ERROR TO REVERSE JUDGMENT FOR PLAINTIFF FOR NEW TRIAL BASED ON CLAIM OF IMPROPER ARGUMENT WHERE DEFENDANT FAILED TO ADVANCE THAT AS SPECIFIC GROUND FOR OBJECTION DURING TRIAL

Aills v. Boemi, 35 Fla. L. Weekly S137 (Fla. February 25, 2010):

In this medical malpractice case arising out of breast reconstruction surgery gone wrong, a jury (somewhere in the Second District), awarded the plaintiff $8,250,000.  The doctor had moved for a JNOV or for a new trial, and further sought a remittitur of the various jury awards.  The trial court granted the remittitur on certain elements, but rejected it on the awards for non-economic damages.  The trial court ordered a new trial on damages only, and the plaintiff appealed.  The doctor cross-appealed.

On cross-appeal, the doctor raised the issue of improper closing argument as an issue.  The Second District had reversed based on those improper closing arguments made by plaintiff’s counsel.  However, the supreme court reversed, because the doctor had failed to advance the specific ground of the objection relied upon by the district court for reversal.

The supreme court explained that while defendant had objected when plaintiff’s counsel began to argue that the doctor failed to provide the plaintiff with appropriate post-operative care, defendant’s expert objection was that the remarks were improper, because there was no basis in the record that the post-operative care was negligent or would have made a difference.  The Second District then concluded that the issue of post-operative negligence had neither been pled in the complaint nor tried by consent and therefore the argument was improper. 

The supreme court reminded us that proper preservation for error for appellate review requires three components:  (1) a timely contemporaneous objection at the time of the alleged error; (2) a legal ground for the objection; and (3) that the argument made on appeal reflects the specific contention asserted as the legal ground for the objection.  While no magic words are required to make a proper objection, it must be sufficiently specific to inform the court of the perceived error.

The supreme court then found that the defendant’s objection did not properly articulate his concern that post-operative negligence had not been pled, or tried with the requisite specificity to inform the trial court of the perceived error.  The supreme court found defendant’s objection to the closing remarks was directed solely at the insufficiency of the evidence.  Accordingly, the court concluded that the Second District erred in reversing for a new trial on the basis of grounds not presented and reversed for entry of judgment based on the jury’s verdict. 

ATTORNEY NOT LICENSED TO PRACTICE IN FLORIDA WHO DID NOT COMPLY WITH RULES WHICH WOULD PERMIT HIM TO PRACTICE IN ASSOCIATION WITH A FLORIDA LAWYER WAS NOT ENTITLED TO COLLECT QUANTUM MERUIT VALUE OF HIS FEE PROVIDED IN A FLORIDA PROBATE AND TRUST MATTER – IT VIOLATES PUBLIC POLICY FOR A COURT TO AWARD A FEE EVEN IN QUANTUM MERUIT, FOR THE UNLICENSED PRACTICE OF LAW

Morrison v. West, 35 Fla. L. Weekly D391 (Fla. 4^th DCA February 17, 2010).

TRIAL COURT DEPARTED FROM ESSENTIAL REQUIREMENTS OF LAW IN DENYING HOSPITAL’S MOTIONS FOR PROTECTIVE ORDER AND TO QUASH SUBPOENA DUCES TECUM, WHERE PLAINTIFF SERVED SUBPOENAS TO HOSPITAL PERSONNEL ON THE SAME DAY THE NOTICE OF INTENT WAS SERVED ON THE HOSPITAL – PLAINTIFFS CANNOT OBTAIN RECORD DISCOVERY PRIOR TO THE COMPLETION OF THE STATUTORILY REQUIRED INFORMAL DISCOVERY

Variety Children’s Hospital d/b/a Miami Children’s Hospital v. Boice, 35 Fla. L. Weekly D406 (Fla. 3^rd DCA February 17, 2010):

Pursuant to §766.106, plaintiff served a notice of intent on their deceased child’s treating physician and medical association.  Six months later, they filed an amended complaint naming the hospital as a defendant.  The trial court dismissed for failure to comply with pre-suit.  Plaintiffs then served a statutory notice of intent on the hospital.  However, on the same day, they also served a notice to produce documents and a subpoena duces tecum for videotaped depositions of numerous hospital personnel.  The hospital moved for protective order and to quash the subpoenas on the grounds that pre-suit had not been completed.  The trial judge denied those motions. 

The Third District issued a writ of certiorari.  Even though the complaint against the doctor involved the same issues relevant to the impending suit against the hospital, because the hospital was not yet a party to the action, the plaintiffs were not entitled to take discovery from the hospital pursuant to the rules. 

COVERAGE PROVIDED UNDER POLICY, WHERE INSURER’S BANK RECEIVED INSURED’S ELECTRONIC PAYMENT FILE BEFORE CANCELLATION DATE, EVEN THOUGH THERE WAS A DELAY IN DEPOSIT OF PAYMENT INTO INSURER’S BANK DUE TO PROCESSING DELAY BY THE BANK

Nationwide Mutual Fire Insurance v. Smith, 35 Fla. L. Weekly D419 (Fla. 1^st DCA February 18, 2010):

The trial court granted summary judgment in favor of the insured, concluding that the insurance company had to provide insurance coverage on the date of the insured’s automobile accident, because the insured had paid his overdue premium before the effective cancellation date of the policy.

The insurance company provided the insured with a grace period which allowed the insured to avoid cancellation if he made the overdue premium payment before a certain date.  The trial court concluded that because the last day of the grace period fell on a Sunday, the payment deadline was extended to the next business day, under the Florida Rule of Procedure. 

The court corrected the trial court’s reasoning, finding the only applicable statute was §627.728(3)(a), which requires an insurer to give its insured ten days notice before cancelling a policy for non-payment of a premium.  Because the statute does not require the insurer to allow the insured to make an overdue payment before the cancellation date to avoid cancellation, the time computation provisions of Rule 1.090(a) were not applicable.

By extending the payment deadline to the next business day, the trial court stacked “grace” upon “grace,” which cannot be done by implication in contract law.

However, even if the payment deadline was not extended, summary judgment was proper because the bank had received the electronic payment before the cancellation date, and the delay in the deposit was the bank’s doing. 

TRIAL COURT ABUSED DISCRETION BY ALLOWING NURSING HOME TO INTRODUCE OPINION TESTIMONY BY DECEDENT’S PHYSICIAN THAT NURSING HOME WAS NOT NEGLIGENT

Estate of Murray v. Delta Health Group, 35 Fla. L. Weekly D425 (Fla. 2^nd DCA February 19, 2010):

A resident of a nursing home died and his personal representative sued the nursing home for negligence. 

The trial court had allowed portions of the decedent’s doctor’s deposition to be read, where the doctor opined that the nursing home was not negligent in its care of the decedent.  Plaintiff argued that the physician was an expert who should not have been permitted to render an opinion that applied a legal standard to the facts of the case, and that his testimony invaded the province of the jury.

The nursing home had used the doctor’s deposition to impeach him during his cross exam.  Plaintiff objected it was not proper to have the doctor opine as to whether someone was negligent, but the trial court overruled him finding the doctor was an expert.

The court noted that both parties saw this physician as a “expert.”  While experts may render opinions on the ultimate issue in the case, they are not permitted to render opinions that apply legal standards to a set of facts.  Experts cannot be permitted to testify regarding legal conclusions so that the jury can be free to reach conclusions independently from the facts presented.  It was error to allow the nursing home to introduce the doctor’s opinion over objection that the nursing home was not negligent.  The court reversed for a new trial.

*Available to handle appellate and trial support matters for attorneys throughout the state.

A PARTY’S UNSUPPORTED “BAD FEELING” ABOUT A JUROR IS NOT A SUFFICIENT EXPLANATION TO REBUT THE ASSERTION THAT THE STRIKE WAS MOTIVATED BY GENDER

Johnson v. State, 35 Fla. L. Weekly D321 (Fla. 2^nd DCA February 10, 2010):

After seating an entire jury of women, the State moved to strike the last juror, who was a man.  As part of the analysis, the court looked at the strike side-by-side, and found that both the defense and the State had struck several males and females (respectively).

However, the defendant alleged that the last juror belonged to a specific gender group, and requested a gender-neutral reason to support the strike.  The State responded it “didn’t get a good feeling” for the juror and “had a bad feeling.”  Based on the composition of the jury that had been seated, the court allowed the juror to serve. 

The appellate court reversed for a new trial.  It found that a party’s unsupported “bad feeling” about a juror is not a sufficient explanation to rebut the assertion that the strike was motivated by gender.  It was also improper for the court to consider the overall make up of the jurors that have been seated, to determine the sufficiency of a gender-neutral reason for a peremptory strike.  A gender-neutral justification cannot be inferred from the composition of the panel.  Because the state’s reason was insufficient, the trial court erred in sustaining the State’s use of the peremptory strike. 

A VALID REPORT UNDER §627.736(7)(a) DOES NOT REQUIRE AN INSURER TO ORDER AN IME BEFORE DENYING A CLAIM FOR PIP BENEFITS

United Automobile Insurance Co. v. Hollywood Injury Rehab Center, 35 Fla. L. Weekly D334 (Fla. 4^th DCA February 10, 2010).

RULE 1.540 AUTHORIZES TRIAL COURTS TO VACATE FINAL JUDGMENTS BECAUSE OF NEGLIGENT MISTAKES BUT NOT FOR JUDGMENTAL MISTAKES OR TACTICAL ERRORS

Hermitage Insurance Co. v. Oxygen In The Grove, 35 Fla. L. Weekly D342 (Fla. 3^rd DCA February 10, 2010):

Plaintiff sued a night club, for injuries he sustained at the hands of the bouncers.  The club forwarded the complaint to its insurance company, demanding a defense.  The company denied coverage on the basis that the complaint alleged intentional tort and assault and battery.  The club resolved the dispute in voluntary binding arbitration (after hiring its own lawyer).  The award expressly found the club negligent.  At the plaintiff’s request, the trial court confirmed the award, and entered final judgment.

Seven months later, the plaintiff moved to amend the complaint to comport with final judgment.  The plaintiff then alleged for the first time, that the club was negligent in its care and treatment of the plaintiff, and that he was struck in the face by a door when one of the bouncers opened it.  The plaintiff sought leave to add the insurer as a defendant.  The trial judge denied the motion but lined through the ruling stating it was withdrawn and could be renewed.

Shortly after that, plaintiff filed an unsworn motion to vacate final judgment asserting that due to inadvertence or error, the arbitration award should not have been entered because the liability carrier should have been made a party to the claim.  The trial judge granted the motion, and later granted the insurer leave to intervene as a party and to file a dec action on the coverage issue.  The insurer appealed the order vacating the final judgment.

The court reversed.  It found that the motion to vacate was made pursuant to Rule 1.540, but that rule was not intended to spare counsel from tactical errors or mistakes.  Because the judgment was not entered based on oversight, neglect or accident, the motion vacating the final judgment was reversed.

WHERE DEFENDANT DENIED PLAINTIFF’S WORKER’S COMPENSATION CLAIM ON THE BASIS THAT PLANTIFF’S CONDITION WAS NOT THE RESULT OF AN INJURY BY AN ACCIDENT ARISING OUT OF THE COURSE AND SCOPE OF EMPLOYMENT, DEFENDANT WAS ESTOPPED FROM RAISING WORK COMP DEFENSE

Masonry v. Gutierrez, 35 Fla. L. Weekly D342 (Fla. 3^rd DCA February 10, 2010):

Plaintiff sought work comp benefits from his employer for injuries sustained while lifting concrete blocks.  The carrier denied the claim, stating that the plaintiff’s condition was not a result of an injury by an accident arising out of the course and scope of the employment.  The carrier then raised work comp immunity as an affirmative defense and moved for summary judgment on that issue.  The trial court denied the summary judgment motion finding that it was not entitled to work comp immunity as a matter of law. 

An employer may be equitably estopped from raising a worker’s compensation exclusivity defense, if the employer denies the employee’s claim by asserting that the injury did not occur in the course and scope of her employment.  It is available only when the employer attempts to take inconsistent positions, which the insurer here did. 

As a result of the denial, the plaintiff dismissed his work comp claim, incurred medical expenses and filed a negligence action.  Because the record establishes the elements of estoppel (representation by the party estopped to the party claiming the estoppel as to a material fact which representation is contrary to the condition of affairs later asserted by the estopped party; (2) a reliance upon the representation by the party claiming the estoppel; and (3) a change in the position of the party claiming the estoppel to his detriment, caused by the representation and his reliance thereon), the trial court’s denial of summary judgment was affirmed.

SCHOOL NOT LIABLE FOR INJURIES SUFFERED BY A STUDENT IN AN AUTOMOBILE ACCIDENT THAT OCCURRED WHILE STUDENT WAS DRIVING CAR AFTER CONSUMING ALCOHOL AT END-OF-THE-YEAR PARTY AT A PRIVATE RESIDENCE

Archbishop Coleman F. Carroll High School v. Maynoldi, 35 Fla. L. Weekly D344 (Fla. 3^rd DCA February 10, 2010):

This case involves a parochial high school’s alleged liability after a 17 year-old consumed alcohol at a private party the school knew about at the end of the year at a private residence, and was seriously injured.  The party was to take place after final exams at a residence several miles away from the school.  On the morning before the party, the principal talked to the two brothers at whose home the party was to take place to ask them questions.  The principal also indicated he was going to attend the party, writing a skit for the students to illustrate his point.

The mother of the hosting students arrived home at the party sometime between 1:45 and 3:30, and the party began around 1.  While she called her husband, neither party called the police or tried to stop the party before the injured plaintiff drove away.

The plaintiff and his friend drank in his car for almost an hour before arriving at the party, between 2 and 2:30.  At 4, the principal and a school employee arrived at the party.  The principal testified he wanted to personally see that things were okay and make good on his threat to visit the home.  Nobody notified the police or called any parents.

Thirty to 45 minutes after the principal left, the plaintiff got in his car with his friend and drove away.  His vehicle struck a tree, killing the friend and catastrophically injuring the plaintiff.  He is now a quadriplegic suffering a traumatic brain injury.

The school’s parent and student handbook was admitted into evidence talking about outside parties and stating that the school would not be responsible for events not officially sanctioned by the school, though leaving room for interpretation.  There was also a substance abuse policy. 

At trial, the drug and alcohol defense arose.  The trial judge found the affirmative defense did not apply because his parents were the plaintiffs, and the statute applied to the “plaintiff.”  The court found such a statutory interpretation was absurd, and that the personal representative’s derivative claims apply with equal force to parents’ claims arising entirely from their minor child’s accident and injuries. 

The court concluded by finding that no one could feel but the deepest sympathy for the tragic result of this accident.  It acknowledged the school’s interception of the invitation, the skit it did in response (advising the party would be crashed) and the parent and student handbook provisions, as well as the principal’s visit to the residence while the party was underway made the case interesting.  Still, the court concluded that those circumstances were insufficient as a matter of law to impose upon the school a duty to supervise or a duty under the undertaker’s doctrine regarding the plaintiff’s consumption of alcohol, attendance at the party and his fatal decision to get behind the wheel.

The court reversed and entered judgment for the school (55 million dollar verdict).

RULE 1.525 APPLIES (THE 30 DAY RULE) TO MOTIONS FOR ATTORNEY’S FEES WHEN THE TRIAL COURT HAS NOT DETERMINED ENTITLEMENT

Ramle International Corp. v. The Green’s Condominium, 35 Fla. L. Weekly D356 (Fla. 3^rd DCA February 10, 2010):

Rule 1.525 does not apply when the trial court has determined an entitlement to fees in its final judgment but reserves jurisdiction only to determine the amount.  In this case, the hearing was not held for 11 months but was still timely because entitlement was not in question.

WHEN PARTY IS SEEKING TO RECOVER PREVIOUSLY INCURRED ATTORNEY’S FEES AS AN ELEMENT OF DAMAGES IN A BREACH OF CONTRACT ACTION, IT IS NOT NECESSARY FOR THE PARTY TO PRESENT INDEPENDENT EXPERT TESTIMONY TO CORROBORATE THE REASONABLENESS OF THE FEES INCURRED IN THE UNDERLYING LAWSUIT

Seaworld v. Ace American Insurance Co., 35 Fla. L. Weekly D361 (Fla. 5^th DCA February 12, 2010):

The Fifth District certified conflict with the Third District’s decision in Seitlin v. Phoenix Insurance Co., 650 So. 2d 624 (Fla. 3^rd DCA 1994).

*Available to handle appellate and trial support matters for attorneys throughout the state.

CASE REVERSED AGAINST DEFENDANT WHO SOLD CRANE AND AGREED TO KEEP IT IN GOOD REPAIR – DEFENDANT CANNOT BE FOUND LIABLE FOR BREACH OF OBLIGATION IF PRODUCT NOT FOUND TO BE DEFECTIVE

Liebherr-America, Inc., etc. v. McCollum, 35 Fla. L. Weekly D297 (Fla. 3^rd DCA February 3, 2010):

The decedent was run over and killed by a huge mobile crane at the Port of Miami.  Although it neither designed, manufactured, or operated the crane at the time of the accident, nor did it own or control the property where the decedent was killed, the jury found defendant crane seller partially liable for the death.  Finding no legal basis for the liability, the court reversed for entry of judgment in the defendant’s favor. 

The defendant, Liebherr-America, was a seller and servicer of equipment.  Had the equipment contained a defect which rendered it unreasonably dangerous, this defendant could have been found  responsible.  However, when the jury found the crane was not defective at the time of sale, this defendant could not be responsible. 

Plaintiffs additionally asserted that defendant had an obligation to appropriately service the crane after its sale.  There was some evidence that one of the horns and another warning device was not operating properly.  However, the court found that fact alone could not give rise to liability in the absence of certain evidence:  (a) evidence that the asserted failure had occurred previously; and (b) that the defendant was on notice of such an impropriety and had been guilty in failing to repair it.  Additionally, because there was no showing that the failure of the horn had anything to do with the accident rendered such shortcomings incapable of being a legal cause of death. 

The court reminded us that there is no duty on the part of a seller or anyone in the distributive chain to warn of dangers presented by the product’s operation after it has passed from its control.  That duty lies either with the allegedly negligent operator of the crane, or on the owner of the property. 

ERROR TO DISMISS COMPLAINT WITH PREJUDICE WITHOUT INCLUDING EXPLICIT FINDINGS OF NON-COMPLIANCE IN ORDER AND WITHOUT CONSIDERING FACTORS SET FORTH IN KOZEL

Johnson v. Skarvan, 35 Fla. L. Weekly D302 (Fla. 5^th DCA February 5, 2010):

Despite the trial judge’s perception that plaintiff was non-compliant with the court’s orders, dismissal with prejudice is an extreme sanction reserved for those aggravating circumstances where a lesser sanction would fail to achieve a just result.  A trial court has discretion, after due consideration of the Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1993) factors, to dismiss a case but the dismissal order must contain explicit findings of willful non-compliance.  While the trial court may have been justified in dismissing the case, the lack of the requisite finding of willful non-compliance and failure to consider the Kozel factors required reversal. 

FAILURE TO RETURN UNEARNED PORTION OF RETAINER PAID TO DEFENDANT PSYCHOLOGIST TO CONDUCT CHILD CUSTODY EVALUATION AMOUNTS TO CIVIL THEFT – PREMATURE FILING OF COMPLAINT DID NOT LEAD TO PAYMENT OF TREBLE DAMAGE AMOUNT ANY WAY, AND DEFENDANT FAILED TO DEMONSTRATE PREJUDICE

McCormack v. Flens, 35 Fla. L. Weekly D308 (Fla. 2^nd DCA February 5, 2010):

Mr. McCormack paid a psychologist an $8,000.00 retainer to conduct a child custody evaluation in a divorce case.  The psychologist used $4,750.00 of the retainer, but refused to return the rest which had not been used. 

Mr. McCormack filed his amended complaint less than 30 days after the second civil theft demand letter was delivered to the psychologist.  Based on that, the trial court determined that a directed verdict had to be granted for the psychologist.  The court disagreed.  Because the doctor never paid the amended treble damage amount, he failed to demonstrate he was prejudiced by the premature filing.  The court also found there was evidence to support the jury’s verdict of civil theft. 

TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR DEFENDANT ON GROUND PLAINTIFF FAILED TO PRESENT EVIDENCE TO OVERCOME PRESUMPTION OF NEGLIGENCE IN REAR END COLLISION

Itiat v. Foskey, 35 Fla. L. Weekly D313 (Fla. 1^st DCA February 5, 2010):

The decedent died as a result of rear ending a tow truck on I-10 following a rain storm.  The trial court entered summary judgment in favor of the defendant based upon its determination that the plaintiff failed to provide evidence sufficient to overcome the presumption of negligence. 

The summary judgment was based on the trial court’s determination that the plaintiff failed to provide sufficient evidence to overcome the presumption.  The court explained there are three general categories of affirmative explanations that have been held to rebut the presumption of negligence: (a) an abrupt and arbitrary stop in a place where it could not reasonably be expected, or an unexpected change of lanes; (b) a mechanical failure that causes the rear driver to collide with the lead driver; or where (c) the lead vehicle is illegally and unexpectedly stopped. 

After reviewing the record and drawing inferences in favor of the plaintiff, the court found that whether the defendant had suddenly changed lanes and reduced his speed, and whether those actions caused the collision, did provide evidence to overcome the presumption, and therefore, summary judgment was improper. 

*Available to handle appellate and trial support matters for attorneys throughout the state.

FINAL SUMMARY JUDGMENT FOR INSURER REVERSED – CASE DISMISSED WITHOUT PREJUDICE FOR FAILING TO FILE SUFFICIENTLY SPECIFIC CIVIL REMEDY NOTICE

Fenderson v. United Automobile, 35 Fla. L. Weekly D235 (Fla. 4^th DCA January 27, 2010):

Plaintiff failed to file a sufficiently specific civil remedy notice to comply with §624.155(3)(a).  Because plaintiff still had time to comply with the statutory notice provision, the dismissal was reversed without prejudice for re-filing.

A HOSPITAL-BASED, BUT NON-CONTRACTED PROVIDER OF HEALTH CARE SERVICES TO THE SUBSCRIBERS OF AN HMO PLAN, MAY NOT BALANCE BILL SUBCRIBERS FOR UNPAID PORTION OF ITS STATEMENTS FOR MEDICAL SERVICES THAT HAVE NOT BEEN PAID BY THE HMO

Joseph Riley Anesthesia Associates v. Stein, 35 Fla. L. Weekly D257 (Fla. 5^th DCA January 29, 2010):

An anesthesia group provided services to patients in conjunction with their surgical procedures.  The group did not have a contractual agreement with Florida Healthcare regarding the amounts to be paid for medical services it provided to the subscribers of the Florida Healthcare HMO.

In light of §641.3154, a provider may not balance bill the subscriber even when the subscriber does not have a contract with the HMO.  While there may be a dispute over payment amounts for bills rendered for the services to subscribers of the HMO, that is a dispute to be resolved between the medical group and the HMO, and does not affect the patient.

ERROR TO ENTER FINAL JUDGMENT IN FAVOR OF PLAINTIFF WHERE HE FAILED TO PROVE CAUSATION ELEMENT OF CIVIL THEFT CLAIM – ALTHOUGH PLAINTIFF PROVED DEFENDANT LEFT PLAINTIFF’S LAW FIRM AND TOOK PAPER CLIENT FILES WITH HIM, AND ALSO PROVED DEFENDANT’S PARAMOUR ALTERED CERTAIN COMPUTER FILES, PLAINTIFF PRESENTED NO EVIDENCE TO PROVE THAT THEFT OF FILES CAUSED LOSS OF CLIENTS

Winters v. Mulholland, 35 Fla. L. Weekly D267 (Fla. 2^nd DCA January 29, 2010):

A lawyer left his firm and took many clients with him.  According to the court, the facts of the case were enough to make “any legal ethics professor cringe.”  The evidence showed that after working as an associate at their firm for over 15 years, the associate decided to leave.  The associate took at least one client file from the firm and copied it before returning it.  He simply took other files with him, rather than leaving them at the office.  The associate’s paramour and former paralegal hacked into the firm’s computer system and altered client contact data for some of the clients to make it more difficult for the firm to contact those clients (charming).  All of this was done when the associate knew he was leaving but had not told the firm of his plans.

After the associate left, the firm told him he was going to sue them.  The associate told clients that the other lawyer in the firm was retiring and no one would be available to handle their case.  The firm brought suit for civil RICO, federal RICO, civil theft, conversion, intentional interference with advantageous business relationship and an accounting after 12 of the firm’s most lucrative clients left.  For reasons not apparent from the record, after the close of all the evidence, the firm chose to submit only the civil theft claim to the jury.  The jury awarded the firm almost $800,000.00 in damages and $130,000.00 in attorney’s fees. 

While the firm did prove that a theft occurred, it presented no evidence to prove that the theft was connected with the loss of the clients and thus was the cause of the damages.  In other words, the firm presented no evidence that any client who chose to leave went with the other lawyer because he had a copy of their file.  The firm also failed to present any evidence to establish that any of the clients left because the associate told them that the firm’s lawyer was retiring.  In fact, many of the clients testified that they left because the associate was the one who was handling their case. 

The court rejected the law firm’s argument that the conduct of the associate was so repugnant that causation and damages should be presumed finding there was valid civil theft claim.

In this rather distasteful scenario, the court reversed for entry of final judgment in favor of the associate.

*Available to handle appellate and trial support matters for attorneys throughout the state.

PRIOR SIMILAR INCIDENT PROPERLY ADMITTED – REVERSED FOR NEW TRIAL ON UNSUPPORTED DAMAGES

Subaqueous Services v. Corbin, 35 Fla. L. Weekly D208 (Fla. 1^st DCA January 21, 2010):

A commercial crabber was a victim of a crash between his boat and a large pipeline that was submerged 2 to 8 inches below the surface of a water marker.  The collision threw the man to the ground significantly injuring his back. 

On the same day, a grade school friend of the plaintiff’s was working the same area as a commercial crabber, and around the same time, his boat also collided with the same pipeline.  On that date, the defendant was at work dredging canals in and around where the plaintiff was traveling. 

As part of the evidence at trial, plaintiff’s voc. rehab. testified that plaintiff’s earning capacity as a commercial fisherman was about $12.36 per hour or $25,790.00 annually.  The expert called the estimate conservative and found that the plaintiff was suited only to perform sedentary and light duty work to earn between $7.00 and $9.00 an hour or $15,000.00 to $18,000.00 annually.  His information was based on a series of compiled general statistics.

The court found there was no abuse of discretion in admitting the prior incident, because it was relevant to the existence of a dangerous condition, which the testimony supported defendant denied notice of.  Additionally, evidence of prior similar accidents at or near the same place are admissible if they are not too remote in time and similar, and there were numerous similarities between the testimony about the prior incident and plaintiff’s accident.

However, the court criticized the expert’s computation of damages based on the plaintiff’s tax returns showing an average net annual income of over just $11,000.00.  The expert explained that the tax returns did not reflect the extent of gross revenue in a cash-based business like fishing, but meanwhile the plaintiff alluded to unreported sources of income.  The court also criticized the information upon which the expert relied in reaching his conclusion about earning capacity.

Rather than limiting the inquiry to “fishing-related” occupations, the expert surveyed a broad range of vocations and used income statistics from occupational codes compiled by the U.S. Bureau of Labor Statistics which included managers in farming, forestry, animal breeding, etc.  Because the evidence supported that the plaintiff would only ever be a fisherman, these statistics were inapplicable.

The court also rejected the award for future medical expenses finding that there was no testimony to support the need for the future surgery which cost $30,000.00.  However, counsel suggested a value of $5.00 an hour for non-economic compensation ($1,231,000.00).  Though the defendant argued the award was “titantic,”, the court further found that it was not so inordinately large as to lack a reasonable relation to the damages proven.

FIFTH DISTRICT UPHELD DENIAL OF ATTORNEY’S FEES UNDER PROPOSAL FOR SETTLEMENT THAT FAILED TO DIFFERENTIATE BETWEEN ACTIVE AND PURELY VICARIOUS TORTFEASOR – CONCURRING JUDGE TAKES OPPORTUNITY, HOWEVER, TO POINT OUT THE FALLACY IN THE LAW

Andrews v. Mcpartland, 35 Fla. L. Weekly D214 (Fla. 5^th DCA January 22, 2010):

Citing to the supreme court’s decision in Lamb v. Matetzschk, 906 So. 2d 1037 (Fla. 2005), where the issue of vicarious liability was disputed, a concurring judge who felt bound by existing law, wrote to point out that it is unworkable to require differentiated proposals when vicarious liability is undisputed.  He further noted how requiring this could potentially wreak havoc with jury instructions and verdict forms and result in additional unnecessary litigation.  Still, because Lamb is the “law of the land,” he had to concur with the denial.

SUBMISSION OF FLAWLESS DISCLOSURE AND ACKNOWLEDGMENT FORM TO BE COMPLETED AND FURNISHED TO INSURER UPON INITIAL TREATMENT, NOT CONDITION PRECEDENT TO RIGHT OF ACCESS TO COURTS TO RECOVER UNPAID CLAIMS IN PIP CASES

Florida Medical and Injury Center v. Progressive, 35 Fla. L. Weekly D215 (Fla. 5^th DCA January 22, 2010).

*Available to handle appellate and trial support matters for attorneys throughout the state.

JURY VERDICT FINDING THAT DEFENDANT BREACHED CONTRACT BUT AWARDING NO DAMAGES WAS NOT A COMPROMISE VERDICT REQUIRING A NEW TRIAL, WHERE JURY COULD HAVE REASONABLY CONCLUDED THAT PLAINTIFF SUSTAINED ZERO DAMAGES

Smith v. Florida Healthy Kids Corp., 35 Fla. L. Weekly D155 (Fla. 4^th DCA January 13, 2010):

Plaintiff brought a breach of contract case against his insurer for failure to pay health insurance benefits under his health policy.  The case proceeded to trial seeking the amount of unpaid medical bills incurred by the plaintiff as a result of injuries he sustained after being shot several times by a police officer.  The health insurer denied coverage based on a felony exclusion, and also contested the amount of damages including the total amount of medical bills and whether the plaintiff was owed anything under the policy.

Plaintiff asserted that the zero verdict was the result of a “compromise” requiring a new trial.  The court pointed out that there is a difference between a compromise verdict and an inconsistent verdict.  The court explained that a compromise verdict results from the combination of two factors:  (1) hotly contested liability; (2) a legal inadequacy of damages.

A compromise verdict is one reached only by the surrender of conscientious convictions upon a material issue by some jurors in return for a relinquishment of others.  Normal give and take in the jury room does not create one. 

An inconsistent verdict is one where the jury’s multiple findings cannot both be true and therefore stand at the same time, and are therefore in fatal conflict. 

Even though the jury had several questions and sent out a note stating it was deadlocked, there was no evidence of a clearly inadequate verdict.  In fact, the court found there was evidence from which a jury could have reasonably concluded that the plaintiff sustained zero damages.

Because the plaintiff did not preserve the issue of the inadequate verdict, the court did not reach that question.  However, it also affirmed the verdict based on the evidence presented demonstrating that no damages were suffered.

TRIAL COURT IS PERMITTED TO SUA SPONTE ORDER REHEARING OR NEW TRIAL WITHIN TEN DAYS AFTER ENTRY OF A JUDGMENT – ORDER GRANTING MOTION TO VACATE DEFAULT JUDGMENT IS REVIEWED UNDER GROSS ABUSE OF DISCRETION STANDARD

D&D Mail Corp. v. Andgen Properties, 35 Fla. L. Weekly D156 (Fla. 4^th DCA January 13, 2010):

One day after the entry of a default judgment, the trial judge sua sponte reconsidered his ruling and vacated the default.  An appellate court reviews an order granting a motion to vacate a default final judgment under the gross abuse of discretion standard.  The court’s decision to sua sponte grant rehearing and vacate the default final judgment was not such a gross abuse of discretion.

THE PROVISION IN THE STANDARD FEE AGREEMENT THAT 33 1/3 % OF ANY RECOVERY THROUGH THE TIME OF FILING OF AN ANSWER, ONLY ENTITLES AN ATTORNEY TO RECEIVE 33 1/3% AS A FEE IF NO ANSWER FILED

Rose v. Steigleman, 35 Fla. L. Weekly D169 (Fla. 1^st DCA January 15, 2010):

The attorney in this case filed suit, but then engaged in protracted settlement negotiations.  The defendants never filed an answer and the plaintiff never sought to compel the filing of an answer.  Eventually, a settlement was reached. 

The trial judge interpreted the provision in the contract reading “through the time of filing of an answer” to deal with the time frame and not actually requiring the “filing” of an answer to bring the 40% provision into effect. 

The First District reversed.  It held that the filing of an answer does actually require the actual “filing” of the answer, and as such, the plaintiff’s attorney’s fee in this case was limited to 33 1/3 % of the recovery, no matter how much time or work it took.

TRIAL COURT ERRED IN DISMISSING ACTION FOR INSUFFICIENCY OF SERVICE WHEN PLAINTIFF DEMONSTRATED DUE DILIGENCE IN ATTEMPTING TO LOCATE DEFENDANT

Delancy v. Tobias, 35 Fla. L. Weekly D173 (Fla. 3^rd DCA January 20, 2010):

Plaintiff could not find the defendant and proceeded to seek substituted service.  Plaintiff attached an affidavit of diligent search to the amended complaint, describing the efforts to locate and serve the defendant.  The trial court granted the plaintiff’s motion for an extension of time to perfect service.  The Secretary of State confirmed service which was mailed to the defendant by regular and certified mail.  Plaintiff then filed a notice of filing affidavit of service with the trial court. 

Thereafter, defendant sought to quash service and to dismiss the complaint contending that plaintiff did not demonstrate due diligence or that the defendant had concealed his whereabouts.  The trial court quashed service of process and dismissed the complaint, finding the affidavit did not demonstrate due diligence. 

Because plaintiff made an “honest and conscientious” effort to obtain information that would have enabled her to serve defendant personally, she demonstrated the requisite diligence in attempting to serve the defendant.  There was also no issue as to whether the plaintiff properly served the defendant or complied with substitute service requirements within the time for the extension.  Accordingly, because the plaintiff properly and timely served the defendant by substituted service during the trial court’s extension of the service, the court reversed the order dismissing the complaint.

*Available to handle appellate and trial support matters for attorneys throughout the state.

IN ORDER TO SATISFY NOTICE REQUIREMENTS OF NICA STATUTE, BOTH PARTICIPATING PHYSICIANS, AND HOSPITALS WITH PARTICIPATING PHYSICIANS ON STAFF MUST PROVIDE PATIENTS WITH NOTICE OF PARTICIPATION IN PLAN

Florida Birth Related Neurological Injury Compensation Association v. Department of Administrative Hearings, 35 Fla. L. Weekly S40 (Fla. January 14, 2010):

In answering a certified question of great public importance, the court held that a physician’s pre-delivery notice to his or her patient of the plan and his or her participation in the plan is not enough to satisfy the requirements of §766.316, Florida Statute, if the hospital where the delivery took place failed to provide notice of any kind.  The court quashed the decisions in All Children’s Hospital v. Department of Administrative Hearings and Bayfront Medical Center v. Florida Birth Related Neurological Injury Compensation Association in rendering its decision.                                                                                                                                             

THE FEDERAL AVIATION ACT PREEMPTS FLORIDA’S DANGEROUS INSTRUMENTALITY LAW, AS IT WOULD APPLY TO A CLAIM FOR PURE VICARIOUS LIABILITY AGAINST THE OWNER OF A PRIVATE PLANE

Vreeland v. Martinez, 35 Fla. L. Weekly D115 (Fla. 2^nd DCA January 5, 2010):

The personal representative of a passenger killed in a private airplane crash sued the owner of the plane, the company to which the owner had leased the plane, and the pilot’s estate.  This appeal involved only the claims against the owner.

The trial court granted summary judgment under the Federal Aviation Act 49 U.S.C. §44112.  It found that section preempted Florida’s dangerous instrumentality law, as it related to owners or leasors of aircraft, because the purpose of the federal statute is to shield an owner from liability of the negligence of others, when the aircraft is not in the owner’s or leasor’s possession or control.

However, the Second District reversed the summary judgment on the issue of the owner’s negligent maintenance and inspection of the aircraft (before it leased the plane).  Because that statute does not preempt Florida negligence law, the defendant was not entitled to summary judgment on that count.

COURT ADDRESSES AHLBORN AND MEDICAID LIENS – FINDS UNDISPUTED COST OF MEDICAL CARE PROVIDED BY MEDICAID DOES NOT EXCEED 50% AND THUS AHCA IS ENTITLED TO FULL SATISFACTION OF LIEN

Russell v. Agency for Healthcare Administration, 35 Fla. L. Weekly D118 (Fla. 2^nd DCA January 6, 2010).

The plaintiff in a medical malpractice case challenged the court’s ruling, ordering full satisfaction of a Medicaid lien from the proceeds of the settlement.  The case was settled for 3 million dollars, and the lien asserted by ACHA was for $221,000.  The settlement agreement contained no allocation of the amounts recovered for the various elements of damages. 

The court noted that under §409.910(11)(f)(1), AHCA is entitled to full satisfaction of its lien as long as that amount it does not exceed 50% of the amount recovered in the settlement. 

Plaintiff argued that the Ahlborn decision limited the lien AHCA  could take.  However, the court observed that Ahlborn does not establish a rule of law as to a formula to determine the portion of a settlement attributable to medical expenses.  It also observed that in Ahlborn, the parties stipulated as to the value of the claim, and further stipulated that only 1/6th of the claim ($35,000) represented compensation for medical expenses. 

Central to the Ahlborn  court’s reasoning was  the State’s stipulation concerning the  portion of settlement attributable to medical expenses, and on the basis of that stipulation, the court reached its conclusion that the State’s lien exceeded that portion of the settlement that represented payments for medical care. 

The court then observed that in Florida, a Medicaid recipient who settles a tort claim with a third party, does so against the backdrop of a 50% allocation rule set forth in 409.910(11)(f).  Because the plaintiff failed to establish any basis for concluding that the lien asserted by AHCA exceeded a portion of the settlement meant to compensate the recipient for damages distinct from medical costs, it was valid. 

The Second District then admonished that unless parties agree to a figure for the cost of medical expenses, a unilateral determination in the settlement agreement is not unavailing.  The court cited to Smith v. ACHA, to remind us that the Ahlborn decision did not establish a rule of law on the formula used to pay back medical expenses from a settlement.

Note: At least it’s good to know that Medicaid cannot claim a lien beyond 50% of the settlement to pay back the total amount of medical expenses provided.

TRIAL COURT PROPERLY DETERMINED THAT PROVISION EXCLUDING COVERAGE FOR “ANY BODILY INJURY TO ANY INSURED OR ANY MEMBER OF AN INSURED’S FAMILY RESIDING IN THE INSURED’S HOUSEHOLD” WAS AMBIGUOUS

State Farm v. Menendez, 35 Fla. L. Weekly D133 (Fla. 3^rd DCA January 6, 2010):

State Farm’s named insured permitted her granddaughter to use her vehicle.  While operating the vehicle, the granddaughter negligently collided with another car, resulting in injuries to herself, her parents, and the named insured.  When the accident occurred, the named insured’s granddaughter was living with her parents, and the named insured was living at a separate address. 

When the parents filed suit against the named insured to recover damages for their injuries under the policy, State Farm denied coverage based on the household exclusion, which provided there was no coverage for “any insured or any member of an insured’s family residing in the insured’s household.” 

Because the named insured’s granddaughter was a permissive user of the insured vehicle, State Farm asserted she was also an “insured” also under the policy.  Since the named insured’s granddaughter and her parents resided in the same house, State Farm argued there was no coverage based on the exclusion. 

Plaintiffs claimed that the phrase “the insured” referred to the named insured only, and that the definition did not include permissive users of the insured. 

Referring to the definitional section of the policy for the definition of “insured,” “you or your” was defined as the named insured shown on the declaration page, and it went on to also state that any person using “your car” fell within the household exclusion.  Because there was an ambiguity about whether the parents fell within the exclusion, the court found there was coverage. 

ERROR TO DENY MOTION TO QUASH SERVICE OF PROCESS WHERE PLAINTIFF DID NOT STRICTLY COMPLY WITH REQUIREMENTS OF §48.161

Cohen v. Aponte, 35 Fla. L. Weekly D137 (Fla. 4^th DCA January 6, 2010):

Plaintiff was unable to locate the defendants.  He moved for an extension to serve them.  The plaintiff served the employer defendant,  but was unable to locate the employee defendant. 

The plaintiff then filed an amended complaint alleging that numerous attempts were made locate and serve the individual defendant, but it appeared he was no longer in the jurisdiction or was concealing his whereabouts.  The complaint further alleged that plaintiff conducted a diligent search, and was serving a copy of the complaint and summons on the Secretary of State under §48.161. 

Because plaintiff ultimately failed to comply with two of the three requirements ((1) notice by registered or certified mail; (2) filing the defendant’s return receipt; and (3) filing an affidavit of compliance on or before the return day of the processor within such time as the court allows) of the pertinent statute, the court held service was invalid.  This case provides a very helpful “how to” on substituting service if anyone needs such guidance. 

DURABLE POWER OF ATTORNEY DECEDENT’S DAUGHTER ACTED UNDER IN EXECUTING DECEDENT’S NURSING HOME ADMISSION CONTRACT WAS BROAD ENOUGH TO AUTHORIZE BINDING ARBITRATION, EVEN THOUGH IT DID NOT SPECIFICALLY REFERENCE ARBITRATION AGREEMENTS

Estate of Smith v. Southland Suites of Ormond Beach, 35 Fla. L. Weekly D145 (Fla. 5^th DCA January 8, 2010).

INSURED CANNOT CIRCUMVENT PAYMENT PROCEDURES OUTLINED IN §627.736(5)(C)(1) AFTER HEALTH INSURER PLACED LIEN ON HER SETTLEMENT PROCEEDS, BY SEEKING REIMBURSEMENT FROM PIP INSURER THREE YEARS AFTER ACCIDENT

State Farm v. Pressley, 35 Fla. L. Weekly D150 (Fla. 1^st DCA January 12, 2010):

State Farm moved for summary judgment on a claim for PIP benefits.  After her accident, the insured did not seek medical treatment for seven months, at which time her health carrier paid for her medical treatment.  The health carrier then asserted a lien on the settlement proceeds.  Three years after the accident, plaintiff filed a complaint against State Farm for unpaid and overdue PIP benefits.  In essence, she sought reimbursement from State Farm for the health insurance lien asserted by the health carrier. 

State Farm moved for summary judgment arguing that none of the bills were submitted in accordance with the PIP statute or on the proper forms.  Plaintiff countered that it was impractical to subject insureds to the requirements of those statutes, and cited cases to support her argument that reimbursement of the health insurance lien was permissible under the PIP statute. 

The court reversed the trial court’s decision to deny State Farm’s motion for summary judgment.  It found that State Farm owed no PIP benefits because neither plaintiff nor her medical providers’ complied with the sections of statute 627.736(5)(c)(a) and 627.736(5)(d).  It said that the PIP statute outlines the procedure for securing payment of medical expenses with a time line and instructions.  There is a time limit and specific directives on how to submit bills. 

The court admonished that the plaintiff could not circumvent the payment by procedures outlined in the statute after her health insurer placed a lien on her settlement proceeds, seeking reimbursement from the PIP carrier three years after the accident.  Allowing her to do so would render the statutory time limitations in the statute useless.  Had the plaintiff promptly notified State Farm of the accident and allowed the medical providers to file timely claims, the situation could have been avoided. 

The court rejected the cases cited by the plaintiff which allowed submission of liens to the PIP carrier after the fact, noting that both decisions were rendered before the current PIP law went into effect. 

*Available to handle appellate and trial support matters for attorneys throughout the state.

ERROR TO ORDER PLAINTIFF TO PRODUCE VIDEO AND TRANSCRIPT OF COMPULSORY MEDICAL EXAM OF PLAINTIFF BECAUSE BOTH WERE PROTECTED WORK PRODUCT

Maguire v. Pool Doctor of the Palm Beaches, 35 Fla. L. Weekly D10 (Fla. 4^th DCA December 23, 2009):

The Fourth District found the Second District’s decision in McGarrah v. Bayfront Medical Center, 889 So. 2d 923 (Fla. 2^nd DCA 2004), was controlling, and that the video and transcript of a compulsory medical exam are work product.  The court noted the items would be discoverable if plaintiffs decided to use the material at trial. 

FILING OF A BANKRUPTCY PETITION IMPOSES AN AUTOMATIC STAY WHICH PROTECTS THE DEBTOR AND IS TRIGGERED BY THE FILING OF A VOLUNTARY OR INVOLUNTARY PETITION.  THE SCOPE OF THE STAY DOES NOT INCLUDE THE NON-DEBTORS

Puig v. PADC Marketing, 35 Fla. L. Weekly D20 (Fla. 3^rd DCA December 23, 2009):

The scope of an automatic bankruptcy stay does not include non-debtors.  Thus, the only way an action can properly be stayed is through the discretionary power of the lower court.  A stay for an indefinite period of time though, is overbroad and improper. 

The scope of the automatic stay under 11 U.S.C. §362 is only against the debtor and refers to actions against the debtor not to other interparty claims. 

ERROR TO DENY MOTION TO STRIKE JURORS FOR CAUSE WHOSE RESPONSES WERE SUFFICIENTLY EQUIVOCAL ON WHETHER THEY COULD PRESUME DEFENDANT INNOCENT UNTIL PROVEN GUILTY TO GENERATE REASONABLE DOUBT ABOUT THEIR FITNESS TO SERVE – NEW TRIAL REQUIRED WHERE COURT REFUSED TO GRANT ADDITIONAL REQUESTED PEREMPTORY CHALLENGE AND OBJECTIONABLE JUROR SERVED

Tabares v. State, 35 Fla. L. Weekly D20 (Fla. 3^rd DCA December 23, 2009).

COURT MUST CONSIDER RELEVANT CIRCUMSTANCES TEST IN DECIDING WHETHER THERE HAS BEEN A WAIVER OF THE ATTORNEY/CLIENT PRIVILEGE

Nova Southeastern v. Jacobson, 35 Fla. L. Weekly D27 (Fla. 4^th DCA December 23, 2009):

Nova terminated the employment of a middle school associate director for failing to comply with an earlier written final warning, as well as for negligence and inefficiency.  The woman sued Nova, alleging she was terminated for discriminatory reasons and that her termination was retaliatory in violation of the Florida Whistle Blower Act. 

On the day the woman was to be deposed, she was at the fax machine at the middle school receiving papers on an insurance claim for her son.  Mixed in with the papers was a letter from Nova’s law firm to the headmaster of the school.  The letter stated the University did not have enough performance issues to fire her, and it was a business decision as to whether she would remain an employee.  Counsel for Nova said at the deposition that he was recording his objection to the letter as attorney/client privilege, noting that it was obviously communicated accidentally.  The letter was not produced during the deposition. 

After other witnesses who were copied on the letter were asked about it, counsel objected to questions, and Nova moved for a protective order to prevent plaintiff from referring to the letter based on the privilege.  Nova filed affidavits from each person to whom the letter was sent, indicating they did not intend for third persons to see it.  Further underscoring the letter’s confidentiality, counsel produced a cover sheet which accompanied the faxed letter stating that the attached communication was protected by attorney/client privilege.  Plaintiff’s attorney admitted that his whole strategy was built around the sentiments expressed in the letter.

The court applied the five factor test outlined in General Motors v. McGee to determine whether inadvertent disclosure of privileged material waives the privilege.  Those criteria are (1) the reasonableness of the precautions taken to prevent inadvertent disclosure; (2) the number of inadvertent disclosures; (3) the extent of the disclosure; (4) the delay in measures taken to rectify the inadvertent disclosures; and (5) whether overriding interest of justice would be served by relieving the party of its error.

The trial court ultimately entered a written order determining that the letter was no longer protected by the privilege after engaging in the relevant factor analysis.  The court found, however, that the judge put emphasis on the wrong points.

The trial judge considered Nova’s delay in filing its motion for protective order, but Nova had objected as soon as it learned of the disclosure.  The Fourth District conducted the relevant factor test again, and found that the overriding interests would support returning the letter to Nova, if the privilege was not waived by the facts.  The court found that the trial court departed from the essential requirements of law in evaluating the relevance test factors for waiver of attorney/client privilege.  It therefore remanded for a new hearing based on the rulings made with respect to which factors should get the most emphasis.

FINAL JUDGMENT’S AWARD OF ATTORNEY’S FEES FUNDAMENTALLY ERRONEOUS WHEN IT DID NOT CONTAIN SPECIFIC FINDINGS CONCERNING HOURS EXPENDED AND REASONABLENESS OF RATE

Peacock v. Ace, 35 Fla. L. Weekly D46 (Fla. 2^nd DCA December 30, 2009):

Appellant argued that the final judgment’s award of attorney’s fees was fundamentally erroneous because it did not contain specific findings regarding the number of hours reasonably expended or the reasonableness of the rate.  There was no transcript or authorized statement under Rule 9.200(b)(4).

The court certified the question as one of great public importance as to whether an order awarding fees pursuant to Rowe is fundamentally erroneous when there is no appellate record, and there is no required findings of the number of hours or the rate. 

NO ERROR IN DISMISSING TIMELY FILED ACTION FOR PERSONAL INJURY SUFFERED ON CRUISE SHIP, WHEN ACTION WAS FILED IN STATE COURT RATHER THAN BROUGHT BEFORE THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT AS REQUIRED BY THE CONTRACT

Morrissette v. Norwegian Cruise Lines, 35 Fla. L. Weekly D48 (Fla. 3^rd DCA December 30, 2009):

The plaintiff timely sued for personal injuries, but brought the case in Miami-Dade County rather than in the United States District Court for the Southern District as required by the contract formed by the cruise ticket. 

The court then noted that the plaintiff lost nothing substantively by the decision, because on the authority of the equitable tolling principle, the federal district court denied Norwegian’s motion to dismiss for identical protective action in that court, even though it was filed after the one year expired.  The equitable tolling principle recognizes a timely filing in state court with a subsequently untimely filed federal case when the defendant is aware of the pursuit of the cause of action, because there is no harm.

CLAIM THAT MANUFACTURER’S FAILURE TO WARN OF RISKS OF HEART-RELATED ILLNESS ON LABELS OF OVER-THE-COUNTER COLD MEDICATION BREACHED STATE LAW REQUIREMENTS AND WAS NOT PREEMPTED BY FEDERAL LAW – ERROR TO ENTER SUMMARY JUDGMENT FOR DEFENDANT

Valdes v. Optimist Club of Suniland, 35 Fla. L. Weekly D51 (Fla. 3^rd DCA December 30, 2009):

A boy collapsed during a roller hockey game and had to be resuscitated at the scene.  He had suffered a heat stroke and cardiorespiratory arrest which resulted in a brain injury, leaving him completely disabled.  On the morning of his collapse, he had taken Tylenol Cold. 

The plaintiffs contended that the Tylenol Cold increased the risk of heat-related illness and heart-related risks when ingested with caffeinated products (he had taken it with a soda) and coupled with strenuous athletic events.  It contains pseudoephedrine.  Plaintiffs asserted that the manufacturer’s failure to warn of these risks on the label breached Florida state law requirements. 

The defendant argued that Federal law governs the labeling of medication and therefore preempted state law requirements.  However, an exception contained in the Federal law states that nothing shall be construed to modify or otherwise affect any action,  or the liability of any person under the product liability law of any state. 

The court looked to the Supreme Court’s recent decision in Wyeth v. Levine and found there was no preemption.  The Supreme Court had in fact concluded that the FDA long maintained that state law offers an additional and important layer of consumer protection that complements the FDA regulation, thereby allowing for product liability actions. 

TRIAL COURT PROPERLY ENTERED SUMMARY JUDGMENT FOR DEALERSHIP AGAINST WHOM PLAINTIFF BROUGHT SUIT, AFTER BEING INJURED BY A VEHICLE STOLEN FROM THE DEALERSHIP’S PROPERTY BY A GANG

Demelus v. King Motor Co., 35 Fla. L. Weekly D59 (Fla. 4^th DCA December 30, 2009):

King employed an evening security guard who patrolled a well-lit property.  There were metal posts surrounding the perimeter of the property, and ingress and egress of a vehicle was possible only through designated entry ways.  The vehicles on the property were locked and the keys were stored inside locked buildings. 

King Motors experienced 36 break-ins and thefts during the 6-year period prior to the date of the theft of the accident.  The thefts were a combination of employee thefts, customer thefts and unexplained thefts. 

A man was injured in an accident involving one of three vehicles stolen from King Motor’s property by a juvenile gang.  The locked showroom had its hurricane-proof windows smashed to allow entry.  Glass windows were broken, the cubicles were ransacked, locked doors opened, etc. 

The trial judge granted summary judgment for King Motor.  It noted that this particular form of theft was unforeseeable, because King Motor had not experienced similar thefts in the past.  Furthermore, the court found King Motor’s conduct did not create a risk, and summary judgment was proper. 

TRIAL COURT ERRED IN ENTERING SUMMARY JUDGMENT FOR DEFENDANT ON GROUND THAT EXCULPATORY CLAUSE WAS NOT AMBIGUOUS – AS IT WAS AMBIGUOUS, SUMMARY JUDGMENT IMPROPER

Tatman v. Space Coast Kennel Club, 35 Fla. L. Weekly D76 (Fla. 5^th DCA December 31, 2009):

The question was whether the Space Coast Kennel Club would be relieved of its liability for a victim’s dog bite injury.  Exculpatory clauses are disfavored because they relieve one party of the obligation to use care, and shift the risk of injury to a party who is less equipped to take the precautions to avoid the injury.  They are only enforceable when the intention to be relieved from liability is clear,  unequivocal and so understandable that an ordinary knowledgeable person will know what he is contracting away. 

In this case, the initials “SCKC” were used in the clause along with the Brevard County Parks and Rec Department.  The court found that the agreement not to hold those entities liable for any accident or injury failed to define whose injuries were covered in a circumstance, even though there were multiple possibilities.  It did not say for example that injuries to the “signer” of the form, or to the dog or to both would be covered by the exculpation, nor did it assert an exculpation for injuries caused by the dog to third parties. 

Because the clause was ambiguous, the court refused to enforce it. 

NO ERROR IN DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ON DEFENSE OF ACCORD AND SATISFACTION, BASED ON FINDING THAT PARTIES DID NOT ENTER INTO ENFORCEABLE SETTLEMENT AGREEMENT

Gonzalez v. Claywell, 35 Fla. L. Weekly D88 (Fla. 1^st DCA December 31, 2009): 

Defendant claimed a settlement agreement existed based on a series of letters between the plaintiff’s lawyer and the defendant’s lawyer.  The plaintiff’s lawyer offered to settle the case for an amount representing the policy limits for bodily injury, $25,000.00 and additional compensation for property damage.  The lawyer informed GEICO that the plaintiff would be willing to sign “a release form that released the defendant, Gonzalez, and the co-owners of the vehicle he was driving and would not include any indemnification language.” 

The letter stated the offer would stay open until October 31^st.  GEICO sent the plaintiff’s lawyer a check for the bodily injury but the release included with the check required the plaintiff to release GEICO as well as defendant, Gonzalez.  The letter said prior to negotiating the check, the client should sign the release and return it to GEICO.  The letter went on to say if there was an aspect of the document which did not reflect the settlement, the lawyer should contact the adjuster immediately to revise the document to reflect the exact terms of the agreement. 

The plaintiff’s lawyer informed the insurance adjuster he would not sign the release because it deviated from the terms of the offer.  The case proceeded to trial and the jury returned a verdict far in excess of the limits.  The defendant argued that plaintiffs had entered into an enforceable settlement agreement. 

The court rejected that argument.  The plaintiff’s offer was specific and the only logical conclusion was that there was no settlement agreement.  A concurring judge added that if the offer in the case were made to set up a bad faith claim, absent extraordinary circumstances, it was not readily apparent to him how a request by an insurance carrier to be added to a release could constitute bad faith. 

COSTS CONSIDERED OVERHEAD ARE NOT TAXABLE

The Landmark Winter Park v. Colman, 35 Fla. L. Weekly D102 (Fla. 5^th DCA December 31, 2009): 

Appellate courts have consistently held that certain costs and expenses are not taxable because they are considered overhead (even though the statewide uniform guidelines expressly state that they are only advisory and that the taxation of costs is within the broad discretion of the judge). 

The court then concluded it was improper for the trial court to tax overhead costs in the form of postage, on-line research, fax charges, courier charges, photocopies, scanning documents and trial supplies. 

It is also not appropriate to tax costs for parking, overtime, after hours heating and cooling, mileage, meals and long distance phone calls. 

*Available to handle appellate and trial support matters for attorneys throughout the state.

COURT UPHELD SIZEABLE VERDICT FOR WORKER AGAINST OWNER/GENERAL CONTRACTOR IN CHARGE OF CONSTRUCTION OF CONDOMINIUM UNITS

Worthington Communities v. Mejia, 34 Fla. L. Weekly D2565 (Fla. 2^nd DCA December 16, 2009):

Worthington was developing a condominium project and was acting as both owner and general contractor in charge of construction.  It contracted with Sunshine Masonry for the masonry work, and Mr. Mejia was employed by Sunshine as an unskilled laborer. 

As part of the construction, an unbraced joist system collapsed on the plaintiff rendering him quadriplegic.  The jury reached a 6.5 million dollar verdict, apportioning 5% of the negligence to the plaintiff, 10% to Worthington, and 85% to the plaintiff’s employer, Sunshine.  Under the applicable version of §768.81, Worthington was responsible for 5 million dollars of the judgment (for the economic damages).

Worthington contended that the trial court erred in denying its motion for directed verdict because there was no evidence that it breached any duty owed to the plaintiff. 

The court reminded us that an owner who hires an independent contractor is not generally liable for injuries sustained by the contractor’s employees, except when the owner has been actively participating in the construction to the extent that he directly influences the manner in which the work is performed, or engages in acts either negligently creating or negligently approving a dangerous condition, resulting in injury or death to the employee.

Because there was evidence of Worthington’s direct involvement and direct negligence, the court found denial of the directed verdict was proper. 

Additionally, Worthington challenged a jury instruction which told the jury that as owner/general contractor for the project, Worthington had the “ultimate duty” to maintain the site in a reasonably safe condition.  While the court said it tended to agree with Worthington that it was improper to apply the “ultimate” duty language applicable to non-delegable duties outside of the context of inherently dangerous instrumentalities, it found there could be no abuse of discretion when the rationale and legal authority for finding a jury instruction was erroneous was never argued to the trial court.  Additionally, the jury instructions when considered as a whole properly explained the scope of Worthington’s duty and therefore the court found the instruction was not reversible.

COURT DISMISSED APPEAL AS UNTIMELY WHERE CLERK’S DATE STAMP INDICATED THAT NOTICE WAS FILED AFTER EXPIRATION OF TIME LIMIT FOR FILING – CLERK’S DATE STAMP IS DISPOSITIVE ON ISSUE OF DATE OF FILING A PAPER WITH TRIAL COURT

Strax Rejuvenation and Aesthetics Institute v. Shield, 34 Fla. L. Weekly D2569 (Fla. 4^th DCA December 16, 2009):

Despite affidavits demonstrating that the notice of appeal was properly filed in the Broward County Courthouse on August 19^th, the Clerk’s time stamp on the notice showed it was filed on August 21^st (a day late).  The court dismissed the appeal as untimely.

The moral to this story is always bring a second copy of your notice to the Clerk’s office, so that you can get it date stamped and safely tuck it away in your files for future reference!

EVEN WHEN THE FACE OF THE PLEADINGS ARE CLEAR THAT PLAINTIFF NOT ENTITLED TO RELIEF, WRIT OF CERTIORARI NOT PROPER BECAUSE EXPENSE OF UNNECESSARY TRIAL IS NOT IRREPARABLE HARM

Nationwide v. Garrity, 34 Fla. L. Weekly D2588 (Fla. 3^rd DCA December 16, 2009):

Plaintiff recovered the $100,000.00 liability limits under policy, and then sought recovery under the UM portion of the same policy, contrary to well established law.  While the court found that on the face of the pleadings it was undisputed that the plaintiff could not obtain further relief, the court found it had to deny the petition for writ of certiorari because the insurance company could not establish the irreparable harm that is a requisite element of such an application.  The prospect of being put to the expense and inconvenience of a trial does not satisfy that element. 

The court also said it could not treat the order as a judgment based on the existence or non-existence of insurance coverage under 9.110(m), because that provision requires an explicit ruling on coverage in a case in which a claim has been made against the insured.  The respondent’s claim here was only asserted against the insurer (not the insured).

ERROR TO INCLUDE WORDS OF FINALITY “FOR WHICH SUM LET EXECUTION ISSUE” IN PARTIAL SUMMARY JUDGMENT ENTERED AGAINST ONE DEFENDANT WHERE PARTIAL SUMMARY JUDGMENT DID NOT FULLY ADJUDICATE ANY OF THE CAUSES  OF ACTION AGAINST THE DEFENDANT

Rothermel v. BXL Associates, 34 Fla. L. Weekly D2589 (Fla. 3^rd DCA December 16, 2009).

CITIZENS PROPERTY INSURANCE CORPORATION IS SHIELDED BY SOVEREIGN IMMUNITY FROM BAD FAITH CLAIMS

Citizens Property Insurance Co. v. Garfinkel, 34 Fla. L. Weekly D2599 (Fla. 5^th DCA December 18, 2009):

The Fifth District granted Citizens writ of prohibition directed to the trial court to prevent the court from taking any further action with respect to a first-party bad faith claim brought by the plaintiff against Citizens.

Citizens was created by the Florida Legislature in order to ensure the existence of orderly market for property insurance and windstorm insurance.  It specifically states that it is a governmental entity and not a private insurance company.  Thus, it is immune from first-party bad faith claims.

TRIAL COURT MAY NOT DISMISS A NEGLIGENCE ACTION AS A SANCTION FOR AN ATTORNEY’S DILATORY BEHAVIOR WITHOUT MAKING FINDINGS REGARDING THE FACTORS SET FORTH IN KOZEL V. OSTENDORF

Houser v. County of Volusia, 34 Fla. L. Weekly D2604 (Fla. 5^th DCA December 18, 2009).

ERROR TO ENTER SUMMARY JUDGMENT IN FAVOR OF INSURER IN BAD FAITH CASE

Mills v. State Farm, 34 Fla. L. Weekly D2614 (Fla. 1^st DCA December 22, 2009):

The insured alleged that State Farm acted in bad faith by failing to settle a claim within policy limits, failing to properly advise her of the possibility of an excess verdict, and failing to inform her of remedial steps available to minimize her risk of substantial money judgment against her.  When an insured has surrendered to the insurer all control over a claim brought against her, the insurer is obligated to make litigation settlement decisions in good faith and with the insured’s best interest in mind.

The question of whether a liability insurer has acted in bad faith in handling a claim depends upon the totality of the circumstances with each case determined on its own unique facts.  The question of failure to act in good faith is ordinarily one for the jury.  In this case, the trial court concluded as a matter of law that State Farm could not have done more towards settling the claim against the defendant and that State Farm adequately advised her of the possibility of an excess verdict and steps she could have taken.  Given the unique factual circumstances, however, this conclusion was error, and summary judgment was improper.

RECORD SUPPORTS JUDGE OF COMPENSATION CLAIMS FINDING THAT FEE CLAIMED BY CLAIMANT’S ATTORNEY FOR SECURING REIMBURSEMENT OF MILEAGE IN AN AMOUNT JUST OVER $200.00 WAS CLEARLY EXCESSIVE AND UNCONSCIONABLE

Jackson v. Ryan’s Family Steakhouse, 34 Fla. L. Weekly D2615 (Fla. 1^st DCA December 22, 2009):

In this work comp appeal, the claimant challenged an order of the JCC awarding his attorney $3,860.00 in attorney’s fees for securing reimbursement of medial mileage in the amount of $201.44.  The claimant argued that the JCC reversibly erred by unilaterally reducing the hours expended based on non-record evidence.  The court affirmed finding that a reasonable fee would never exceed the amount awarded (almost $8,000.00 was originally sought).

TRIAL COURT DID NOT DEPART FROM ESSENTIAL REQUIREMENTS OF LAW IN REQUIRING DEFENDANT TO PRODUCE INCIDENT REPORTS AFTER CONCLUDING THEY WERE NOT PROTECTED UNDER THE WORK PRODUCT PRIVILGE AND EXPRESSLY STATING PLAINTIFFS HAD DEMONSTRATED NEED FOR THEM

Paradise Pines Healthcare v. Harts Harbor Health Center, 34 Fla. L. Weekly D2621 (Fla. 1^st DCA December 22, 2009):

Because the trial court did not misapply the law pertaining to how a moving party may overcome work product privilege, the court affirmed the trial judge’s ruling and denied certiorari.

ERROR TO DISMISS COMPLAINT WITH PREJUDICE FOR FAILURE TO EFFECT SERVICE OF PROCESS WITHIN 120 DAYS FROM FILING WHEN STATUTE OF LIMITATIONS HAD EXPIRED – IN SITUATIONS WHERE STATUTE HAS RUN, TRIAL COURT SHOULD NORMALLY EXERCISE DISCRETION IN FAVOR OF GIVING PLAINTIFF ADDITIONAL TIME TO PERFECT SERVICE

Sly v. McKeithen, 34 Fla. L. Weekly D2622 (Fla. 1^st DCA December 22, 2009):

Defendant filed a motion to dismiss for failure to comply with 120 day requirement (service was not effected until almost a year after the filing of a complaint).  The trial court dismissed the case with prejudice declining to exercise discretion to allow the plaintiff additional time, finding that plaintiff failed to demonstrate good cause or excusable neglect for the delay.

Since Rule 1.070(j) was amended in 1999 to broaden the trial court’s discretion to allow an extension of time even without a showing of good cause.  The courts have frowned upon dismissing cases when statutes of limitations have run, because to do so results in far too severe a sanction and the rule was meant to be a case management tool.  The court reversed the dismissal. 

*Available to handle appellate and trial support matters for attorneys throughout the state.

BY ENTERING INTO A MEDIATED SETTLEMENT AGREEMENT WITH DEFENDANT EMPLOYER, PLAINTIFF LITIGATED HER WORK COMP CLAIM TO CONCLUSION “CHOOSING TO RECEIVE WORK COMP BENEFITS TO THE EXCLUSION OF TORT BENEFITS,” AND IT WAS ERROR TO DENY DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Petro Stopping Centers v. Gall, 34 Fla. L. Weekly D2547 (Fla. 5^th DCA December 11, 2009):

The court clarified its original opinion, but maintained its conclusion that the trial judge should have granted summary judgment for the employer, because the parties mediated settlement agreement constituted a conclusion on the merits of the plaintiff’s worker’s compensation claim.  The court found because plaintiff actively pursued her tort litigation showed she had elected her remedy.

*Available to handle appellate and trial support matters for attorneys throughout the state.