Folta v. Bolton
| Decision Date | 04 September 1986 |
| Docket Number | No. 66,784,66,784 |
| Parties | 11 Fla. L. Weekly 458 Howard FOLTA, et ux, Plaintiffs-Appellants, Cross-Appellees, v. Joseph BOLTON, M.D., et al., Defendants-Appellees, and Tarpon Springs General Hospital, Inc., etc., Defendant-Appellee, Cross-Appellant. |
| Court | Florida Supreme Court |
Dixon, Dixon, Hurst & Nicklaus, P.A., and Mark Hicks of Daniels and Hicks, P.A., Miami, for plaintiffs-appellants, cross-appellees.
Thomas Saieva of McClain, Saieva, Thompson & Walsh, Tampa, for defendants-appellees.
Jeffrey C. Fulford of Adams, Hill & Fulford, Orlando, for defendant-appellee, cross-appellant.
Pursuant to Florida Rule of Appellate Procedure 9.150, the United States Court of Appeals for the Eleventh Circuit has certified to us two questions concerning attorney's fees in a medical malpractice action. Folta v. Bolton, 758 F.2d 520 (11th Cir.1985). We have jurisdiction. Art. V, § 3(b)(6), Fla. Const.
This action arose when Howard Folta brought a medical malpractice action against Tarpon Springs General Hospital and several of its employees including a radiologist named Dr. Berje. Folta claimed that Tarpon Springs was vicariously liable for the negligence of its employees.
Folta brought two unrelated claims against Dr. Berje, one alleging negligence in interpreting an x-ray of his hip and the other alleging the negligent failure to diagnose a fracture of the neck. A directed verdict was entered in favor of Dr. Berje as to the claim concerning the neck injury. The jury found Dr. Berje 100% responsible for the hip injury; accordingly, a judgment against Berje was entered on that claim.
Folta chose to bring five separate, distinct and severable claims against Tarpon Springs. Each claim involved different acts or conduct occurring at different times, by different persons, allegedly agents or servants of the hospital, resulting in different injuries. 1 Tarpon Springs ultimately prevailed on at least three and possibly four of the claims. Folta prevailed on at least one of the five claims. 2 Section 768.56, Florida Statutes (1983), 3 provides that attorney's fees shall be awarded to the "prevailing party" in a medical malpractice action. The trial court found, and Tarpon Springs argues here, that Folta is not entitled to prevailing party attorney's fees because Folta only prevailed on one of his five asserted claims.
Folta appealed the denial of attorney's fees to the Eleventh Circuit. Tarpon Springs filed a cross-appeal alleging that it should be awarded prevailing party attorney's fees for those claims upon which Folta was unsuccessful. Similarly, Dr. Berje argues that he is entitled to an award of prevailing party attorney's fees for those fees incurred defending the neck injury claim.
The first question certified to this Court is:
[W]hen a plaintiff in a medical malpractice suit recovers a judgment against a defendant based on but one of five separate and distinct claims brought against that defendant, which of the two parties is considered the "prevailing party" for purposes of awarding attorney's fees pursuant to § 768.56?
We hold that in a multicount medical malpractice action, where each claim is separate and distinct and would support an independent action, as opposed to being an alternative theory of liability for the same wrong, the prevailing party on each distinct claim is entitled to an award of attorney's fees for those fees generated in connection with that claim. We reach this conclusion after considering the instant case in light of our decision in Hendry Tractor Co. v. Fernandez, 432 So.2d 1315 (Fla.1983). In Hendry Tractor, we held that a plaintiff in a multicount personal injury action who prevailed on one theory of liability, but lost on another, was entitled to recover costs pursuant to section 57.041, Florida Statutes (1979). Folta argues that under the reasoning of Hendry Tractor and other authority, he was the "prevailing party" and thus, was entitled to recover all the attorney's fees he incurred for the entire litigation. Although section 57.041 provides for costs to "the party recovering judgment" and section 768.56 provides for "prevailing party" attorney fees, we concede that the same principles should be applied under each provision.
However, the instant case is procedurally distinguishable from Hendry Tractor. In Hendry Tractor, the plaintiffs brought suit on two theories of liability, negligence and breach of warranty/strict liability, for injuries arising out of a single set of circumstances. Florida's adoption of modern pleading rules permitting alternative pleadings of causes of action arising, or which could arise, out of the same transaction was a significant factor in our conclusion in Hendry Tractor that this Court's 1908 interpretation of the then applicable cost statute, section 1736, Florida Statutes (1906), in Marianna Mfg. Co. v. Boone, 55 Fla. 289, 45 So. 754 (1908) was outdated. 432 So.2d at 1317. In Marianna Mfg. Co., we concluded that "[w]here the verdict is in effect for the defendant on any one or more of the counts of a declaration the costs should be taxed as the statute and rules direct." 55 Fla. at 291, 45 So. at 755.
Another factor in our refusal in Hendry Tractor Co. to apply the principles enunciated in Marianna Mfg. Co. was our recognition of the "interdependence of recovery theories arising in the area of products liability." Hendry Tractor, 432 So.2d at 1317. We reasoned, that because the theories of strict liability and negligence "complement" each other, they are best presented together to ensure that all pertinent issues are addressed. We then concluded "to penalize with costs a party recovering net judgment for following such a legitimate procedural avenue would run contrary to fundamental principles of justice." Id.
None of the concerns underlying our holding in Hendry Tractor are implicated in the instant case. In this case, we are not dealing with alternative theories of liability for a single injury sustained; we are dealing with five separate and distinct claims brought against Dr. Berje. The Eleventh Circuit states that "each of these distinct claims form (sic) the basis of a lawsuit in and of itself." 758 F.2d at 522. We interpret this to mean that each claim is an independent cause of action for which a separate suit could have been maintained.
If separate suits had in fact been filed and tried, the defendants would clearly have been entitled to attorney's fees in those suits in which they prevailed. See, e.g., Cato v. West Florida Hospital, 471 So.2d 598 (Fla. 1st DCA 1985). We see no reason why this should not be the case where, as here, instead of filing multiple law suits the plaintiff joins all his claims in one suit, and loses one or more of these independent claims. In such a case, the defendant would be the "prevailing party" under section 768.56 on those claims which are determined in his favor.
Such an approach, unlike the "net winner" approach advocated by Folta, is consistent with the legislative purpose underlying section 768.56 to discourage frivolous medical malpractice actions. See Ch. 80-67, Laws of Fla. Under Folta's "net winner" approach, a plaintiff with one meritorious claim for a minor injury would be encouraged to join a number of non-meritorious claims against the same defendant for unrelated injuries, secure in the knowledge that if he prevailed on the meritorious claim, but lost on the other claims, he would collect attorney's fees for the entire litigation.
Our approach is also in accordance with the general equitable principles enunciated in section 768.56, which provides in part:
When there is more than one party on one or both sides of an action, the court shall allocate its award of attorney's fees among prevailing parties and tax such fees against nonprevailing parties in accordance with the principles of equity.
A case involving multiple parties is sufficiently analogous to a case involving multiple claims to further persuade us to conclude that under section 768.56, where multiple claims, upon which a single medical malpractice action is predicated, are separate and distinct and would support an independent action, each party should recover attorney's fees for those claims on which he prevails. Accordingly, we conclude that Folta is entitled to an award of attorney's fees for those fees incurred in pursuance of his successful claims; Tarpon Springs and Dr. Berje are entitled to attorney's fees on each claim in which there was a defendant's verdict. Therefore, a remand to the trial court for a hearing to determine the amount of attorney's fees incurred by the prevailing party on each claim would be in order.
The second question certified to us by the United States Court of Appeals for the Eleventh Circuit is:
[D]oes a trial court have jurisdiction to award attorney's fees pursuant to § 768.56 when the final judgment entered in the case fails to expressly reserve jurisdiction to make such an award?
In Finkelstein v. North Broward Hospital District, 484 So.2d 1241 (Fla.1986), we recently held that a trial court has jurisdiction to award prevailing party attorney's fees for a reasonable period of time despite the fact that the final judgment does not expressly reserve jurisdiction to do so.
Folta filed a motion for attorney's fees approximately two months after entry of final judgment. It appears that in their respective responses in opposition to Folta's motion for attorney's fees, both Tarpon Springs and Dr. Berje raised the issue of their respective entitlement to prevailing party attorney's fees on those claims in which a defendant's verdict was returned. In White v. New Hampshire Department of Employment Security, 455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982), relied on by this Court in Finkelstein, the United States Supreme Court held that a post-judgment motion for attorney's fees must be made within a reasonable time and that a motion...
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