INSURER PROPERLY DENIED CLAIM BY NAMED INSURED’S SON FOR MEDICAL COVERAGE ON GROUND CLAIMANT WAS NOT RESIDENT RELATIVE – DEFINITION OF RELATIVE WAS NOT AMBIGUOUS

State Farm v. Fischer, 34 Fla. L. Weekly D1833 (Fla. 2^nd DCA September 9, 2009):

A young man was injured in an auto accident, in a car owned by his parents and insured with State Farm.  The policy included $10,000 in PIP benefits and $50,000 in medical expense coverage.  State Farm paid the PIP, but refused to pay the medical expense benefits. 

The policy provided that it would pay medical expenses sustained by the first person named in the Declarations, his or her spouse, and their relatives.  Concerning medical expense coverage, the policy defined relative as “a relative of any degree by blood or by marriage who usually makes his home in the same family unit, whether or not temporarily living elsewhere.”

Plaintiff argued that the definition of relative should have extended coverage to him.  At the time, however, he lived in a mobile home three or four miles from his parents.  He purchased the mobile home in 1998, received mail there, got electric and water bills, etc.  While he had a learning disability and only worked sporadically, and his parents paid many of his expenses, in the eight years he lived in the mobile home, he had only spent the night at his parents’ house three or four times. 

Plaintiff contended that the term “relative” was ambiguous because family “unit” was not defined.  The court disagreed, finding the definition of relative as being readily understood and that there was no coverage for someone temporarily living elsewhere.  There was also evidence that he was not physically living with his parents. 

DEFENSE VERDICT REVERSED WHEN COURT IMPERMISSIBLY ALLOWED NEGLIGENCE TO GO TO THE JURY, AND REFUSED TO ALLOW ACCIDENT RECONSTRUCTIONIST TO TESTIFY IN REBUTTAL

Probkevitz v. Velda Farms, 34 Fla. L. Weekly D1841 (Fla. 3^rd DCA September 9, 2009):

A 15 year-old girl was driving her mother’s car along with her friend as a passenger, and was killed in a collision with a Velda Farms truck.  The evidence was that the mother had gone to sleep, had no idea that her daughter ever drove the car without an adult in it, and knew nothing of that until she was awakened by a loud boom from the accident in which her daughter was killed. 

The jury reached a defense verdict, based mostly on its expert testimony which opined that the driver could not have stopped in time to avoid the accident, after the decedent sped through a flashing red light into the intersection.

The driver asserted as an affirmative defense that the mother was negligent, and also brought a contribution claim against her.  The mother moved to exclude any evidence of prior instances of the daughter driving in violation of her license restriction, and also moved to dismiss the third party complaint.  The trial court initially granted these motions.

However, the defendant again moved to include the issue of the mother’s negligence on the verdict form, and on the last day of trial, the trial court reversed its previous ruling and allowed the mother’s negligence to be considered.  The court then instructed the jury to consider the issue of the mother’s negligence separate and apart from the negligence of the two drivers, and also instructed the jury on the contribution claim based on the mother’s alleged negligence.  The verdict form allowed a three-way apportionment of fault among the three individuals. 

The Third District found the record was devoid of any evidence of negligence on the part of the mother beyond her vicarious responsibility.  Because there was no negligence, there could be no claim that her failure to supervise her daughter caused the accident or her daughter’s death.  The court used the D’Amario ruling to find that the trial judge impermissibly allowed a “remote condition” to be unduly emphasized which prejudiced the case. 

The court also rejected the defendant’s suggestion that the error was harmless, because the jury never reached the question of the mother’s negligence.  Inadmissible evidence constitutes grounds for a new trial, “where the evidence likely results in jury confusion as to the issues and the evidence considered.” 

The court also found it was error not to allow the plaintiff to introduce rebuttal testimony based on it being cumulative.  A trial court abuses its discretion when it forbids the presentation of rebuttal evidence that negates the theory of the defense, which the defendants here did not dispute.

It was also error for the trial court to allow defense counsel to elicit the opinion of the police officer that the decedent failed to obey the flashing red signal.  It is well settled that questions which suggest that a driver has, or has not been charged with a traffic violation in connection with an accident, constitutes a prejudicial error which in appropriate circumstances warrants a new trial.

TRIAL COURT DID NOT ERR IN APPLYING PRESUMPTION OF NEGLIGENCE AGAINST REAR DRIVER TO DIRECT A VERDICT FOR THE LEAD DRIVER DEFENDANT – WHEN PLAINTIFF IS THE REAR DRIVER, PLAINTIFF MUST PROVE THAT DEFENDANT STOPPED ABRUPTLY, TO REBUT THE PRESUMPTION THAT PLAINTIFF’S OWN NEGLIGENCE WAS THE SOLE PROXIMATE CAUSE OF THE ACCIDENT

Cevallos v. Rideout, 34 Fla. L. Weekly D1852 (Fla. 4^th DCA September 9, 2009):

The accident occurred when a non-party attempted to avoid a disabled vehicle on a downhill slope of an overpass, and two other non-party vehicles were successful in avoiding the collision.  The third vehicle driven by the defendant, the fourth vehicle driven by the plaintiff, and the fifth vehicle driven by another non-party were not so lucky.

The defendant’s vehicle struck the second vehicle, and the plaintiff then struck the defendant with the fifth vehicle striking the plaintiff.  Plaintiff contended that defendant rear ended the second vehicle causing her to be unable to stop in time to avoid rear ending the defendant.

At the close of the plaintiff’s case, the defendant moved for a directed verdict.  The trial court granted it concluding that the plaintiff had failed to produce competent and sufficient evidence to overcome the presumption that she was negligent because she rear ended the defendant. 

While this is a twist on the application of the rebuttable presumption, when the plaintiff is the rear driver, she must prove that the lead driver stopped abruptly and arbitrarily to rebut the presumption that the plaintiff’s own negligence was the sole proximate cause of the accident.  In other words, the evidence must establish that the rear driver cannot reasonably have been expected to anticipate the lead driver’s sudden stop.

Every driver is charged under the law with remaining alert and following the vehicle in front of him or her at a safe distance.  Plaintiff did not introduce any evidence from which it could be inferred that the lead driver defendant’s sudden stop was one which could not be reasonably anticipated by the plaintiff.  As such, the plaintiff could not rebut the presumptions that her own negligence was the sole legal cause of the collision, and the trial court correctly directed a verdict.

ERROR TO ENTER BLANKET SUMMARY JUDGMENT AS TO CLAIMS NOT WITHIN THE SCOPE OF THE RELEASE IN A VETERINARY MALPRACTICE CASE

Abis v. Tudin, 34 Fla. L. Weekly D1861 (Fla. 2^nd DCA September 11, 2009):

A vet recommended to the plaintiff that she purchase a new heartworm medication.  Shortly thereafter, both of her dogs began to exhibit physical ailments.  One of the dogs had to be euthanized.  A subsequent vet advised that it was the heartworm medication that was the cause.

The manufacturer of the medication offered to settle for $7,000, the cost of purchasing and training a new dog and vet expenses.  The plaintiff signed the release, releasing “any and all claims” related to the affects or consequences of the use or administration of the subject product, etc.  Based on this release, the trial court granted summary judgment for the vets, asserting that the release precluded plaintiff from suing them.

Because the court said that the release explicitly applied to all claims, demands, etc., resulting from, or claiming to have resulted from the sale, use or administration of ProHeart 6 Inj, it was clear beyond any doubt that the parties only intended for the release to cover liability resulting from the sale, use or administration of the heartworm medication.  The court reversed the summary judgment.

TRIAL COURT DID NOT DEPART FROM ESSENTIAL REQUIREMENTS OF LAW IN DENYING DEFENDANT’S MOTION TO DISQUALIFY PLAINTIFF’S COUNSEL, BUT SHOULD HAVE ALLOWED COUNSEL TO BE DEPOSED

Nucci v. Simmons, 34 Fla. L. Weekly D1871 (Fla. 2^nd DCA September 11, 2009):

Plaintiff was injured in a traffic accident which led to unrelated litigation.  Her attorney in that case arranged for her to be treated by Dr. Nucci.  The doctor was part of an insurance network, but handled the treatment through a separate billing arrangement between plaintiff’s counsel, without involving the plaintiff.

Thereafter, the attorney filed a suit against the doctor for failing to bill the plaintiff through the insurance network.  In defending, the doctor sought to depose the attorney, alleging he possessed non-privileged information related to the billing arrangements and payment.  Dr. Nucci moved to compel the deposition of the attorney and also sought to disqualify him because he was a necessary witness. 

Because there was nothing in the appendices provided to the court to show that either party had listed the attorney as a potential witness, there was no departure from the essential requirements of law in the trial court denying the motion to disqualify.  The issues related to the disqualification are also distinguishable from those involved in the taking of opposing counsel’s deposition. 

Recognizing that deposing opposing counsel is fraught with concern, in some instances it should be allowed to determine whether the motion to disqualify should ultimately be granted.  (I suspect ultimately counsel will be disqualified under these circumstances). 

ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ON GROUND OF STATUTE OF LIMITATIONS EXPIRED IS NOT REVIEWABLE BY CERTIORARI

 Abbey v. Patrick, 34 Fla. L. Weekly D1877 (Fla. 1^st DCA September 14, 2009):

Any alleged error in the trial court’s computation of the period by which the statute of limitations was extended by the plaintiff’s filing of the notice of intent to initiate litigation, and the defendant’s service of notice of intent to terminate negotiations, did not deprive defendant of his rights under the medical malpractice screening statutes.  As such, this was not a violation of clearly established principle of law which would have resulted in a miscarriage of justice.

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

TRIAL COURT ERRED IN DISMISSING COUNTS AGAINST ULTRASOUND TECH IN CLAIM BROUGHT BY PLAINTIFFS FOR ORDINARY NEGLIGENCE

Shaffer v. Icely, 34 Fla. L. Weekly D1736 (Fla. 2nd DCA August 26, 2009):

In this action against multiple defendants, the plaintiff sued an ultrasound tech for “ordinary negligence” after she mistakenly represented that the plaintiff’s sonogram showed that their fetus had ten fingers and ten toes. The plaintiffs’ daughter was later born missing a forearm and a hand.

On a motion to dismiss, the trial judge agreed that an action for wrongful birth is a subset of medical malpractice, and must be brought pursuant to Chapter 766. However, because the act does not include “ultrasound technician” in its definition of healthcare provider, the trial judge dismissed the complaint with prejudice.

The appellate court reversed, finding plaintiff’s complaint stated a cause of action for ordinary negligence, because ultrasound techs are not healthcare providers. The court reversed the dismissal.

TRIAL JUDGE PROPERLY GRANTED MOTION FOR NEW TRIAL BASED ON ZERO VERDICT AWARD FOR THE FUTURE PAIN AND SUFFERING, FUTURE MEDICAL EXPENSES AND LOSS OF CONSORTIUM, FINDING VERDICT AGAINST MANIFEST WEIGHT OF THE EVIDENCE

Big Lots Stores, Inv. v. Dediaz, 34 Fla. L. Weekly D1745 (Fla. 3rd DCA August 26, 2009):

Plaintiff tripped at a Big Lots Store falling on her left knee. She ultimately brought a claim. The court affirmed the trial judge’s decision to grant a new trial after jury awarded nothing for future losses or consortium. It reminded us that the fact that there may be substantial competent evidence in the record to support the verdict does not necessarily mean that the trial judge abused his or her discretion in granting a new trial. In fact, the court reminded us that in reviewing this type of discretionary act of the trial court, the appellate court, should, apply the reasonableness test to determine whether the trial judge abused his or her discretion.

In this case, the trial court’s order granting the new trial, contained the required detailed specific findings and supported the court’s conclusion that the verdict was against the manifest weight of the evidence. The court further found that the undisputed evidence presented on the husband’s consortium claim required at least an award of nominal damages.

TRIAL COURT DID NOT DEPART FROM ESSENTIAL REQUIREMENTS OF LAW IN DENYING MOTION TO DISQUALIFY OPPOSING PARTY’S COUNSEL UNDER RULE 4-1.7 OF RULES REGULATING THE FLORIDA BAR, ON THE GROUND THAT OPPOSING PARTY’S COUNSEL HAD REPRESENTED MOVANT IN PRIOR CASES – 4-1.7 GOVERNS CONFLICTS BETWEEN ATTORNEYS AND EXISTING AS OPPOSED TO FORMER CLIENTS

Schulte v. Angus, 34 Fla. L. Weekly D1765 (Fla. 3rd DCA July 8, 2009):

The attorney moved to disqualify the other attorney based on 4-1.7, instead of Rule 4-1.9 which applies to “former” clients. Because there was no evidence that the petitioner was an existing client, the petition was denied. This case at least helps remind us which Bar rules to apply.

AS LONG AS PARTY OBJECTS TO THE MISCONDUCT IT PERCEIVES OF OPPOSING COUNSEL, IT IS NOT NECESSARY TO FILE A MOTION FOR MISTRIAL FOR THE COURT TO REVIEW THE CASE UNDER A STANDARD BELOW FUNDAMENTAL ERROR

City of Tampa v. Companio, 34 Fla. L. Weekly D1777 (Fla. 2nd DCA August 28, 2009):

Throughout the trial, the city objected to plaintiff’s counsel’s alleged misconduct. The city filed a motion for new trial, arguing that the cumulative effect of that misconduct deprived the city of a fair trial. Although the trial court found that the cumulative conduct was so pervasive and prejudicial that the city’s right to a fair trial was impaired, it denied the city’s motion, reasoning that the city had not moved for a mistrial and the conduct was not so extreme as to undermine the public’s confidence in the judicial system.

The court reversed. It found that the standard applied by the trial court was wrong, and only applies when a party raises an error for the first time in a motion for new trial, thus requiring the trial court to determine whether the error was fundamental. Here, the city had objected consistently throughout the trial. Simply because the city failed to move for a mistrial was not a prerequisite to moving for a new trial. The objections were preserved, and the case reversed.