95-005199MA Henry E. Mogler And Donna L. Mogler, F/K/A Michael Glenn Mogler, Deceased vs. Dirk Franzen Status: Closed DOAH Final Order on Friday, October 24, 1997.

Summary: Wrongful death of child medical malpractice; arbitrqation award $500,000 in noneconomic damages, $905,000 economic, $210,844 attorney's fees. Dissenting opinion attached.

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DISSENTING OPINION OF JANET W. ADAMS, ESQUIRE

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STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HENRY R. MOGLER and

DONNA L. MOGLER,

Petitioners,

vs. CASE NO. 95-5199MA

DIRK FRANZEN, M.D.,

Respondent.

_______________________/

DISSENTING OPINION OF JANET W. ADAMS, ESQUIRE

Dissent re: application of the statutory cap on noneconomic damages in a

wrongful death case and dissent re: applicability to the Wrongful Death Statute

in determining the types of economic damages which are allowable.

Arbitrator Adams dissents in regard to the decision to award Henry and

Donna Mogler a total of $500,000.00 in noneconomic damages and would instead

have awarded a single $250,000.00 for noneconomic damages to the Estate of

Michael Glen Mogler based on the following reasoning:

Florida Statutes 766.207 unequivocally provides that in medical malpractice

actions which are submitted for binding arbitration, the "noneconomic damages

shall be limited to a maximum of $250,000.00 per incident..."(emphasis added).

Florida Statutes 766.207(7)(b). This language is unambiguous and clearly

mandates that the maximum which can be awarded as a result of any incident is

$250,000.00 regardless of the number of claimants who are seeking compensation.

In order to award more than a total of $250,000.00 in the instant case, it would

be necessary to re-write the language of the involved statute by changing the

word "incident" to the word "claimant." Clearly, such a revision of the

statutory language is not and should not be within the scope of authority

granted to arbitrators.

In the instant case, the facts which were elicited at arbitration clearly

indicate that the claims for noneconomic damages which were being pursued by

Donna Mogler and by Henry Mogler were claims which arose from the same incident

or occurrence as defined by the Fifth District Court of Appeals in American

Indemnity Company v. McQuaig, 435 So.2d 414 (Fla. 5th DCA 1983). Consequently,

the noneconomic damages in the instant case should have been limited to a

maximum of $250,000.00 pursuant to Florida Statutes 766.207(7)(b). Because of

the nature of the claim being pursued on behalf of the Estate of Michael Glen

Mogler, it is the opinion of the undersigned dissenting arbitrator that

noneconomic damages in the amount of $250,000.00 should be awarded to the Estate

of Michael Glen Mogler and that no noneconomic damages should be specifically

awarded to either Henry or Donna Mogler.

Arbitrator Adams also dissents in regard to the decision to award

noneconomic damages to Henry Mogler, Donna Mogler, and the Estate of Michael

Glen Mogler which are not the type of damages allowable pursuant to the Wrongful

Death Statute, Florida Statutes 768.21, and would have instead awarded

noneconomic damages only to the Estate of Michael Glen Mogler in the amount of

$8,162.00 based on the following reasoning:

It is well settled under Florida law that an action for wrongful death was

not authorized at common law but instead is solely a creation of statute and the

Legislature. White v. Clayton, 323 So.2d 573 (Fla. 1975). Consequently, in the

instant case it is clear that in the absence of the Wrongful Death Act, no cause

of action would exist. It is therefore clear that since the instant case is

dependent upon the Wrongful Death Act for its very existence, the damages which

can be awarded are only those damages which would be allowable under Florida

Statutes 768.21.

Since the Wrongful Death Statute is applicable in the instant action, both

Donna and Henry Mogler's claims for past and future medical expenses in regard

to the psychiatric treatment received by them as a result of Michael Mogler's

death are specifically prohibited pursuant to the Fourth District Court of

Appeal's opinion in Wade v. Alamo Rent A Car, Inc., 510 So.2d 642 (Fla. 4th DCA

1987). Additionally, the damages claimed by Petitioners for Donna Mogler's past

and future lost wages are not cognizable under 768.21 and therefore are damages

that should not be awarded in the instant case.

Similarly, Petitioners' claim for the lost wages of Michael Mogler, the

decedent, are damages which are not awardable under the Wrongful Death Statute.

Indeed, the arbitrators' award of $388,272.00 to the Estate of Michael Mogler

for the alleged loss of wages creates a windfall to the Estate of Michael Mogler

in two respects. First of all, these damages are clearly not damages allowable

under the Wrongful Death Act. Secondly, in reaching the figure awarded for

these lost wages, the arbitrators did not reduce the amount of lost earnings by

the amount of support and services Michael Mogler would have consumed in

providing himself the basic physical necessities of surviving throughout his

lifetime. Consequently, the Estate of Michael Mogler, under the current

arbitration award, received a tremendous windfall. It is precisely this sort of

windfall that the Legislature sought to avoid in creating the Wrongful Death

Statute. Consequently, no award of damages for the wage loss of Michael Mogler

should have been contained within the arbitration award.

Additionally, the arbitration award, in awarding past and future loss of

support and services to both Henry and Donna Mogler is contrary to the

requirements set forth in the Florida Supreme Court decision of U.S. v. Dempsey

for the award of such damages. U.S. v. Dempsey, 635 So.2d 961 (Fla. 1994).

According to the Dempsey decision, in order to be entitled to an award of loss

of support and services for a minor child, a parent must show some extraordinary

income producing ability for the child prior to the injury. Id. at 965. In the

instant case, Petitioners made absolutely no showing that Michael Mogler had any

such extraordinary income producing ability. Instead, the sole testimony in

regard to these elements of damages were that Michael Mogler would have

contributed to the family by doing such routine things as taking out the trash.

Consequently, the award of past and future loss of support and services is

directly contrary to both the Wrongful Death Statute and the Supreme Court's

prior precedent.

For all of the preceding reasons, I dissent from the arbitration award

rendered in the instant case and instead would have awarded the following

damages in the instant case:

A. Noneconomic damages to the Estate of Michael Mogler -

$250,000.00;

B. Funeral bills to the Estate of Michael Mogler -

$1,756.00;

C. Cemetery lot to the Estate of Michael Mogler - $250.00;

D. Funeral home to the Estate of Michael Mogler - $1,072.00;

E. Medical bills to the Estate of Michael Mogler -

$5,084.00.

Total $258,162.00

F. Attorneys' fees and costs - $38,724.30.

Total Arbitration Award $296,886.30

DATED: 06/17/96

ADAMS, HILL, REIS, ADAMS,

HALL & SCHIEFFELIN

1417 East Concord Street

Suite 101

Orlando, Florida 32803

[phone]

FAX-896-9236

By:_________________________

JANET W. ADAMS

Arbitrator

FLORIDA BAR No. 398845

JWA/ps

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FINAL ARBITRATION AWARD

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STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HENRY E. MOGLER and )

DONNA L. MOGLER, )

)

Claimants, )

)

vs. ) CASE NO. 95-5199MA

)

DIRK FRANZEN, M.D., )

)

Respondent. )

_______________________________)

FINAL ARBITRATION AWARD

The final arbitration hearing in this case was held before Richard Hixson,

Chief Arbitrator, Janet Adams, Arbitrator, and Christian D. Searcy, Arbitrator,

on June 3rd and 4th, 1996 in West Palm Beach, Florida.

APPEARANCES

For Claimants: Lake Lytal, Jr., Esquire

Post Office Box 4056

West Palm Beach, Florida 33402

For Respondents: Eugene L. Ciotoli, Esquire

Armando T. Lauritano, Esquire

Esperante, Sixth Floor

222 Lakeview Avenue

West Palm Beach, Florida 33401

AWARD

At the conclusion of the arbitration hearing, the following award was

agreed to by the undersigned arbitrators and announced pursuant to Section

766.207, Florida Statutes.

1. HENRY E. MOGLER

a. for non-economic damages

(past and future): $250,000.00

b. past medical expenses: $ 9,125.00

c. future medical expenses: $ 29,750.00

d. past wage loss: $ 0

e. loss of services: $ 2,521.00 (past)

$ 5,429.00 (future)

2. DONNA L. MOGLER

a. for non-economic damages

(past and future): $250,000.00

b. past medical expenses: $ 46,593.00

c. future medical expenses: $ 46,000.00

d. past wage loss: $ 57,636.00

e. future wage loss: $304,189.00

f. loss of services: $ 2,521.00 (past)

$ 5,429.00 (future)

3. ESTATE OF MICHAEL GLENN MOGLER

a. for non-economic damages

(past and future): $ 0

b. funeral bills: $ 1,756.00

c. cemetery lot: $ 250.00

d. funeral home: $ 1,072.00

e. medical bills: $ 5,084.00

f. wage loss of Michael Mogler: $388,272.00

TOTAL $1,405,627.00

4. HENRY E. MOGLER and DONNA L. MOGLER:

a. for attorneys' fees and costs:

$210,844.05

In addition to the foregoing, Defendant is to pay the costs associated with

the arbitration proceeding: the fees of the arbitrators, other than the Chief

Arbitrator, and the cost of the court reporter.

The arbitration award was announced at the conclusion of the arbitration

hearing. The award of future economic damages shall be paid in ten (10) equal

installments over ten (10) years.

The arbitration award was agreed to by the Chief Arbitrator and Arbitrator

Christian Searcy. Arbitrator Janet Adams did not concur with the arbitration

award, and has filed a dissent.

DONE and ORDERED this 27th day of June, 1996, in Tallahassee, Florida.

___________________________________

RICHARD HIXSON, Chief Arbitrator

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

___________________________________

CHRISTIAN D. SEARCY

Arbitrator

Post Office Box 3626

West Palm Beach, Florida 33402

(unsigned)

___________________________________

JANET ADAMS

Arbitrator

1417 East Concord Street, Suite 101

Orlando, Florida 32803-5456

COPIES FURNISHED:

Eugene L. Ciotoli, Esquire

BOBO, SPICER, CIOTOLI, FULFORD

BOCCHINO, DEBEVOISE and LE CLAINCHE

Esperante, Sixth Floor

222 Lakeview Avenue

West Palm Beach, Florida 33401

Joe Reiter, Esquire

LYTAL and REITER

Post Office Box 4056

West Palm Beach, Florida 33402-4056

Christian D. Searcy, Esquire

SEARCY, DENNEY, SCAROLA,

BARNHART and SHIPLEY, P.A.

Post Office Box 3626

West Palm Beach, Florida 33402-3626

Janet Adams, Esquire

1417 East Concord Street, Suite 101

Orlando, Florida 32803-5456

Jay Cohen, Esquire

4000 Hollywood Boulevard, Suite 602N

Hollywood, Florida 33021

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MOTION FOR CLARIFICATION AND TO CORRECT CLERICAL

MISTAKE IN FINAL ARBITRATION AWARD

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STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HENRY E. MOGLER and DONNA L.

MOGLER,

Petitioners,

vs Case No. 95-5199MA

DIRK FRANZEN, M.D.,

Respondent.

_____________________________/

MOTION FOR CLARIFICATION AND TO CORRECT CLERICAL

MISTAKE IN FINAL ARBITRATION AWARD

COME NOW the Petitioners, HENRY E. MOGLER and DONNA L. MOGLER, and move the

arbitrators to clarify their Final Arbitration Award by correcting an apparent

clerical mistake contained in the Award and as grounds therefor state as

follows:

1. The Final Arbitration Award was entered on June 27, 1996. Pursuant to

60Q-3.024(7), the Award is not yet a final agency action.

2. Petitioners' economist, Bernard Pettingill, testified as to

Petitioners' future economic damages. Dr. Pettingill provided the arbitrators

with the present money value of each future economic loss as of the date of the

hearing, June 3, 1996. Present money value represents the amount of money

Petitioners would have to receive and prudently invest to compensate them for

their future economic losses. Additionally, Dr. Pettingill provided the

Arbitrators with the amounts of future economic losses as they would occur in

future years.

3. Section 766.207(7)(c), Florida Statutes, requires future economic

losses to be paid by periodic payments. Damages awarded which are to be paid in

the future should not be reduced to present money value because the Respondent,

rather than the Petitioners, have the money to invest until the payment is made.

4. At the conclusion of the arbitration hearing, the arbitrators announced

that a majority of the arbitrators were going to award the Petitioners all of

the future economic damages claimed during the course of the hearing. In the

Final Arbitration Award, claimants were awarded the present money value of the

future economic damages as of June 3, 1996. However, Respondent was given ten

(10) years to pay these damages in equal annual installments. By using the

present money value of the future economic damages as a basis of the award and

giving the Respondent ten (10) years to pay the damages, the arbitrators

significantly reduced Petitioners' award.

5. It is believed the above represents a clerical error and that the

arbitration majority had no intention of, in effect, awarding Petitioners less

than the present money value of Petitioners' future economic damages. Absent a

stipulation from Respondent to accept an award based upon present money value,

the Arbitration Award should have reflected the full value of future economic

damages for each future year rather than reducing the future damages to present

money value.

6. Petitioners have attached as Exhibit "A" an Affidavit from Bernard

Pettingill verifying the Final Arbitration Award reduces Petitioners recovery

below present money value and sets forth the correct amounts which should have

been awarded Petitioners for future economic damages to be paid in ten equal

installments over ten years.

WHEREFORE, Petitioners request that the Arbitrators clarify their award and

correct the clerical mistake made by reducing the future economic damages to

present money value and then providing Respondent ten years to pay the damages

which constitutes a double reduction of Petitioners' damages.

IT IS HEREBY CERTIFIED that a true and correct copy of the foregoing was

mailed to Richard Hixson, Hearing Officer, Division of Administrative Hearings,

The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550;

EUGENE L. CIOTOLI, ESQUIRE, Bobo, Spicer, Ciotoli, Fulford, Bocchino, DeBevoise

& LeClainche, Esperante, Sixth Floor, 222 Lakeview Avenue, West Palm Beach,

Florida 33401; Christian D. Searcy, Esquire, Searcy, Denney, Scarola, Barnhart

& Shipley, P.A., P.O. Box 3626, West Palm Beach, FL, 33402, Janet Adams,

Esquire, Adams, Hill, Reis, Adams, Hall & Schieffelin, 1417 East Concord Street,

Suite 101, Orlando, Florida 31803; Jay Cohen, Esquire, 4000 Hollywood

Boulevard, Suite 602N, Hollywood, Florida 33021, and JEFFREY M. LIGGIO,

ESQUIRE, 213 Southern Boulevard, West Palm Beach, Florida 33405; and MARK

HICKS, ESQUIRE, Anderson & Blum, 100 North Biscayne Blvd., Suite 2402, Miami,

Florida 33132-2306 this 19th day of July, 1996.

_______________________________

LAKE LYTAL, JR. ESQUIRE

LYTAL, REITER, CLARK, SHARPE,

ROCA, FOUNTAIN & WILLIAMS

Post Office Box 4056

West Palm Beach, Florida 33402

[phone]

Attorneys for Petitioners

G: \\JJR\\MOGLER\\MTN-CLAR

Exhabit A

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HENRY E. MOGLER and DONNA L.

MOGLER,

Petitioners,

vs Case No. 95-5199MA

DIRK FRANZEN, M.D.,

Respondent.

_____________________________/

AFFIDAVIT

STATE OF FLORIDA )

COUNTY OF PALM BEACH)

BEFORE ME, personally appeared BERNARD F. PETTINGILL, JR., PH.D., who, duly

sworn under oath, deposes and states:

1. I am an economist and provided economic testimony at the final hearing

in the above matter.

2. I have reviewed the Final Arbitration Award dated June 27, 1996.

3. Each of the awards for future economic damages contained in the Final

Arbitration Award represents the present money value of the respective

survivors' claims for future economic damages as of June 3, 1996.

4. The present money value of the future economic losses represents the

amount of money necessary to award each survivor so the survivor could invest

the award and have sufficient funds to compensate the survivor for future

economic losses.

5. By awarding Petitioners the present money value of the future economic

damages, but allowing the respondent to pay the damages in ten equal, annual

installments over ten years, the Respondents, rather than the Petitioners, will

have the use of the money. The effect of this award is to further reduce the

present money value of Petitioners' future economic damages. The present money

value of the award of future economic damages to be paid over ten years as

stated in the Final Arbitration Award is $564,001.00. Receipt of the award over

ten years will not provide Petitioners with sufficient funds to compensate them

for the future economic damages intended to be awarded by the arbitrators.

6. An award for future economic damages to be paid by periodic damages

should not be reduced to present money value since the Respondent, rather than

the Petitioners, has use of the money. An award of future periodic payments

should be for the full value of the future damage on the date it is to be paid

by Respondent. To award Petitioners all of the claimed future economic damages

as announced at the conclusion of the final hearing over a ten-year period, the

Final Arbitration Award for future economic damages should have been as follows:

A. HENRY E. MOGLER - (future medical expenses and future

loss of services)

1. Payable 6/27/1997 $ 3,517.00

2. Payable 6/27/1998 $ 3,851.00

3. Payable 6/27/1999 $ 4,217.00

4. Payable 6/27/2000 $ 4,618.00

5. Payable 6/27/2001 $ 5,056.00

6. Payable 6/27/2002 $ 5,537.00

7. Payable 6/27/2003 $ 6,063.00

8. Payable 6/27/2004 $ 6,639.00

9. Payable 6/27/2005 $ 7,269.00

10. Payable 6/27/2006 $ 7,989.00

B. DONNA L. MOGLER - (future medical expenses, future

wage loss and future loss of

services)

1. Payable 6/27/1997 $ 30,961.00

2. Payable 6/27/1998 $ 35,903.00

3. Payable 6/27/1999 $ 37,124.00

4. Payable 6/27/2000 $ 40,652.00

5. Payable 6/27/2001 $ 44,515.00

6. Payable 6/27/2002 $ 48,744.00

7. Payable 6/27/2003 $ 53,876.00

8. Payable 6/27/2004 $ 58,448.00

9. Payable 6/27/2005 $ 64,002.00

10. Payable 6/27/2006 $ 70,124.00

C. ESTATE OF

MICHAEL GLENN MOGLER - (future wage loss of Michael

Mogler)

1. Payable 6/27/1997 $ 38,827.00

2. Payable 6/27/1998 $ 42,516.00

3. Payable 6/27/1999 $ 46,556.00

4. Payable 6/27/2000 $ 50,980.00

5. Payable 6/27/2001 $ 55,824.00

6. Payable 6/27/2002 $ 61,128.00

7. Payable 6/27/2003 $ 66,937.00

8. Payable 6/27/2004 $ 73,297.00

9. Payable 6/27/2005 $ 80,262.00

10. Payable 6/27/2006 $ 87,923.00

7. The Final Arbitration Award correctly stated the present money value of

the total future economic damages was $1,405,627.00 as of June 3, 1996. The

only purpose served by the present money value under 766.207, F.S., is to

determine the award of attorneys' fees and costs which have been correctly

calculated in the Final Arbitration Award.

FURTHER AFFIANT SAYETH NAUGHT.

_________________________________

BERNARD F. PETTINGILL, JR., PH.D.

Sworn to and subscribed before

me this 19th day of July, 1996

______________________________

Notary Public, State of Florida

at Large

My Commission Expires: KENNETH O. DISHMAN

MY COMMISSION # CC 502092

EXPIRES: October 16, 1999

Bonded Thru Notary Public Underwriters

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CHIEF ARBITRATOR'S ORDER DENYING MOTION FOR CLARIFICATION

AND TO CORRECT CLERICAL ERROR IN FINAL ARBITRATION AWARD

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STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HENRY E. MOGLER and DONNA L.

MOGLER,

Petitioners

vs. CASE NO. 95-5199MA

DIRK FRANZEN, M.D.,

Respondent.

_______________________________/

ORDER DENYING MOTION FOR

CLARIFICATION AND TO CORRECT

CLERICAL ERROR IN FINAL ARBITRATION AWARD

THIS CAUSE came before the undersigned Chief Arbitrator on Petitioners'

motion filed July 23, 1996, to clarify and correct the Final Arbitration Award

entered on June 27, 1996. The Notice of Appeal of the Final Arbitration Award

was filed on July 11, 1996. Accordingly, jurisdiction of the matters raised in

Petitioners' motion is vested with the District Court of Appeal. Kelly v. Staff

Builders, 603 So.2d 1, (Fla. DCA 1992); M. A. D. v. State, 647 So.2d 260 (Fla.

1st DCA 1994); Amlan, Inc. v. Detroit Diesel Corp., 651 So.2d 701 (Fla. 4th DCA

1995). Upon consideration, Petitioners' Motion for Clarification and to Correct

the Final Arbitration Award is DENIED.

DONE AND ORDERED this 8th day of August, 1996, in Tallahassee, Florida.

___________________________________

RICHARD HIXSON

Chief Arbitrator

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of August, 1996.

COPIES FURNISHED:

Lake Lytal, Jr., Esquire

Lytal, Reiter, Clark, Sharpe

Roca, Fountain & Williams

Post Office Box 4056

West Palm Beach, Florida 33402

Eugene L. Ciotoli, Esquire

Bobo, Spicer, Ciotoli, Fulford, Bocchino

DeBevoise & LeClainche, Esperante

222 Lakeview Avenue, Sixth Floor

West Palm Beach, Florida 33401

Christian D. Searcy, Esquire

Searcy, Denney, Scarola, Barnhart & Shipley, P.A.

Post Office Box 3626

West Palm Beach, Florida 33402

Janet Adams, Esquire

Adams, Hill, Reis, Adams,

Hall & Schieffelin

1417 East Concord Street, Suite 101

Orlando, Florida 31803

Jay Cohen, Esquire

4000 Hollywood Boulevard, Suite 602N

Hollywood, Florida 33021

Jeffrey M. Liggio, Esquire

213 Southern Boulevard

West Palm Beach, Florida 33405

Mark Hicks, Esquire

Hicks, Anderson & Blum

100 North Biscayne Boulevard, Suite 2402

Miami, Florida 33132-2306