La Cava Jacobson & Goodis

Florida Law Weekly – January 8, 2021

Signal Hill Golf Course, Inc. v. Robert and Tammy Womack – 1st DCA

In this slip and fall case, Plaintiff Tammy Womack filed a claim for loss of consortium stemming from an incident involving her husband at the Defendant’s golf course.  At the conclusion of trial, the jury awarded damages to Mr. Womack but none to Mrs. Womack the loss of consortium claim.  Following trial, Defendant sought to recover attorneys’ fees and costs “incurred in its overall defense of both claims,” pursuant to a rejected proposal for settlement.   The Defendant argued that the two claims were so interrelated that it was entitled to recover all of its costs in defense of both claims.   The Trial Court disagreed, awarding fees it believed were related to the defense of the consortium claim.

In affirming the Trial Court’s ruling, the 1st District agreed that there was no blanket rule establishing that a loss of consortium claim is “inextricably intertwined” with a negligence claim so as to render an allocation between the claims infeasible.  Rather, the 1st District opined that the because the burden of proof is on the party seeking fees, it is up to that party to either allocate the fees associated with the consortium claim or present evidence that allocation Is not possible.  Ultimately, the 1st District opined that the Trial Court was correct in finding that the Defendant had not met its burden and affirmed the fee award.

James Herrell and Joan Rudick v. Universal Property & Casualty Ins. Co. – 2nd DCA

In this subrogation case, an insurance company sued two of its insureds for negligence.  A proposal for settlement was filed by the insureds and was rejected.  Thereafter, the insurance company filed a voluntary dismissal without prejudice.  As this was done after the expiration of the statute of limitations, the insureds sought their attorneys’ fees and costs, arguing that the voluntary dismissal was effectively a dismissal with prejudice.   The Trial Court denied the Motion for Fees, a decision the 2nd District affirmed.   In doing so, the 2nd DCA opined that the voluntary  dismissal was not an adjudication on the merits for which attorney’s fees may be recovered under section 768.79 of the Florida Statues or Florida Rule of Civil Procedure 1.420(a)(1).