Wednesday, July 15, 2015

Fourth District: Legislature Entitled To Limit Payment of Attorney's Fees In Claims Bill

In Searcy Denney Scarola Barnhart& Shipley, P.A. v. State (4D13-3497), a divided panel of the Fourth District held that the "guardianship court’s decision to recognize the Legislature’s prerogative of limiting the payment of fees and costs [in this case] to $100,000." The opinion was written by Judge Forst.  Judge Conner joined the majority opinion and also wrote a concurring opinion. Chief Judge Ciklin wrote a 19-page dissenting opinion. The majority opinion described the facts as follows:
The law firm "represented the family in a five-week jury trial in 2007. The jury found that Lee Memorial Health System’s employees had been negligent and that their negligence had resulted in damages to Aaron and his parents. The jury awarded Aaron over $28.3 million. His mother was awarded $1,340,000 in damages, and his father was awarded $1,000,000. However, the trial court found that Lee Memorial was an independent special district of the State of Florida and, pursuant to the sovereign immunity damage limitations in section 768.28(5), Florida Statutes (2007), entered a judgment against the hospital in the amount of $200,000. The trial court rulings were affirmed by the Second District Court of Appeal. Lee Mem’l Health Sys. v. Edwards, 22 So. 3d 81 (Fla. 2d DCA 2009).
In an attempt to recover additional funds beyond the $200,000 limit, the law firm submitted a claims bill to the Florida legislature. 
In 2012, after a public campaign in support of the bill, the Legislature passed Claims Bill 2012-249, directing Lee Memorial to appropriate $10 million, with an additional $5 million payable in annual installments, “to the Guardianship of Aaron Edwards, to be placed in a special needs trust for the exclusive use and benefit of Aaron Edwards, a minor.” Ch. 2012-249, § 2, Laws of Fla. No monies were appropriated for the use and/or benefit of either parent for their damages. The claims bill also included a stipulation stating “[t]he total amount paid for attorney’s fees, lobbying fees, costs, and other similar expenses relating to this claim may not exceed $100,000.” Id. § 3. It is this provision that is the focus of the matter before us.
After the $10 million had been paid into a trust for Aaron Edwards's needs, the lawyers ("with support from the Edwards family"), asked the court to allocate $2.5 million for attorney's fees. "The petition premised this request on a 25% fee cap provision in section 768.28(8) and on the argument that the fees and costs limitation in the claims bill was unconstitutional." 

On the merits of the issue presented, the court began with an analysis of sovereign immunity. 
The doctrine of sovereign immunity stretches back to the foundations of Anglo-American common law. Espousing the maxim that “the King can do no wrong,” Blackstone explained that “no suit or action can be brought against the King, even in civil matters, because no court can have jurisdiction over him.” 1 WILLIAM BLACKSTONE, COMMENTARIES *235. However, should a subject of the Crown have “a just demand upon the King, he must petition him in his court of chancery, where his chancellor will administer right as a matter of grace, though not upon compulsion.” Id. at *236.  
When the common law was exported to the American continent, sovereign immunity came with it.  
Section 768.28, Florida Statutes, is the codification of the state’s limited waiver of sovereign immunity in tort actions. A plaintiff’s recovery against the state and its agencies or subdivisions is limited to no more than $200,000 per incident. § 768.28(5), Fla. Stat. (2007). Moreover, in cases where a judgment exceeds $200,000, “that portion of the judgment that exceeds these amounts may be reported to the Legislature, but may be paid in part or in whole only by further act of the Legislature.” Id.  
After an analysis of the legal opinions regarding the statute and its application when the legislature limited compensation to lawyers, the court turned to the case before it. The court stated that "in the instant case, as in Gamble and Noel, the Legislature passed a claims bill that provided a specific amount of attorneys’ fees that was significantly less than the amount contracted for between the Edwards family and their law firm, Searcy Denney." Addressing the ultimate conclusion, and the dissenting opinion, the court stated:
Notwithstanding Appellants’ (and the dissenting opinion’s) arguments to the contrary, Gamble and Noel, and the reasoning therein, support the guardianship court’s decision to recognize the Legislature’s prerogative of limiting the payment of fees and costs to $100,000. A claims bill, both before and after the enactment of section 768.28, is a “voluntary recognition of its moral obligation by the legislature” and, as such, is firmly entrenched in the sphere of legislative discretion. Noel, 984 So. 2d at 1267 (quoting Gamble, 450 So. 2d at 853). “Parties cannot enter into a contract to bind the state in the exercise of its sovereign power. . . . The legislature was in no way bound to pass legislation conforming with the provisions of the prior contingent fee contract.” Gamble, 450 So. 2d at 853. “That the claim[s] bill is separate and apart from the constraints of an earlier lawsuit is demonstrated by the supreme court’s recognition that [the] legislature has the power to limit attorney’s fees in a claims bill, no matter what the underlying fee contract provides[.]” Noel, 984 So. 2d at 1267. “A claim[s] bill is not obtainable by right upon the claimant’s proof of entitlement, but rather is granted strictly as a matter of legislative grace.” Wagner v. Orange Cnty., 960 So. 2d 785, 788 (Fla. 5th DCA 2007); see also United Servs.Auto Ass’n v. Phillips, 740 So.2d 1205, 1209 (Fla. 2d DCA 1999).
In conclusion, the court stated: "Appellants’ (and the dissenting opinion’s) dissatisfaction with the limitation on attorneys’ fees and costs imposed in Aaron’s claims bill is understandable, and the possibility of such a restriction in a claims bill posits an additional factor to be considered by counsel in deciding whether to take on representation in a case in this state involving a sovereign entity defendant. Appellants’ reply brief states, 'If there is no reasonable financial incentive for lawyers to take these type cases, the injured will go unrepresented.' To what extent this is true is beyond our focus. Therefore, we affirm the guardianship court’s ruling."

As noted above, there were three opinions in this appeal. Judge Forst wrote the opinion, and was joined by Judge Conner who also wrote a concurring opinion. Chief Judge Ciklin wrote a dissenting opinion.

Judge Conner's concurrence states:
Anytime legal analysis traces back to Blackstone and the foundations of Anglo-American law, one knows core legal values are being addressed. I write to further explain why I cannot agree with the reasoning of the dissent, although the dissent makes very cogent arguments as to why Gamble and Noel should not control the outcome of this case. 
The premise of the dissent is that by enacting section 768.28, Florida Statutes, the legislature altered the “legislative grace” attribute of its monetary awards by making a judicial or administrative award a precondition for initiating the claims bill process. The argument is that you can’t even try to pass through the doors of the legislature until you successfully pass through the doors of the courthouse. Thus, the two processes are welded; this means the “act of grace” analysis has been “transcended” because the weld now raises the specter of “a chilling effect upon the sacrosanct and fundamental constitutional right to access to our courts.” 
The fly in the ointment regarding the dissent’s argument is the failure to recognize that seeking redress from the legislature is fundamentally different from seeking redress from the court. Every citizen has a fundamental right to seek redress from the court because that is a core function of the judicial branch of government. There is no fundamental right to seek redress from the legislature because such is not a core function of that branch.
Therefore, I agree with the majority opinion that unless our supreme court changes course in its legal analysis regarding separation of powers, arguments regarding impairment of contract, unconstitutional taking, denial of due process and equal protection and all variations on those themes are unpersuasive. 
Finally, the 19-page dissenting opinion by Chief Judge Ciklin begins, in part, as follows:
I respectfully dissent and offer my overall assessment of the crucially important issues involved in this case, the ultimate resolution of which will have deep and profound ramifications for many Floridians—and for many years to come.
Because the claim bill’s limitation on attorneys’ fees and costs is an unconstitutional impairment on the Edwards family and firm’s right to contract, I would reverse. I have taken the liberty to also write to remind the readers of this dissent and all Florida lawyers, that contingency fee agreements are directly connected to every citizen’s right to access to our courts. I cite to the Florida Code of Professional Responsibility which contemplates the ethical and moral obligation of “us lawyers” licensed to practice in this state, to always consider the contingency fee agreement as the “poor man’s key to the courthouse.” Because of the enactment of section 768.28, which now requires that aggrieved individuals first invoke the civil process of law before even approaching the Legislature for sovereign immunity relief, the “key” should be easily accessible. The right to this key is rich and deeply rooted in American history and it is a judicial time-honored duty and responsibility to protect the inalienable rights of our people in this regard. 

Wednesday, July 1, 2015

Fourth District: Legislative Cap On Non-Ecomomic Damages In Personal Injury Cases Violates the Florida Constitution

In North Broward Hospital District et al v. Kalitan (4D11-4806), a panel of the Fourth District Court of Appeal concluded that a 2014 decision of the Florida Supreme Court required it to conclude that the legislative caps on non-economic damages in personal injury cases violates the equal protection clause of the Florida Constitution. The Fourth District's decision began as follows:
In Estate of McCall v. United States, 134 So. 3d 894 (Fla. 2014), the Florida Supreme Court determined that the caps on noneconomic damages awards in wrongful death cases, imposed by section 766.118, Florida Statutes (2005), violated the equal protection clause of the Florida Constitution. Art. I, § 2, Fla. Const. The instant case consolidates three appeals from a single medical malpractice incident with a final judgment finding Appellants, defendants below (“Defendants”), liable for the injuries and damages suffered by Appellee Susan Kalitan (“Plaintiff”). Plaintiff’s jury-awarded damages were limited by the trial court’s application of section 766.118, and Plaintiff’s cross-appeal challenges the constitutionality of those caps.
Accordingly, this appeal presents an issue of first impression in the post-McCall legal environment—whether the opinion (or, more accurately, opinions) of the Florida Supreme Court in McCall dictates our holding that the caps on noneconomic damage awards in personal injury medical malpractice cases are similarly unconstitutional. Although Defendants attempt to distinguish the caps in wrongful death cases from those in personal injury cases, and there are clear distinctions, McCall mandates a finding that the caps in section 766.118 personal injury cases are similarly unconstitutional. To conclude otherwise would be disingenuous. Consequently, we reverse the trial court’s decision below insofar as it reduced the jury’s award of noneconomic damages based on the caps in section 766.118
Note that it is the 2014 version of section 766.118 linked throughout the quote above. Section 766.118, Florida Statutes (2005), cited in the quote above, can be viewed HERE. The 2005 version was apparently amended twice. See  s. 204, ch. 2007-230; and s. 28, ch. 2011-135.

Next, the opinion explained the multiple decisions that make up the Florida Supreme Court's decision in McCall, and why the panel determined that the supreme court's plurality opinion in McCall must be followed in this case. The court seems to make it clear that whether or not you agree with the conclusion regarding the constitutionality of the caps is an issue to be taken up with the Florida Supreme Court - and therefore an issue this appellate court need not independently address. In conclusion, the court stated:
Per McCall, Plaintiff’s noneconomic damages were improperly limited by the application of the caps in section 766.118 and, accordingly, we reverse the noneconomic damages award in the final judgment. Defendants have asked this court to distinguish single claimant personal injury cases from the multiple claimant wrongful death situation addressed in McCall. However, we have found no basis to do so that would not conflict with the reasoning of the Florida Supreme Court’s plurality and concurring opinions, which strike at the underpinning of the Legislature’s caps on noneconomic damages in general. So long as the caps discriminate between classes of medical malpractice victims, as they do in the personal injury context (where the claimants with little noneconomic damage can be awarded all of their damages, in contrast to those claimants whose noneconomic damages are deemed to exceed the level to which the caps apply), they are rendered unconstitutional by McCall, notwithstanding the Legislature’s intentions.
The trial court is directed to reinstate the total damages award as found by the jury, though these damages may still be limited by the doctrine of sovereign immunity. Also, in the corrected final judgment, the University is not to be held liable for the damages attributable to the Nurse. As no challenge was raised as to liability in any other context, nor was a challenge raised regarding Plaintiff’s economic damages award, those portions of the final judgment are affirmed.
The 14-page opinion was written by Judge Forst, and the opinion was joined by Chief Judge Ciklin and Judge Stevenson. Some of the briefs filed in this appeal are available at the links below: