Kaufman v. MacDonald, No. 74178

CourtUnited States State Supreme Court of Florida
Writing for the CourtGRIMES; EHRLICH
Parties15 Fla. L. Weekly S45 Gerald S. KAUFMAN, etc., et al., Petitioners, v. Patricia MacDONALD, Respondent.
Decision Date01 February 1990
Docket NumberNo. 74178

Page 572

557 So.2d 572
15 Fla. L. Weekly S45
Gerald S. KAUFMAN, etc., et al., Petitioners,
v.
Patricia MacDONALD, Respondent.
No. 74178.
Supreme Court of Florida.
Feb. 1, 1990.
Rehearing Denied March 28, 1990.

Page 573

Richard A. Sherman and Rosemary B. Wilder of the Law Offices of Richard A. Sherman, P.A., Fort Lauderdale, for petitioners.

Gary M. Farmer of Gary M. Farmer, P.A., Fort Lauderdale, for respondent.

GRIMES, Justice.

We review Kaufman v. MacDonald, 545 So.2d 913, 913 (Fla. 4th DCA 1989), in which the court certified as an issue of great public importance the following question:

Does the holding in Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985) preclude an attorney's fee in a medical malpractice action above the percentage amount set out in the contingency fee agreement between claimant and her counsel, where the agreement provides that the fee upon recovery shall be the higher of the percentage amount or an amount awarded by the court?

We have jurisdiction under article V, section 3(b)(4), of the Florida Constitution.

In the course of adopting the lodestar principle for court-awarded fees, this Court in Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145, 1151 (Fla.1985), stated:

Further, in no case should the court-awarded fee exceed the fee agreement reached by the attorney and his client.

We later applied this principle in Miami Children's Hospital v. Tamayo, 529 So.2d 667 (Fla.1988), in which we held that the court-awarded fee could not exceed the maximum permitted under the plaintiff's contingent fee contract.

In the instant case, Kaufman argues that as in Tamayo the court-awarded attorney's fee cannot exceed the percentage of recovery prescribed by the contingent fee contract. However, this case differs from Tamayo in that the fee contract provided that the attorney's compensation upon recovery in the medical malpractice action would be either a specific percentage of the recovery or the amount awarded by the court under the prevailing party statute--whichever yielded the higher fee. Thus, unlike Tamayo, the court-awarded fee did not exceed the fee agreement reached by MacDonald and her attorney. We hold that under the provisions of a fee agreement of the type involved in this case, the court may apply a contingency multiplier and award a reasonable fee which exceeds the amount of the fee which would be recoverable under the percentage alternative of the fee agreement. Accord Inacio...

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22 practice notes
  • First Baptist Church of Cape Coral, Fla., Inc. v. Compass Constr., Inc., Nos. SC11–1278
    • United States
    • United States State Supreme Court of Florida
    • May 30, 2013
    ...prevailing party would have been required to pay her attorney under the contingency-fee clause of her contract. See Kaufman v. MacDonald, 557 So.2d 572, 573 (Fla.1990). In so holding, we reasoned as follows: [Defendant] argues that as in Tamayo the court-awarded attorney's fee cannot exceed......
  • Orlando Regional Medical Center, Inc. v. Chmielewski, Nos. 89-691
    • United States
    • Florida District Court of Appeals
    • December 6, 1990
    ...a reasonable attorney fee, if awarded and if greater than the agreed percentage of the total gross award. Compare, Kaufman v. MacDonald, 557 So.2d 572 (Fla.1990); Florida Patient's Compensation Fund v. Moxley, 545 So.2d 922 (Fla. 4th DCA 1989), affirmed in part, quashed in part, 557 So.2d 8......
  • Independent Fire Ins. Co. v. Lugassy, Nos. 90-1626
    • United States
    • Court of Appeal of Florida (US)
    • October 20, 1992
    ...excess of the contingency fee, see e.g., Florida Patient's Compensation Fund v. Moxley, 557 So.2d 863 (Fla.1990); Kaufman v. MacDonald, 557 So.2d 572 (Fla.1990), the parties' original agreement did not authorize a higher fee. The absence of such a provision doomed a post-judgment claim for ......
  • Tetrault v. Fairchild, No. 5D00-1336
    • United States
    • Court of Appeal of Florida (US)
    • July 24, 2001
    ...client instead of the one third to which he had agreed? Perhaps we'll never know the answer. The supreme court in Kaufman v. Mac-Donald, 557 So.2d 572 (Fla.1990), did answer affirmatively the certified question in a medical malpractice action concerning whether the trial court could award a......
  • Request a trial to view additional results
22 cases
  • First Baptist Church of Cape Coral, Fla., Inc. v. Compass Constr., Inc., Nos. SC11–1278
    • United States
    • United States State Supreme Court of Florida
    • May 30, 2013
    ...prevailing party would have been required to pay her attorney under the contingency-fee clause of her contract. See Kaufman v. MacDonald, 557 So.2d 572, 573 (Fla.1990). In so holding, we reasoned as follows: [Defendant] argues that as in Tamayo the court-awarded attorney's fee cannot exceed......
  • Orlando Regional Medical Center, Inc. v. Chmielewski, Nos. 89-691
    • United States
    • Florida District Court of Appeals
    • December 6, 1990
    ...a reasonable attorney fee, if awarded and if greater than the agreed percentage of the total gross award. Compare, Kaufman v. MacDonald, 557 So.2d 572 (Fla.1990); Florida Patient's Compensation Fund v. Moxley, 545 So.2d 922 (Fla. 4th DCA 1989), affirmed in part, quashed in part, 557 So.2d 8......
  • Independent Fire Ins. Co. v. Lugassy, Nos. 90-1626
    • United States
    • Court of Appeal of Florida (US)
    • October 20, 1992
    ...excess of the contingency fee, see e.g., Florida Patient's Compensation Fund v. Moxley, 557 So.2d 863 (Fla.1990); Kaufman v. MacDonald, 557 So.2d 572 (Fla.1990), the parties' original agreement did not authorize a higher fee. The absence of such a provision doomed a post-judgment claim for ......
  • Tetrault v. Fairchild, No. 5D00-1336
    • United States
    • Court of Appeal of Florida (US)
    • July 24, 2001
    ...client instead of the one third to which he had agreed? Perhaps we'll never know the answer. The supreme court in Kaufman v. Mac-Donald, 557 So.2d 572 (Fla.1990), did answer affirmatively the certified question in a medical malpractice action concerning whether the trial court could award a......
  • Request a trial to view additional results

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