9-2 Compensatory Damages

• Jurisdiction: United States

9-2 Compensatory Damages

The Florida Supreme Court has stated that "the central policy of all tort law is to place a person in a position nearly equivalent to what would have existed had the defendants' conduct not breached a duty owed to plaintiffs, thereby causing injury."³ This central policy also applies in a legal malpractice case. Where "an attorney's negligence in prosecuting a suit resulted in the loss of the client's claim, the value of the lost claim (i.e., the amount that would have been recovered by the client except for the attorney's negligence) is a proper element of damages."⁴

9-2:1 Speculative Damages

A legal malpractice client must prove the quantum of his or her damages with reasonable certainty.⁵ In Meadows v. English, McCaughan & O'Bryan, P.A.,⁶ the value of stock that had not been received in a timely fashion was at issue. The trial court limited damages to the monies paid for the stock. The client sought "benefit of the bargain damages."⁷ On appeal, the court denied such damages as speculative.⁸

In Kurtz v. Young,⁹ the former client had purchased two adjoining lots expecting to build a single residence on them. He later learned that plat restrictions would prevent him from doing so. In the malpractice suit, he claimed he would not have purchased the second lot for $7 million had he known he could not utilize both lots. The law firm moved for summary judgment on the ground that the former client's damages were speculative. The court denied the motion and wrote:

The possible existence of all of these potential elements of damage and the precise amount of each are questions to be resolved by the factfinder at trial. Their resolution at this stage would be both premature and unnecessary. To resolve this motion, it is sufficient to note that there are genuine issues of material fact regarding the elements of Kurtz's malpractice claim, including the amount of the loss Kurtz suffered from the alleged malpractice, that preclude the entry of summary judgment. Defendants' motion, to the extent it is based on Kurtz's inability to prove damages, must therefore be denied.¹⁰

In Bill Branch Chevrolet, Inc. v. Philip L. Burnett, P.A.,¹¹ the client claimed that its attorney's inadequate trial preparation left it with no choice but to settle the plaintiff's claim for more than it was worth. In reversing summary judgment for the lawyer, the appellate court observed, "Whether the appellant can prove damages beyond speculation is an issue for the trial of fact."¹²

9-2:2 Set-Offs

Set-offs are sometimes available to defendants in legal malpractice cases.¹³

The former client in Kay v. Bricker¹⁴ fractured a tooth while biting into a hamburger at a Lum's restaurant. He settled with the meat supplier and its insurer before suing his lawyer for failing to timely sue the proper Lum's entity. Evidence of the prior settlement was excluded from the malpractice trial. After a jury verdict was rendered against the lawyer, the trial court refused a set-off for the monies...