PUBLIC ACCESS TO JUDICIAL BRANCH RECORDS 

In Re: Amendments to Florida Rule of Judicial Administration 2.420 and Florida Rules of Appellate Procedure, 35 Fla. L. Weekly S180 (Fla. March 18, 2010):

The court addressed and accepted proposals designed to ensure the integrity of court records in the electronic age.  Rule 2.420 now governs the procedures for sealing court records.

TRIAL COURT IMPROPERLY ORDERED PLAINTIFF TO ATTEND A COMPULSORY VOCATIONAL REHABILITATION EXAM TO BE RECORDED BY USE OF AN UNATTENDED VIDEOTAPE OR AUDIOTAPE, WITHOUT THE PRESENCE OF A THIRD PERSON SUCH AS A VIDEOGRAPHER OR THE PLAINTIFF’S ATTORNEY

Gaskins v. Canty, 35 Fla. L. Weekly D538 (Fla. 2^nd DCA March 10, 2010):

The defendant sought to compel a vocational rehabilitation exam pursuant to Rule 1.360, subject to certain limitations.  The expert affidavit attached to the motion asserted that the examination involved time testing that could not be interrupted by the changing of videotapes; that the presence of a videographer could negatively affect the exam; and that there was lots of psychological literature with studies and analysis showing that observation may affect a test. 

The court noted that the party opposing a third person’s presence at an exam has the burden to establish case-specific reasons why such attendance would disrupt it.  If that burden is met, the party must then show that no other examiner in the area would conduct an examination with a third party present. 

Because the defendant met neither of these burdens (while the affidavit was specific it discussed “rehabilitation exams”), the court granted the petition. 

A RENTAL CAR DID NOT QUALIFY AS A TEMPORARY SUBSTITUTE AUTO UNDER AN AUTO POLICY, WHERE THE CAR WAS NOT BEING USED WITH THE RENTAL COMPANY’S PERMISSION BECAUSE IT WAS BEING DRIVEN BY AN UNAUTHORIZED DRIVER

Geico v. Shazier, 35 Fla. L. Weekly D539 (Fla. 1^st DCA March 10, 2010):

Plaintiff owned a Ford Expedition covered under a Geico policy.  The policy contained a standard “temporary substitute auto” provision which extended coverage to a vehicle used with permission of the owner.  Under the policy, the vehicle had to be used as a substitute for the owned auto withdrawn from normal use due to breakdown, repair, servicing, loss or destruction.

When plaintiff began experiencing car trouble, she rented a car from Avis.  Pursuant to the rental agreement, she was the only one authorized to drive the rental car.  The car was ultimately involved in an accident while being driven by an unauthorized driver. 

Geico filed a complaint for declaratory judgment, alleging it owed no duty to defend or indemnify because the policy provided no coverage to the unauthorized driver who caused significant injuries of seven other people.

Because the vehicle was not being used with the permission of Avis, it did not qualify as a “temporary substitute auto” under the policy and, thus, there was no coverage.

CERT WAS NOT PROPER TO REVIEW A TRIAL COURT’S ORDER DETERMINING PLAINTIFF’S CLAIMS WERE NOT BARRED BY STATUTES OF REPOSE UNDER THE GENERAL AVIATION REVITALIZATION ACT OF 1994 AND §95.031(2)(b), BECAUSE DEFENDANTS DEMONSTRATE IRREPARABLE HARM

Avco Corp. v. Textron, 35 Fla. L. Weekly D541 (Fla. 1^st DCA March 10, 2010):

A private Cessna plane was involved in a crash in 2004.  The NTSB found a device in the carburetor was damaged, and that some of the related parts were worn.  The personal representatives filed a complaint alleging defective design of the carburetor (among many other claims).

Petitioners moved for summary judgment, arguing the claims were barred by the 18 year statute of repose in GARA, and the 12 year statute of repose under Florida law.  Avco asserted it did not manufacture anything for the aircraft subsequent to original delivery in 1981.  The other defendants had similar evidence to exonerate them.

The trial court denied defendants’ motions for summary judgment, and the defendants petitioned for a writ of cert. 

The court noted how it has repeatedly refused to find that “incurring of litigation expenses” is not enough to meet the test for irreparable harm.  However, when the statute provides immunity from suit, cert may be proper. 

Here, these statutes were more akin to statutes of limitations, rather than grants of qualified immunity.  Statutes of repose in Florida are generally treated like statutes of limitations or affirmative defenses.  Therefore, as an error concerning the trial court’s ruling on such an affirmative defense can be corrected on an appeal from a final order, defendants could not demonstrate the necessary irreparable harm to have the court grant the writ. 

TRIAL COURT DEPARTED FROM ESSENTIAL REQUIREMENTS OF LAW IN SEVERING MULTIPLE SURETY AND THIRD-PARTY CLAIMS FOR TRIAL, BECAUSE THE CLAIMS OVERLAPPED AND WERE INTERTWINED

ACT Services v. School Board of Miami-Dade County, 35 Fla. L. Weekly D546 (Fla. 3^rd DCA March 10, 2010).

IMPROPER TO DISQUALIFY A DEFENDANT’S ATTORNEY ON THE GROUND THAT LAW FIRM HAD PREVIOUSLY PERSONALLY REPRESENTED ONE OF THE PRINCIPALS OF THE PLAINTIFF LLC IN UNRELATED MATTERS

PMG Collins v. R and G Enterprises, 35 Fla. L. Weekly D547 (Fla. 3^rd DCA March 10, 2010).

FOURTH DISTRICT AFFIRMED DISMISSAL OF PLAINTIFF’S COMPLAINT AGAINST SCHOOL BOARD FOR DEATH OF HER DAUGHTER WHO WAS STRUCK AND KILLED BY A CAR ON HER WAY TO THE SCHOOL BUS STOP – CLAIM BARRED BY SOVEREIGN IMMUNITY AND BUSY ROADWAY NOT SO INCONSPICUOUS TO VIRTUALLY CONSTITUTE A TRAP

Francis v. School Board of Palm Beach County, 35 Fla. L. Weekly D559 (Fla. 4^th DCA March 10, 2010):

A woman sued the School Board seeking damages for the death of her daughter who was struck and killed by a car while walking to the school bus stop.  The School Board moved to dismiss arguing it was sovereignly immune from suit because the placement of the bus stop was a planning-level function.  The trial court agreed, and the Fourth District affirmed.

The mother attempted to argue that the School Board was negligent in failing to control the students on the original bus, negligent in instructing the child to cross the road to another bus stop, and negligent in failing to warn the child of the dangers in crossing the road, and that those were operational-level actions.  The School Board argued it did not owe a duty of care to the child while she was in route to her bus stop, and that the School Board’s acts were not the proximate cause of her death.  The Fourth agreed.

The Fourth District also rejected that the School Board created a known dangerous condition.  The duty to warn is limited only when a dangerous condition is so serious and so inconspicuous that it constitutes a trap.  Here, the court found that a busy roadway was not so inconspicuous as to virtually constitute a trap. 

TRIAL COURT ERRED IN DENYING PLAINTIFF’S MOTION FOR MISTRIAL AFTER DEFENSE COUNSEL DISCLOSED TO JURY DURING OPENING STATEMENT HOW LITTLE DEFENDANT EARNED – NEW TRIAL ON DAMAGES REQUIRED

Samuels v. Torres, 35 Fla. L. Weekly D575 (Fla. 5^th DCA March 12, 2010):

The liability in this auto case was admitted.  Defense counsel made two improper comments regarding his client’s inability to pay a judgment – once in voir dire and once during opening.  After the comment in voir dire, the trial court granted a mistrial and brought up another panel of jurors.

During opening, counsel advised that in a good week, defendant only makes $1,500.00 as a truck driver.  The trial judge sustained the objection but denied the request for a curative instruction.  Simultaneous with this bench conference, the bailiff told the court that a juror was crying and upset.  The juror reported that she had never been in a setting like this before, and listening to the stories was making her sad. 

Plaintiff again moved for a mistrial.  This time the court denied, because it was concerned about granting a second mistrial.

The jury reached a verdict representing only a fraction of what the evidence supported.  The court found that defense counsel had employed a strategy to create sympathy from the jury, and he succeeded.  As a result, plaintiff was deprived of a fair trial, necessitating the need for a new one.

TIMELY FILED NOTICE OF APPEAL WAS SUFFICIENT TO CONFER APPELLATE JURISDICTION EVEN IF THE NOTICE IS ERRONEOUSLY TIME STAMPED – CONFLICT CERTIFIED WITH DECISION HOLDING THAT APPELLATE JURISDICTION MAY ONLY BE DETERMINED FROM TRIAL CLERK’S TIME STAMP

OCR-EDS v. S&S Enterprises, 35 Fla. L. Weekly D577 (Fla. 5^th DCA March 12, 2010):

Expressing its disagreement with Strax v. Shield, 24 So. 3d 666 (Fla. 4^th DCA 2009), which held that appellate court jurisdiction may only be determined from the trial clerk’s time stamp on a notice of appeal–even if a timely filed notice was incorrectly date stamped after the deadline–the Fifth District found that a timely filed notice is sufficient to confer appellate jurisdiction even when erroneously time stamped.  The court certified conflict with Strax.

TRIAL COURT SHOULD HAVE GRANTED DEFENDANT’S MOTION TO DISMISS FOR FAILURE TO COMPLY WITH PRESUIT, WHERE PLAINTIFF DID NOT PROVIDE CORROBORATING AFFIDAVIT

Hunt v. Vein Center, 35 Fla. L. Weekly D582 (Fla. 2^nd DCA March 12, 2010):

Certified medical assistants who have not met degree or licensing requirements may not submit corroborating affidavits in malpractice cases and therefore plaintiff’s complaint should have been dismissed for failure to comply with presuit.

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

This entry was posted on Monday, March 29th, 2010 at 1:01 pm and is filed under The Week in Torts. You can follow any responses to this entry through the RSS 2.0 feed. Responses are currently closed, but you can trackback from your own site.