In its November 6, 2020 opinion, the District Court of Appeal of Florida Second District (“Florida Appellate Court”) held: “Because the Pollocks introduced evidence that only established that a judgment of $250,000 was collectable, we reverse and remand for a remittitur of the damages award in the amount of $250,000. We affirm the judgment in all other respects.”
The Underlying Facts
Morgan & Morgan, P.A. (“Morgan”), the large personal injury law firm headquartered in Florida, was hired by the Pollocks in 2006 to represent them and their son with regard to their Florida medical malpractice claim involving the birth of their son, during which Mrs. Pollock suffered a uterine rupture and vaginal laceration, which caused neurological injuries to the child.
In September 2007, the Morgan medical malpractice lawyer served the notice of intent to initiate medical negligence litigation upon the medical defendants that is required by section 766.106(2)(a), Florida Statutes (2007), but the notice stated that it was served only on the child’s behalf and the lawyer failed to serve a notice of intent on Mrs. Pollock’s behalf. (Because Mr. Pollock’s claim was purely derivative, notice of intent was not required to be sent on his behalf because a spouse who seeks damages for loss of consortium is not required to comply with the presuit notice and investigation requirements of section 766.106.)
In May 2008, Morgan filed a Florida medical malpractice complaint for medical negligence on behalf of the Pollocks and their son. A few months later, Morgan stipulated to abate the entire action, without the consent of the Pollocks, in order to determine whether the child’s claim was subject to the exclusive remedy provided by the Florida Birth-Related Neurological Injury Compensation Plan (“NICA”). See § 766.303. Morgan did not seek to sever or bifurcate Mrs. Pollock’s individual medical negligence claim or the child’s derivative claim from the child’s NICA claim or seek to otherwise preserve their claims.
While the NICA proceeding was pending, the Pollocks and Morgan experienced irreconcilable differences, and Morgan withdrew as counsel for the Pollocks. By the time the child’s claim was resolved via NICA in 2011, the two-year statute of limitations for filing an action on behalf of Mrs. Pollock and the child had expired. See § 95.11(4)(b), Fla. Stat. (2007).
The Pollocks then filed their legal malpractice action, alleging that Morgan failed to perform a proper presuit investigation of Mrs. Pollock’s injuries, obtain a proper corroborating opinion, draft and serve a proper notice of intent to initiate medical malpractice litigation, and properly draft and file a civil complaint for Mrs. Pollock’s claim, and that Morgan negligently stipulated to abatement of the civil case.
The legal malpractice case went to trial and the jury returned its verdict finding liability. The jury awarded $4,000,000 to Mrs. Pollock and $1,000,000 to the child. In answering the specific interrogatory verdict form, the jury found $4,500,000 would have been collectible against one of the defendants. The trial court entered final judgment on the jury’s verdict, and Morgan appealed.
Florida Appellate Court Opinion
Morgan argued on appeal that the jury’s finding of $4,500,000 against the one defendant must be remitted to $250,000, the amount of the defendant’s insurance coverage, because the Pollocks failed to put on any evidence that they could have collected any money from those defendants individually.
The Florida Appellate Court stated that a plaintiff in a legal malpractice case must prove both that a favorable result would have been achieved in the underlying litigation but for the negligence of the attorney and that any judgment which could have been recovered would have been collectible. Requiring proof of collectability prevents a windfall to the client by preventing her from recovering more from the attorney than she could have actually obtained from the tortfeasor in the underlying action. A jury cannot award a greater amount of damages than that which is reasonably supported by the evidence. The collectability burden is satisfied with evidence of the underlying defendant’s financial status, insurance coverage, or property ownership.
The Florida Appellate Court held in the present case: “The only evidence of collectability that the Pollocks presented at trial was the existence of Gulf Coast’s insurance policy with a shared $250,000 limit per claim. There was no other evidence regarding financial status, solvency, interest in property or other assets, income, or profits. The Pollocks offered testimony from their expert that such a medical practice with four doctors and three midwives must be worth more than $250,000 and that the members of the practice should have the ability to pay any judgment in excess of the insurance policy limit. However, such speculation cannot justify a finding of collectability … The Pollocks did not offer testimony from anyone from Gulf Coast, nor did they introduce any evidence that Gulf Coast was solvent during the time in which the Pollocks would have obtained a judgment against it … Absent admissible evidence of collectability, a jury is not permitted to speculate that a medical practice of multiple physicians is financially able to satisfy a judgment in excess of its liability insurance limits … The $4,500,000 award is eighteen times greater than the $250,000 policy limit proven at trial. Accordingly, the verdict against [Morgan] bore no reasonable relationship to the amount of damages proved and was impermissibly based upon conjecture that all medical professionals can satisfy judgments in excess of their liability insurance policy limits.”
Source Morgan & Morgan, P.A. v. Pollock, Case No. 2D19-11.
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