Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-118 _____________________________ CORRECTED PAGES: pg 32 MOHAMAD R. SAMIIAN, M.D., REMOVED WORD FROM UNDERLINED SECTION Appellant, MAILED: September 15, 2020 BY: FTA v. BRADLEY R. JOHNSON and FOLEY & LARDNER, LLP, Appellees. _____________________________ Nos. 1D19-120 1D19-846 _____________________________ MOHAMAD R. SAMIIAN, M.D., Appellant, v. FIRST PROFESSIONALS INSURANCE COMPANY, INC. Appellee. _____________________________ On appeal from the Circuit Court for Duval County. Robert M. Dees, Judge. August 7, 2020 LEWIS, J. In these three consolidated appeals, Appellant, Mohamad R. Samiian, M.D., a retired plastic surgeon, appeals the final judgment entered in favor of Appellee First Professional Insurance Company (“FPIC”) in his bad faith insurance action against it, the final judgment entered in favor of Appellees Attorney Brad R. Johnson and Foley & Lardner, LLP (“Foley Defendants”) in his legal malpractice action against them, and the order granting the Foley Defendants attorney’s fees pursuant to section 768.79, Florida Statutes (2017). Appellant argues on appeal that: (1) the trial court erred in submitting the issues of causation and damages to the jury in the bad faith case; (2) the trial court abused its discretion in making various evidentiary rulings; (3) the trial court erred in directing a verdict in FPIC’s favor on the issue of its duty to investigate the death of one of Appellant’s patients as soon as Appellant gave it notice of the incident; (4) the cumulative errors complained of warrant a new trial; and (5) the trial court erred in awarding the Foley Defendants attorney’s fees pursuant to the offer of judgment statute when their proposal for settlement did not apportion the amount of the offer attributable to each offeror. For the reasons that follow, we find no merit in Appellant’s arguments and, therefore, affirm the final judgments and the attorney’s fee order. FACTUAL BACKGROUND On the day following the April 2004 death of Martin J. Gottlieb, Appellant’s patient who was left in the care of an unlicensed technician following a surgical procedure, Appellant notified FPIC, his professional liability insurer, of the incident. In April 2005, Appellant received a notice from the Gottlieb estate informing him of its intent to file a medical malpractice claim against him. FPIC hired Attorney Johnson to defend Appellant against the claim. After conducting an investigation into the allegations and realizing that he would be unable to secure an expert witness who would testify on Appellant’s behalf, Attorney Johnson, with FPIC’s approval, offered the estate the $250,000 policy limits under Appellant’s policy. Steve Pajcic, the estate’s attorney, returned the $250,000 check to Attorney Johnson, notifying him of his desire to investigate Appellant’s financial 2 situation before any settlement offer could be accepted. Prior to Attorney Johnson’s receipt of the check, he sent a written offer of arbitration to the estate. Mr. Gottlieb’s estate agreed to arbitrate the case, and an arbitration judgment was entered against Appellant in the amount of $35,415,789, plus interest. In 2011, Appellant filed a bad faith action against FPIC and a legal malpractice action against the Foley Defendants. In the bad faith action, Appellant alleged in part that FPIC should not have waited to investigate the medical incident resulting in his patient’s death until the estate filed its notice of intent to initiate a medical malpractice action, especially where the patient was in his thirties and earned in excess of $1,000,000 per year. Appellant further alleged that had FPIC not extended the offer of binding arbitration, the case would have settled for the $250,000 policy limits. Appellant demanded a judgment for damages, “including the arbitration award entered against [him] with interest, and all attorney’s fees and costs incurred by [him].” Appellant also filed a legal malpractice action against the Foley Defendants. In his complaint, Appellant alleged in Count I that Attorney Johnson committed malpractice by allowing the case to go to arbitration before the estate had the opportunity to accept the policy limits offer. Count II was a malpractice claim against Foley & Lardner in which Appellant alleged in part that Foley & Lardner, “by and through the attorneys employed by it,” breached the standard of care that was ordinarily exercised by attorneys defending medical negligence claims.” FPIC moved for summary judgment, arguing that it did not control, nor was it responsible for, the decision to arbitrate the claim, that it was not responsible for the litigation strategy adopted and advocated by a physician’s own legal team, and that the action was barred by the safe harbor provisions of section 766.1185, Florida Statutes, because it had tendered its policy limits. The trial court granted the motion, finding that FPIC was not liable for bad faith for failure to pay its policy limits because it tendered the limits within the time period provided for by statute. This Court reversed and remanded. See Samiian v. First Prof’ls Ins. Co., 180 So. 3d 190 (Fla. 1st DCA 2015). We reasoned that Appellant’s bad faith claim did not allege that FPIC failed to pay 3 or tender its policy limits, but instead alleged that FPIC breached duties owed to Appellant and acted in bad faith in making an offer to arbitrate that entailed admitting liability, without making the offer contingent upon a limit of general damages. Id. at 193. After the case was remanded, the trial court granted Appellant’s request to consolidate the two cases. In its consolidation order, the trial court noted that it had not found and FPIC had not cited any case holding that a bad faith claim against an insurer could not be joined with a professional negligence claim against counsel retained by the insurer in the underlying case where “the alleged damages – the excess judgment – are the same.” FPIC subsequently filed Defendant’s Motion for Partial Summary Judgment, wherein it argued that it was entitled to partial summary judgment as a matter of law in its favor: (1) as to Appellant’s allegations that he would have obtained a more favorable result if the underlying litigation had proceeded to a jury trial, (2) that he had available comparative negligence and/or Fabre defenses, (3) that his right to pursue defenses was prejudiced, and/or (4) that the underlying matter should have been investigated sooner and/or differently by FPIC. In its order, the trial court granted the motion as to the first and second grounds, but denied the motion as to the third and fourth grounds. In its Second Motion for Partial Summary Judgment, FPIC argued that it was entitled to summary judgment on Appellant’s claim that: (1) the decision to arbitrate, including the timing thereof, prevented the settlement of the underlying action and (2) on any claim that is based, in whole or in part, upon the timing of the offer and/or tender by FPIC of the available insurance policy limits. In its order on the motion, the trial court granted the motion as to the second claim, but denied the motion “as to the remaining presented issues.” In his Plaintiff’s Motion in Limine Regarding Measure of Damages and Admissible Evidence of Damages, Appellant sought an order “[1] ruling that the proper measure of damages in his claims against [Appellees] . . . is the difference between the underlying judgment against [him] and FPIC’s $250,000 policy limit plus accrued interest” and “[2] excluding evidence, argument, 4 and comment concerning matters irrelevant to the proper measure of damages, including whether [he] has made any payments on the judgment, whether and to what extent the judgment is collectible, and whether or not the judgment debt is dischargeable in bankruptcy.” The trial court granted the motion as to Paragraph 5, which pertained to evidence or statements of counsel regarding Appellant’s right to be discharged from the judgment debt under the bankruptcy laws. The court denied the motion as to Paragraphs 1 through 4 and 6, which addressed evidence of Appellant’s financial resources from the date of arbitration forward, evidence of statements of counsel regarding whether Appellant had made any payment on the arbitration award or the judgment, evidence or statements of counsel regarding whether Appellant had, has, or will ever have the ability to make any such payments, evidence or statements of counsel regarding any agreement, negotiations, or communications between Appellant and his deceased patient’s wife regarding conditions under which she could attempt to collect the judgment or forbear from such attempts, and argument or statements by counsel suggesting to the jury that the damages at issue would be a question of fact for resolution by the jury. The Foley Defendants filed a Motion in Limine to Exclude Speculative Testimony by Steve Pajcic, wherein they requested an order preventing Pajcic from testifying as “to his intended or possible actions regarding the unaccepted settlement offer in the underlying medical malpractice case, as well as his past actions in other unidentified and unspecified cases.” According to the Foley Defendants, Appellant planned to rely upon Attorney Pajcic’s deposition testimony to prove that the estate would have accepted the $250,000 policy limits in exchange for dismissal of claims worth tens of millions of dollars had arbitration not been offered. In its Order on the Foley Defendants’ Motion in Limine, the trial court granted in part and denied in part the motion, ruling that Attorney Pajcic “will not be permitted to testify that in all medical malpractice cases except [this case] his firm has accepted offers of policy limits.” The court would, however, allow him “to testify that had arbitration not been offered in [this case], he would have recommended acceptance of the $250,000 FPIC policy limits.” 5 Thereafter, Appellant filed Plaintiff’s Motion to Strike or, in the Alternative, in Limine Relative to Proceedings Before the Florida Board of Medicine in 2007. Therein, Appellant represented that the Florida Board of Medicine (“Board”) filed an administrative complaint against him in 2007 as a result of the incident and that a final order was entered by the Florida Department of Health in 2010. Appellant argued that it was undisputed that the proceeding did not play a part in the handling, adjustment, or evaluation of the claim made by the estate against him and that it would be highly prejudicial to allow evidence or testimony of the Board proceedings to be introduced at trial. At the hearing on the motion, the trial court stated, “I think that the Board of Medicine proceedings was part of the overall ball of wax that Mr. Johnson had to evaluate; however, there are a couple of statements that I think are over the top and should not come in.” In its order, the trial court granted the motion as to testimony regarding statements made during the Board proceedings about a “clean kill” and speculation about “whether the police should be called.” The motion was otherwise denied. During the multi-day trial, Appellant first called Eric Roberts, an employee of FPIC since 1996, who testified that there was no claim reported to FPIC in 2004; it was “simply a medical incident” at that point. When asked if there was anything that prevented FPIC from sending the records that Appellant sent it in April 2004 to a reviewing physician, Roberts replied, “Yes, absolutely, a lot of things preventing . . . them from doing that, right. I mean, we don’t have any – first of all, there’s no claim made. What are we going to tell him to review?” He later testified, “I’m sorry I must be explaining it wrong, because, you know, a medical incident or precautionary report . . . there’s no claim, you know. The doctor can’t make a claim, I can’t make a claim. A plaintiff or a patient or claimant has to make a claim, and then with allegation, that can be investigated.” When asked if Appellant’s goals would have been accomplished by settling the case, Roberts replied, “Well, we knew the claim wasn’t going to settle. He [Appellant] wasn’t going to turn over his financials. . . . You know, as it turns out now, we know there was [sic] unprotected assets, but he was never going to turn his financials over.” When asked if Appellant bid against himself by the premature offer to arbitrate, Roberts replied, 6 “Absolutely not. . . . The plaintiffs rejected the policy limits and said, ‘Dr. Samiian, give us your financial records and we might consider it.’ They rejected it before that offer was made. And, even still, Dr. Samiian can’t let that pre-suit expire and not take advantage of the statute.” When asked on cross-examination whether any lawyers involved in the case suggested to him at any point that there was any prejudice by not investigating the case “in the first year,” Roberts replied, “Not at all . . . none.” When asked if any lawyers suggested that the facts of the case may have been different had an investigation been done during the first year, he replied, “No, they all opined it would’ve changed nothing.” When asked if he, on behalf of FPIC, was concerned “about going out and waking this claim up,” he replied, “Absolutely. I’m not . . . going to . . . if a claim, especially a claim of this magnitude, has not been filed, I’m not going to go and try to invite it or stir it up.” Beth Rominger, FPIC’s senior vice-president of claims in 2004 and 2005 who authorized the $250,000 policy limits offer, testified that a precautionary file is also known as an incident report, whereas a “claim is a demand for compensation or a notice under the [medical malpractice] statute.” When asked about the provision in the FPIC policy that states, “We consider a claim to be made on the date you first contact us regarding a medical incident or injury that you reasonably believe will result in a claim being made against you” and whether it did not “kick in any of FPIC’s obligations under the policy,” Rominger replied, “It kicks in the obligation to provide coverage to the physician, to note that he has reported it, or she, and that there is coverage that’s available for this claim. It is not a claim under the statute made by the patient. Patients make claims.” When asked if it was a general business practice at FPIC to not investigate or evaluate a claim until it receives a notice of intent, she replied, “That’s an industry practice. Insurance companies, medical malpractice insurance companies, that’s how insurance – medical malpractice companies investigate.” When asked when she was first asked for authority to offer policy limits to the estate, she replied, “Probably right about that time when Brad [Attorney Johnson] kept getting . . . one negative review after another and we could not find an expert.” 7 When asked on cross-examination if she saw anything in the file that indicated that the failure to conduct an investigation during the first year in any manner impacted the defensibility of the claim as to Appellant, Rominger replied, “Not at all.” She testified of Attorney Johnson that “he left no stone unturned” and that “he got . . . eight to ten experts on this case. And he went to pathologists. He went to plastic surgeons. He went to nursing experts. . . . He kept going and going and going and trying to find an expert for [Appellant].” According to Rominger, although the estate requested five years of Appellant’s financial records, Appellant never turned over a single record, despite his attorneys recommending that he do so. Rominger testified that Attorney Tromberg, Appellant’s private attorney, described Appellant as being “bulletproof,” which meant that “nobody could get at [his] assets, they were protected, and he had done all of the right things to protect his assets from a claim made by a patient.” It was later discovered, however, that Appellant’s assets were not fully protected “[s]o they were unwilling to give out the financial information because they were concerned that . . . this would be a road map for how they could get to [Appellant’s] money.” Rominger testified that FPIC “felt there was no other option [other than arbitration]. Because we’d offered the policy limits, which is what we were obligated to do, and they had been turned down.” Appellant next called Dennis K. Larry, a “semi-retired lawyer” who practiced personal injury and “pharmaceutical cases” and had served on a board of a legal malpractice insurance company for approximately nineteen years. When asked what FPIC could have done during an investigation in the year between the incident and when the estate’s notice of intent was sent, Larry testified that it could “send the medical records to doctors that they know of who are experts in their field, to look at those records and see whether . . . his surgery or the postoperative care could be defended by qualified medical doctors.” Larry acknowledged that FPIC did just that after the notice of intent was filed. Larry opined that “by offering arbitration so close to the offer to settle, it really took away any realistic possibility that the case would settle.” When asked on cross-examination if the conditions of Attorney Pajcic’s counteroffer were ever fulfilled, Larry replied, “They weren’t.” Larry acknowledged that Appellant’s lawyers 8 encouraged him to turn over his financial records. Larry believed that Appellant’s case was indefensible. When asked if Pajcic’s return of the settlement check was a rejection or not, Larry testified, “Could be viewed as such, yes.” When asked if there was anything in the FPIC insurance policy that required FPIC to investigate a notice of incident, Larry replied, “It doesn’t require them to do that. That requirement comes from the Florida law.” When asked the question again, he replied, “It [the policy] does not say that.” Attorney Johnson next testified that the case was “horrible” and “had the worst liability facts [he] had in 31 years, and it had the biggest damages [he had] seen in 31 years.” He also testified that Attorney Pajcic called him, “[s]aying if they want – if they got the financials, maybe they would take the $250,000 settlement check.” Johnson testified that “plaintiffs’ lawyers don’t take policy limits without financials.” He further testified, “We knew we were coming up on the end of 90 days; this was a – the case was indefensible, inflammatory, really just a tragic situation; and we needed to explore every option we had under the statute.” Arbitration, according to Johnson, “took punitives out of the picture completely.” When asked if Appellant was willing to put in any of his own money above the policy limits to settle the case, Johnson replied, “I think we talked about 25 to $50,000 of his own money above the $250,000 policy limits, and he just said, ‘No way.’” While Johnson asked Appellant to provide his financial information to the estate, Appellant “[d]idn’t want to.” When asked if the decision “to lie low during the first year after the report of the notice of incident” did “in any manner hamper or prejudice the investigation [he] did later during the presuit,” Johnson replied, “Not at all.” It was Johnson’s understanding that the estate rejected the $250,000 policy limits offer when it returned the check. Johnson believed the arbitration award was a good result because it was $20 million less than what the estate was seeking. Fred Tromberg, Appellant’s personal attorney, testified about the “handshake agreement” he and Attorney Pajcic had that there would be a bad faith suit filed and that, in the interim, there would not be an attempt to collect against Appellant. When asked if he thought it was the best strategy after Mr. Gottlieb died for 9 Appellant to “lie low,” he replied, “For [Appellant] to do so, yes.” When asked if the reason was because he was not certain that a claim would be filed, he replied, “That’s correct.” Tromberg thought that Attorney Johnson did a good job in his investigation of the case, and Tromberg was in full agreement with the decision to arbitrate. When asked if he told Appellant that he could not “give up” his financial records to Pajcic given the state of his asset protection plan, Tromberg, who knew that a condition of the settlement was the disclosure of Appellant’s finances, replied, “I don’t know if I used those terms, but I certainly – that was the gist of what I was talking about.” William Edward Hahn, a “plaintiff’s lawyer” since 1972 and an expert witness for Appellant, testified that it was not reasonable to offer arbitration in this case. When asked on cross- examination by counsel for the Foley Defendants whether “[t]he Navarro case 1 down in Tampa was a big deal,” Appellant’s counsel objected, arguing, “It’s a case that was decided years after the decision was made on whether or not to offer to arbitrate. It’s irrelevant.” He also argued, “[I]t’s an egregious case where a doctor purportedly changed his file and/or lied, depending upon the version of reality you accept. It happened [in 2006] way after this case.” The Foley Defendants’ counsel argued: [T]he point is, Brad Johnson believed punitive damages were a possibility in this case. Mr. Hahn pooh-poohed the possibility of punitive damages. This case occurred in 2006, a year after Brad was involved in the case. He got a $100 million compensatory award – a $100 million punitive award. They’ve been saying – they’ve been saying “You can’t get the punitive damages award, a big punitive damages award, when there’s a big compensatory case.” Yes, you can. Navarro’s the case. 1 Navarro v. Austin, No. 02-CA-006154 (Fla. 13th Cir. Ct. Oct. 3, 2006). 10 The trial court overruled the objection, stating, “Well, I don’t think the point is Johnson taking it into consideration. I think it’s this witness giving his opinion, you know, punitive damages don’t happen in med-mal cases.” No further questions about the Navarro case were asked of Mr. Hahn. Attorney Steve Pajcic next testified that medical malpractice cases were very hard to win, especially in Jacksonville, that he did not seek punitive damages in such cases, and that he expected this case to settle. Pajcic opined that he had a twenty-five to fifty percent chance of success had the case gone before a jury. When asked about his response to the settlement offer and check, he replied, “We’re not either going to accept it or reject it. Give us a little bit more information and we’ll figure this out.” After noting that he returned the check, Pajcic stated, “But I requested financial information from [Appellant]. The idea is here that the insurance was inadequate.” Pajcic was quite surprised when he received the arbitration offer because that meant that “they were throwing in the towel” and “[t]hey were admitting liability, accepting full responsibility.” According to Pajcic, he had never seen that done before because insurance companies do not do that. The trial court sustained FPIC’s counsel’s objection to the testimony and instructed the jury to disregard it. The trial court overruled Appellant’s objection to admission into evidence of Pajcic’s contract with the estate. During FPIC’s cross-examination of Pajcic, he testified, “So I’m not saying that we wouldn’t have tried to get more, but we would, if it had been – without the admission of liability and acceptance of responsibility. Without that, it would – we would have settled the case.” Pajcic never received a single financial record from Appellant from 2004 to 2018. After the arbitration award was entered, Pajcic and Attorney Tromberg “had a handshake agreement that [they] would defer collection attempts while this case, this bad faith case, was pursued.” When asked if it was his testimony that he would have “taken the money from the doctor without requiring him to give any financials because all the doctors go in a big bucket” and because the doctors are “generally protected,” Pajcic replied, “That’s probably what would have happened, yes.” When later asked if this “$250,000 settlement, would have been on a case you later asked $55 million 11 for,” Pajcic affirmatively responded. When asked how he makes an informed decision on whether to settle, he replied in part, “I would have gotten the best information I could, and we would have made the best decision we could and tried to get as much money as we could. The case would have settled. I feel confident. That’s what we – that’s what has happened in all of these cases.” On cross-examination by the Foley Defendants’ counsel, Pajcic testified that he did not know about the arbitration offer when he sent the settlement check back. When asked if he had a right to seek financial information about Appellant while the case was in arbitration, he replied, “I did. And I deferred that right based upon the conversation and agreement between Mr. Tromberg and I.” Pajcic entered into a new contract with Mr. Gottlieb’s widow after entry of the arbitration award. When counsel asked Pajcic if he knew that Appellant was seeking $90 million in this case, Appellant’s counsel objected, and the trial court’s consolidation order was addressed. Specifically, Appellant’s attorney argued, “[W]hen you consolidated these cases, you said the damages are the same in both cases.” The trial court responded, “I didn’t mean to imply that the damages measure was the same, but the damages claimed arise out of the same judgment.” When questioning resumed, Pajcic acknowledged that the estate had a right under the Florida Constitution to receive no less than seventy percent of the first $250,000 of a judgment and ninety percent of all damages in excess of $250,000. Following the arbitration award, Pajcic asked the estate to waive that right. He testified, “We do this, yes, with all medical malpractice clients, as I believe all plaintiffs’ attorneys do.” When asked if his firm would receive $17.2 million after Mrs. Gottlieb waived her constitutional right, Pajcic replied, “That sounds right to me.” After Appellant rested his case, FPIC moved for a directed verdict on two issues raised by Appellant: (1) that it acted in bad faith by failing to investigate, evaluate, and negotiate the estate’s claim prior to the filing of the notice of intent to initiate the medical malpractice claim and (2) that it acted in bad faith regarding the decision to arbitrate. FPIC argued that it was entitled to a directed verdict because there was “simply nothing in any provision of FPIC’s policy issued to Plaintiffs, any case or any portion of the medical malpractice statute that mandates that a defense be 12 provided to [Appellant] by FPIC after receiving a notice of incident but before the filing of the Notice of Intent.” The trial court ruled on the motion later during trial. During its case, FPIC first called Anthony Dapore, a lawyer retained as an expert by it in the area of good faith claims handling, who testified that FPIC had no obligation to investigate until the estate’s notice of intent was filed. When asked about the provision in the policy that “[w]e consider a claim to be made on the date you first contacted us,” Dapore testified, “It’s an explanation to the insured of what the claims-made policy is. . . . [I]f you have reported that incident within the policy period, if and when a claim is made after that policy period, that claim relates back to the original incident report, meaning it triggers the coverage . . . .” Dapore testified that the files confirmed that Attorneys Johnson and Dennis were not impeded in their representation of Appellant as a result of FPIC not investigating in the first year. He testified, “They were able to do whatever it was that they needed to do to investigate the case. . . . And, quite frankly, the – if they had started in 2004, they would’ve ended up at the same place they did at the same time in 2005, and that is, this case was completely indefensible.” Dapore, who testified that the policy limits offer was rejected by the estate when Pajcic sent the check back to Appellant’s attorneys, opined that “taking this case to arbitration was the appropriate course of action . . . .” He also opined that the “case did not settle because [Appellant] refused to supply his financial documents as required by the Pajcic firm.” Craig Dennis, the attorney who represented Appellant after Attorney Johnson withdrew, next testified that Johnson’s investigation was “very thorough, very extensive.” Dennis, who continued investigating the case after he began representing Appellant, found only one doctor, Appellant’s friend, who was willing to sign an affidavit in support of Appellant as to the surgery that he performed, “not the one-hour time period” following the surgery. Attorney Tromberg told Dennis that Appellant would under no circumstances release his financial information to the estate. 13 After FPIC rested its case, Appellant renewed his objection to the testimony of Dr. Laurie Davies and the evidence of the Board of Medicine proceeding against him. The trial court stated: I know I already ruled, but I am having second thoughts because, I mean, I think [Appellant’s counsel] is right. If we were trying the underlying case, that would probably not be admissible. And I know I said previously it was all part of the ball of wax that Mr. Johnson was dealing with, but I think that I was under the impression that the Board of Medicine proceedings had happened prior. After the Foley Defendants’ attorney argued that if the court did not permit Dr. Davies to testify, “we have no refutation of Mr. Pajcic’s opinion as to the difficulty of this case” and that “she, more than any other witness, as a fact and an expert witness, has reviewed the facts and is able to tell this jury very briefly why this case was so egregious,” the trial court stated, “I will stick with the previous ruling.” Thereafter, the videotaped deposition of Dr. Davies was played for the jury. Dr. Davies, who was employed with the University of Florida’s Department of Anesthesiology and was the “OR medical director,” testified that Appellant’s actions of leaving his patient in the overnight care of a surgical technician, who was not a licensed registered nurse and who was not trained in advanced cardiac life support, and permitting that person to administer five milligrams of IV valium to the patient fell below the standard of care and substantially contributed to the death of the patient. When asked how she would rate this case in terms of the nature of Appellant’s actions, she replied, “I found this case to be very egregious with regard to the violation of the standard of care in the State of Florida. . . . I think it was probably in the top ten of all of the 1,000 or more cases that I saw.” Dr. Davies then testified that Appellant went before the Board of Medicine, of which she was a member, in 2007 and described how Appellant had been disciplined. When the Foley Defendants’ attorney subsequently addressed certain exhibits, Appellant’s counsel argued, “[W]e oppose the introduction or the injection of Navarro into this case. The 14 operative facts in this matter happened in 2004. . . . Navarro had not happened. It could not have played a role in any type of deliberative process. . . .” The Foley Defendants’ attorney argued that when Attorney Pajcic gave his testimony “last week,” he was “certainly . . . aware of the Navarro case, yet he testified punitive damages are never a possibility in medical malpractice cases.” The trial court overruled Appellant’s objection. The videotaped deposition of Shelley Leinicke, an appellate attorney, was then played. Leinicke worked on the case on FPIC’s behalf “because of an anticipated appeal if a ruling did not go as trial counsel was hoping it might.” Leinicke recommended to Appellant and the other attorneys that the matter be arbitrated. After noting that “the plaintiff’s counsel had indicated willingness to accept the [policy] limits, if there were no other financial sources,” Leinicke testified, “[Appellant] and, I believe, Mr. Tromberg, as well, were reluctant to produce any such information under any scenario.” When asked about a letter she had written and whether it discussed the Navarro case, she testified: And I was told about this decision having been reached by a jury over in, I believe, Tampa. And there was a concern that there were some factual similarities to our case and – because there was, it looks like, $117 million damage, both compensatory and punitive in combination, that this was something that might be worth discussing with [Appellant] in terms of whether he really did want to go forward with trying to litigate this case rather than arbitrate it. After her letter “went out,” Appellant called Leinicke and told her, “Thank you for advising me of this. I still want to arbitrate.” Following the testimony of other attorneys who opined that offering arbitration was reasonable and prudent and that a plaintiff’s attorney would not generally accept a settlement offer without knowing the financial status of a defendant, Appellant moved for a directed verdict on the issue of the “measure of damages being the excess judgment against [him].” He also moved for a directed verdict as to FPIC’s “duties under the policy [being] 15 governed by the contract language” with regard to its duty to investigate in the first year. During the charge conference, the trial court ruled that chapter 766 of the Florida Statutes, the “framework” for “handling medical negligence cases,” did not impose a duty upon an insurer to investigate a medical malpractice claim “during the first year.” A discussion later ensued between the attorneys and the trial court about the proper measure of damages in a bad faith case. Appellant’s counsel argued that because the law in Florida was clear that “in an excess situation, the damages in the bad faith case are the excess judgment,” the trial court, rather than the jury, should determine the damages in the case. He argued as well, “And that is why a causation instruction is not necessary in this particular case, and not appropriate.” FPIC’s attorney argued, “It wouldn’t make any sense, Judge, because Foley has got a separate case. They’re going to determine damages as to Foley. They have to determine damages as to me. This isn’t just an excess judgment case . . . . It doesn’t make any sense unless I get the same damage instruction as Foley gets.” After counsel argued that “this is a somewhat unique case because it isn’t simply an excess case,” the trial court stated, “Right, I agree it is not. I would probably have entered a directed verdict or whatever if this had been a standard, you know, failure to tender and then there’s a – there’s an excess judgment. But that’s not what this is.” The court later ruled, “We’re going to have two separate verdict forms. They are going to have a place for damages. To the extent that either or both is a plaintiff’s verdict, if I’m wrong about the damages, that’s easily correctable.” The trial court later instructed the jury in part that Foley & Lardner was “responsible for the actions of Brad Johnson.” It further instructed: The Court has determined and now instructs you that FPIC had no duty to investigate the Gottlieb claim prior to the notice of intent. . . . For [Appellant] to prevail in his bad faith claim, he must show by the greater weight of the evidence that 16 FPIC acted in bad faith and that FPIC’s bad faith caused damages to [him]. .... If your verdict is for FPIC, you will not consider the matter of damages. But if you find for [Appellant], you should determine and write on the verdict form, in dollars, the total amount of damages that the greater weight of the evidence shows [Appellant] sustained as a result of the actions of FPIC. The measure of damages is the amount of loss suffered by [Appellant] as a result of FPIC’s bad faith. The issue for your determination on the claims of [Appellant] against Brad Johnson and Foley & Lardner for legal malpractice is whether Brad Johnson was negligent in his handling of the Gottlieb estate’s claim and whether that negligence caused [Appellant] harm. .... If your verdict is for Brad Johnson and Foley & Lardner, you will not consider the matter of damages. .... The measure of damages is the amount of loss suffered by [Appellant] as the result of Brad Johnson’s negligence. The Foley Defendants’ verdict form asked first whether the jury “find[s] by the greater weight of the evidence that defendants Brad Johnson and Foley & Lardner were negligent in the handling of the Gottlieb Estate’s claim against [Appellant].” The jury answered “no” to that question. The form instructed the jury that if it answered “no” to that question, “do not answer any further questions.” 17 The FPIC verdict form asked in Question 1 whether the jury “find[s] by the greater weight of the evidence that . . . FPIC acted in bad faith and its bad faith was a legal cause of damages to [Appellant].” The jury answered “no” to that question. The verdict form instructed the jury that if it answered “no” to Question 1, “do not answer any further questions.” Following the entry of the final judgments in Appellees’ favor, Appellant filed a motion to set aside the verdict and for a new trial. During a hearing on the motions, the trial court stated: I’m going to deny the plaintiff’s motions for a new trial on the Pajcic issue. And given the fact that Mr. Pajcic was a central witness in the case and that I felt like I was – I questioned whether I should let him testify about what would he have done, and what I ended up doing there was allowing him to testify to that but also at the same time allowing the defendants to robustly cross examine him on that issue, so I felt that that was the best course to take. Let’s see. On the legal cause issue, I just felt like that was a question for the jury. .... As far as the board of medicine and Navarro, again I think both sides had good arguments on that. But especially since Navarro was sort of part of this case through Ms. Leinicke’s advice and it did bear out what the concerns were a