PUBLIC RECORDS THAT RELY ON INFORMATION SUPPLIED BY OUTSIDE SOURCES OR CONTAIN EVALUATIONS OR STATEMENTS OF OPINION BY A PUBLIC OFFICIAL ARE INADMISSIBLE – DOCUMENT IS NOT ADMISSIBLE AS COUNTER-EVIDENCE SUFFICIENT TO AVOID SUMMARY JUDGMENT IF INADMISSIBLE

Arce v. The Wackenhut Corp., 35 Fla. L. Weekly D1471 (Fla. 3^rd DCA July 7, 2010).

THIRD DISTRICT UPHOLDS DISMISSAL OF COMPLAINT FOR FRAUD

Sky Development v. Vista View Development, 35 Fla. L. Weekly D1478 (Fla. 3^rd DCA July 7, 2010):

During the deposition of plaintiff’s manager, the plaintiff’s CFO passed him a note that read “don’t worry about pleasing him, just say no.”  The note was brought to the attention of the magistrate presiding over the deposition who forbade further notes.  The CFO then sent two text messages with pertinent information. 

Upon discovering those, the trial judge declared a mistrial and invited defendants to move for a dismissal which they did.  The motion was granted. 

Because there was ample evidence for the trial court to conclude that there was an unconscionable scheme calculated to interfere with the judicial system’s ability to impartially adjudicate the matter, this was not a case where the dismissal was unreasonably harsh.  The court found there was no abuse of discretion in dismissing the case. 

ERROR TO DENY DEFENDANT’S REQUEST FOR ATTORNEY’S FEES PURSUANT TO PROPOSAL FOR SETTLEMENT, ON GROUND THAT PLAINTIFFS WERE REQUIRED TO ACKNOWLEDGE IN WRITING DEFENDANTS WERE NOT ADMITTING TO DOING ANYTHING IMPROPER

Marine v. Delmonico, 35 Fla. L. Weekly D1495 (Fla. 4^th DCA July 7, 2010):

Plaintiff filed a complaint against two defendants for defamation – one defendant was the employee of the other.  The complaint alleged the employee made defamatory statements, and the other defendant was vicariously responsible. 

Defendant filed a proposal for settlement, and the plaintiff settled with the employee defendant (not based on the proposal though).  The case went to trial against the employer, who won the trial. 

In the proposal, the defendant required plaintiff to accept in writing and include an explicit acknowledgment that the defendants were not admitting that they had said or done anything wrong, and that the defendants were simply attempting to purchase their peace from the plaintiff.  The trial judge found these terms ambiguous.

The Fourth District disagreed.  Rather than be ambiguous, the court wrote, the defendants specifically directed the language to be contained within the written acceptance.  The plaintiff also argued that the joint proposal was not made in good faith because it was made after the employee admitted to making the defamatory statement.  The trial court found the proposal was made in good faith, and the Fourth agreed. 

The court also refused to find the proposal void due to its joint nature.  The appellate court disagreed, and found it unambiguous.  It also held the plaintiff maintained the ability to independently evaluate and act upon the proposal and was not dependent upon the evaluation and acceptance of another offeree before he could make his decision. 

TRIAL COURT CORRECTLY GRANTED SUMMARY JUDGMENT IN FAVOR OF SURGICAL CENTER, BECAUSE CENTER OWED NO DUTY OF CARE TO DECEDENT WITH REGARD TO PROCEDURE PERFORMED BY A PHYSICIAN SELECTED BY THE DECEDENT – DEFENDANT HAD NO RIGHT TO CONTROL NOR DIRECT ANESTHESIOLOGIST’S TREATMENT SO IT CANNOT BE HELD LIABLE FOR THE DOCTOR’S NEGLIGENCE

Kristensen-Kepler v. Cooney, 35 Fla. L. Weekly D1510 (Fla. 4^th DCA July 7, 2010):

A man went to the Northpoint Surgi-Center to have an anesthesiologist treat him for long-term back pain.  The man contracted an infection and died.  The PR sued Northpoint for the doctor’s negligence, alleging that under Wax, the surgi-center had a non-delegable duty to provide the patient with non-negligent anesthesiology services.

The Fourth District affirmed the summary judgment.  It distinguished this case (an anesthesiologist chosen by the patient to perform treatment for back pain) from the situation where the anesthesiologist is chosen for the patient by a physician or a hospital where he is being treated.  The court said that if a treating physician directs a patient to a hospital for a particular procedure, that patient has little if any control over who administers the anesthesia.  However, where the patient actually chooses the anesthesiologist–as in this case–the Wax rationale does not apply. 

The Fourth District also rejected that there were questions of fact as to apparent agency, because there was no evidence that Northpoint made a representation to the patient, that he relied on the representation, or that he changed his position as a result of that reliance.

TRIAL COURT ERRED IN ENTERING SUMMARY JUDGMENT FOR DEFENDANT ON BASIS OF RELEASE, WHERE THERE WAS GENUINE ISSUE OF FACT AS TO WHETHER THE RELEASE WAS A GENERAL RELEASE OR A PROPERTY DAMAGE RELEASE (AS IT WAS TITLED)

Mckeever v. Rushing, 35 Fla. L. Weekly D1530 (Fla. 2^nd DCA July 9, 2010):

Plaintiff was rear-ended in an accident and sustained property damage in the amount of $8,009.73.  A month later, defendant’s insurer tendered a check in that exact amount of the repair estimate and sent the plaintiff a document entitled “Property Damage Release.” 

After payment and release, plaintiff had conversations with the insurance company regarding his personal injury claim.  When no settlement was reached, plaintiffs filed suit.  The defendant then filed a motion for summary judgment arguing he had waived his personal injury claim, by executing the release. 

The plaintiffs also filed an affidavit where plaintiff stated under oath he never intended to release his personal injury claim, and if that’s what the release was doing, he executed it by mistake.  The release language stated that plaintiff read and understood the contents and signed it waiving any and all claims.  The court dismissed the case based on that language.

The Second District reversed.  It found the plaintiffs clearly raised both the intent of the parties and mistake as unresolved issues of fact.  The letter showed evidence that the insurer was still anticipating the pending personal injury claim.  Also, the plaintiff had signed an affidavit, and there was an inconsistency between the title of the document and the language therein.

SECOND DISTRICT, IRONICALLY, FINDS HOSPITAL DOES NOT OWE NON-DELEGABLE DUTY TO PROVIDE ANESTHESIA SERVICES, AND CERTIFIES CONFLICT WITH WAX

Tarpon Springs v. Reth, 35 Fla. L. Weekly D1532 (Fla. 2^nd DCA July 9, 2010):

While the hospital has a statutory obligation to have an anesthesia department directed by a physician member of the hospital’s professional staff, the applicable statutes and rules do not impose a non-delegable duty to provide anesthesia services to surgical patients.  Thus, the trial court erred in denying the hospital’s motion for directed verdict, and the court certified conflict with Wax to the extent that it determined a hospital does have a non-delegable duty to provide non-negligent anesthesia services to patients.

The court found that Wax erroneously interpreted §395.1055(1)(d) to apply anesthesiology standards of practice to hospitals.  Chapter 395 regulates hospitals and addresses standards governing them, not standards applicable to the practice of medicine regulated by other chapters of the statutes (like Chapter 458).  If a hospital fails to have an anesthesia service directed by a physician member of its medical staff, or if it allows an incompetent anesthesia provider to be granted privileges, it can be held liable if that is the proximate cause of the injury to a patient.

*Available to handle appellate and trial support matters for attorneys throughout the state.

AMENDMENT TO THE BAR RULES ON ADVERTISING COMMUNICATIONS FOR LAWYER-TO-LAWYER COMMUNICATIONS

In Re: Amendments to Rule Regulating Florida Bar 4-7.1, 35 Fla. L. Weekly S435 (Fla. July 8, 2010):

The court adopted an amendment to the Rules Regulating the Florida Bar 4-7.1(e) which says that Subchapter 4-7 on advertising does not apply to communications between lawyers.  4-7.1(g) exempts communications with current and former clients from the section. 

PETITIONER IS ENTITLED TO WRIT OF PROHIBITION WHERE ALLEGED COMMENTS OF TRIAL JUDGE COULD REASONABLY HAVE CAUSED HER TO FEAR THAT SHE WOULD NOT RECEIVE A FAIR TRIAL

Haas v. Davis, 35 Fla. L. Weekly D1455 (Fla. 3^rd DCA June 30, 2010):

When the comments made by the trial judge may not have been intended to reflect on his beliefs as to the merits of the underlying claims, the applicable standard looks to the reasonable effect on the party seeking disqualification, not the subjective intent of the judge.  The comments could reasonably have caused her to fear that she would not receive a fair trial and therefore the writ should have been granted. 

CITIZENS PROPERTY INSURANCE CORP. IS IMMUNE FROM FIRST-PARTY BAD FAITH CLAIMS

Citizens v. La Mer, 35 Fla. L. Weekly D1468 (Fla. 5^th DCA July 2, 2010):

Citizens sought a 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 respondent, La Mer Condominium Association.  The court held that Citizens is immune from first-party bad faith claims pursuant to §627.351(7)(r)1 and §624.155(1)(b)1. 

*Available to handle appellate and trial support matters for attorneys throughout the state.

TRIAL COURT ERRED IN DENYING REMITTITUR OF JURY’S AWARD FOR FUTURE MEDICAL EXPENSES AND FUTURE LOST EARNING CAPACITY

Pruitt v. Perez-Gervert, 35 Fla. L. Weekly D1401 (Fla. 2^nd DCA June 23, 2010):

The plaintiff received injuries to his neck and back in an automobile accident.  His treating physician testified he had suffered a permanent injury and performed surgery as a result of the accident.  The evidence presented regarding his future medical expenses amounted to $88,960.00. 

The jury awarded over $163,000.00.  Because the amount was clearly excessive in light of the medical expenses reasonably supported by the evidence at trial, it was error for the trial judge not to grant defendant’s remittitur. 

Also, as to the loss of future earning capacity, the only evidence introduced was that the plaintiff was a 57 year-old drywall installer who had earned $16.00 per hour before the accident.  He testified he could no longer hang drywall after the accident.  However, his doctors did not testify that he was completely disabled from employment.  The jury awarded the plaintiff $580,000.00 for future lost earning capacity.

The court found that although the plaintiff presented evidence of past wages as a drywall installer, and evidence that he could no longer work, he did not present evidence of his post-accident earning capacity, or evidence that he was completely disabled from further employment.  In fact, his counsel argued during closing argument that he could probably earn at least minimum wage until his retirement at 65 or 70.

The court reversed, and entered a directed verdict on the future lost earning capacity.  It then remanded for a new trial on the future medical expenses.

ERROR TO DISMISS ACTION BECAUSE MOTION FOR SUBSTITUTION OF PERSONAL REPRESENTATIVE FOR PLAINTIFF WHO DIED DURING COURSE OF LITIGATION WAS UNTIMELY, WITHOUT CONSIDERING EVIDENCE ESTABLISHING EXCUSABLE NEGLECT

Mims v. American Senior Living of Dade City, 35 Fla. L. Weekly D1404 (Fla. 2^nd DCA June 23, 2010):

The plaintiff died during the litigation, and counsel did not file a motion for substitution of the personal representative until 115 days after the filing of the suggestion of death.  Plaintiff’s counsel presented evidence to the trial court that demonstrated excusable neglect for the untimely finding (based on a clerical error in counsel’s office).  The trial court refused to consider the excusable neglect evidence and dismissed the case with prejudice. 

The court reminded us that Rule 1.260(a)(1) has been liberally interpreted to permit a substitution of parties beyond the 90 day period set forth in the rule.  Furthermore, the courts of Florida have a longstanding tradition in favor of disposing of actions on their merits. 

ERROR TO GRANT MOTION TO DISMISS ON GROUND THAT PLAINTIFF’S AFFIDAVIT FAILED TO MEET THE “SIMILAR SPECIALITY” REQUIREMENT OF CHAPTER 766–ON REMAND, COURT SHALL CONDUCT AN EVIDENTIARY HEARING TO DETERMINE WHETHER AN AFFIDAVIT FROM AN EMERGENCY DEPARTMENT PHYSICIAN COMPLIED WITH “SIMILAR SPECIALITY” REQUIREMENT

Holden v. Bober, 35 Fla. L. Weekly D1405 (Fla. 2^nd DCA June 23, 2010):

A man who suffered an acute ischemic stroke sued a hospital emergency department.  In support of his notice of intent, he attached a corroborating affidavit of a Board certified ER physician.  Co-defendants, Dr. Gu and the Malka Institute, alleged that the plaintiff’s expert affidavit was facially insufficient with respect to the neurology claims, because their expert was an ER physician and not a neurologist.  The trial court dismissed the plaintiff’s complaint.

The appellate court observed it had to look at the dismissal in a light most favorable to the plaintiff.  Because this physician–though a neurologist–was in an emergency department setting, the court found it could envision a scenario where an ER physician could be considered an expert specializing in a “similar specialty.”  The court further noted an evidentiary hearing would provide the plaintiff with the opportunity to introduce witnesses and explain how the ER doctor’s qualifications could be considered a similar specialty of Dr. Gu and clarify any inconsistencies in the corroborating affidavit.

The court found it was error to dismiss plaintiff’s complaint as to those defendants, without determining in a light most favorable to the plaintiff, whether his affidavit complied with the requirements of Chapter 766.  Upon remand, the court ordered an evidentiary hearing to see if the physician could meet the “similar specialty” requirement. 

NO ABUSE OF DISCRETION IN PRECLUDING PLAINTIFF FROM CROSS EXAMINING DEFENSE EXPERT REGARDING CREDIBILITY OF ANOTHER WITNESS–TRIAL COURT PROPERLY FOUND ISSUE WAS COLLATERAL AND HAD NO BEARING ON WHETHER A DEFENDANT WAS NEGLIGENT–EVEN IF ERROR, IT WAS HARMLESS

Special v. Baux, 35 Fla. L. Weekly D1419 (Fla. 4^th DCA June 23, 2010):

After a woman underwent a routine cesarean section for her breach birth, she suffered two cardiac arrests and died within five hours of delivery.  Plaintiff sued the defendants for negligently administering anesthesia and for negligent monitoring.  The defendant alleged that the death was caused by amniotic fluid embolus (AFE), an allergic reaction from mother’s blood mixing with amniotic fluid sometimes causing heart and lung collapse.

The AFE diagnosis figured prominently at trial.  There was evidence that Boca Hospital had a disproportionate number of AFE cases.  During the cross of defendants’ expert regarding AFE, the defendants objected when plaintiff began to ask the expert to address another expert’s testimony regarding the appearance of between 1 and 2 cases of AFE annually at West Boca (even though ranges from 1 in 8,000 to 1 in 80,000).  The trial court sustained the objection, finding it was impeachment on a collateral issue. 

The court explained that a general claim of the “over-diagnosis” of AFE at the Center, did not affect whether the doctor was negligent in attending to the decedent.  The court found such “over-diagnoses” was an immaterial fact.  It then found that even if the issue were not collateral, the plaintiff argued prominently both in the center’s interrogatory answers and in closing argument that there was an epidemic in “over diagnosing” AFE.

The court then using the civil standard for harmless error (whether a different result would have been reached but for the error), and found the error was harmless.

NO CLEARLY ESTABLISHED LAW PROHIBITING APPLICATION OF A MULTIPLIER TO PARALEGAL FEES THAT ARE INCLUDED AS PART OF AN ATTORNEY’S FEE AWARD

State Farm v. Wise, 35 Fla. L. Weekly D1438 (Fla. 1^st DCA June 25, 2010).

*Available to handle appellate and trial support matters for attorneys throughout the state.

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. 4^th 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. 4^th 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. 3^rd 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. 3^rd 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. 3^rd 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. 5^th 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. 5^th 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. 5^th 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. 5^th 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. 2^nd 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. 1^st 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).

*Available to handle appellate and trial support matters for attorneys throughout the state.

SUPREME COURT RULES THAT COMMERCIAL FISHERMEN HAD A CAUSE OF ACTION AGAINST A COMPANY WHICH OWNED OR CONTROLLED A PHOSPHOGYPSUM STORAGE AREA FROM WHICH WASTEWATER SPILLED, POLLUTING WATERS OF TAMPA BAY AND REDUCING AVAILABLE SUPPLY OF FISH, WHICH PLAINTIFFS ALLEGED REDUCED THEIR INCOME; COURT FURTHER RULED THAT SUCH CAUSE OF ACTION WAS NOT BARRED BY THE ECONOMIC LOSS RULE

Curd v. Mosaic Fertilizer, 35 Fla. L. Weekly S341 (Fla. June 17, 2010):

The Second District had certified two questions as those of great public importance:

1.     DOES FLORIDA RECOGNIZE A COMMON LAW THEORY UNDER WHICH COMMERCIAL FISHERMEN CAN RECOVER FOR ECONOMIC LOSSES PROXIMATELY CAUSED BY THE NEGLIGENT RELEASE OF POLLUTANTS DESPITE THE FACT THAT THE FISHERMEN DO NOT OWN ANY PROPERTY DAMAGED BY THE POLLUTION?

2.     DOES THE PRIVATE CAUSE OF ACTION RECOGNIZED IN SECTION 376.313 PERMIT COMMERCIAL FISHERMEN TO RECOVER DAMAGES FOR THEIR LOSS OF INCOME DESPITE THE FACT THAT THE FISHERMEN DO NOT OWN ANY PROPERTY DAMAGED BY THE POLLUTION?

The supreme court answered both questions in the affirmative. 

The fishermen plaintiffs had alleged that in the summer of 2004, the Hillsborough County Environmental Protection Commission and the Florida Department of Environmental Protection warned defendant Mosaic that the quantity of wastewater in its storage facility was dangerously close to exceeding the safe storage level and that its dike was three feet narrower than the minimum required width.  One month later, the dike gave way and pollutants were spilled into Tampa Bay. 

The fishermen filed a complaint containing three counts:  Count I alleged statutory liability under §376.313(3); Count II alleged common law strict liability based on damages resulting from Mosaic’s use of its property for a ultra-hazardous activity; and Count III alleged simple negligence. 

The supreme court first found that §376.313(3) did allow commercial fishermen to recover damages for the loss of income, despite the fact that the fishermen did not own the property damaged by the pollution.  Because the statute (entitled “pollutant discharge prevention and removal”) broadly allows any person to recover for damages suffered as a result of pollution, and because that statute explicitly allows for an individual cause of action for damages caused by the destruction of the environment, the statute does subsume this cause of action.

The statute also allows a private cause of action for damages for a non-negligent discharge of pollution without proof that the defendant caused it.  Because the statute enumerates specific defenses like acts of God, acts of war, acts by a governmental entity or omissions or acts by a third party, and does not specifically list the lack of property ownership as a defense, the court found that the defense of not owning property was not a valid one.  Since there was nothing in the statutory provisions to prevent commercial fishermen from bringing an action pursuant to Chapter 376, the court held the cause of action was valid. 

Importantly, the court also ruled the economic loss rule did not bar the action.  The court noted that the economic loss rule in Florida applies in only two situations:  (1) where the parties are in contractual privity and one seeks to recover damages in tort for matters arising out of the contract, or (2) where the defendant is a manufacturer/distributor of a defective product which damages itself, but does not cause personal injury or damage to any other property.  Because the fishermen’s claims did not fall into either one of those two categories, the economic loss rule did not apply.

The court also rejected the claim that Mosaic did not owe an independent duty of care to protect the fishermen’s purely economic interests.  In Florida, the question of duty is linked to the concept of foreseeability.  As these fishermen were in the zone of risk, the court found a duty arose because there was a foreseeable risk created by the acts of the defendants.  For these reasons, the court found the fishermen had both a statutory and a common law cause of action, and ruled to allow the case to go forward.

A NON-RESIDENT COMMITS A TORTIOUS ACT WITHIN FLORIDA FOR PURPOSES OF §48.193(1)(b) WHEN HE OR SHE ALLEGEDLY MAKES DEFAMATORY STATEMENTS ABOUT A COMPANY WITH ITS PRINCIPLE PLACE OF BUSINESS IN FLORIDA, BY POSTING STATEMENTS ON A WEBSITE, WHERE SUCH WEBSITE POSTS ARE ACCESSIBLE AND ACCESSED IN FLORIDA

Internet Solutions Corp. v. Marshall, 35 Fla. L. Weekly S349 (Fla. June 17, 2010):

Because a woman who posted on her website in Washington made the material accessible to anyone with Internet access worldwide, once the allegedly defamatory material was published in Florida, the defendant committed the tortious act of defamation within Florida for the purposes of Florida’s long-arm statute.

However, the court noted that while it was only addressing the first step of the inquiry regarding personal jurisdiction, the second step is more restrictive, and precludes suit in any situation where the exercise of jurisdiction over a non-resident defendant would violate due process.  Because the question of whether due process concerns prevented the exercise of jurisdiction was not before the court, it did not answer it.

THE TRIAL COURT ERRS IN PROCEEDING WITH AN ACTION AFTER A DEFENDANT DIES, UNLESS THERE IS SUBSTITUTION OF THE DEFENDANT’S ESTATE AS THE PARTY

Schaeffler v. Deych, 35 Fla. L. Weekly D1296 (Fla. 4^th DCA June 9, 2010):

A woman was injured when a man made a right turn and negligently drove into her as she was walking her bicycle across the street.  The case was set for trial on a September 2008 docket.  In July, the defendant died from cancer. 

Notwithstanding that defense counsel was aware of the defendant’s death, the admission of liability and the agreement that there was no comparative negligence, the case went to trial and resulted in a $1.6 million dollar verdict, and a final judgment against the deceased. 

The defense moved for a new trial, and also sought to join the estate as an indispensable party.  The defense argued that the trial court erred in proceeding without substituting the estate as a party.  The estate was ultimately substituted, and the final judgment was amended to reflect entry of final judgment against the estate. 

Pursuant to Rule 1.260(a)(1), when an indispensable party to an action dies, the action abates until the deceased party’s estate or other appropriate legal representative has been substituted.  Here, the defendant was the sole defendant and an indispensable party to the action.  Because the case proceeded without the estate participating, the court ruled the estate’s due process rights were violated.  Even though the estate was “constructively” before the court, and everyone knew the defendant had died, plaintiff argued the estate was indeed constructively before the court.  Notwithstanding that this seemed to be a hyper-technical and illogical application of the rule, the violation of due process required a new trial.

ERROR TO ENTER SUMMARY JUDGMENT FOR INSURED IN A PIP CASE WHERE A SECOND AFFIDAVIT WAS FILED AND COULD NOT BE CONSIDERED A REPUDIATION OF THE FIRST AFFIDAVIT

United Automobile Insurance Co. v. Seffar, 35 Fla. L. Weekly D1302 (Fla. 3^rd DCA June 9, 2010):

In this PIP case, the physician admitted he had not reviewed any medical records, and said he would be happy to review any further material available on the patient.  Subsequently, the doctor received the records and reviewed them and concluded that much of the treatment was unreasonable, unrelated, and medically unnecessary.

The trial court struck the second affidavit, finding that it was a repudiation of the first and invalid.

The Third District reversed.  It found that any discrepancy in the second affidavit was not a bald repudiation of the first because the doctor did not have all the records and admitted that fact in his first affidavit.  Thus, it was error for the trial court to enter summary judgment in favor of the insured in the face of that affidavit.

APPELLATE COURT LACKED THE DISCRETION TO GRANT A NEW TRIAL BASED ON UNPRESERVED ERROR – ALTHOUGH COUNSEL TOLD JUDGE AT SIDEBAR HE THOUGHT AMENDED VERDICT WAS INCONSISTENT, FLORIDA LAW REQUIRES THERE BE A SPECIFIC REQUEST TO RESUBMIT THE MATTER TO THE JURY – ANY INCONSISTENCY WAS WAIVED WITHOUT SUCH A REQUEST

Barreto v. Wray, 35 Fla. L. Weekly D1307 (Fla. 3^rd DCA June 9, 2010):

Florida law requires there be a specific request to resubmit a matter to the jury when there is a perceived inconsistency, and the failure to do so waives it.  In this case, the evidence was consistent with the verdict and therefore the final judgment was affirmed.  

*Available to handle appellate and trial support matters for attorneys throughout the state.

COURT REVERSES SUMMARY JUDGMENT ENTERED IN FAVOR OF PSYCHOLOGIST FINDING THERE WAS A DUTY OWED BY A TREATING PSYCHOLOGIST TO PROTECT HER MINOR CLIENTS FROM THE ABUSE OF THEIR MOTHER

Rotell v. Kuehnle, 35 Fla. L. Weekly D1223 (Fla. 2^nd DCA June 2, 2010):

A psychologist was seeing the children of a couple after their contentious divorce and the continued problems they were having over issues of custody and their relationships with the children.  The mother accused the father of sexually abusing the children, and DCF prohibited him from seeing them until it finished its investigation (which was found to be unfounded).  In a tragic turn of events, the mother gave morphine tablets to the two children, and placed them in a van parked inside a garage with the engine running.  One child died, but the other managed to escape and survived. 

The father and the surviving brother sued the psychologist for her failure to in some way stop the abuse or to do something to protect the children.  She moved for summary judgment, arguing there was no duty that required the psychologist to protect the client from the actions of a third party after discovering the potential danger the third party poses.  The trial court granted summary judgment.

The appellate court reversed.  It found that the plaintiffs had met the minimum legal threshold of alleging a duty of care based upon the defendant’s status as the children’s’ treating psychologist which required her to treat them under the prevailing professional standard of care.  Their expert affidavit further created an issue of fact with respect to whether the psychologist knew or should have known that the children were subject to ongoing abuse by their mother such that the professional standard of care required her to warn the father or appropriate authorities of such abuse.  Because a treating psychologist has a special relationship with her patients, it was error to grant summary judgment.

TRIAL COURT ABUSED DISCRETION IN DRASTICALLY REDUCING NUMBER OF HOURS REASONABLE FOR APPEAL IN CONTRAVENTION OF AMOUNT AGREED TO BY BOTH EXPERTS WITHOUT FINDINGS – FURTHER ABUSED DISCRETION IN FAILING TO AWARD EXPERT WITNESS FEE

D’Alusio v. Gould and Lamb LLC, 35 Fla. L. Weekly D1226 (Fla. 2^nd DCA June 2, 2010).

CANNOT FILE §57.105 FEES UNLESS SERVED MOTION 21 DAYS BEFORE FILING IT WITH THE COURT – FACTS DID NOT RISE TO EGREGIOUS LEVEL NECESSARY TO JUSTIFY ASSESSMENT OF ATTORNEY’S FEES BASED ON “INEQUITABLE CONDUCT” DOCTRINE

Nedd v. Gary, 35 Fla. L. Weekly D1235 (Fla. 4^th DCA June 2, 2010):

While I think it is fairly well understood that §57.105 requires the motion served 21 days before the motion is filed with the court, I was not aware of the “inequitable conduct doctrine” as a basis for fees.  The “contours” of that doctrine were articulated in Bitterman v. Bitterman, which talks about the award of fees in extreme cases, where a party acts in bad faith, vexatiously, wantonly or for oppressive reasons. 

While the doctrine requires “extreme” litigation misconduct, it is a nice remedy to have in your back pocket for those who deserve it. 

TRIAL COURT ERRED IN DENYING MOTION TO COMPEL ARBITRATION ON GROUND THAT ARBITRATION AGREEMENT AGAINST PUBLIC POLICY WHEN THAT WAS NEVER RAISED–TRIAL COURT SHOULD HAVE CONDUCTED EVIDENTIARY HEARING ON THE ESTATE’S CLAIM THAT ARBITRATION WAS PROCEDURALLY UNCONSCIONABLE

FL-Carrollwood Care Center v. Jaramillo, 35 Fla. L. Weekly D1262 (Fla. 2^nd DCA June 4, 2010):

The trial court denied a nursing home’s motion to compel arbitration.

The court reversed on that point (public policy was never raised as an issue), but still remanded for an evidentiary hearing on the issue of procedural unconscionability (wife of the nursing home resident said she never signed the agreement).  The court then said in the event there was procedural unconscionability, it will be necessary for the court to consider substantive unconscionability (because to succeed on an unconscionability claim, both kinds must exist).

AN INSURANCE AGENT IS NOT AN “INSURER” LIABLE FOR ATTORNEY’S FEES UNDER §627.428, AND THE AWARD TO THE PREVAILING PLAINTIFF UNDER THAT SECTION WAS ERROR

Underwood Anderson & Associates v. Lillo’s Italian Restaurant, 35 Fla. L. Weekly D1269 (Fla. 1^st DCA June 4, 2010).

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VENUE FOR BAD FAITH CLAIM PROPER IN COUNTY WHERE ESTATE WAS OPENED AND WHERE CLAIM WAS INVESTIGATED

American Vehicle Insurance Co. v. Goheagan, 35 Fla. L. Weekly D1171 (Fla. 4^th DCA May 26, 2010):

The underlying litigation in this bad faith case arose from a car accident in Palm Beach County where a woman was killed.  Her estate was opened in Palm Beach County.  After an excess verdict, the plaintiff filed a bad faith claim, and the insurance company sought to transfer venue to Broward County.  The insurance company asserted that the insurance company did not maintain any offices or captive agents in Palm Beach County and that its office for transaction of customary business was located in Broward. 

Plaintiff asserted that both the insured and the victim were Palm Beach County residents, that the accident occurred here, the estate was opened here, and all communications concerning adjustment of the claim occurred in Palm Beach County. 

The Fourth District reminded us that the plaintiff has the prerogative to choose the venue, and as long as it is proper as provided by statute, the court will not disturb the selection. 

While the defendant properly filed an affidavit supporting a venue change to Broward County, the plaintiff met her burden by filing an affidavit showing that most of the underlying events occurred in Palm Beach.  When a contract is one for the performance of services, a cause of action for failure to perform them accrues where it is alleged that the agreed services were supposed to be performed.  Although the physical location of the adjuster was in Broward County, the totality of the circumstances supported venue being proper in Palm Beach County.

ERROR TO ENTER SUMMARY JUDGMENT ON CLAIMS OF NEGLIGENT DESIGN AND INSTALLATION

Clark v. ODV Holding, 35 Fla. L. Weekly D1181 (Fla. 4^th DCA May 26, 2010):

Plaintiffs sued defendants for negligent design of hurricane shutters and their storage system, negligent installation of the system and failure to warn regarding the use of it.  There were disputed issues of fact as to whether the hurricane shutter storage system was negligently designed and installed, and therefore summary judgment was reversed.

However, the court affirmed summary judgment on the negligence claims based on negligent design of the shutters and negligent failure to provide adequate warnings on the storage system.  The trial court correctly concluded that the danger presented by the sharp-edge shutters was open and obvious.  The court also properly entered summary judgment on negligent warning claims, because the undisputed facts showed that the plaintiff did not read the safety warning provided, and could not establish that the alleged failure to warn proximately caused their injuries.

TRIAL COURT ERRED IN DISMISSING COMPLAINT BASED ON FAILURE TO RELATE BACK

Florez v. Riscomp Industries, 35 Fla. L. Weekly D1190 (Fla. 3^rd DCA May 26, 2010):

Plaintiff alleged that she slipped and fell at a Miami Airport terminal bathroom where defendant was hired to provide janitorial services, and filed her complaint three days before the statute ran.  Although she knew before she filed the complaint that the defendant had subcontracted its janitorial responsibilities to a different entity, plaintiff did not sue or seek to add either that entity or the employee as a defendant.  Still, she amended her complaint three times after the initial filing. 

To survive a motion to dismiss, the complaint must relate back by the claim arising out of the same conduct, transaction or occurrence.  The doctrine is to be liberally applied to achieve its ends.  The question is whether the original pleading “gives fair notice of the general fact situation out of which the claim or defense arises.”

The court said on de novo review while it found that plaintiff had changed her legal theories of breach (amended the claims to state causes of action for non-delegable duty, violation of contractual duty and negligent selection, supervision and retention), the plaintiff’s ultimate conclusion did not alter the general fact situation from which the claim arose.

The court reversed the dismissal.

DEFENDANT NOT ENTITLED TO AWARD OF PREVAILING PARTY ATTORNEY’S FEES UPON PLAINTIFF’S VOLUNTARY DISMISSAL OF DECEPTIVE AND UNFAIR TRADE PRACTICES CLAIM BECAUSE JUDGMENT WAS NOT ENTERED FOLLOWING VOLUNTARY DISMISSAL – DEFENDANT WAS ENTITLED TO AWARD BASED UPON VOLUNTARY DISMISSAL OF MISLEADING ADVERTISING CLAIM

Black Diamond Properties v. Haines, 35 Fla. L. Weekly D1197 (Fla. 5^th DCA May 28, 2010):

Section 501.2105(1) requires a final judgment and an exhaustion of appeals before a party may get prevailing party attorney’s fees.  However, fees are appropriate after voluntary dismissals in general, when there is nothing specifically stating that a judgment needs to be entered as a condition precedent.

TRIAL COURT PROPERLY DISMISSED COMPLAINT FOR NEGLIGENT HIRING AND RETENTION WHEN PLAINTIFF FAILED TO ALLEGE SUFFICIENT NEXUS BETWEEN EMPLOYMENT AND PLAINTIFF, TO SUPPORT A DUTY OWED

McGill v. Bartlett Towing, 35 Fla. L. Weekly D1200 (Fla. 5^th DCA May 28, 2010):

Plaintiff alleged that she suffered personal injury when a towing company employee violently pushed her to the ground immediately before stealing her car.  At the time of the attack, though, the plaintiff was not seeking any towing services.  The complaint did not allege that the attack occurred on the towing company’s premises, nor did the employee meet the plaintiff as a direct consequence of his employment.  Further, there was no allegation that the company would have received a benefit from the meeting of the employee and the plaintiff had the wrongful act not occurred.  The employee had not been dispatched to the plaintiff’s location nor was she in need of tow truck service.

Because the amended complaint failed to allege a sufficient nexus between the offending employee and the plaintiff to support a legal duty owed to hire and retain non-dangerous employees, the trial court properly dismissed the complaint.  Without a legal duty to a particular plaintiff to exercise reasonable care in hiring and retaining safe and competent employees, a plaintiff cannot state a cause of action. 

*Available to handle appellate and trial support matters for attorneys throughout the state.

WHEN CASES INVOLVE ONLY PURELY ECONOMIC CONSEQUENCES AND SLIGHT INDIVIDUAL FINANCIAL HARM, PUNITIVE DAMAGE AWARD IS SUBJECT TO A THREE-PART “DUE PROCESS” ANALYSIS ACCORDING TO THE U.S. SUPREME COURT AND THE FOURTH DISTRICT

James Crystal Licenses, LLC v. Infinity Radio, 35 Fla. L. Weekly D1111 (Fla. 4^th DCA May 19, 2010):

In this case involving the ongoing saga between Jennifer Ross, WRMF, and WEAT, where the court reversed the judgments entered against Jennifer Ross and WRMF for damages allegedly caused by her violation of a covenant not to compete with WEAT.  The case is profiled due to its extensive analysis regarding punitive damages. 

The court held that punitive damages for fraud cannot stand absent proof of nominal damages, because a fraud claim, by necessity, requires proof of actual loss or injury due to acting in reliance on a false representation. 

The court then reminded us of the three-part analysis articulated by the United States Supreme Court in State Farm v. BMW which requires analysis of (1) the degree of reprehensibility of the defendant’s misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized and imposed in comparable cases.

In this tortious interference claim, the court found after applying the test, that the punitive damage award exceeded the boundaries of due process, and reversed.

TRIAL COURT DID NOT DEPART FROM ESSENTIAL REQUIREMENTS OF LAW BY ALLOWING NON-PARTY TREATING ORAL SURGEON TO HAVE EX PARTE PRE-DEPOSITION CONFERENCE WITH HER OWN ATTORNEY, EXCLUDING DISCUSSIONS REGARDING PLAINTIFF’S CARE AND TREAMENT

Hasan v. Garvar, 35 Fla. L. Weekly D1115 (Fla. 4^th DCA May 19, 2010):

The trial judge entered an order allowing a non-party treating physician to have an ex parte pre-deposition conference with her own attorney, excluding any discussions regarding the plaintiff’s care and treatment.  The oral surgeon–a non-party–was insured by the same carrier who insured the named defendants. 

Because the attorney simply wanted to discuss deposition techniques, etc., with the physician, the Fourth District found the order did not depart from the essential requirements of law.  This was not a situation where the non-party treating physician would have had an ex parte conference with the defendants’ attorneys.  This only allowed the non-party treater to have an ex parte conference with her own attorney. 

The court noted that it did not believe the temptation to violate a court ordered prohibition is as strong in situations involving non-party treating physicians and their own attorneys.  It explicitly stated that while it is not “naive,” it is not “so cynical” to accept the plaintiff’s assumption that the prohibition will be disobeyed simply because the same insurer has provided the attorneys. 

APPELLATE COURT REVERSED SUCCESSOR JUDGE’S DENIAL OF MOTION FOR NEW TRIAL AFTER DEFENSE DISQUALIFIED ORIGINAL JUDGE

Sullivan v. Kanarek, 35 Fla. L. Weekly D1143 (Fla. 2^nd DCA May 21, 2010):

In this extremely contentious medical malpractice case, the original trial judge commented on the record at the motion for new trial, that in her 20 years on the bench, she had not observed a trial that caused her so much concern on its fairness based upon the behavior of defendant’s counsel.  Based on those comments, the defense attorney moved to disqualify the judge.  Finding the motion legally sufficient, she granted it. 

The case was then re-assigned to a successor judge, and then assigned once again to a second judge.  The second successor noted how difficult it was to assess what went on at trial, especially since so much was contained off the record in non-verbal conduct.  In any event, he acknowledged the difficult position he was in, and ruled to deny the motion for new trial. 

The court reminded us that in civil cases when there are unusual circumstances (such as death or involuntary recusal), a successor judge is supposed to review the entire trial court record, and rule to the best of his or her ability.  If after reviewing the record, the successor judge determines that a particular credibility issue exists which prevents the trial court from adequately ruling on the merits, the successor judge may grant the motion and explain in a written order the specific circumstances justifying the new trial without ruling on the merits.

In this case, the successor judge acknowledged that the original judge was in the best position to make this decision, and his concern was underscored by the fact that the presiding judge had expressed grave concern for the fairness of the trial. 

The ruling of a successor judge on a motion for new trial is afforded less deference.  In any event, the court found that this case was the “extraordinary” type case where a successor judge can rule on a new trial, even in light of the credibility issues.  The court reversed and remanded for a new trial.

WHERE THERE WAS A SUBSTANTIAL ISSUE CONCERNING THE RESIDENT’S CAPACITY TO ENTER INTO A CONTRACT AT THE TIME HE SIGNED THE ADMISSIONS AGREEMENT WHICH INCLUDED AN ARBITRATION CLAUSE, IT WAS ERROR TO DENY DEFENDANT’S MOTION TO COMPEL ARBITRATION WITHOUT CONDUCTING AN EVIDENTIARY HEARING

F. L. Carroll Woods Care Center LLC v. Gordon, 35 Fla. L. Weekly D1148 (Fla. 2^nd DCA May 21, 2010).

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ABUSE OF DISCRETION TO DISMISS COMPLAINT WITH PREJUDICE FOR FRAUD

Gilbert v. Eckerd Corp., 35 Fla. L. Weekly D1060 (Fla. 4^th DCA May 12, 2010):

Plaintiff had a slip and fall case against Eckerd.  As part of her claim, she sought lost wages of over $400,000.  She calculated the amount based upon a disputed two-month employment with a company that sells decorative concrete coatings. 

During her two-month employment, she estimated she earned about $1,600 on a 12% commission.  Her husband testified she had actually never worked for that company, nor had she worked at all since 1999.  A representative of the company testified similarly. 

As a result of the dispute over plaintiff’s employment, Eckerd moved to dismiss for fraud.  After a non-evidentiary hearing, the trial court dismissed the claim with prejudice. 

The court reminded us how the dismissal for fraud is reviewed under a narrowed abuse of discretion standard, and such sanction may be imposed only on a clear showing of fraud, pretense, collusion or similar wrongdoing.  There must be a showing that the plaintiff set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability to impartially adjudicate matters.  The scheme must go to the very core at issue, and there must be false testimony directed related to a central issue in the case. 

The court advised that if the motion for dismissal would not survive summary judgment, it should not be granted (this is a helpful standard to throw out to trial judges considering dismissal).

It was undeniable that the defendant produced evidence that the plaintiff never worked as a salesperson or in any other capacity, but the plaintiff had produced evidence that she worked there, specifically producing two checks made payable to her and a 2003 income tax return.  While the defendant had an explanation for those items (that the check was made out to her for her husband to do them a favor), there was evidence distinguishing this case from those where the fraud is uncontroverted. 

The court also said that while there is no rule, statute or case that requires an evidentiary hearing to be held, it believes the better practice is to have such a hearing to make specific findings. 

Ultimately, because Eckerd did not produce clear and convincing evidence that the plaintiff perpetrated a fraud on the court, the dismissal was reversed.

VERDICT FOR PROPERTY OWNERS IN CITRUS CANKER CASES UPHELD

Department of Agriculture v. Borgoff, 35 Fla. L. Weekly D1062 (Fla. 4^th DCA May 12, 2010):

This class action involved 50,000 owners of healthy citrus trees in Broward County who had their trees cut down and destroyed by the Department of Agriculture as part of its citrus canker eradication program.  The jury awarded just compensation of over 11 million dollars, which after set offs was 8 million.

Ruling on the specifics of the case, the court admonished that courts cannot decide as a matter of law which side evidence–scientific or otherwise–should be accepted and which should be rejected.  Also, unless a threat to the health and welfare of a community is imminently threatened, property may not be destroyed without just compensation.  The court also properly calculated prejudgment interest from the date of the filing of the case.

PROPOSALS FOR SETTLEMENT CONDITIONED UPON THE ACCEPTANCE OF BOTH OFFEREES ARE INVALID AND UNENFORCEABLE

Traynor v. Delmonico, 35 Fla. L. Weekly D1072 (Fla. 4^th DCA May 12, 2010):

A joint offer of settlement that is conditioned on the mutual acceptance of all joint offerees is invalid and unenforceable because the proposal prevents either offeree from independently evaluating and/or settling his or her respective claim (citing, Attorneys Title Insurance Fund v. Gorka, 35 Fla. L. Weekly S196 (Fla. April 1, 2010)).

ERROR TO AWARD ATTORNEY’S FEES TO DEFENDANT BASED ON A PROPOSAL FOR SETTLEMENT WHERE PLAINTIFF VOLUNTARILY DISMISSED ACTION WITHOUT PREJUDICE

Smith v. Loews Miami Beach, 35 Fla. L. Weekly D1074 (Fla. 3^rd DCA May 12, 2010):

In the face of a motion for summary judgment regarding the impact rule, the plaintiff voluntarily dismissed her action without prejudice.  The hotel filed its motion seeking an award of attorney’s fees and costs based on its proposal for settlement. 

Pursuant to Rule 1.420(a)(1), a party has an absolute right to dismiss his/her entire action once without a court order by serving the notice of dismissal at any time before a hearing on a motion for summary judgment.  While an involuntary dismissal, a dismissal with prejudice, or a second voluntary dismissal would all serve as adjudications on the merits, according to MX Investments v. Crawford, when a plaintiff for the first time voluntarily dismisses her complaint without prejudice, the dismissal does not operate as an adjudication on the merits.

ERROR TO DISMISS COMPLAINT ON BASIS OF FRAUD

Hair v. Morton, 35 Fla. L. Weekly D1076 (Fla. 3^rd DCA May 12, 2010):

During discovery responses, the plaintiff denied any problems with her low back, but admitted she had HIV before the accident.  However, the record showed she had also had some low back problems before the accident. 

While the plaintiff’s discovery responses might preclude some of her claimed damages regarding her lower back, they did not address the issue of liability, or all of her claimed damages to justify dismissal of the action.  Accordingly, the court reversed the dismissal for fraud.

TRIAL COURT IS NOT FREE TO DISREGARD SUPREME COURT PRECEDENT AS BEING WRONGLY DECIDED – TRIAL COURT ERRED IN ENTERING SUMMARY JUDGMENT FOR DEFENDANT SUBCONTRACTOR ON THE BASIS OF WORKER’S COMPENSATION IMMUNITY, DURING THE PERIOD OF TIME WHERE SUBCONTRACTORS WERE NOT IMMUNE FROM LIABILITY FOR INJURIES SUFFERED BY THE CONTRACTOR’S EMPLOYEE (WHICH AGAIN IS THE LAW)

Ramcharitar v. Erzulie Derosins, 35 Fla. L. Weekly D1082 (Fla. 3^rd DCA May 12, 2010).

IN ORDER TO STATE CAUSE OF ACTION UNDER INTENTIONAL TORTS EXCEPTION TO WORK COMP. IMMUNITY, MUST BE INTENTIONAL TORT ALLEGED; SIMILARLY, MUST ALLEGE NEGLIGENCE OF A CO-EMPLOYEE FOR UNRELATED WORKS EXCEPTION TO APPLY

Hunt v. Corrections Corp. of America, 35 Fla. L. Weekly D1102 (Fla. 1^st DCA May 14, 2010):

Plaintiff nurses sued the Corrections Corporation of America for injuries they sustained as nurses in the Bay County jail.  They sued under intentional tort and the unrelated workers’ exceptions to work comp. immunity. 

In the complaint, the plaintiffs failed to allege facts for intentional tort, making their claim based on negligence allegations only. 

The unrelated works exception could also not apply because plaintiffs failed to allege any specific negligence against a co-employee which is required.  The court affirmed the summary judgment entered against the plaintiffs. 

*Available to handle appellate and trial support matters for attorneys throughout the state.

TRIAL COURT PROPERLY APPLIED §768.76(4) TO DETERMINE HEALTH INSURER’S REIMBURSEMENT AMOUNT

Ingenix v. Ham, 35 Fla. L. Weekly D993 (Fla. 2^nd DCA May 5, 2010):

After a settlement in a medical malpractice case, the estate filed a motion for equitable distribution, arguing that the health insurer was not entitled to full repayment of its bills (instead subject to §768.76(4) which allows reimbursement after a deduction for the health insurer’s pro rata share of attorney’s fees and costs).

The health insurer relied on Travelers v. Boyles, 679 So. 2d 1188 (Fla. 4^th DCA 1996), to argue that §768.76 only applies to claims arising out of reimbursement rights not founded on a contract.  According to Travelers, where the statute is not implicated, a policy provision may allow for full reimbursement. 

However, Travelers does not allow the policy provision to control when §768.76(4) is otherwise applicable.  The court determined that this case presented the exact scenario envisioned by §768.76(4), and found that when an insurance policy contains a right of reimbursement, the statute applies and requires a reduction of the reimbursement by the pro rata share of costs and attorney’s fees.

IN CASES WEHRE §440.11 (INTENTIONAL TORT EXCEPTION) AND §768.28(9)(a) CONFLICT, SOVEREIGN IMMUNITY CONTROLS AND BARS LAWSUIT

Smith v. DCF, 35 Fla. L. Weekly D1011 (Fla. 1^st DCA May 6, 2010):

An employee of a Florida state hospital suffered a fatal heart attack at work, after he was beaten when he intervened into a violent physical confrontation between an inmate and a coworker.  At the time of his death, he was a unit training rehabilitation specialist at the hospital’s forensic unit, which houses people deemed incompetent to stand trial or found not guilty by reason of insanity. 

The estate filed a wrongful death lawsuit against DCF (which operated the hospital).  The complaint alleged the Department had engaged in conduct virtually certain to cause injury or death to an employee. 

The allegations of the plaintiff’s complaint tracked the language of §440.11(1)(b), the intentional tort exception to work comp immunity. 

Unfortunately, while the trial court agreed with plaintiff’s allegations, it dismissed the case finding there was no case against DCF, because the state has not waived sovereign immunity for the “wanton and willful disregard” of a person’s safety. 

Unfortunately, when the provisions of §440.11(1) and §768.28(9)(a) conflict, the provisions of §768.28(9)(a) control. 

ERROR TO ENTER SUMMARY JUDGMENT FOR DEFENDANT ON GROUNDS THAT DEFENDANT SUDDENLY AND UNEXPECTEDLY LOST CONSCIOUSNESS BEFORE CRASH – THERE WERE ISSUES OF FACT AS TO WHETHER LOSS OF CONSCIOUSNESS WAS SUDDEN AND FORESEEABLE

Abreu v. F.E. Development Recycling, 35 Fla. L. Weekly D1018 (Fla. 5^th DCA May 7, 2010):

As a general rule, the operator of an automobile who unexpectedly loses consciousness or becomes incapacitated is not chargeable with negligence as a result of the loss of control.  To establish the defense of sudden and unexpected loss of capacity or consciousness, the defendant must prove: (1) that the defendant suffered a loss of consciousness or capacity; (2) the loss of consciousness or capacity occurred before the defendant’s purportedly negligent conduct; (3) the loss of consciousness was sudden; and (4) the loss of consciousness or capacity was neither foreseen nor foreseeable. 

Here, it was undisputed that the defendant lost consciousness while driving and suffered a brain aneurism.  However, the medical notes indicated that he had a history of aneurisms and had a nephrology consult.  In addition, there were records showing that on the date of the accident, defendant had a headache for several hours prior to losing consciousness, and felt like his head was spinning.  The records also show that he was trying to drive home but started having blurry vision, when he could not see, and felt like he was going to pass out.

The court held that such evidence raised a question of fact regarding the “suddenness” of the loss of consciousness, and therefore reversed the summary judgment.

ORDER COMPELLING DEFENDANT TO PRODUCE ALL COMPUTER HARD DRIVES AND CELL PHONE SIM CARDS WAS A DEPARTURE FROM ESSENTIAL REQUIREMENTS OF LAW

Holland v. Barfield, 35 Fla. L. Weekly D1018 (Fla. 5^th DCA May 7, 2010):

Plaintiff sued defendant and five others alleging damages for the wrongful death of a man who fell from the tenth floor balcony of the defendant’s residence.  The plaintiff asked defendant to produce all computer hard drives and cell phones from 24 hours before the accident to the present time.  The trial court granted plaintiff’s motion to compel these records. 

The court found that the trial court’s order was over broad, and allowed the plaintiff to review, without limit or time frame, all of the information on defendant’s computer and mobile phone records.  The court gave no consideration to her constitutional right of privacy, her right against self-incrimination or privileges (including attorney/client and work product privileges).

In light of the potential exposure to personal communications from the computer that would expose confidential matters as well as matters extraneous to the litigation such as banking records, the order departed from the essential requirements of law.

IN AN EN BANC DECISION, THE COURT FOUND THAT THE CLAUSE IN A PIP POLICY PROVIDING THAT “ANY PERSON OR ORGANIZATION MAKING CLAIM OR SEEKING PAYMENT MUST, AT OUR OPTION, SUBMIT TO AN EXAMINATION UNDER OATH, PROVIDE A STATEMENT UNDER OATH, OR DO BOTH, AS REASONABLY OFTEN AS WE REQUIRE,” WAS NOT BINDING ON AN ASSIGNEE OF THE RIGHT TO PAYMENT OF NO-FAULT BENEFITS

Shaw v. State Farm, 35 Fla. L. Weekly D1020 (Fla. 5^th DCA May 7, 2010):

The issue before the court was whether an EUO clause in a policy is binding on an assignee of the right to payment of no-fault benefits.  It is undisputed that a provision in an insurance policy that requires the insurer to submit to an EUO qualifies as a condition precedent to the recovery of benefits.  The question arising in this case was whether an insurer could include in the policy a provision that extends the duty to submit to an EUO to assignees of the insured’s right to insurance proceeds. 

Because the assignment of a contract does not entail the transfer of any duty to the assignee, unless the assignee assents to assume the duty, a medical provider as assignee of the right of the insured to payment under the insurance contract, has no duty to perform any covenant under the contract because it never agreed to do so. 

The court certified the following question to the Florida Supreme Court:

Whether a health care provider who accepts an assignment of no-fault insurance proceeds in payment of services provided to an insured can be required by a provision in the policy to submit to an examination under oath as a condition to the right of payment?

SECOND DISTRICT MAKES CLEAR THAT EXPERT TESTIMONY IS STILL NEEDED TO SUPPORT MOTION FOR ATTORNEY’S FEES

Sourcetrack, LLC v. Best Products, 35 Fla. L. Weekly D1032 (Fla. 2^nd DCA May 7, 2010):

While it is true that the standard of review of an order setting an amount of appellate attorney’s fees is often described as an “abuse of discretion,” the court noted that said discretion can only be exercised by a court after it has received competent and substantial evidence permitting a discretionary decision.

While there is some debate currently about whether trial judges should be given greater latitude in awarding attorney’s fees without receiving expert testimony, the Second District continues to require such testimony.  Especially in cases of a certain magnitude, it is important for a trial judge who may be unfamiliar with the work typically performed by appellate counsel, to obtain testimony on the reasonableness of the fees and the need for the legal work.  Thus, it was error for the trial court to award fees without competent and substantial evidence to support the award.

ALLEGATIONS THAT DEFENDANT’S ACTIONS IN MAKING FALSE STATEMENTS ABOUT THE CAUSE OF DECEDENT’S DEATH, WHICH LED TO THE INTERRUPTION OF DECEDENT’S FUNERAL AND RETURN OF HER BODY FOR A SECOND, MORE THOROUGH AUTOPSY, ALLEGED ACTIONS RISING TO THE LEVEL OF ATROCIOUS AND INTOLERABLE BEHAVIOR SUFFICIENT TO SUPPORT A CLAIM FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

Thomas v. Hospital Board of Directors of Lee County, 35 Fla. L. Weekly D1038 (Fla. 2^nd DCA May 7, 2010).

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