TRIAL COURT DEPARTED FROM ESSENTIAL REQUIREMENTS OF LAW BY PREMATURELY REQUIRING BLANKET PRODUCTION OF DOCUMENTS
Phoenix Insurance Co. v. Trans World Forwarding, 34 Fla. L. Weekly D1921 (Fla. 3rd DCA September 22, 2009):
As the discovery was directed to the insurer’s business practices and alleged statutory bad faith, it was premature, because it was entered before a determination was made regarding coverage and damages. Additionally, the insurer should not have been ordered to produce privileged and work product documents (but the court reminded that it is necessary to serve a privilege log to preserve those claims).
OBJECTION TO TRIAL COURT’S DENIAL OF USE OF PEREMPTORY AGAINST AFRICAN-AMERICAN JUROR NOT PRESERVED, WHERE OBJECTING PARTY ACCEPTED JURY WITHOUT RENEWING OBJECTION TO THE CHALLENGED JUROR
USAA Casualty v. Allen, 34 Fla. L. Weekly D1934 (Fla. 4th DCA September 23, 2009):
The insurance company defendant failed to preserve its objection to the trial court’s denial of its use of a peremptory against an African-American juror. In order to preserve the issue, the appellant must accept the juror or panel subject to its prior objection and/or renew the objection before the jury is sworn.
The insurance company accepted the jury in this case without renewing its objection so the issue was not preserved. The court also rejected the defendant’s contention that a challenge would have been futile, because without stating the objection, the court cannot know that the party still maintains it.
The defendant also failed to preserve its motion in limine to prevent the mention of surveillance evidence. When a court makes a definitive ruling on the record admitting or excluding evidence either at or before trial, a party need not renew an objection or offer of proof to preserve the claim under §90.104(1). However, in this case, the court never issued a definitive ruling on the motion, noting twice that it had deferred. Thus, it was incumbent upon the defendant to object when the plaintiff sought to introduce the evidence which it did not do.
2003 MEDICAL MALPRACTICE LEGISLATION CANNOT APPLY RETROACTIVELY TO CAUSES OF ACTION ACCRUING PRIOR TO THE EFFECTIVE DATE, DESPITE THE LEGISLATURE’S CLEAR INTENT THAT THE STATUTE APPLY RETROACTIVELY
Raphael v. Shecter, 34 Fla. L. Weekly D1936 (Fla. 4th DCA September 23, 2009):
In April of 2003, Harvey Raphael suffered a heart attack and was treated in an emergency room. The doctor who treated him did not administer anti-clotting drugs at that time, but a different doctor did administer them more than an hour later. Evidence was presented that the delay resulted in significant damage to the man’s heart.
At the time the incident arose, the 2002 version of the medical malpractice statute was in effect. However, §766.118, which placed limits on non-economic damages in medical malpractice cases, became effective on September 15, 2003, and applied to cases pre-suited thereafter (like this one).
After a trial, the jury awarded the appellant (who husband had died by then) $9.5 million in non-economic damages. The defendant moved to limit the non-economic damage award to comply with the 2003 changes in the statute.
Because §766.118(4) expressly stated that the statute was to apply retroactively to incidents which occurred before the effective date of the act, but which were presuited after, the trial judge reduced the verdict down to the caps.
The Fourth District reversed. It found that the plaintiff’s rights had vested or accrued at the same time as the cause of action, and that retroactive application could not pass the test set forth in Old Port Cove Holdings, 986 So. 2d 1279, 1284 (Fla. 2008), for appropriate retroactive application of a statute. Unfortunately, the court did not address any of the other issues (i.e., of constitutionality) raised by the plaintiff.
BY ENTERING INTO A MEDIATED SETTLEMENT AGREEMENT WITH THE DEFENDANT EMPLOYER, THE PLAINTIFF EMPLOYEE LITIGATED HER WORKER’S COMPENSATION CLAIM TO CONCLUSION, CHOOSING TO RECEIVE WORKER’S COMPENSATION BENEFITS TO THE EXCLUSION OF TORT BENEFITS IN AN INTENTIONAL TORT CASE
Petro Shopping Centers v. Gall, 34 Fla. L. Weekly D1943 (Fla. 5th DCA September 25, 2009):
Plaintiff sued her employer alleging she was injured while operating a meat tenderizer which the employer’s general manager knew was inherently dangerous because its safety guard had been intentionally removed. Pursuant to the intentional tort exception to work comp., plaintiff accepted worker’s compensation benefits and litigated her tort claim.
The employer moved for summary judgment contending it was entitled to immunity because it actively pursued to conclusion a claim for work comp. benefits. The trial court denied the motion.
However, the appellate court reversed. It found that plaintiff had mediated her worker’s compensation claim to an agreement, which constituted a conclusion on the merits of that claim.
The court pointed out that the election of remedies is not such an easy analysis in Florida. Florida courts have fashioned an election of remedies analysis that is based not on the claimant’s employment status but on evidence of the claimant’s conscious intent to elect a compensation remedy and to waive his or her other rights. Thus, mere acceptance of compensation benefits is not enough and the remedy chosen must be pursued to full satisfaction (meaning a determination or conclusion on the merits).
The court reminded us of those cases where a plaintiff accepts benefits but then can show an exception to the worker’s compensation statute to bring the tort claim. However, in this case, because the parties entered into a mediated settlement agreement providing that the defendant accepted the plaintiff as being permanently and totally disabled, was liable for making payments, and further provided that it resolved the issues contained in the currently pending petition for benefits, and constituted a conclusion on the merits of her claim for work comp. benefits. In this case, the plaintiff elected her remedy litigating a worker’s compensation case to a conclusion on the merits. She manifested a “conscious intent” to choose work comp. benefits to the exclusion of tort benefits and therefore summary judgment should have been entered for employer.
QUESTIONS OF FACT ON ISSUES OF ESTOPPEL RENDERED SUMMARY JUDGMENT ON THE DEFENSE OF WORKER’S COMPENSATION IMMUNITY IMPROPER
Schroeder v. Peoplease Corp., 34 Fla. L. Weekly D1960 (Fla. 1st DCA September 25, 2009):
The defendant employer denied work comp. initially based on the fact that plaintiff did not suffer injury in the course and scope of his employment. It was also undisputed that the employer paid no benefits to the plaintiff. Because there were issues with respect to the ambiguity of the denial and potential estoppel issues, it was error to enter summary judgment in favor of the defendant on worker’s compensation immunity.
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