APPELLATE RULES AMENDED TO IMPLEMENT THE SAFE-HARBOR PROVISION OF §57.105
In Re: Amendment to the Florida Rules of Appellate Procedure, 35 Fla. L. Weekly S367 (Fla. June 24, 2010):
The supreme court approved a new rule, 9.410(b), which provides for motions made under §57.105, and implements the safe-harbor provisions of that statute.
WORKERS COMPENSATION RETALIATION CLAIMS BROUGHT AGAINST THE STATE UNDER §440.205, ARE NOT SUBJECT TO THE PRESUIT NOTICE REQUIREMENTS OF §768.28
Bifulco v. Patient Business & Financial Services, 35 Fla. L. Weekly S368 (Fla. June 24, 2010):
The supreme court said that §768.28 waives sovereign immunity specifically for common law torts. Other than that though, the statute must explicitly note its applicability for statutory causes of action. Because there is no mention of this statutory cause of action in the statute, the rules regarding presuit did not apply.
FOURTH DISTRICT REVERSES PRODUCT LIABILITY VERDICT BASED ON TRIAL COURT’S REFUSAL TO ALLOW DEFENDANT TO INTRODUCE DEMONSTRATIVE AIDS WHICH JUDGE FOUND WERE MORE PREJUDICIAL THAN PROBATIVE; FOURTH FURTHER FOUND PURPORTED ERROR NOT HARMLESS
Mitsubishi Motors Corp. v. Laliberte, 35 Fla. L. Weekly D1327 (Fla. 4th DCA June 16, 2010):
The majority found that Judge Maass erred in refusing to allow Mitsubishi to introduce some demonstrative aids in conjunction with its experts’ opinions. Both parties agreed that the experts’ opinions themselves had come into evidence fully. However, the majority ruled that without the demonstrative aids, the opinions were “barren and unsubstantiated,” and lacked “force and color.”
The dissent emphatically disagreed. Judge Ciklin explained that Judge Maass weighed the proffered demonstrative evidence, and determined that based upon some of it being too similar and some of it being too dissimilar, that it was unfairly prejudicial and should not come in. Judge Ciklin pointed out how many of Mitsubishi’s demonstrations–both substantive and otherwise–did get into evidence.
The majority then found that the error was not harmless, applying the criminal standard. Ironically, a week later, in the decision of Special v. Baux, the Fourth applied the civil standard for harmless error, which is different (and requires a showing that the outcome of the trial would have been different but for the error).
Hopefully, the motion for rehearing and rehearing en banc filed will correct this intra-district conflict, and get this opinion reversed.
TRIAL COURT ERRED IN SUA SPONTE DISMISSING WITH PREJUDICE AN AMENDED COMPLAINT BASED SOLELY ON PLAINTIFF’S FAILURE TO OBTAIN LEAVE OF COURT TO AMEND
Cooper v. Town of Jupiter, 35 Fla. L. Weekly D1335 (Fla. 4th DCA June 16, 2010):
The court reminded us that leave to amend should be liberally given, and dismissal with prejudice is not proper, unless the privilege to amend is abused, or it is clear that the pleading cannot be amended to state a cause of action.
In this case, the trial court specifically stated it was dismissing the action with prejudice because the plaintiff failed to obtain leave of court prior to filing the amended complaint. That was a drastic and unwarranted measure, and therefore the court reversed.
WHEN A PATIENT FALLS FROM A HOSPITAL BED WHILE RESTRAINED AND UNATTENDED, AND PLAINTIFF ALLEGES THE HOSPITAL FAILED TO MONITOR AND SUPERVISE, CLAIM IS ONE OF MEDICAL NEGLIGENCE SUBJECT TO PRESUIT REQUIREMENTS
South Miami Hospital v. Perez, 35 Fla. L. Weekly D1340 (Fla. 3rd DCA June 13, 2010):
The personal representative filed a complaint alleging negligence against the hospital in connection with her husband’s death after he fell out of his hospital bed and ultimately died. She sued for negligence, and did not comply with medical malpractice presuit requirements. The trial judge denied the hospital’s motion to dismiss.
While in some slip-and-fall settings, presuit notice is not necessary, here, the plaintiff’s amended complaint alleged that while the decedent was left unrestrained and unattended in the critical care unit, he fell from his bed, and suffered a displaced fracture, which ultimately caused his death.
The court said it was clear that the allegations and the injuries suffered arose from the rendering of/or failure to render medical services to the decedent. The court further noted that the allegations could only be proven through evidence that the alleged negligence of the health care provider fell below the prevailing standard of care. Because the claim was essentially a medical negligence action, the plaintiff’s failure to comply with presuit was fatal, and dismissal was proper.
TRIAL JUDGE PROPERLY GRANTED SUMMARY JUDGMENT FOR INSURER, WHEN INSURED FAILED TO DISCLOSE THAT THE DRIVER IN THE ACCIDENT WAS GOING TO BE A DRIVER OF THE VEHICLE
Telemundo Television v. Aequicap Insurance Co., 35 Fla. L. Weekly D1341 (Fla. 3rd DCA June 16, 2010):
Under the plain language of the policy, all drivers had to be reported to the insurer. Thus, the policy did not provide coverage for an accident involving a non-listed driver.
LITIGANT WHO WAS SUED BUT NEVER PARTICIPATED IN THE LITIGATION, AND WAS ON THE LOSING END OF THE FINAL JUDGMENT, COULD NOT BRING A RULE 1.540(b)(1) MOTION MORE THAN ONE YEAR AFTER THE JUDGMENT WAS ENTERED
Mumenthaler v. Williams, 35 Fla. L. Weekly D1345 (Fla. 3rd DCA June 16, 2010).
TO ADD A NEW PARTY WITH SUFFICIENT IDENTITY OF INTEREST AFTER STATUTE OF LIMITATIONS HAS RUN, PLAINTIFF MUST MAKE SHOWING THAT NEW PARTY HAD KNOWLEDGE OF LAWSUIT
Rayner v. Aircraft Spruce-Advantage, Inc., 35 Fla. L. Weekly D1346 (Fla. 5th DCA June 18, 2010):
The underlying lawsuit related to an aircraft accident. Plaintiffs timely filed suit against one of the defendants. Shortly before the statute ran, plaintiff’s attorney inquired about another possible defendant, a distributor. It was years later before plaintiff sought to add the distributor as a defendant.
Amendments should be permitted to relate back when they merely change the capacity in which a defendant has been sued. More often than not, the original defendant lulls the plaintiff into believing that he has sued the correct party, until the statute of limitations runs.
However, the plaintiff may not do more than merely correct a misnomer. Here, the plaintiff sought to bring in an entirely new party after the statute had expired. While there is an exception to the rule when separate parties have a sufficient “identity of interest” such that the addition will not prejudice the new party, the exception is usually applied when the new party knew or should have known that the plaintiff made a mistake.
In this case, the records show that the distributor was not aware of the lawsuit against the installer until after the statute had run. Plaintiff alleged that “lack of prejudice” was demonstrated because the distributor was “on notice” that it might be sued shortly before the statute ran. However, a “claim” is not necessarily a “lawsuit,” and thus mere notice of a potential claim does not support the application of the relation back doctrine (must be a lawsuit).
ABUSE OF DISCRETION TO DISMISS LAWSUIT FOR FAILURE TO TIMELY EFFECT SERVICE OF PROCESS WHERE DEFENDANT WAS SERVED WITH PROCESS, ALBEIT DEFECTIVELY, WITHIN THE TIME PERIOD DESIGNATED BY THE TRIAL COURT
Hannah v. Olivio, 35 Fla. L. Weekly D1347 (Fla. 5th DCA June 18, 2010).
TRIAL COURT DOES NOT HAVE AUTHORITY TO DEFER ASSESSMENT OF COSTS INCURRED IN VOLUNTARILY DISMISSED ACTION
Shepheard v. Deutsche Bank, 35 Fla. L. Weekly D1350 (Fla. 5th DCA June 18, 2010).
NICA STATUTE PROVIDING FOR AN AWARD OF COMPENSATION TO THE PARENTS OR LEGAL GUARDIAN NOT TO EXCEED $100,000, LIMITS PARENTAL COMPENSATION TO A SINGLE AWARD UNDER NICA – QUESTION CERTIFIED
Samples v. Florida Birth-Related Neurological, Inc., 35 Fla. L. Weekly D1350 (Fla. 5th DCA June 18, 2010):
Under §766.31(1)(b)1, parents and legal guardians are eligible for an award not to exceed $100,000. The parents argued that the provision was ambiguous, and should be construed to authorize an award of up to $100,000 to each parent rather than a single award of $100,000 to both parents. They argued that such construction avoided the constitutional problems of equal protection, vagueness and access to courts.
The court found the statute clearly limited the parental compensation to a single award not to exceed $100,000. However, it did certify the question to ask if that interpretation violates equal protection.
IN ORDER TO MAKE AN ORDER REVIEWABLE AS A NON-FINAL ORDER UNDER RULE 9.130(a)(3)c BASED ON WORKERS COMPENSATION IMMUNITY, THE ORDER MUST STATE THAT AN IMMUNITY DEFENSE IS NOT AVAILABLE AS A MATTER OF LAW
International Ship Repair v. Aleman, 35 Fla. L. Weekly D1357 (Fla. 2nd DCA June 18, 2010).
ALABAMA LICENSED PHYSICIAN NOT A “HEALTH CARE PROVIDER” AS DEFINED BY §766.202(4) AND NOT ENTITLED TO PRESUIT NOTICE – TRIAL COURT IMPROPERLY DISMISSED ESTATE’S COMPLAINT
Dirga v. Butler, 35 Fla. L. Weekly D1385 (Fla. 1st DCA June 21, 2010):
Plaintiff appealed the trial court’s order dismissing her complaint against an Alabama licensed physician, for failure to comply with the presuit provisions of Chapter 766. Because this doctor was not a health care provider as defined under §766.202(4), he was not entitled to presuit notice.
The statute defines health care provider very specifically, and courts have strictly construed the term as sued in medical malpractice actions, in accord with the rule that statutory restrictions must be construed in a manner that favors access to court.
Under Chapter 766, the legislature specifically enumerated the class of persons entitled to presuit notice, which includes physicians licensed under Chapter 458. The doctor defendant urged the court to review that term as a mere shorthand by the legislature for all physicians, including those from out-of-state.
However, the court rejected that argument. It held that had the Florida Legislature wanted to broaden the scope of health care provider to apply to out-of-state physicians in Chapter 766, it certainly could have done so (and did not).
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