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. 

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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. 

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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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NO CAUSE OF ACTION FOR THIRD-PARTY BAD FAITH AGAINST AN INSURER WHEN THE INSURER’S ACTIONS ARE NOT THE CAUSE OF DAMAGES TO THE INSURED OR WHEN THE INSURER’S ACTIONS DID NOT RESULT IN EXPOSURE TO LIABILITY IN EXCESS OF THE POLICY LIMITS

Perera v. USF&G, 35 Fla. L. Weekly S235 (Fla. May 6, 2010):

The plaintiff’s husband was crushed to death by a piece of equipment during the course of his employment with Estes Express.  At the time of his death, the employer maintained three policies.  One of them was issued by USF&G and had a limit of a million dollars which was an excess work comp liability policy. 

USF&G denied coverage based on a coverage exclusion.  The plaintiff formally demanded $12 million dollars to settle the case.  USF&G was asked to leave mediation when it advised it would not tender its limits due to its coverage defense. 

In the months that followed there were many settlement negotiations.  The plaintiff, the employer and the employees entered into a stipulation to settle for $10 million dollars.  The stipulation provided that the defendant and the employees would pay $5 million dollars and provide a written waiver of the work comp. lien.  Although not stated in the stipulation, the negotiated settlement also provided that $750,000 would come from the employer, $500,000 from another insurer, and $3.75 from a third insurer.  The remaining $5 million was to be sought in a lawsuit against USF&G. 

The trial court found the settlement was in good faith and reasonable, the court approved the stipulation.  Thereafter, the $5 million dollars was paid, and the plaintiff sued USF&G for the remaining $5 million dollars.  One cause of action was for breach of contract, and the other was for bad faith. 

USF&G removed the case to Federal court, and the Federal court granted summary judgment in favor of the plaintiff on the breach of contract claim, requiring it to pay its policy limits of $1 million.  That left $4 million dollars from the consent judgment outstanding.  The Federal court found there was no bad faith because the employer still had millions of dollars in insurance coverage from another insurer at the time of the settlement.  The district court entered summary judgment in favor of USF&G, stating that without an excess judgment, there could be no bad faith. 

The Eleventh Circuit reversed.  It found the determination regarding bad faith had the potential to moot the case and remanded to the Federal court for a jury to consider that issue. 

After the case returned to the Eleventh Circuit subsequent to the bad faith finding, the court found there could be no excess judgment because the employer had additional coverage, and the stipulation was for less than that.  The Eleventh Circuit then said that even in situations where an excess judgment is not required, the bad faith claim was barred, because the insured was never exposed to liability in excess of the limits of the policies.  The Eleventh Circuit found that the employer was never exposed to liability, because any exposure above USF&G’s limits was covered by the policy with $25 million dollars in coverage.

Ultimately, the court concluded that USF&G’s actions did not cause the employer to sustain the damages claimed, nor did it expose the employer to liability in excess of its limits.  Accordingly, the plaintiff as the assignee was not entitled to recover the unpaid portion of the consent judgment.

NEW TRIAL REQUIRED WHEN TRIAL JUDGE ERRONEOUSLY FAILED TO GIVE PLAINTIFF’S REQUESTED JURY INSTRUCTION THAT DEFENDANTS WERE RESPONSIBLE FOR ANY DAMAGES RESULTING FROM NEGLIGENT OR IMPROPER MEDICAL TREATMENT

Nason v. Shafranski, 35 Fla. L. Weekly D943 (Fla. 4^th DCA April 28, 2010):

Defendants admitted negligence in causing an accident, but disputed the amount of damages.  Plaintiff argued on appeal that the trial judge erred by allowing defendants to present expert medical testimony regarding unnecessary surgeries, which thereby shifted the blame for plaintiff’s damages from the defendants, to plaintiff’s treating physician.  The plaintiff argued that the trial judge compounded the error, by refusing to give plaintiff’s requested jury instruction that defendants were responsible for any damages resulting from negligent or improper medical treatment.

The defense doctor was allowed to testify over the plaintiff’s objection that he would not have recommended plaintiff undergo reconstructive surgery, and that the plaintiff had disk bulges like everybody does.  Defendant hammered the point of the unnecessary surgeries home during closing.  During jury deliberations, the juror asked whether the defendant would be relieved of liability if the plaintiff was a victim of “unscrupulous” medical treatment. 

The Fourth District rejected defendants’ argument that the defendants were merely contesting the reasonableness of the medical expenses.  Instead, the defense medical expert was allowed to focus on the treating physician’s lack of skill and judgment and poor results, and the denial of the special jury instruction amounted to reversible error.

In the special concurring opinion, Judge Farmer proposed a “draft” of a jury instruction.  Obviously, I would suggest everyone use this until such time as the Jury Instruction Committee approves one of its own.  (THL – You should use this on a rehearing of your denied Motion in Limine).

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

TRIAL COURT PROPERLY ENTERED SUMMARY JUDGMENT FOR INSURER IN INSURED’S ACTION TO RECOVER PIP BENEFITS BASED ON THE INSURED’S FRAUD – TRIAL COURT ABUSED DISCRETION IN REFUSING TO AWARD INSURER ATTORNEY’S FEES WHEN THERE WAS NO EVIDENCE THAT OFFER OF JUDGMENT NOT MADE IN GOOD FAITH

Bosem v. Commerce and Industry Insurance Co., 35 Fla. L. Weekly D892 (Fla. 3^rd DCA April 21, 2010):

Noting that cases alleging fraud are generally unsuitable for summary judgment, the court wrote that it had an “extraordinary case” before it where the facts of fraud were so clear, that entry of summary judgment was not only appropriate but compelled. 

In this case, the plaintiff insured, an attorney, sought insurance benefits for lost wages, but had been fully compensated by his employer for a year’s worth of income.  Additionally, his calculation of weekly earnings was immensely exaggerated. 

The insured attempted to separate the fraud for the lost wages from the compensation for medical expenses.  However, the court pointed out that §627.736(4)(g) states that any insurance fraud voids all coverages arising from the claim. 

The court agreed with the insurer’s assertion that the trial judge should have granted the claim for attorney’s fees under the proposal for settlement.  Because there was no evidence that the offer was not made in good faith, and the trial court made no finding to that effect, it was error not to award fees.

TRIAL COURT ABUSED DISCRETION IN DISMISSING ACTION BASED ON FORUM NON-CONVENIENS, WHERE MOTION TO DISMISS WAS UNTIMELY – DEFENDANT ALSO WAIVED THE ISSUE BY INITIALLY REPRESENTING IT WOULD NOT MOVE TO DISMISS ON THAT BASIS

Caraffa v. Carnival Corp., 35 Fla. L. Weekly D892 (Fla. 3^rd DCA April 21, 2010):

The plaintiff sued Carnival for the wrongful death of her husband due to his prolonged exposure to asbestos while working on Carnival ships.  Suit was filed on January 17, 2006, and Carnival served its motion to dismiss in March which included a forum non-conveniens argument.  The case was litigated, amended complaint and new motions to dismiss filed (where Carnival did not raise the forum non-conveniens argument), and finally three years after the original complaint was filed, Carnival asked for dismissal based on forum non-conveniens.

The Third District reversed this dismissal for an abuse of discretion.  Florida Rule of Civil Procedure 1.061(g) requires the service of a motion to dismiss no later than 60 days after service of process on the moving party.  Not only was Carnival well beyond this time frame, the parties conducted discovery and expended time and resources, thereby waiving the right to claim the issue. 

The court further noted that while Carnival included a forum non-conveniens argument in its first motion to dismiss, it declined to contest jurisdiction shortly thereafter, and in responses to requests for production, declared it was not moving to dismiss based on that doctrine anyway.  The court reversed the dismissal.

CIRCUIT COURT IMPROPERLY ORDERED PLAINTIFF TO SUBMIT TO COMPULSORY MEDICAL EXAM IN PRESENCE OF VIDEOGRAPHER HIRED BY AND ACTING FOR DEFENDANT’S COUNSEL

Prince v. Mallari, 35 Fla. L. Weekly D909 (Fla. 5^th DCA April 23, 2010):

The trial judge ordered plaintiff to submit to a compulsory exam under Rule 1.360 in the presence of a videographer hired by the defendant.  The notice setting the exam stated that if the plaintiff videotaped it, the defendant would also at its own expense. 

The plaintiff objected on multiple grounds (no authority under Rule 1.360 to allow a defendant’s rep. besides the IME doctor to be there, IME’s permit only minimal invasion of privacy rights of patients, HIPAA, IME is done by defendant’s expert and plaintiff can have a representative because of its adversarial nature). 

Defense counsel argued he was entitled to his own videotape because plaintiff’s videotape would be work product that defendant could not get.  The plaintiff argued that allowing defendant to videotape would impermissibly invade plaintiff’s privacy, and the videographer was there for the plaintiff’s benefit and protection. 

While it is well established that a plaintiff may be accompanied at a CME by counsel or videographer of her choosing, Florida courts have made it clear that although the defense has a right, by rule to a compulsory exam, defense counsel does not have the right to be present there.  The compulsory physical puts plaintiff in an awkward position of being examined by someone who is not only not of her choosing, but has no interest in the plaintiff’s well being or the plaintiff’s medical treatment.

The defense also loses nothing, because in the event plaintiff chooses to use the video, it must be produced to the defendant before trial.

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

TRIAL COURT DID NOT ABUSE DISCRETION IN DENYING MOTIONS TO TRANSFER VENUE TO COUNTY WHERE ACCIDENT OCCURRED BASED ON THE FACTS OF THIS WRONGFUL DEATH PRODUCTS LIABILITY CASE

Ford Motor Co. v. James, 35 Fla. L. Weekly D836 (Fla. 4^th DCA April 14, 2010):

Plaintiff sued Ford and Michelin for negligence and strict liability after her daughter was killed in a car accident while on a trip with her dance team that left from Broward County and was heading to Alabama.  The tire blew out near Lake City, and the decedent was ejected from the vehicle and later died from her injuries.

Plaintiff filed suit in Broward County.  Ford and Michelin each filed a motion to transfer venue to Columbia County pursuant to §47.122 (forum non-conveniens).  Defendant contended that the accident occurred in Columbia County and the most significant witnesses in the case resided there including law enforcement officers, emergency medical personnel, eyewitness and the medical staff from the hospital as well as the medical examiner.

The plaintiff opposed the motions, pointing out that eight of the other passengers in the vehicle were eyewitnesses to the accident and resided in Broward, as did the driver who was a named defendant.  The decedent was a resident of Broward at the time of her death, and her mother resided there, and the subject vehicle was rented there. 

The court noted the three statutory factors used to determine whether to grant a motion pursuant to §47.122:  (1) convenience of the parties; (2) the convenience of the witnesses (most important); and (3) the interest of justice.

Plaintiff identified nine eyewitnesses who were in the vehicle at the time of the accident and were the only individuals to witness it.  This van was also rented in Broward and kept and maintained in Dade.  

Also, as the court noted, the material allegations of the complaint involved a potential manufacturing defect in the tire and the design defect in the van and negligent maintenance.  Thus, the determination on liability was going to turn primarily on expert testimony.  Because there was no suggestion that the experts would be inconvenienced by a trial in Broward, the court held the trial judge properly denied defendant’s motion to transfer venue based on forum non-conveniens. 

TRIAL COURT DID NOT ERR IN ENTERING DIRECTED VERDICT FOR TRUCKING COMPANY ON NEGLIGENT INSPECTION AND MAINTENANCE – DID NOT ERR IN REFUSING TO GIVE VICARIOUS LIABILITY INSTRUCTION BECAUSE OF STIPULATION AND DID NOT ERR IN REFUSING TO GIVE ADDITIONAL CONCURRENT CAUSE INSTRUCTION

Beltran v. Rodriguez, 35 Fla. L. Weekly D844 (Fla. 3^rd DCA April 14, 2010):

The decedent made a u-turn, and her car collided with another car.  The parties stipulated she did not stop before making the turn.  She was hit in a sideswipe collision, causing her vehicle to slide 46 feet before coming to rest on the opposite side of the road, at which point (7 seconds later), she was hit by another car.  The decedent died as a result of the two crashes. 

At the close of the plaintiff’s case, the trucking company (involved in the second collision) moved for a directed verdict.  The case proceeded against the truck driver with the stipulation that if the driver was found liable, the company would be held vicariously responsible.  The jury found no liability on the part of the driver. 

Plaintiff had alleged that the trucking company was negligent in inspecting and maintaining the vehicle.  With the scant evidence of negligent maintenance, plaintiff’s expert testified there was also no evidence that the driver took measures to avoid the collision, thereby showing that none of the truck’s defects contributed to the accident. 

There was evidence of the truck’s defective condition, but no evidence that the condition of the truck caused or contributed to the accident.  Thus, there was no jury question presented, and directed verdict was proper. 

It was also not error to refuse to give the jury the vicarious liability instruction.  Because there was a stipulation on that, there was no need.

The trial judge also properly refused plaintiff’s special instruction on concurrent cause, because the standard instruction covered it, and the plaintiff failed to show the instruction she requested was necessary to properly resolve the issues in the case.  There was also no showing that the standard instruction was not sufficient to resolve the issues, and that the jury was in some way misled or prejudiced by the failure to give the additional instruction. 

TRIAL COURT ABUSED ITS DISCRETION IN STRIKING PLEADINGS AND DISMISSING ACTION WITH PREJUDICE FOR FRAUD ON THE COURT, WITHOUT CLEAR AND CONVINCING EVIDENTIARY BASIS

Hernandez v. City of Miami, 35 Fla. L. Weekly D847 (Fla. 3^rd DCA April 14, 2010):

Based on discrepancies about his injuries in the plaintiff’s answers to interrogatories and during his deposition testimony, the trial court struck the pleadings, and dismissed the plaintiff’s case with prejudice. 

While a trial court does have inherent authority to dismiss an action as a sanction when a plaintiff has perpetuated a fraud, the power must be exercised cautiously, sparingly and only upon a clear showing of fraud.  For the trial court to properly exercise its discretion, there must be an evidentiary basis to dismiss the case.

Here, the trial court did not have clear and convincing basis to dismiss for fraud.

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

TRIAL COURT ABUSED DISCRETION IN DISMISSING CASE FOR FAILURE TO SERVE DEFENDANT WITHIN 120 DAYS

Amaran v. Marath, 35 Fla. L. Weekly D764 (Fla. 3^rd DCA April 7, 2010):

The plaintiffs had evidence of trying to locate defendant.  She was told through interrogatories that this particular defendant could be contacted through a South African employment agency, and it was later learned that he maintained a residence in Florida. 

After many wranglings, a deposition, etc., the defendant was finally served.  However, he moved to dismiss the amended complaint for untimely service. 

While the statute of limitations had run, the trial court still dismissed.  It failed to acknowledge that incorrect or misleading information was knowingly provided by one of the defendants to delay service of the co-defendant.  When the trial court dismissed the case under these circumstances, it abused its discretion. 

WHEN A CLAIM IS COMPENSABLE UNDER NICA AS TO SOME PERSONS OR ENTITIES INVOLVED, BUT NOT OTHERS, A CLAIMANT MUST ELECT TO ACCEPT NICA NO FAULT BENEFITS, OR INSTEAD PURSUE A CIVIL ACTION AGAINST THE NON-COVERED PERSONS OR ENTITIES

Pediatrix Medical Group v. Falconer, 35 Fla. L. Weekly D780 (Fla. 4^th DCA April 7, 2010):

In light of a recent supreme court decision, once a claimant accepts NICA benefits for a compensable claim, the claimant then foregoes a civil suit against any person or entity (including non-covered persons or entities) directly involved with the labor, delivery or immediate post-delivery resuscitation (see §766.303(2)).  Because the remedies are mutually exclusive, when a claim is compensable under NICA as to some persons but not others, the claimant must elect to accept the no-fault benefits under NICA, or to pursue a civil action against the non-covered persons instead.

ERROR TO FIND PLAINTIFF ESTOPPED FROM BRINGING A LAWSUIT INCONSISTENT TO HER POSITION IN A PRIOR LAWSUIT, WHERE THE POSITION WAS NOT SUCCESSFULLY MAINTAINED IN THE FIRST LAWSUIT

Batie v. Batie, 35 Fla. L. Weekly D800 (Fla. 1^st DCA April 7, 2010):

This case contains few facts but is reported for the principal of law found therein. 

PRESUMPTION OF NEGLIGENCE ON PART OF REAR DRIVER IS NOT APPLICABLE IN AN ACTION BY A PASSENBER OF THE REAR VEHICLE AGAINST THE DRIVER OF A LEAD VEHICLE – THE ISSUE IS WHETHER THE DEFENDANT WAS NEGLIGENT AS TO THE FORWARD DRIVER

Charron v. Birge, 35 Fla. L. Weekly D805 (Fla. 5^th DCA April 9, 2010):

A motorcyclist was driving his motorcycle, and plaintiff was riding as a passenger.  A car traveling in front of him rounded a curve, and as plaintiff looked down a crossover side road to ensure nobody was coming, he found the car just about “stopped” in front of him.  He said he was unable to avoid hitting it, which caused the motorcycle to flip and come to rest on top of the passenger plaintiff. 

The defendant testified that he and his wife were on their way to the zoo, and that he slowed down as he saw another car approaching the yield sign.  The defendant said he was being cautious to slowly step on the brake at this “hairy” intersection.  He said he pulled ahead, and then passed the truck and heard a thump on the left. 

The driver of the front car said he slowed down when he saw the defendant’s car coming from behind him. 

The defendant filed a motion for summary judgment asserting that presumption of negligence attached to the motorcycle driver as the rear-ending driver, and that the plaintiff passenger failed to overcome the presumption.  The trial judge granted the summary judgment, ruling that Florida law makes the person in the rear responsible for the accident if the person in the front stops. 

The appellate court ruled that the presumption does not apply where a passenger of the following vehicle sues the lead driver for his negligence.  The issue is whether the defendant was negligent as the forward driver, not whether the motorcycle driver’s presumed negligence as the following driver was rebutted.  To the extent that there exists evidence sufficiently demonstrating the defendant was negligent as the forward driver, summary judgment against the rear driver is improper.

The court said that the issue properly framed is not whether any presumption of the motorcycle driver’s negligence was rebutted, but whether there was record evidence that the defendant was negligent as the forward driver, and solely caused or in connection with the motorcyclist, caused the injuries to the passenger plaintiff.  The evidence could support a verdict.  The negligence on part of the defendant was that he “suddenly stopped” in the middle of the street, and did so unnecessarily under the mistaken belief that another vehicle had the right to proceed.

ERROR TO GRANT COUNTY’S MOTION FOR DIRECTED VERDICT ON GENERAL NEGLIGENCE CLAIM WHEN THERE WAS EVIDENCE THAT JURY COULD FIND DEFENDANT BREACHED ITS DUTY OF CARE

Soltwisch v. Pasco County, 35 Fla. L. Weekly D812 (Fla. 2^nd DCA April 9, 2010):

Standard of review on a ruling for a motion for directed verdict is de novo.  In considering the merits of such a motion, the court must review the evidence in a light most favorable to the non-moving party.  Motions for directed verdict should only be granted where no view of the evidence or inferences made therefrom could support the verdict for the non-moving party. 

When looking at the evidence that way, 75 year-old decedent was at a wound-care clinic with his wife receiving a hyperbaric oxygen therapy to relieve pressure sores on his left foot.  He experienced some mild tremors according to one of his doctors during that process, and there were no signs that he had suffered a stroke at that time.  Still, the staff of that facility called 911.

A Pasco County Fire Rescue ambulance arrived at the clinic to take the man to the hospital.  The paramedic indicated the initial vital signs were normal, and the man was semi-responsive.  However, by the time he arrived at the hospital, he was complaining of pain from his hip.  There was also an indication that his blood pressure sharply increased when he got to the emergency room.  An x-ray showed a neck fracture.  The man underwent surgery to repair the fracture, acquired an infection, and then died from it.

The decedent’s wife testified she heard a loud bang when the paramedics put the man in the ambulance, and the estate presented several experts who testified that his fracture occurred as a result of transport by the paramedics, not from a seizure or osteoporosis.  There was evidence adduced that the man somehow obtained a fracture while he was in Pasco County’s exclusive control.  The court found those facts sufficient to overcome the directed verdict, and it was error for the trial court to enter it. 

TRIAL COURT DID NOT DEPART FROM ESSENTIAL REQUIREMENTS OF LAW IN COMPELLING DEFENDANT NURSING HOME TO PROVIDE PLAINTIFF THE NAMES, BIRTH DATE, SOCIAL SECURITY NUMBER, AND FORWARDING CONTACT PERSONS OF A FORMER NURSING HOME RESIDENT WHO PLAINTIFF SOUGHT TO LOCATE AS A MATERIAL WITNESS – THE ORDER WAS NARROWLY TAILORED AND THE COURT PROPERLY BALANCED THE INDIVIDUAL’S FORMER RESIDENTS’ PRIVACY CONSIDERATIONS AGAINST THE PLAINTIFF’S NEED FOR THE INFORMATION ALREADY POSSESSED BY THE NURSING HOME

Delta Health Group v. Estate of Collins, 35 Fla. L. Weekly D814 (Fla. 1^st DCA April 9, 2010).

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

WHERE INSURER ISSUED POLICY TO FLORIDA RESIDENTS COVERING VEHICLES PRINCIPALLY GARAGED AND REGISTERED IN FLORIDA, AND ALSO DELIVERED A DELAWARE POLICY COVERING THE VEHICLE REGISTERED AND PRINCIPALLY GARAGED THERE, DELAWARE POLICY COULD NOT BE ENFORCED WHERE INSURER DID NOT OBTAIN INFORMED CONSENT UNDER FLORIDA LAW

Rando v. Government Employee’s Insurance Co., 35 Fla. L. Weekly S201 (Fla. April 8, 2010):

A plaintiff sustained life-altering injuries in an accident caused by an underinsured driver.  At the time, the plaintiff and his wife were named insureds on two policies issued by GEICO.  One was a Florida policy covering two vehicles registered and principally garaged in Florida.  The other, a Delaware policy, covered a vehicle registered and principally garaged in Delaware where the plaintiffs’ daughter resided.  The Delaware policy was executed and delivered in Florida (the plaintiffs moved in 2004).  There was no express choice of law provision in that policy.

After the accident, the plaintiffs were paid the full amounts under the Florida UM policy.  However, they were denied benefits under the Delaware policy because of a provision prohibiting the combining or stacking of UM benefits from separate GEICO policies. 

Guided by the principle of lex loci contractus, the court looked to the law of the state where the insurance contract was executed as the one governing the rights and liabilities of the parties.  Because this Delaware policy was executed and delivered in Florida, Florida law governed. 

While Florida also has an anti-stacking law, it requires insurers to inform the named insured that non-stacking is alternative coverage.  Florida law requires informed consent by the insured.

The supreme court concluded that §627.727(9) applied because the plaintiffs’ car was principally garaged and registered in Florida, and ruled that informed consent was required by Florida law in order to validate the anti-stacking provision contained in the Delaware policy.  Because GEICO did not obtain the plaintiffs’ informed consent before the Delaware policy was executed in Florida, the anti-stacking provision was not enforceable under Florida law.

IN AN EN BANC DECISION OF THE FIRST DISTRICT, A MARRIAGE LICENSE NOT RETURNED TO THE CLERK OR MADE PART OF THE OFFICIAL RECORDS OF THE COUNTY, RENDERS THE MARRIAGE INVALID

Hall v. Maal, 35 Fla. L. Weekly D709 (Fla. 1^st DCA March 30, 2010):

The parties were engaged to be married.  The week before they were to get their marriage license, the man called the woman and told her they were not going to be able to get it because they had not agreed to a pre-nup.  The woman was upset because all of the arrangements had been made and the guests were arriving.  The man persuaded her to go ahead with the ceremony reassuring her that everything would be all right, and they participated in a full wedding ceremony performed by a minister at a church.  They did this fully knowing they had never applied or received a marriage license.

The couple then had two children, obtained a mortgage as husband and wife, and a year after the ceremony, appeared to get a marriage license.  However, the license was never solemnized nor returned to the clerk to be part of the official records. 

The court ruled there was no valid marriage.  The court said if it allowed one (a marriage ceremony without a license, a couple living together and acting married), it would recreate a species of common law marriage in violation of §741.211 which banned such marriages.  The court did not discuss the “fallout” from its ruling.

COURT RULES THAT STATUTE CAPPING NON-ECONOMIC DAMAGES IN MED MAL ARBITRATION CASES IS CONSTITUTIONAL – HOWEVER, COURT CERTIFIED THE QUESTION OF WHETHER THE $350,000 LIMITATION OR CAP ON LIABILITY FOR NON-ECONOMIC DAMAGES ESTABLISHED IN 1988 CAN STILL BE CONSTITUTIONAL EVEN THOUGH IT HAS NEVER BEEN ADJUSTED TO ACCOUNT FOR INFLATION AND THE LEGISLATURE HAS NEVER BEEN REQUIRED TO RECONFIRM THE CONTINUED EXISTENCE OF AN OVERPOWERING PUBLIC NECESSITY

Parham v. Florida Health Sciences Center, 35 Fla. L. Weekly D722 (Fla. 2^nd DCA March 31, 2010):

The case involved the death of a premature newborn.  The primary dispute centered on the fact that the hospital did not have a pediatric surgeon on staff to handle emergencies in its neonatal unit. 

Defendant denied plaintiff’s arbitration request, and the jury returned a verdict for $12,000,000.  As a result of post-trial motions, the trial court reduced the mother’s award from $8,000,000 to $350,000 based on the limitation of liability cap for non-economic damages contained in §766.209(4) (the arbitration statute). 

The court ultimately found that §766.209(4) is constitutional.  However, the court questioned whether financial limitations established in 1988 can still be constitutional when they have never been increased.  Inflation alone has substantially increased, and the limitation prescribed by this statute and has substantially reduced the “reasonable alternative,” essential to upholding the statute against a charge that it denies access to courts.  The court certified that question to the supreme court, and further questioned that court as to whether the legislature should have some obligation to re-assess conditions occasionally to confirm the continued existence of an overpowering public necessity as first articulated in that law when passed in 1988.

INSURER NOT REQUIRED TO INCLUDE INFORMATION ABOUT UM COVERAGE OPTIONS IN SIX MONTH POLICY RENEWAL NOTICE – TRIAL COURT CORRECTLY INTERPRETED PLAIN LANGUAGE OF STATUTE AS REQUIRING ONLY ANNUAL NOTICE EVEN WHERE POLICY RENEWS EVERY SIX MONTHS

Wolf v. Progressive American Insurance, 35 Fla. L. Weekly D732 (Fla. 1^st DCA March 31, 2010):

The insured had rejected UM.  Before the policy period expired, Progressive sent him a renewal reminder due to continue the policy for another six months.  The renewal notice did not include information regarding the coverage options, and the insured did not elect such coverage for the renewal policy period. 

Because the statute states that notice need only be sent “at least annually,” Progressive was not required to include it in its six month renewal notice. 

THIRD DISTRICT GOES OUT OF ITS WAY TO AFFIRM DEFENSE VERDICT

Griffin v. Ellis Aluminum, 35 Fla. L. Weekly D733 (Fla. 3^rd DCA March 31, 2010):

Defendant had installed a handrail along the stairway at the plaintiffs’ home.  Between the installation and the day of the incident, there were no complaints about the railing.  Ten months after the installation, the plaintiff and his wife went kayaking and during lunch he consumed three to four alcoholic drinks.

Plaintiffs then invited the bartender at the restaurant and her husband to their home.  They arrived around 4:00, and sat in the hot tub into the evening, drinking margaritas.  Sometime between 7:30 and 9:00, plaintiff’s wife went to bed, and the bartender and her husband went home.  Plaintiff testified that he grabbed the four tumblers from which they had been drinking, left the hot tub, and proceeded up the stairs.  He testified on the last step he grabbed the handrail which detached from the snap plate, causing him to fall and suffer extensive injuries. 

The court found the trial court did not err in allowing the defendant to present evidence of a subsequent fall by the plaintiff at another location.  The defense argued that the court correctly allowed the evidence in because it was presented to show that plaintiff was able to return to his pre-accident activities, and that there may have been another cause for some of his injuries he sustained. 

The plaintiff also argued that the trial court erred in allowing the defendant to disclose the fact that the manufacturer of the aluminum used by the defendant had been involved in the lawsuit, suggesting settlement.  The mention of the manufacturer occurred during the defendant’s cross examination of the plaintiff.  Counsel had brought forward two sets of interrogatories, one propounded by the manufacturer and prior co-defendant.  In both answers, plaintiff stated he had only had 1.5 ounces of alcohol to drink that night.  The court rejected plaintiffs’ argument that this mention impermissibly suggested a settlement entitling plaintiffs to a new trial.

The plaintiff also asserted the trial court committed reversible error in permitting defendant to comment on the plaintiff’s failure to call his wife at trial.  According to the court, any error was harmless.

The plaintiff then argued that the trial court erred in allowing defendant’s counsel to comment in opening that defendant had never been sued.  The court said counsel had merely stated that defendant had installed the railing ten months prior to the incident, and there had never been any complaints from the plaintiffs.  A few minutes later, counsel told the jury, plaintiffs were suing the respected businessman, Bill Ellis and his wife, Joyce, whose railing “never had a failure of this nature except for this claim.”

The Third District said although the comment was susceptible of the interpretation that Ellis has never been sued for a railing failure, it could have been interpreted to mean that there were no complaints from the plaintiffs.  Again, the court found the error harmless.

The Third District refused to even reverse based on a sleeping juror, which it found was not prejudicial under the circumstances.

After reading this case, it certainly seems that this trial was far less than fair.  The Third District, however, certainly went out of its way to affirm the defense verdict.  The lesson learned is try not to get hurt in Miami!

LAW FIRM MAY NOT ASSERT A RETAINING LIEN FOR FEES OWED IN A CONTINGENCY FEE CASE UNTIL THE CONTINGENCY HAS OCCURRED

Brickell Place Condo v. Ganguzza, 35 Fla. L. Weekly D738 (Fla. 3^rd DCA March 31, 2010):

A retaining lien differs from a charging lien.  A charging lien is placed on any monetary recovery due the client at the conclusion of a lawsuit.  On the other hand, a retaining lien is a passive lien resting entirely on the right of an attorney to retain possession of his client’s papers, money, securities and files as security for payment of the fees and costs earned by the law firm to that point.  When the fee is contingent, however, there cannot be a retaining lien until the contingency occurs.  All the law firm can do is file a charging lien, and seek the reasonable value of its services on the basis of quantum meruit (limited by the contract flat fee the parties agreed to).

CIRCUIT COURT DEPARTED FROM ESSENTIAL REQUIREMENTS OF LAW BY REQUIRING PLAINTIFF’S ATTORNEY TO PRODUCE IN COURT FOR IN CAMERA INSPECTION HIS CASE FILE FROM AN UNRELATED AUTOMOBILE ACCIDENT, TO ENABLE DEFENDANTS TO DETERMINE WHETHER THERE WERE DOCUMENTS IN THE FILE RELAVANT TO THE SLIP AND FALL CASE AND FURTHER THERE WAS DEMONSTRATION THAT DEFENDANTS WERE UNABLE WITHOUT UNDUE HARDSHIP TO OBTAIN THE SUBSTANTIAL EQUIVALENT OF THESE MATERIALS BY OTHER MEANS

Toledo v. Publix, 35 Fla. L. Weekly D747 (Fla. 4^th DCA March 31, 2010).

ERROR TO DISMISS EXCESS INSURER’S COMPLAINT FOR BAD FAITH AGAINST PRIMARY INSURER, BECAUSE INJURED PARTY HAD RELEASED THE INSURED AND EXCESS INSURER DID NOT RECEIVE AN ASSIGNMENT FROM THE INSURED OF ANY BAD FAITH CLAIM – EXCESS INSURER COULD BRING BAD FAITH CLAIM BASED UPON SETTLEMENT EXECUTED BY THE EXCESS CARRIER, AND WAS NOT REQUIRED TO SUFFER AN EXCESS JUDGMENT

Vigilant Insurance Co. v. Continental Casualty Co., 35 Fla. L. Weekly D750 (Fla. 4^th DCA March 31, 2010):

A man was injured while using a wood chipper.  The manufacturer had a primary policy in the amount of $1,000,000 subject to a $500,000 self-insured retention.  The manufacturer also had excess coverage for $25,000,000.

Plaintiff sued the manufacturer.  The excess carrier alleged that the underlying carrier’s limit was $1,000,000 and that there was self-insured retention.  The primary carrier informed the excess carrier that the claim was within its limit of liability, and advised the excess carrier, it could close its file. 

After protracted litigation, the primary carrier (that never paid plaintiff) advised the excess carrier after three years, that plaintiff was demanding amounts in excess of the primary policy.  The plaintiff’s claim was finally settled with the excess carrier paying over $1,200,000.  The manufacturer did not pay the self-insured retention.  The excess carrier did not obtain an assignment of the bad faith claim the manufacturer may have had before the release was executed. 

The excess carrier then sued the primary carrier for bad faith and promissory estoppel.  The primary carrier moved for summary judgment, stating that the plaintiff had released the insured as to all claims in the underlying litigation, without any assignment of bad faith to the excess carrier, therefore, prohibiting the excess carrier from bringing a bad faith claim.  The court noted that the excess insurer steps into the shoes of the insured with respect to the bad faith claim against the primary company.

In this case, only the plaintiff had released the insured.  While that release would prevent the plaintiff from suing the carriers for bad faith, the manufacturer did not release any potential claim it had for such action.  Only if the manufacturer had released the primary carrier as to any claims, might the release have affected the excess carrier’s ability to make a claim against the primary carrier. 

PLAINTIFF FAILED TO COMPLY WITH STATUTORY NOTICE REQUIREMENTS FOR PERFECTING SUBSTITUTED SERVICE, WHERE PLAINTIFF FILED UNSIGNED RETURN RECEIPT FOR CERTIFIED MAIL AND RECORD DOES NOT SHOW THAT FAILURE TO DELIVER WAS RESULT OF DEFENDANT ACTIVELY REFUSING OR REJECTING

Hernandez v. State Farm, 35 Fla. L. Weekly D753 (Fla. 4^th DCA March 31, 2010):

Where plaintiff resorts to substituted service, strict compliance with the statutes governing the service is essential to obtaining valid personal jurisdiction over the defendant.  In this case, plaintiff failed to strictly adhere to proper pleading and notice requirements necessary to perfect substitute service upon him.  When using substituted service under §48.171, a plaintiff must meet two requirements.  First, the complaint must allege the ultimate facts bringing the defendant within the purview of the statute (i.e., if defendant is a non-resident, the resident is concealing whereabouts or resident subsequently became a non-resident).  Second, the service must strictly comply with §48.161 which sets forth the method of substituted service. 

The fact that State Farm filed an unsigned return receipt was not sufficient to comply with the statute.

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