GILBERTO RODRIGUEZ, APPELLANT,
v.
DAVID CAMPBELL, M.D., APPELLEE
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In this second appeal of a medical malpractice case dismissed for failure to conduct reasonable presuit investigation, the court reversed an attorney's fee award because the trial court improperly included fees for litigating the presuit noncompliance issue and the fee amount itself, which fell outside the statutory scope limited to fees 'incurred during the investigation and evaluation of the claim.'
Attorney's fees under section 766.206(2) are limited strictly to those incurred 'during the investigation and evaluation of the claim' and may not include fees incurred for litigating the presuit noncompliance issue or the fee award itself. The fee award should be reduced to $1,287, the only amount incurred during the presuit investigation period.
[1] A statute limiting attorney's fees to those incurred during the investigation and evaluation of a claim does not permit recovery for fees incurred in litigating the issue…
[2] Attorney's fees awarded under section 766.206(2) are limited to the fees incurred specifically during the presuit investigation and evaluation of the claim.
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Join FLexlaw to unlock all legal intelligence“Section 766.206(2) limits liability to "all attorney's fees ... incurred during the investigation and evaluation of the claim."”
Establishes the statutory limitation that is the core of the court's holding
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Join FLexlaw to unlock all legal intelligenceA medical malpractice action was dismissed because plaintiff's counsel failed to conduct a reasonable presuit investigation. The defendant sought atto…
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FARMER, J.
This is the second review of an order awarding attorney’s fees in this medical malpractice action. The action was dismissed because plaintiffs counsel failed to conduct a reasonable presuit investigation. Upon dismissal defendant sought fees under section 766.206(2), and the trial court awarded $40,000. On an earlier appeal we reversed for various reasons having to do with the order itself. Rodriguez v. Campbell, 720 So. 2d 266 (Fla. 4th DCA 1998), review den., 731 So. 2d 650 (Fla.1999). We now have the final order after remand and reverse once again.
The court awarded nearly $11,000 in fees, of which only $1,287 were incurred during the period of presuit investigation. Section 766.206(2) limits liability to “all attorney’s fees ... incurred during the investigation and evaluation of the claim.” Here the court has tacked on fees for litigating the issue of presuit noncompliance, as well as for litigating the amount of fees to be awarded. Under the plain text of the statute, however, the liability is only for the narrow purpose specified and therefore the amount awarded should have been limited to those incurred “during the investigation and evaluation.” See Kukral v. Mekras, 679 So. 2d 278, 281 (Fla.1996) (“These provisions for sanctions focus on the presuit period during ‘the investigation and evaluation of the claim’ and apparently contemplate the imposition of sanctions for the expense and effort that one party may have unnecessarily caused the other to incur during that presuit period.”); see also State Farm Fire & Cas. Co. v. Palma, 629 So. 2d 830 (Fla.1993) (holding that fees may be awarded for litigating amount of fees only where language of statute supports such conclusion).
We therefore reverse the award and remand for the court to reduce the judgment amount to $1,287, together with accrued interest on that amount through the date of the new final order. KLEIN and TAYLOR, JJ., concur.
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Citator
Cited By
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Perry B. Hoeltzell, M.D., P.A. v. Erenstoft, 985 So. 2d 636 (Fla. 4th DCA 2008)…d costs of the claimant. Because fee statutes are strictly construed, Campbell v. Goldman, 959 So. 2d 223 (Fla.2007), and the statute does not authorize appellate fees, we deny plaintiffs motion for appellate attorney’s fees. Rodriguez v. Campbell, 778 So. 2d 511, 512 (Fla. 4th DCA 2001) (limiting fees under the same statute for trial court work to fees incurred “during the investigation and evaluation.”) Affirmed. STONE and FARMER, JJ., concur.…
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Staples v. Ann E. Duerr, M.D. & Panhandle Anesthesiology Assocs., P.A., 76 So. 3d 1114 (Fla. 1st DCA 2011)…t does not extend to expenses incurred after the suit has been filed, such as the fees/costs associated with post-suit litigation over entitlement to fees. This interpretation of section 766.206(2) is supported by caselaw. In Rodriguez v. Campbell, 778 So. 2d 511 (Fla. 4th DCA 2001), the Fourth District confronted a situation similar to the instant case in which the trial court awarded fees under section 766.206(2) for the periods both before and after the suit was filed. The Fourth District rejected the awa…
Authorities Cited
- State Farm Fire & Cas. Co. v. Palma, 629 So. 2d 830 (Fla. 1993)
- Kukral v. George D. Mekras, M.D., 679 So. 2d 278 (Fla. 1996)
- Rodriguez v. David Campbell, M.D., 720 So. 2d 266 (Fla. 4th DCA 1998)