HARRY T. UMBEL, AS PERSONAL REPRESENTATIVE OF THE ESTATES OF JEANETTE MARIA UMBEL AND MICHAEL THOMAS UMBEL, DECEASED, APPELLANT,
v.
DIPAKKUMAR M. UPADHYAYA, APPELLEE
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In a medical malpractice case, the court held that attorney's fees awarded to the prevailing party are governed by the statute in effect when the cause of action accrued, not when judgment was entered, even though the statute was repealed before the award was made.
The court held that the prevailing party's rights to attorney's fees in medical malpractice actions vested on the date the cause of action accrued, not when the judgment was entered. Therefore, appellee was entitled to attorney's fees under section 768.56, Florida Statutes (1983), despite the statute's repeal prior to the fee award.
[1] A prevailing party in a medical malpractice action is entitled to attorney's fees under a statute in effect at the time the cause of action accrued, even if the statute i…
[2] A statute repealing provisions for attorney's fees in medical malpractice actions applies prospectively and does not affect actions filed before its effective date.
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Join FLexlaw to unlock all legal intelligence“the prevailing party's rights regarding attorney's fees in medical negligence actions vested on the date that the cause of action accrued”
Establishes the critical principle that vesting of fee rights occurs at cause of action accrual, not at judgment
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Join FLexlaw to unlock all legal intelligenceAppellant filed a medical malpractice suit on July 19, 1985, for a cause of action that accrued on October 23, 1983. Section 768.56, Florida Statutes …
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DANAHY, Chief Judge.
This is an appeal from an award of attorney’s fees to the prevailing party (the appellee) in a medical malpractice action. Appellant contends that the trial court erred in making the award because the statute authorizing such an award was repealed prior to the court’s entry of judgment. We find no error and affirm.
The cause of action in this suit accrued on October 23, 1983. Appellant filed this medical malpractice suit on July 19, 1985. When appellant filed his complaint, section 768.56, Florida Statutes (1983), was in effect. That statute provided that reasonable attorney’s fees shall be awarded to the prevailing party in a medical malpractice action. During the pendency of this case in the trial court the legislature repealed this section. Ch. 85-175, § 43, Laws of Fla. The effective date of the repealing act was October 1, 1985. Ch. 85-175, § 55, Laws of Fla. Appellee moved for attorney’s fees in March 1986, and they were awarded in August 1986. This appeal ensued.
At first glance, appellant's argument appears logical. Appellee did not become a prevailing party until after repeal of the statute at issue here, so, appellant argues, the right to fees as a prevailing party did not vest until it was known who the prevailing party was. Appellee, on the other hand, draws our attention to Young v. Altenhaus, 472 So. 2d 1152 (Fla.1985), wherein the supreme court held that the prevailing party’s rights regarding attorney’s fees in medical negligence actions vested on the date that the cause of action accrued. While Young v. Altenhaus disposes of the issue before us, we note that the court did not have before it the new law which took effect later that year, 1985. The provisions of chapter 85-175, section 48, Laws of Flor ida, cause us to reach the same result. That section reads:
Except as otherwise provided, all provisions of this act shall apply prospectively, and shall not apply to actions filed on or before the effective date.
Our research discloses no provision in the act providing a different effective date for the repeal of section 768.56. We hold that appellee is entitled to attorney’s fees as a prevailing party pursuant to section 768.56 Fla.Stat. (1983).
The judgment appealed from is therefore affirmed.
SCHEB and CAMPBELL, JJ., concur.
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J.S. Neviaser, M.D. v. Nadyne Stone and Donald Stone, 510 So. 2d 636 (Fla. 3d DCA 1987)…the effective date. Ch. 85-175, § 48, Laws of Fla. Because Young v. Altenhaus, 472 So. 2d 1152 (Fla.1985), establishes that the prevailing party’s entitlement to attorney’s fees vests on the date that the cause of action accrues, Umbel v. Upadhyaya, 508 So. 2d 32 (Fla. 2d DCA 1987), we reverse the Order Denying Defendant Neviaser’s Motion for Attorney [sic] Fees and remand the cause with directions to the court to conduct a hearing in accordance with Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 11…
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Liebeler v. Raymond E.P. Zimmerman, M.D., 513 So. 2d 1310 (Fla. 2d DCA 1987)…revailing parties. This timely appeal and cross-appeal followed. (The appellees have separately appealed the final judgment, but the appeals have not been consolidated.) After the trial court’s ruling in this case, this court in Umbel v. Upadhyaya, 508 So. 2d 32 (Fla. 2d DCA 1987), addressed the same issue which is involved in this matter. In Umbel, we relied on the supreme court’s decision in Young v. Altenhaus, 472 So. 2d 1152 (Fla.1985), and held that the prevailing party’s right to attorney’s fees in me…
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Asa L. Godbey, Jr., M.D. v. Walsh, 530 So. 2d 343 (Fla. 1st DCA 1988)…ey fees in medical malpractice cases. In Young v. Alten-haus, 472 So. 2d 1152 (Fla.1985), the Supreme Court held that the statute created a substantive right to fees. See also Neviaser v. Stone, 510 So. 2d 636 (Fla. 3d DCA 1987); Umbel v. Upadhyaya, 508 So. 2d 32 (Fla. 2d DCA 1987); Liebeler v. Zimmerman, 513 So. 2d 1310 (Fla. 2d DCA 1987). In the case sub judice; the cause of action arose in 1983. Suit was filed in August 1984. Although we have considered appellant’s contrary argument, we are persuaded that…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jerrold Young v. Fern Altenhaus, 472 So. 2d 1152 (Fla. 1985)