Florida Patient's Compensation Fund v. Moxley

• Decision Date: 10 May 1989
• Docket Number: 87-3021,Nos. 87-2862,s. 87-2862
• Citation: 14 Fla. L. Weekly 1145,545 So.2d 922
• Parties: 14 Fla. L. Weekly 1145, 14 Fla. L. Weekly 1547 FLORIDA PATIENT'S COMPENSATION FUND, Appellant, v. Darryl MOXLEY, as Personal Representative of the Estate of Lauren Renee Moxley, Deceased, and Louise Moxley, and Darryl Moxley, Individually, Neil J. Karlin, M.D., and Neil J. Karlin, M.D., P.A., Appellees.
• Court: Florida District Court of Appeals

Page 922

545 So.2d 922

14 Fla. L. Weekly 1145, 14 Fla. L. Weekly 1547

FLORIDA PATIENT'S COMPENSATION FUND, Appellant, v. Darryl MOXLEY, as Personal Representative of the Estate of Lauren Renee Moxley, Deceased, and Louise Moxley, and Darryl Moxley, Individually, Neil J. Karlin, M.D., and Neil J. Karlin, M.D., P.A., Appellees.

Nos. 87-2862, 87-3021.

District Court of Appeal of Florida Fourth District.

May 10, 1989.

On Rehearing June 28, 1989.

Second Rehearing Denied Aug. 1, 1989.

Melanie G. May of Bunnell and Woulfe, P.A., Fort Lauderdale, for appellant-Florida Patient's Compensation Fund.

Alan D. Sackrin of Klein & Tannen, P.A., North Miami Beach, for Karlin.

David H. Krathen, P.A., and Gary M. Farmer of Gary M. Farmer, P.A., Fort Lauderdale, for appellees-Moxley.

DOWNEY, Judge.

Appellees, Darryl Moxley and Louise Moxley, and Darryl Moxley as personal representative of the estate of Lauren Renee Moxley, sued Neil J. Karlin, M.D., and Neil J. Karlin, M.D., P.A. and the Florida Patient's Compensation Fund (The Fund) for damages for medical malpractice allegedly committed by Dr. Karlin. A verdict was returned awarding appellees $155,674. After entering a judgment against Karlin, his P.A., and The Fund, and further evidentiary hearings, the trial court entered a judgment for attorney's fees pursuant to statute in the amount of $150,000. The Fund appealed from both judgments, while Karlin appealed only from the judgment awarding attorney's fees.

At the evidentiary hearing on attorney's fees, the court received into evidence a fee agreement between the Moxleys and their counsel, the relevant portion of which is set forth in the margin. ¹

Appellants contend that the trial court erred in finding and awarding a reasonable attorney's fee for plaintiffs in the amount of $150,000 since it exceeded the amount of the contingent fee agreed upon between the Moxleys and their counsel contrary to the express mandate of the Supreme Court of Florida in Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145, 1151 (Fla.1985), in which the supreme court stated that "in no case should the court-awarded fee exceed the fee agreement reached by the attorney and his client." This argument raises the question of whether the plaintiff and his counsel can contract for an attorney's fee based upon a contingent percentage of the recovery or a reasonable fee to be fixed by the court, whichever is greater. We believe that question should be answered in the affirmative. As Judge Zehmer stated in his partial dissent in State Farm Fire & Casualty Company v. Johnson, 547 So.2d 940, 942 (Fla. 1st DCA 1988):

The law also permitted these parties to agree that plaintiff's attorneys would be paid a reasonable fee consisting either of one third of the plaintiff's recovery, or a reasonable fee to be set by the court and paid by the defendant, whichever might be greater. The law and customary practice at the time this agreement was made generally contemplated that plaintiff's attorney would receive the reasonable fee awarded by the court if that amount should be the greater of the two amounts.

To allow a plaintiff to contract with his lawyer to pay a fee larger than the fee provided in their contingent fee contract when the trial court finds it to be a reasonable fee does no violence to the statement in Rowe to the effect that private agreements between plaintiff and counsel cannot be allowed to control the award of attorney's fees. The court must determine what is a reasonable fee. And where, as here, the contract is for a percentage of the recovery, unless the court finds a reasonable fee to be higher, the third party paying the "freight" is not exposed to the possibility of an excessive fee, a specter envisioned in Rowe.

This holding does not conflict with our recent holding in Pysz v. Ande, 523 So.2d 698 (Fla. 4th DCA 1988), where this court construed a contract clause that sounds somewhat similar to the present contract provision. A careful analysis of the provision in Ande makes it clear that the clause was inserted in that contract pursuant to section 768.56, Florida Statutes (1983), merely to inform the client that he might be liable for payment of reasonable attorney's fees should he not prevail. It does not, as here, provide for the disposition of a court-awarded reasonable fee exceeding the amount provided for in the contract.

The Fund, relying on the cases of Florida Patient's Compensation Fund v. Sitomer, 524 So.2d 671 (Fla. 4th DCA 1988), and Williams v. Spiegel, 512 So.2d 1080 (Fla. 3d DCA 1987), argues that, since the underlying health care...