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Florida First DCA rejects defendant's claim for reimbursement of all fees and costs from personal injury plaintiff's wife who lost her loss of consortium claim at trial, concluding that the fees and costs in defense of the husband's and wife's claims were not inextricably intertwined

On December 30, 2020, in Signal Hills Golf Course, Inc. v. Womack, No. 1D19-1348, the Florida First DCA affirmed a trial court’s ruling which had denied the defendant’s request to have all its fees and costs paid pursuant to the proposal for settlement statute, Fla. Stat. 768.79. The complaint in the premises liability negligence case had included a loss of consortium claim for the spouse of the injured plaintiff.  During the pre-trial stage, the defendant served a proposal for settlement regarding the wife’s consortium claim, which was deemed rejected when no acceptance was received.  Although the jury subsequently returned a substantial verdict for the husband, no damages were awarded for the wife’s loss of consortium clam.  The defendant subsequently claimed all its attorney’s fees and costs under Section 768.79 and Fla. R. Civ. P. 1442, arguing that the fees and costs in the defense of both husband’s and wife’s claims were “inextricably intertwined.”  The trial court rejected this methodology and allocated a small fraction of the total attorney’s fees and costs to the defense of the wife’s claim.  On appeal, the First DCA noted that there is no blanket rule that automatically deems a loss of consortium claim as necessarily “inextricably intertwined” with the primary liability claim for purposes of awarding attorneys’ fees and costs, and that both the Second and Fifth DCAs have expressly rejected a blanket rule.  See Blanton v. Godwin, 98 So. 3d 609 (Fla. 2d DCA 2012); Conti v. Auchter, 266 So. 3d 1250, 1252 (Fla. 5th DCA 2019) (in which the Fifth DCA found the defense of both claims to be inextricably intertwined under the circumstances of the case). Instead, the Court observed, the prevailing approach is to require the party seeking to recover attorneys’ fees and costs to shoulder the “burden to allocate them to his consortium claim or to show that the issues were so intertwined that allocation is not feasible,”  quoting Blanton, 98 So. 3d at 612; see also Shelly L. Hall, M.D., P.A. v. White, 97 So. 3d 907, 909 (Fla. 1st DCA 2012) (same); Effective Teleservices, Inc. v. Smith, 132 So. 3d 335, 339 (Fla. 4th DCA 2014); Lubkey v. Compuvac Sys., Inc., 857 So. 2d 966, 968 (Fla. 2d DCA 2003).  The First DCA concluded that the defendant had not met its burden here and that the only error in the trial court’s calculation was with respect to $845 in taxable costs.