Florida Patient's Compensation Fund v. Black, 83-2598

• Decision Date: 24 October 1984
• Docket Number: No. 83-2598,83-2598
• Parties: FLORIDA PATIENT'S COMPENSATION FUND, Appellant, v. June BLACK and Randy Black, Appellees.
• Court: Florida District Court of Appeals

Page 381

460 So.2d 381

FLORIDA PATIENT'S COMPENSATION FUND, Appellant, v. June BLACK and Randy Black, Appellees.

No. 83-2598.

District Court of Appeal of Florida Second District.

Oct. 24, 1984.

Rehearing Denied Dec. 3, 1984.

Judith W. Simmons of Jacobs, Robbins, Gaynor, Burton, Hampp, Burns, Cole & Shasteen, P.A., Tampa, for appellant.

V. James Facciolo of Searcy & Facciolo, P.A., Jacksonville, for appellees.

LEHAN, Judge.

We affirm the trial court's denial of the Florida Patient's Compensation Fund's motion for attorney's fees under section 768.56, Florida Statutes (1981). We agree with the trial court that the Fund was not the "prevailing party" in this litigation within the intended scope of section 768.56.

The jury in this medical malpractice trial against plaintiff's doctor and the Fund returned a verdict in the total sum of $27,000 which was below the threshold amount of $100,000 beyond which the Fund's obligation to compensate plaintiff would be activated. § 768.54 (3), Fla. Stat. (1981). However, we must conclude that plaintiff actually won the lawsuit.

The Fund was named as a defendant in this lawsuit by virtue of plaintiff's claim against the doctor, not by reason of some entirely separate claim against the Fund. See § 768.54(3)(e), Fla. Stat. (1981). Although the Fund tellingly argues that from its standpoint the Fund prevailed, for present purposes the appropriate way to view the outcome of a suit like this is from the standpoint of the plaintiff. Failure to win on all aspects of a lawsuit does not mean that plaintiff did not prevail. See Hendry Tractor Co. v. Fernandez, 432 So.2d 1315 (Fla.1983) (a plaintiff prevails when he wins a personal injury suit on one theory even though he may lose on another); Raffel v. Magarian, 165 So.2d 249 (Fla. 3d DCA 1964) (a plaintiff is entitled to costs when he obtains a judgment in his favor on liability even though no damages are awarded). See also Upson v. Hazelrig, 444 So.2d 1127 (Fla. 3d DCA 1984). We do not believe it was the legislature's intent to penalize a plaintiff in these circumstances for adding the Fund to a suit like this. There is no contention that the inclusion of the Fund in the suit was improper. The fact that in closing argument, after all the evidence was in, plaintiff's attorney asked for damages in an amount less than $100,000 ($74,266.68) does not mean that inclusion of the Fund in the suit was improper.

It is not established in the record, notwithstanding the hindsight indications provided by the $27,000 jury verdict and by appellees'...