In the case of Jessica Conti v. James Auchter and Ashlee Auchter, Case Number 5D18-696 (Fla. 5th DCA March 15, 2019), Florida’s Fifth DCA held that losing on a proposal for settlement for the wife’s consortium claim results in a sanction for attorney fees and costs for the defense of the entire case because the consortium claim was “inextricably intertwined” with the original injury claim.
In this case, the husband (who was injured in a car accident) filed a proposal for settlement against the defendant. In response, the defendant filed a proposal for settlement against the wife only for her loss of consortium. It does not appear from the opinion that the defendant ever served a proposal for settlement to the husband, however, it is possible that there was a proposal for settlement but it just was not triggered by the net judgment.
With that being said, the jury found that Mr. Auchter’s injuries were not permanent. Under Florida law, this meant that pain and suffering could not be awarded. This also meant that there could not be a loss of consortium since such a claim was “derivative” of having a permanent injury on the original injury.
Therefore, the jury awarded nothing to the wife for loss of consortium (perhaps because they couldn’t under the law). Considering that zero is more than 25% less than whatever could have been offered, sanctions under Florida law for failing to prevail after rejecting the proposal for settlement were in order (attorney’s fees and costs incurred after the proposal was filed).
The trial judge found that the wife’s claim was not “inextricably intertwined” with the husband’s injury claim and apparently only awarded attorney fees and costs for defense of the consortium claim as opposed to the entire claim.
As with just about any insurance company that does not agree with the legal result in court, the insurance company for the defendant appealed and argued that the defense was entitled to attorney fees and costs for the defense of the entire case rather than just that attributable to the consortium claim.
Their reason for this was because the consortium claim was “inextricably intertwined” with the original injury and could not be separated. Therefore, a loss on any proposal for settlement would trigger sanctions for the defense of the entire case and not just a part of it.
The Fifth DCA agreed with the defense (and the insurance company) and reversed the trial judge. While the Fifth DCA cautioned that not every consortium claim is so “inextricably intertwined” with the original injury claim, this one happened to be so.
Comments And Criticism
The problem with the Fifth DCA’s holding in this case is that we really don’t know whether the jury returned a zero verdict for the husband’s claim or not.
My opinion is that it is unfair and harsh to sanction the wife for the cost of the entire defense of the case just because there happened to be no finding of a permanent injury and, hence, no derivative claim. Because the Fifth DCA does not say that the husband was awarded zero for his claim (this happens when the jury either finds no liability or no causation of injury), I have to question whether this was a justiceable legal result.
Why is this so bad? The answer is because the proposal for settlement for the wife was likely in the range of $100. It just seems inequitable that a low proposal for settlement on a derivative claim is enough to trigger a sanction for the entire defense cost (of course after the proposal) even though it is likely that the husband was probably awarded his medical expenses. This gave the insurance company an unfair advantage because the jury could have also just awarded no damages for consortium if they didn’t feel that the plaintiffs’ relationship had been damaged.
Cases like this on are why I will sometimes advise a client’s spouse to accept a nominal amount so that the trial results are based on the original injury claim. Settling the consortium claim also eliminates evidence of the the quality of the plaintiffs’ relationship as husband and wife.
I think a fair result would require losing on the husband’s proposal in addition to the wife’s in order to justify a sanction regarding the entire defense.
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