JURY VERDICT FINDING THAT DEFENDANT BREACHED CONTRACT BUT AWARDING NO DAMAGES WAS NOT A COMPROMISE VERDICT REQUIRING A NEW TRIAL, WHERE JURY COULD HAVE REASONABLY CONCLUDED THAT PLAINTIFF SUSTAINED ZERO DAMAGES
Smith v. Florida Healthy Kids Corp., 35 Fla. L. Weekly D155 (Fla. 4th DCA January 13, 2010):
Plaintiff brought a breach of contract case against his insurer for failure to pay health insurance benefits under his health policy. The case proceeded to trial seeking the amount of unpaid medical bills incurred by the plaintiff as a result of injuries he sustained after being shot several times by a police officer. The health insurer denied coverage based on a felony exclusion, and also contested the amount of damages including the total amount of medical bills and whether the plaintiff was owed anything under the policy.
Plaintiff asserted that the zero verdict was the result of a “compromise” requiring a new trial. The court pointed out that there is a difference between a compromise verdict and an inconsistent verdict. The court explained that a compromise verdict results from the combination of two factors: (1) hotly contested liability; (2) a legal inadequacy of damages.
A compromise verdict is one reached only by the surrender of conscientious convictions upon a material issue by some jurors in return for a relinquishment of others. Normal give and take in the jury room does not create one.
An inconsistent verdict is one where the jury’s multiple findings cannot both be true and therefore stand at the same time, and are therefore in fatal conflict.
Even though the jury had several questions and sent out a note stating it was deadlocked, there was no evidence of a clearly inadequate verdict. In fact, the court found there was evidence from which a jury could have reasonably concluded that the plaintiff sustained zero damages.
Because the plaintiff did not preserve the issue of the inadequate verdict, the court did not reach that question. However, it also affirmed the verdict based on the evidence presented demonstrating that no damages were suffered.
TRIAL COURT IS PERMITTED TO SUA SPONTE ORDER REHEARING OR NEW TRIAL WITHIN TEN DAYS AFTER ENTRY OF A JUDGMENT – ORDER GRANTING MOTION TO VACATE DEFAULT JUDGMENT IS REVIEWED UNDER GROSS ABUSE OF DISCRETION STANDARD
D&D Mail Corp. v. Andgen Properties, 35 Fla. L. Weekly D156 (Fla. 4th DCA January 13, 2010):
One day after the entry of a default judgment, the trial judge sua sponte reconsidered his ruling and vacated the default. An appellate court reviews an order granting a motion to vacate a default final judgment under the gross abuse of discretion standard. The court’s decision to sua sponte grant rehearing and vacate the default final judgment was not such a gross abuse of discretion.
THE PROVISION IN THE STANDARD FEE AGREEMENT THAT 33 1/3 % OF ANY RECOVERY THROUGH THE TIME OF FILING OF AN ANSWER, ONLY ENTITLES AN ATTORNEY TO RECEIVE 33 1/3% AS A FEE IF NO ANSWER FILED
Rose v. Steigleman, 35 Fla. L. Weekly D169 (Fla. 1st DCA January 15, 2010):
The attorney in this case filed suit, but then engaged in protracted settlement negotiations. The defendants never filed an answer and the plaintiff never sought to compel the filing of an answer. Eventually, a settlement was reached.
The trial judge interpreted the provision in the contract reading “through the time of filing of an answer” to deal with the time frame and not actually requiring the “filing” of an answer to bring the 40% provision into effect.
The First District reversed. It held that the filing of an answer does actually require the actual “filing” of the answer, and as such, the plaintiff’s attorney’s fee in this case was limited to 33 1/3 % of the recovery, no matter how much time or work it took.
TRIAL COURT ERRED IN DISMISSING ACTION FOR INSUFFICIENCY OF SERVICE WHEN PLAINTIFF DEMONSTRATED DUE DILIGENCE IN ATTEMPTING TO LOCATE DEFENDANT
Delancy v. Tobias, 35 Fla. L. Weekly D173 (Fla. 3rd DCA January 20, 2010):
Plaintiff could not find the defendant and proceeded to seek substituted service. Plaintiff attached an affidavit of diligent search to the amended complaint, describing the efforts to locate and serve the defendant. The trial court granted the plaintiff’s motion for an extension of time to perfect service. The Secretary of State confirmed service which was mailed to the defendant by regular and certified mail. Plaintiff then filed a notice of filing affidavit of service with the trial court.
Thereafter, defendant sought to quash service and to dismiss the complaint contending that plaintiff did not demonstrate due diligence or that the defendant had concealed his whereabouts. The trial court quashed service of process and dismissed the complaint, finding the affidavit did not demonstrate due diligence.
Because plaintiff made an “honest and conscientious” effort to obtain information that would have enabled her to serve defendant personally, she demonstrated the requisite diligence in attempting to serve the defendant. There was also no issue as to whether the plaintiff properly served the defendant or complied with substitute service requirements within the time for the extension. Accordingly, because the plaintiff properly and timely served the defendant by substituted service during the trial court’s extension of the service, the court reversed the order dismissing the complaint.
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