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Florida Fifth DCA rules that loss of consortium claim by spouse of personal injury plaintiff was “inextricably intertwined” with plaintiff’s personal injury claim such that defendant claiming attorney’s fees under § 768.79, Florida Statutes, was not requi

On March 15, 2019, in Conti v. Auchter, Np. 5D18-696, the Florida Fifth DCA reversed a trial court ruling concerning the amount of attorney’s fees awardable under § 768.79, Florida Statutes, to a defendant in a motor vehicle negligence case.  In addition to the plaintiff’s claim for damages in the case, the plaintiff’s spouse had sought damages in a loss of consortium claim.  Prior to trial, the defendant served a proposal for settlement pursuant to § 768.79 to the spouse, which was not accepted.  At trial, the jury returned a verdict for the plaintiff but concluded that the plaintiff had not suffered a permanent injury, thereby foreclosing any loss of consortium claim by the spouse.  The defendant subsequently moved for attorney’s fees for defending both claims, arguing that the injury claim was inextricably intertwined with the loss of consortium claim. See Effective Teleservices, Inc. v. Smith, 132 So. 3d 335, 339 (Fla. 4th DCA 2014) (quoting Chodorow v. Moore, 947 So. 2d 577, 579 (Fla. 4th DCA 2007)). "[T]he party seeking fees has the burden to allocate them to the issues for which fees are awardable or to show that the issues were so intertwined that allocation is not feasible." The trial court denied the defendant’s motion to the extent that there was not an exclusion of fees for time spent defending the main injury claim.  On appeal, the Fifth DCA opined that the derivative nature of the loss of consortium claim supported the conclusion that the claims were inextricably intertwined.  Although the Fifth DCA agreed with previous rulings that no “blanket rule” should apply that loss of consortium claims are automatically considered inextricably intertwined, the facts of the case supported the determination because the defendant challenged the permanency of the plaintiff’s injury to defeat the spouse’s loss of consortium claim.  The Fifth DCA reversed and remanded the case to the trial court with instructions to hold an evidentiary hearing on the attorney’s fee issue treating the time spent by defense counsel on the main liability case as compensable because inextricably intertwined with the loss of consortium claim.