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. 2nd 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. 4th DCA December 16, 2009):
Despite affidavits demonstrating that the notice of appeal was properly filed in the Broward County Courthouse on August 19th, the Clerk’s time stamp on the notice showed it was filed on August 21st (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. 3rd 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. 3rd 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. 5th 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. 5th 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. 1st 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. 1st 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. 1st 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. 1st 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.
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