Insurance — Professional liability — Bad faith — Legal malpractice — Bad faith action against liability insurer consolidated with legal malpractice action against counsel retained by insurer in underlying medical malpractice case, alleging that but for counsel’s offer to arbitrate, the case against the insured would have settled for policy limits — Trial court did not err in submitting the issue of causation to the jury in bad faith action against insurer where insured claimed that excess judgment resulted from insurer’s alleged bad faith in offering arbitration which precluded settlement from happening, and insurer contended that it was insured’s refusal to turn over his financial records which prevented settlement and led to offer of arbitration — Because issue of what caused insurer’s damages was in dispute, whether insurer’s bad faith caused the excess judgment was a question for the jury — No error in submitting the issue of damages to the jury where, although the damages insured sought in bad faith action was the excess judgment that resulted from arbitration, the jury had to decide what portion of any damages insurer was responsible for after trial court granted insured’s request to consolidate the bad faith and legal malpractice actions — Even if it was error to submit issue of damages to jury, error was harmless where jury never reached the issue of damages given its determination that insurer did not act in bad faith and that counsel was not negligent — Evidence — Routine practice — Trial court did not err in refusing to admit testimony that the standard practice of plaintiff’s counsel’s firm in underlying medical malpractice action was to accept policy limit settlement offers in medical malpractice cases when a defendant refuses to provide financial information — Proposed testimony did not fall within section 90.406 — Even if exclusion of testimony was in error, any error was harmless — No abuse of discretion in admitting plaintiff’s counsel’s fee agreement which contained a waiver of plaintiff’s rights because it was relevant to plaintiff’s counsel’s financial interest and because it did not constitute a needless waste of time — Furthermore, because the argument raised on appeal with respect to the admission of the fee agreement was not contemporaneously raised when insured’s objection was made, it was not preserved — No abuse of discretion in admitting testimony about Board of Medicine proceedings related to complaint filed against insured as a result of the incident which was the subject of medical malpractice action against insured and doctor’s testimony about how egregious she found insured’s actions or inactions to be given that the strength of plaintiff’s case against insured had to be evaluated by jury in determining the issues of bad faith and legal malpractice — Even if admission of evidence concerning Board’s proceeding was erroneous, any error was harmless as insured’s negligence in medical malpractice case was undisputed — No error in admitting evidence regarding a separate medical malpractice case involving insured’s counsel in which punitive damages were awarded where the potential for punitive damages was a disputed issue and factor that led to the offer of arbitration, and case was the basis for counsel’s assessment of the case and the advice given to insured — Trial court did not err in directing verdict for insurer and instructing jury that insurer had no duty to investigate prior to the filing of plaintiff’s notice of intent to initiate a medical malpractice action where nothing in liability insurance agreement created a duty to investigate a potential claim — Moreover, insured failed to prove that insurer violated its fiduciary obligation to protect insured from judgment exceeding the limits of the policy by failing to investigate notice of the incident — No merit to argument that cumulative effect of trial court’s errors warrants a new trial — Attorney’s fees — Proposal for settlement — No error in awarding attorney’s fees to counsel and firm pursuant to section 768.79 despite fact that settlement offer failed to apportion the amount of the settlement offer attributable to each offeror — Because complaint only pled a theory of vicarious liability against the firm, the proposal fell within rule 1.442(c)(4) which does not require the offer to differentiate between tortfeasors where one is alleged to be vicariously liable
45 Fla. L. Weekly D1887a
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