The Wrongful Act Doctrine: Recovering Third-Party Litigation Expenses as Damages
By Kluger Kaplan February 29, 2016
Authored by James Diamond and Richard I. Segal
Florida follows the “American Rule” on the entitlement to attorney’s fees, in that attorney’s fees generally are not recoverable as an element of damages in the absence of statutory authority or a contractual agreement. However, civil litigators throughout Florida should be aware of a powerful yet somewhat unknown exception to that general rule – the Wrongful Act Doctrine.
The Wrongful Act Doctrine permits “a plaintiff to recover third-party litigation expenses as special damages where the defendant’s wrongful act caused the plaintiff to litigate with a third party.” More specifically, the Doctrine provides that “[w]here the wrongful act of the defendant has involved the claimant in litigation with others, and has placed the claimant in such relation with others as makes it necessary to incur expenses to protect its interests, such costs and expenses, including reasonable attorney’s fees upon appropriate proof, may be recovered as an element of damages.”
How does a claimant effectively take advantage of the Doctrine? First and most importantly, when pursuing a claim for attorney’s fees under the Doctrine, the claimant must make sure to specifically plead entitlement to such damages in the Complaint. Failure to specifically plead entitlement to attorney’s fees under the Doctrine constitutes a waiver of entitlement to those fees. For example, in Robbins v. McGrath, the First DCA held that the plaintiff waived its claim for attorney’s fees under the Wrongful Act Doctrine where the plaintiff first requested such fees immediately before trial in its trial brief and memorandum of law.
Second, the claimant must establish that the defendant engaged in a genuinely wrongful act —i.e. a crime, fraudulent act or tort will suffice. Third, the claimant must establish that the defendant’s bad act caused the claimant to needlessly be forced into litigation with a “third party.” A party may not utilize the Doctrine in order to recover attorney’s fees incurred in litigating an action against the actual wrongdoer. Rather, under the Doctrine, the claimant may only recover the reasonable expenses incurred in the primary litigation created by the wrongful acts of another.
To conclude, the Wrongful Act Doctrine is a potential source of recoverable fees that all Florida civil litigators should keep in mind from the onset of litigation. In a time where many people are either unable or reluctant to pay for the high cost of legal fees, the Wrongful Act Doctrine may provide another lucrative avenue for civil litigators to ensure that they are adequately compensated for the services that they perform.
Robbins v. McGrath, 955 So. 2d 633 (Fla. 1st DCA 2007).
Winselmann v. Reynolds, 690 So. 2d 1325, 1328 (Fla. 3d DCA 1997).
North American Van Lines, Inc. v. Roper, 429 So.2d 750, 752 (Fla. 1st DCA 1983).
Fla. R. Civ. P. 1.120(g).
Robbins, 955 So. 2d at 634.
Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242, 1261(11th Cir. 2014).
City of Tallahasee v. Blankenship & Lee, 736 So. 2d 29 (Fla. 1st DCA 1999).
Auto-Owners v. Hooks, 463 So. 2d 468, 478 (Fla. 1st DCA 1985).