to Fla.Stat. Sec. 768.56. That statute provides for an award of attorneys' fees to the prevailing party in a medical malpractice action. The district court denied the petition for attorneys' fees. This appeal followed, and is confined solely to the issue of whether appellant is entitled to attorneys' fees from the United States in an action brought under the FTCA, where the applicable state tort law would provide for attorneys' fees in an action against another party under state law.

Appellant advances two arguments in support of her contention that she is entitled to attorneys' fees. First, appellant argues that Section 2674 of the FTCA provides that the United States shall be liable in the same manner and to the same extent as a private individual under like circumstances. The lower court was therefore bound to, and in fact did, follow the substantive law of Florida on the issues of liability and damages. Appellant further contends that...

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