SUPREME COURT CLARIFIES WHEN STATUTE OF LIMITATIONS ON LEGAL MALPRACTICES CASES BEGINS TO RUN
Larson & Larson v. TSE Industries, 34 Fla. L. Weekly S591 (Fla. 2nd DCA November 5, 2009):
In this case, the plaintiff instituted a legal malpractice action more than two years after the entry of final judgment (there was no appeal), but less than two years after the court issued an order awarding attorney’s fees against the legal “malpracticing” appellant, as an additional sanction.
After reaffirming its decision in Silvestrone, 721 So. 2d 1173 (Fla. 1998), the court held that the “redressable harm” as articulated by Silvestrone may occur at two different times. In the Larson case, the court held that the legal malpractice claim regarding the final judgment was barred, but the malpractice action regarding the sanctions claimed was not barred. Because they were two different instances of “redressable harm,” there are two different statutes of limitations. The court rejected a Second District decision which held that the statute of limitations for the entire action did not begin until the case was completely concluded and the stipulation to dismiss was filed.
ERROR TO GRANT SUMMARY JUDGMENT ON STATUTE OF LIMITATIONS IN MEDICAL MALPRACTICE CASE WHERE QUESTION OF FACT AS TO WHEN PLAINTIFF SHOULD HAVE HAD “REASONABLE POSSIBILITY” THAT EYE PAIN WAS RESULT OF NEGLIGENCE
Cohen v. Cooper, 34 Fla. L. Weekly D2210 (Fla. 4th DCA October 28, 2009):
In November of 1997, a doctor performed a facelift. The plaintiff awoke to excruciating pain in her left eye and severe jaw pain. She had additional procedures on her eyelid and even testified that in September of 1998, she realized the doctor “had somehow erred in the procedure on her face.” Still, she also testified that the doctor assured her recovery was slow and did not file until more than two years after the procedure. The Fourth District reminded us that “simply suspecting wrongdoing is not enough” when determining when the statute of limitations accrues.
Because there was conflicting evidence as to when plaintiff should have known of a reasonable possibility that her eye pain was a result of medical negligence, it was error to grant summary judgment.
DISCOVERY REGARDING BAD FAITH CLAIM IS PREMATURE WHERE COVERAGE ISSUES HAVE NOT BEEN DETERMINED
Geico v. Rodriguez, 34 Fla. L. Weekly D2223 (Fla. 3rd DCA October 28, 2009).
ERROR IN ADMITTING CERTAIN EVIDENCE AND IN NOT ALLOWING FABRE DEFENDANTS ON VERDICT FORM
Honeywell Internat’l, Inc. v. Guilder, 34 Fla. L. Weekly D2224 (Fla. 3rd DCA October 28, 2009):
The plaintiffs obtained a 24 million dollar verdict for the injuries plaintiff sustained due to asbestos exposure. Before trial, the manufacturer defendant unsuccessfully sought to exclude a letter written by a successor manufacturer’s employee.
After the manufacturer rested, plaintiffs moved for a directed verdict on their claims that the verdict form should not include other third parties as Fabre defendants, because of lack of evidence. The trial judge agreed and did not include them on the verdict form.
In looking at the letter the employee of the successor manufacturer wrote, the court found it was relevant to proving the manufacturer’s knowledge of the dangers of asbestos. However, the court found the sentence, “My answer to the problem is: if you have enjoyed a good life while working with asbestos products, why not die from it. There’s got to be some cause,” was unfairly prejudicial and should have been redacted. The failure to do so was error.
The court also held it was error to exclude the Fabre defendants. The court found the manufacturer defendant pleaded the fault of non-parties, and presented sufficient evidence of non-party negligence (trial court had found the opposite). Thus, it was error not to include them.
Finally, the court found the substantial award given for loss of parental consortium was also error, because the cause of action only applied to “acts of negligence occurring on or after” the statute’s effective date, which was after the plaintiff’s exposure to asbestos. Thus, that award was erroneous too. The court further noted that the settlements with prior defendants had to be set off pursuant to the Wells case.
ERROR TO DISMISS CASE FOR FRAUD ON THE COURT WHEN PLAINTIFF’S VERSION OF THE ACCIDENT DIFFERED AS TO LIABILITY AND UM CARRIERS
Bueno v. Workman, 34 Fla. L. Weekly D2227 (Fla. 4th DCA October 28, 2009):
Plaintiff and her minor son were rear ended. There was some question as to whether they were rear ended by a single vehicle, or whether a third vehicle had rear ended the second vehicle in to them. In front of the liability carrier, plaintiff seemed to assert the former, and to the UM carrier, the latter.
Judge French dismissed the plaintiff’s case based on equitable and judicial estoppel. The Fourth explained those concepts and held they would not apply until the court made factual findings to support them.
Equitable estoppel is based on principles of fair play and essential justice arise when one party lulls another party into a disadvantageous position. Judicial estoppel is an equitable doctrine use to prevent litigants from taking totally inconsistent positions in separate judicial and quasi-judicial proceedings. Waiver is the intentional relinquishment of a known right, and the purpose of election of remedies is to prevent double recoveries for a single wrong.
The Fourth District reversed, finding it would be necessary for the trial court to conduct an evidentiary hearing on the fraud, as the court found it was premature to express any opinion on the admissibility of evidence or possible outcomes of that hearing. As it stood, the elements could not be met.
FINAL JUDGMENT ERRONEOUSLY ENTERED FOR PLAINTIFF WHEN PARTIES HAD ENTERED INTO ENFORCIBLE SETTLEMENT AGREEMENT BEFORE SUIT – LETTERS EXCHANGED CONSTITUTED SETTLEMENT AGREEMENT
Hanson v. Maxfield, 34 Fla. L. Weekly D2246 (Fla. 1st DCA October 30, 2009):
After litigation, plaintiff’s trial counsel sent a letter stating that he believed the clients were in the position to accept the policy limits and release the defendants. The letter also noted that there were unanswered questions about potential coverage, and that a release would have to be drafted not to impair plaintiff’s rights against other defendants. There was one more requirement that plaintiff receive a properly certified policy to confirm there was no other coverage available to the owner or the driver.
In response, defendants stated that State Farm accepted the offers and would pay $10,000 to each plaintiff. It also heeded the release terms, and enclosed a copy of the policy.
The plaintiff sought to avoid settlement, by contending that the insurance policy disclosures did not comply with the disclosure requirements of the statute and therefore the terms of the settlement were not met. However, the First District found the essential terms were met, in that the defendant would pay the plaintiff policy limits, structure the release to avoid impairing other claims, and deliver a proper certified policy. Because there was evidence of acceptance on the crucial terms, the settlement was enforced.
The court then noted that on remand, the plaintiff could assert that even if the settlement was reached, the defendants failed to perform essential conditions of the settlement agreement. In that event, the trial court was instructed to determine whether the defendants failed to perform their obligations under the agreement and if so, what remedy would be appropriate.
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