Philip Morris U.S. Inc. v. Gore

Decision Date13 April 2022
Docket Number4D20-932
PartiesPHILIP MORRIS USA INC., Appellant, v. ROBERT A. GORE, SR., individually, and as Personal Representative of the ESTATE OF GLORIA H. GORE, Appellee.
CourtFlorida District Court of Appeals

Not final until disposition of timely filed motion for rehearing.

Appeal and cross-appeal from the Circuit Court for the Nineteenth Judicial Circuit, Indian River County; Janet Croom, Judge; L.T. Case No. 312008CA010052.

David M. Menichetti and Geoffrey J. Michael of Arnold & Porter Kaye Scholer LLP, Washington, D.C., and Terri L. Parker of Shook, Hardy & Bacon LLP., Tampa, for appellant.

Andrew A. Harris and Grace Mackey Streicher of Harris Appeals, P.A. Palm Beach Gardens, and Jason L. Odom of Gould, Cooksey Fennell, P.A., Vero Beach, for appellee.


Appellant Philip Morris USA, Inc. ("Philip Morris") appeals numerous issues, including a final judgment awarding appellee Robert A. Gore, Sr., ("Gore") as personal representative of the Estate of Gloria H. Gore, $2, 515 086.53 in attorney's fees and related expert costs in an Engle progeny action pursuant to a Proposal for Settlement. Gore cross-appeals the trial court's reduction in the attorney's fees and costs awarded from the sums requested. We reverse the attorney's fees award against Philip Morris and remand this matter to the trial court to award a reasonable fee pursuant to Gore's Proposal for Settlement that does not include duplicative amounts which Gore has already been paid or awarded for pursuing the claims against any co-defendants. We affirm on all other issues raised in both the appeal and cross-appeal.

Procedural History

In 2008, Gore filed an Engle progeny action against Philip Morris and R.J. Reynolds Tobacco Company ("Reynolds") for wrongful death damages following the death of his wife. The next year, Gore served proposals for settlement ("PFS 1") on both Philip Morris and Reynolds, offering to resolve all claims in the amount of $250, 000.00. These proposals were not accepted. The case proceeded to trial in 2014; however, it resulted in a mistrial. Before the re-trial, Gore again served proposals for settlement ("PFS 2") on both defendants. Neither party accepted, and the case went to a second trial.

The jury returned a verdict in favor of Gore, awarding him compensatory damages of $2 million, which the trial court reduced by comparative fault. Philip Morris and Reynolds appealed the judgment, and Gore cross-appealed, arguing the trial court erred by applying comparative fault to reduce his compensatory damages. This Court affirmed on Philip Morris and Reynolds' appeal but reversed on Gore's cross-appeal. See Philip Morris USA Inc. v. Gore 238 So.3d 828 (Fla. 4th DCA 2018). On remand, the trial court entered judgment in favor of Gore for the original jury verdict of $2 million.

After the judgment, Gore moved for an award of attorney's fees and costs pursuant to his two rejected PFSs. He requested over $5.6 million in attorney's fees stemming from over 7, 000 hours expended by his legal team. Before the evidentiary hearing on costs and fees, Reynolds settled Gore's attorney's fees claim against them ("Reynolds' settlement"). Following this settlement, Philip Morris served Gore with discovery to disclose the terms of the Reynolds' settlement.

Gore and Philip Morris stipulated to the total number of hours Gore's attorneys were entitled to recover, agreeing to 6 266.38 hours. They also stipulated to the hours of a specific attorney, Lester Kaney, agreeing he worked 198.9 hours. At the evidentiary hearing, Gore presented the testimony of six trial attorneys and an attorney's fees expert. He requested $1, 100.00 an hour for four attorneys, $750.00 an hour for six other attorneys, and $500.00 for another three. However, on cross-examination, many of Gore's testifying attorneys admitted they typically charged less than the amounts sought.

The trial court awarded Gore $1, 964, 424.75 in attorney's fees and $69, 916.78 in expert costs against Philip Morris, for a total of $2, 034, 341.53 ("Fees Order"). Although Gore requested the use of current hourly rates to calculate the award, the trial court stated the rates must be "closely in line with rates in the approximate timeframe when the work was performed" and used rates from 2008 to 2015. The trial court also reduced the hourly rates of all of Gore's attorneys based on the affidavits of four of Gore's attorneys who had submitted evidence of reasonable hourly rates in an unrelated Engle progeny case, R.J. Reynolds Tobacco Co. v. Koballa, 5D11-2914, 2012 WL 4052859 (Fla. 5th DCA Sept. 11, 2012), opinion withdrawn, 99 So.3d 630 (Fla. 5th DCA 2012).

When the trial court issued its Fees Order, Philip Morris moved to apply a setoff of the total fees award in the amount of the Reynolds' settlement, arguing a setoff was required under sections 46.015 and 768.041, Florida Statutes (2020), to prevent Gore from receiving an unreasonable double recovery. The trial court denied Philip Morris' motion, finding the setoff statutes did not apply to attorney's fees or costs awarded pursuant to Florida Rule of Civil Procedure 1.442 and Florida's PFS statute, section 768.79, Florida Statutes (2020). The trial court then entered a final judgment on attorney's fees and costs, including prejudgment interest, in the total amount of $2, 515, 086.53. This appeal and cross-appeal followed.

Application of sections 46.015 and 768.041 to motions to setoff attorney's fees

"Whether the trial court awarded a proper set-off is a pure question of law reviewed de novo, and 'no deference is given to the judgment of the lower courts.'" Cornerstone SMR, Inc. v. Bank of Am., N.A., 163 So.3d 565, 568 (Fla. 4th DCA 2015) (quoting D'Angelo v. Fitzmaurice, 863 So.2d 311, 314 (Fla. 2003)). The issue presented is whether a non-settling defendant in a civil action is entitled to reduce an attorney's fees award pursuant to a PFS by the amount previously paid by a settling defendant toward their separate PFS. The trial court denied Phillip Morris such a reduction after analyzing sections 46.015 and 768.041.

Setoffs are generally governed by sections 46.015 and 768.041, both of which require setoffs as to amounts received from a joint tortfeasor. Grobman v. Posey, 863 So.2d 1230, 1237 (Fla. 4th DCA 2003). "The set-off provision in section 768.041(2) 'was designed to prevent duplicate or overlapping compensation for identical damages.'" Cornerstone SMR, 163 So.3d at 569 (quoting Gordon v. Marvin M. Rosenberg, D.D.S., P.A., 654 So.2d 643, 644 (Fla. 4th DCA 1995)).

Section 46.015 provides in relevant part:

(1) A written covenant not to sue or release of a person who is or may be jointly and severally liable with other persons for a claim shall not release or discharge the liability of any other person who may be liable for the balance of such claim.
(2) At trial, if any person shows the court that the plaintiff, or his or her legal representative, has delivered a written release or covenant not to sue to any person in partial satisfaction of the damages sued for, the court shall set off this amount from the amount of any judgment to which the plaintiff would be otherwise entitled at the time of rendering judgment.

§ 46.015(1)-(2), Fla. Stat. (2020).

Nearly identical in its terms, Section 768.041 provides:

(1) A release or covenant not to sue as to one tortfeasor for property damage to, personal injury of, or the wrongful death of any person shall not operate to release or discharge the liability of any other tortfeasor who may be liable for the same tort or death.
(2) At trial, if any defendant shows the court that the plaintiff, or any person lawfully on her or his behalf, has delivered a release or covenant not to sue to any person, firm, or corporation in partial satisfaction of the damages sued for, the court shall set off this amount from the amount of any judgment to which the plaintiff would be otherwise entitled at the time of rendering judgment and enter judgment accordingly.

§ 768.041(1)-(2), Fla. Stat. (2020).

The trial court correctly found the language in neither section 46.015 nor section 768.041 applied to provide a setoff for the attorney's fees paid by Reynolds. "When the statute is clear and unambiguous, courts will not look behind the statute's plain language for legislative intent or resort to rules of statutory construction to ascertain intent." City of Parker v. State, 992 So.2d 171, 176 (Fla. 2008) (quoting Daniels v. Fla. Dep't of Health, 898 So.2d 61, 64 (Fla. 2005)). "The words of a governing text are of paramount concern, and what they convey, in their context, is what the text means." Advisory Opinion to Governor re Implementation of Amendment 4, The Voting Restoration Amendment, 288 So.3d 1070, 1078 (Fla. 2020) (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 56 (2012)).

Sections 46.015(2) and 768.041(2) do not support Philip Morris' motion for a setoff, because they apply only to the "satisfaction of the damages sued for." The plain language of those statutes clearly specifies an intention to apply to damages and not attorney's fees. See Parker, 992 So.2d at 176; Advisory Opinion, 288 So.3d at 1078. In fact, the inclusion of the word "damages" in the statute establishes that setoffs made pursuant to those statutes can only apply to the category of compensation sued for- the loss Gore sustained under his wrongful death claim. See Advisory Opinion, 288 So.3d at 1078-80 (quoting White v. Mederi Caretenders Visiting Servs. of Se. Fla LLC, 226 So.3d 774, 778 (Fla. 2017)) ("[U]nder the expressio unius est exclusio alterius canon, 'the mention of one thing implies the exclusion of another.'"); Bidon v. Dep't of Prof'l Regul., Fla. Real...

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