HOWARD I. KAY, APPELLANT,
v.
DANIEL S. BRICKER, APPELLEE
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Attorney Kay sued for legal malpractice after naming the wrong defendant in a negligence suit, causing his client Bricker to lose the claim when the statute of limitations expired. The court reversed the trial court's judgment, holding that the defendant was entitled to offset the jury award by the amount Bricker had already recovered from the co-defendants.
The court held that the defendant attorney was entitled to offset the jury award by the $2,000 already recovered from co-defendants because the measure of damages in legal malpractice is the amount the client would have recovered but for the attorney's negligence, and allowing duplicate recovery violates public policy. Additionally, costs incurred after the settlement offer must be borne by plaintiff when the final judgment is not more favorable than the offer.
[1] In a legal malpractice action for negligence in prosecuting a suit that results in the loss of a client's claim, the measure of damages is the amount the client would hav…
[2] A defendant attorney is entitled to set off against a jury award the amount already paid by the original tortfeasor in partial satisfaction of the claim to prevent duplic…
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Join FLexlaw to unlock all legal intelligence“In a malpractice action based on an attorney's negligence in prosecuting a suit which results in the loss of the client's claim, the measure of damages is the amount which the client would have recovered but for the attorney's negligence.”
Establishes the fundamental standard for calculating damages in legal malpractice cases
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Join FLexlaw to unlock all legal intelligenceIn August 1978, Bricker fractured a tooth biting into a hamburger at a Lum's restaurant. He initially retained counsel and received a $2,000 settlemen…
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FERGUSON, Judge.
On or about August 28, 1978, Bricker fractured a tooth while biting into a hamburger at a Lum’s restaurant. He retained an attorney to represent him in an action against the restaurant, its meat supplier and their insurers. Bricker discharged his attorney in October 1981, personally negotiated a $2000 settlement with the meat supplier and its insurer, and executed a release in August 1982.
On August 17, 1982, ten days before the expiration of the statute of limitations, Bricker retained defendant Howard Kay to represent him in an action against the restaurant and its insurer. Kay timely instituted a lawsuit against “Lum’s Restaurant Corp.,” only to discover, after expiration of the statute of limitations, that the entity sued, although having a similar name, was not the tortfeasor. Bricker sued Kay for legal malpractice.1
Prior to trial Kay assessed the value of the case at $2500 and offered Bricker $500 over the $2000 .partial settlement Bricker had already received from the restaurant’s meat supplier and its insurer. Bricker refused Kay’s settlement offer and the case went to trial. The court granted Bricker’s pretrial motion in limine which requested that evidence or testimony as to the $2000 settlement received from the co-defendants be excluded from the jury’s consideration. The jury’s appraisal of the case was exactly the same as Kay’s — it awarded damages of $2500. Kay requested that the court offset the award by deducting the $2000 which Bricker obtained from the co-defendants. The court’s refusal to set off the jury award by the amount of the partial settlement and its order taxing costs against Kay are the bases for the appeal. We reverse.
In a malpractice action based on an attorney’s negligence in prosecuting a suit which results in the loss of the client’s claim, the measure of damages is the amount which the client would have recovered but for the attorney’s negligence. Freeman v. Rubin, 318 So. 2d 540 (Fla. 3d DCA 1975). Plaintiff could not recover from the defendant an amount which would exceed the amount of his proven damages. Defendant, therefore, was entitled to set off against the jury award that amount which had already been paid by the original tortfeasor in partial satisfaction of the claim. § 768.041(2), Fla.Stat. (1985); Devlin v. McMannis, 231 So. 2d 194 (Fla.1970) (§ 768.041(2) is designed to prevent duplicate or overlapping compensation for identical damages).
Since plaintiff’s judgment after the setoff is not more favorable than the offer of judgment made by the defendant, all costs incurred after the making of the offer must be borne by the plaintiff. See Fla.R.Civ.P. 1.442.
Reversed and remanded for further consistent proceedings.
. This case was previously before us to review an order dismissing Bricker’s complaint for failure to state a cause of action. Bricker v. Kay, 446 So. 2d 1151 (Fla. 3d DCA 1984). We held there that the allegation that Kay named the wrong defendant, resulting in dismissal of his client’s case with prejudice after expiration of the statute of limitations, sufficiently stated a cause of action.
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Sure Snap Corp. & Elaine Shure v. Baena, 705 So. 2d 46 (Fla. 3d DCA 1997)…demonstrates that there is an amount of damages which the client would have recovered but for the attorney’s negligence. See Chipman v. Chonin, 597 So. 2d 363 (Fla. 3d DCA 1992); Davenport v. Stone, 528 So. 2d 45 (Fla. 3d DCA 1988); Kay v. Bricker, 485 So. 2d 486 (Fla. 3d DCA 1986). Accordingly, even though the jury found that Baena and the law firm were at fault for failing to preserve the underlying claims, they are not legally and/or financially liable to Mrs. Shure, since their alleged inaction did not…
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D.R. Mead & Co. v. Cheshire OF Fla., Inc., 489 So. 2d 830 (Fla. 3d DCA 1986)…deed made the alleged misrepresentations and that, if they had not done so, Cheshire both would have secured an equivalent policy either from Pine Top or another carrier and would have been successful in an action on that policy. See Kay v. Bricker, 485 So. 2d 486 (Fla. 3d DCA 1986); Weiner v. Moreno, 271 So. 2d 217 (Fla. 3d DCA 1973). After the trial judge struck the “defense” of arson and directed a verdict in the plaintiff’s favor on the damage issue to the effect that it had sustained at least $700,000 in…
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Coopers & Lybrand v. Trs. of the Archdiocese of Miami/Diocese of ST. Petersburg Health & Welf. Plan, 536 So. 2d 278 (Fla. 3d DCA 1988)…requires baccalaureate degree in accounting plus additional semester hours in that field and, therefore, is a professional for purposes of professional malpractice statute of limitations). See, e.g., for attorney malpractice damages, Kay v. Bricker, 485 So. 2d 486 (Fla. 3d DCA 1986); Freeman v. Rubin, 318 So. 2d 540 (Fla. 3d DCA 1975) (measure of damages based on attorney's negligence is amount client would have recovered but for attorney’s negligence). . Because we reverse that portion of the judgment which…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Devlin v. McMANNIS, 231 So. 2d 194 (Fla. 1970)
- Starr Freeman v. Ellis Rubin, 318 So. 2d 540 (Fla. 3d DCA 1975)
- A.S. v. State, 446 So. 2d 1151 (Fla. 3d DCA 1984)
- Bricker v. KAY, 446 So. 2d 1151 (Fla. 3d DCA 1984)