PARENTS/OWNERS OF ATV COULD BE FOUND LIABLE FOR NEGLIGENTLY ENTRUSTING THE ATV TO THEIR 13 YEAR-OLD SON IN A CASE WHERE THE SON ALLOWED A FRIEND TO RIDE IT, AND SHE DIED IN THE PROCESS

Fina v. Nationwide, 34 Fla. L. Weekly D2030 (Fla. 4^th DCA October 7, 2009):

Parents purchased an ATV for their son when he was 11 or 12.  The evidence showed that in the “shopping” process, the parents saw the ATV warning label against use by children under age 16.  There was also evidence that the parents may have allowed their son to let his friends ride it. 

At the wrongful death trial, the parents asserted that there was no cause of action against them for negligent entrustment of the ATV, because Florida law does not actually prohibit children from operating ATV’s (the court disagreed), because their son was not actually operating the ATV when the accident occurred (court said that fact was irrelevant), because there was no evidence that their son was incompetent to have been entrusted with the ATV because of his lack of age, judgment or experience (court disagreed based on evidence of warning labels, etc., regarding the 16 year-old minimum age required), and finally because there was no evidence that parents knew or should have known their son might let another child ride the ATV (court rejected that based on evidence).

The court affirmed the verdict against the parents, which included apportionment against the son, the deceased rider, and a woman whose house the deceased rider had been spending time at when the boy came over with the ATV.

NO ABUSE OF DISCRETION IN DENYING MOTION FOR RELIEF FROM JUDGMENT BASED ON CLAIM THAT DEFENDANT’S IN-HOUSE COUNSEL HAD COMMITTED FRAUD UPON THE COURT IN DISCOVERY SANCTION HEARINGS, BECAUSE ALLEGED FRAUD HAD NO EFFECT ON THE FINAL JUDGMENT

Coleman (Parent) Holdings, Inc. v. Morgan Stanley, 34 Fla. L. Weekly D2034 (Fla. 4^th DCA October 7, 2009):

Plaintiff sought a new trial based upon its claim that Morgan Stanley committed fraud upon the court in discovery sanction hearings held pretrial.  The trial court had entered a partial default against Morgan Stanley as a sanction for discovery misconduct in responding to requests for e-mails about a certain transaction.  All plaintiff needed to do at trial was prove that it relied on established misrepresentations, and prove damages.  The jury awarded it $1.5 billion in compensatory and punitive damages.  However, the Fourth District reversed the judgment, finding that plaintiff failed to prove its damages.

The plaintiff brought a motion under Rule 1.540(b), asking the trial court to set aside the judgment, and grant a new trial on damages, because Morgan Stanley perpetrated a fraud upon the court (as revealed during post-verdict notices filed by Morgan Stanley).  The trial court denied the motion, ruling that the alleged fraud, even if true, did not affect the outcome because it had no bearing upon the plaintiff’s failure to prove damages by the proper legal measure.

While the trial court determined that the discovery misconduct committed by Morgan Stanley’s in-house counsel constituted intrinsic fraud under Florida law, it further found such actions did not prevent the plaintiff from participating in the cause and trying the issues.  Ultimately, the court affirmed the trial court’s ruling that a 1.540(b) motion was not the appropriate vehicle for handling the attorney misconduct involved, because it did not prejudice the final judgment. 

ERROR TO FAIL TO INCLUDE IN ORDER SPECIFIC FINDINGS REGARDING TIME REASONABLY EXPENDED, HOURLY RATE, AND OTHER FACTORS CONSIDERED BY THE TRIAL COURT – ALSO, WITHOUT TRANSCRIPT, APPELLATE COURT COULD NOT DEEM ERROR HARMLESS

New White Linen v. Commercial Laundry Equipment, 34 Fla. L. Weekly D2039 (Fla. 4^th DCA October 7, 2009): 

Trial court committed reversible error when it failed to set forth specific findings in the order regarding the time reasonably expended, the hourly rate, and other factors it may have considered.  Because there was no transcript, the court could not deem the error harmless as it has in other cases.  As a result, the court had to grant a new evidentiary hearing on appeal.

TRIAL COURT ERRED IN FAILING TO GIVE STANDARD JURY INSTRUCTION 6.10, WHICH INSTRUCTS THE JURY TO REDUCE AWARD OF FUTURE ECONOMIC DAMAGES TO PRESENT MONEY VALUE – RETRIAL OF JURY’S AWARD OF DAMAGES FOR FUTURE MEDICAL EXPENSES REQUIRED – NO ERROR IN DENYING AWARD FOR ATTORNEY’S FEES WHERE PROPOSAL FOR SETTLEMENT DID NOT INCLUDE CERTIFICATE OF SERVICE

Milton v. Reyes, 34 Fla. L. Weekly D2050 (Fla. 3^rd DCA October 7, 2009):

In this personal injury case, the trial court failed to give Florida Standard Jury Instruction 6.10 which instructs the jury to reduce the award of future economic damages to present money value.  The court reversed solely for the purpose of retrying the jury’s award for damages for future medical expenses. 

The plaintiff also filed a notice for proposal for settlement.  It contained a certificate of service reflecting that it was mailed to opposing counsel.  However, because the actual proposal did not contain a certificate of service, as prescribed by the rule, the Third District (for the second time in two weeks) invalidated a plaintiff’s proposal for settlement.  EVERYONE MAKE SURE THAT THERE IS A CERTIFICATE OF SERVICE ON BOTH THE NOTICE AND THE PROPOSAL ITSELF.

ERROR TO ENTER DEFAULT JUDGMENT ENTITLING PLAINTIFF TO ATTORNEY’S FEES WITHOUT PROPER NOTICE – ATTORNEY’S FEES ARE UNLIQUIDATED DAMAGES REQUIRING NOTICE

1445 Washington Limited Partnership v. Lemontang, 34 Fla. L. Weekly D2051 (Fla. 3^rd DCA October 7, 2009).

INSURER NOT REQUIRED TO OBTAIN A VALID MEDICAL REPORT IN ORDER TO DENY MEDICAL PROVIDER’S CLAIM FOR PIP BENEFITS – STATUTE REQUIRES A VALID REPORT ONLY WHEN FURTHER BENEFITS ARE WITHDRAWN

United Automobile Insurance Co. v. Sante Fe Medical Center, 34 Fla. L. Weekly D2051 (Fla. 3^rd DCA October 7, 2009):

In this en banc decision, the court clarified that §627.736(4)(b) pertains to the time period for payment of PIP benefits if the claim is reasonable, necessary and related.  That section provides that when an insured seeks payment of PIP benefits from the insurer, it must pay the claim within 30 days.  If the insurer believes it is not reasonable, it may deny the claim or pay the claim until it obtains a valid medical report under Subsection 7(a).  That section does not require the insurer to obtain a valid report. 

TRIAL COURT ERRED IN FINDING ARBITRATION AGREEMENT SIGNED BY NURSING HOME RESIDENT AND RESIDENT’S DAUGHTER WITH DURABLE POWER OF ATTORNEY WAS UNENFORCEABLE – WHERE RESIDENT WAS NOT INCAPACITATED OR COERCED INTO SIGNING, AND NOT PREVENTED FROM KNOWING CONTENTS OF AGREEMENT, IT WAS FACIALLY VALID

Rocky Creek Retirement Properties v. Fox, 34 Fla. L. Weekly D2067 (Fla. 2^nd DCA October 9, 2009):

A woman became a resident of a retirement village in 1997.  None of the admissions paperwork she signed contained an arbitration agreement.  In 2006, the nursing home decided to require an arbitration agreement based on its new insurance.  At a meeting at the dining hall, the director gave each resident a copy of the amendment, and told the residents that the arbitration agreement would help keep costs down and give up their rights.  The director also advised that the residents should talk about the agreement with their families.  The resident and her daughter, who held a durable power of attorney, signed the agreement. 

After the resident died, and her estate brought a claim for violation of her rights, the nursing home sought to compel arbitration.  The estate argued the agreement was not valid and enforceable despite the resident’s signature because she did not understand the agreement.  There was no issue of procedural or substantive unconscionability.  The court found that it did not vitiate her assent to the agreement in absence of some evidence that she was prevented from knowing its contents.

Because this contract was facially valid, the trial court should have compelled arbitration. 

CIRCUIT COURT ABUSED DISCRETION IN DISMISSING COMPLAINT WITH PREJUDICE UNDER RULE 1.070(j) FOR FAILURE TO ESTABLISH GOOD CAUSE OR EXCUSEABLE NEGLECT FOR NOT SERVING PROCESS WITHIN 120 DAYS, WHERE DISMISSAL WITH PREJUDICE WAS NOT ONE OF THE OPTIONS AVAILABLE TO THE COURT UNDER THE RULE, AND THE STATUTE HAD ALREADY RUN

Miranda v. Young, 34 Fla. L. Weekly D2070 (Fla. 2^nd DCA October 9, 2009).

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TRIAL COURT DEPARTED FROM ESSENTIAL REQUIREMENTS OF LAW IN DENYING MOTION TO DISMISS ACTION AGAINST CARDIOLOGIST FOR FAILING TO COMPLY WITH PRESUIT BY NOT ATTACHING AFFIDAVIT OF A QUALIFIED “MEDICAL EXPERT”

Oken v. Williams, 34 Fla. L. Weekly D1967 (Fla. 1^st DCA September 30, 2009):

Plaintiff sued a Board certified cardiologist.  Attached to the Notice of Intent was a corroborating affidavit from a medical expert who was a family physician, Board certified as both a family and emergency physician.  His affidavit stated he had experience in two medical specialties similar to the specialty practiced by the defendant, to the extent that those specialties included the evaluation, diagnosis or treatment of acute chest pain and impending myocardial infarction. 

Under Chapter 766.102(b)(2)(b) and (c) Fla. Stat. (2003), a proper corroborating expert is a healthcare provider trained in the same specialty and certified by the Board of the same specialty.  Prior to the 2003 amendment, any healthcare provider could testify as an expert.  Now though, the “training, experience and knowledge” in the defendant’s specialty, no longer renders any healthcare provider competent to testify as an expert or to give a presuit corroborating affidavit.  Rather, the expert must specialize in the same specialty as the defendant or specialize in a similar specialty that includes evaluation, diagnosis or treatment of the medical condition at issue.  See, Section 766.102(5). 

Allowing an emergency medicine physician to comment on the specialized care provided by a cardiologist violated the 2003 amendments.  As such, the affidavit was not valid to corroborate, and the court granted the petition. 

COURT IMPROPERLY DENIED COUNTY’S MOTION FOR SUMMARY JUDGMENT BECAUSE COUNTY WAS IMMUNE

Miami-Dade County v. Miller, 34 Fla. L. Weekly D1988 (Fla. 3^rd DCA September 30, 2009):

The plaintiff sought to hold the county liable for an alleged third party attack by an unknown person at a bus stop near a Metrorail station.  The plaintiff alleged that the County breached its duty by failing to provide security guards or police officers near the bus stop to prevent the attack.  The trial court denied the County’s motion for summary judgment.

The Third District reversed.  It found the County owed no duty to provide police officers or security guards.  It reminded us that the attack took place on a public sidewalk, and not in a park or other recreational facility where courts have traditionally imposed tort liability.  Nor was plaintiff in the Metrorail station or on the bus, and had not yet paid his fare.  Thus, there were no special circumstances to impose a special duty on the County owed towards the plaintiff.  Because the exercise of the County’s police power was a purely governmental function, it had immunity, and the trial court should have dismissed the plaintiff’s case. 

TRIAL COURT SHOULD HAVE COMPLETELY DISALLOWED AWARD OF FEES WHERE SUBSEQUENT TO DEFENDANT’S REJECTION, PLAINTIFF ADDED A CLAIM FOR ADDITIONAL DAMAGES

Segundo v. Reid, 34 Fla. L. Weekly D1995 (Fla. 3^rd DCA September 30, 2009):

Plaintiff served a proposal for settlement two years after his accident.  At that time, his damages related solely to his neck and back injuries.  The defendant rejected the offer with a counter offer, which was rejected by the plaintiff.

Six months later, the plaintiff’s attorney moved for a continuance to determine whether the plaintiff’s recent shoulder issues were related to the accident from three years prior.  Subsequently, the plaintiff’s attorney sent a letter asking to settle for the $10,000 policy limits which was rejected.  However, the letter did not mention the proposal for settlement rule or statute. 

At trial, the plaintiff beat the original offer.  The trial court then awarded attorney’s fees. 

The Third District reversed.  Even though the proposal for settlement was valid, it ruled the plaintiff could not collect those fees.  Although it concluded that the original proposal was made in good faith based upon what the plaintiff believed his injuries and damages were, the court concluded that pursuant to Section 768.79(7)(b), the trial court abused its discretion by not completely disallowing an award of fees, finding the award was an unreasonable award under the circumstances of the case.  In other words, because the original facts changed, the court found that the statute imbued the trial court with the ability to consider “all other relevant criteria” before awarding fees. 

A review of the jury’s verdict, according to the court, demonstrated that if the damages awarded to the plaintiff were only for the neck and back, he would not have beat the proposal.  Thus, under these unique circumstances, the trial court abused its discretion by failing to consider the reasonableness of an award of attorney’s fees and awarding fees to the plaintiff. 

NOTE:  Since the supreme court in Sarkis v. Allstate said there could be no multiplier in fee awards arising out of proposals for settlements, I have long believed that Section 768.79(7)(b) allows trial courts to award a fee akin to one with a multiplier.  I think this case allows judges to focus on that little used section of the statute for these purposes.

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TRIAL COURT DEPARTED FROM ESSENTIAL REQUIREMENTS OF LAW BY PREMATURELY REQUIRING BLANKET PRODUCTION OF DOCUMENTS

Phoenix Insurance Co. v. Trans World Forwarding, 34 Fla. L. Weekly D1921 (Fla. 3^rd DCA September 22, 2009):

As the discovery was directed to the insurer’s business practices and alleged statutory bad faith, it was premature, because it was entered before a determination was made regarding coverage and damages.  Additionally, the insurer should not have been ordered to produce privileged and work product documents (but the court reminded that it is necessary to serve a privilege log to preserve those claims). 

OBJECTION TO TRIAL COURT’S DENIAL OF USE OF PEREMPTORY AGAINST AFRICAN-AMERICAN JUROR NOT PRESERVED, WHERE OBJECTING PARTY ACCEPTED JURY WITHOUT RENEWING OBJECTION TO THE CHALLENGED JUROR

USAA Casualty v. Allen, 34 Fla. L. Weekly D1934 (Fla. 4^th DCA September 23, 2009):

The insurance company defendant failed to preserve its objection to the trial court’s denial of its use of a peremptory against an African-American juror.  In order to preserve the issue, the appellant must accept the juror or panel subject to its prior objection and/or renew the objection before the jury is sworn.

The insurance company accepted the jury in this case without renewing its objection so the issue was not preserved.  The court also rejected the defendant’s contention that a challenge would have been futile, because without stating the objection, the court cannot know that the party still maintains it. 

The defendant also failed to preserve its motion in limine to prevent the mention of surveillance evidence.  When a court makes a definitive ruling on the record admitting or excluding evidence either at or before trial, a party need not renew an objection or offer of proof to preserve the claim under §90.104(1).  However, in this case, the court never issued a definitive ruling on the motion, noting twice that it had deferred.  Thus, it was incumbent upon the defendant to object when the plaintiff sought to introduce the evidence which it did not do. 

2003 MEDICAL MALPRACTICE LEGISLATION CANNOT APPLY RETROACTIVELY TO CAUSES OF ACTION ACCRUING PRIOR TO THE EFFECTIVE DATE, DESPITE THE LEGISLATURE’S CLEAR INTENT THAT THE STATUTE APPLY RETROACTIVELY

Raphael v. Shecter, 34 Fla. L. Weekly D1936 (Fla. 4^th DCA September 23, 2009):

In April of 2003, Harvey Raphael suffered a heart attack and was treated in an emergency room.  The doctor who treated him did not administer anti-clotting drugs at that time, but a different doctor did administer them more than an hour later.  Evidence was presented that the delay resulted in significant damage to the man’s heart. 

At the time the incident arose, the 2002 version of the medical malpractice statute was in effect.  However, §766.118, which placed limits on non-economic damages in medical malpractice cases, became effective on September 15, 2003, and applied to cases pre-suited thereafter (like this one).

After a trial, the jury awarded the appellant (who husband had died by then) $9.5 million in non-economic damages.  The defendant moved to limit the non-economic damage award to comply with the 2003 changes in the statute. 

Because §766.118(4) expressly stated that the statute was to apply retroactively to incidents which occurred before the effective date of the act, but which were presuited after, the trial judge reduced the verdict down to the caps. 

The Fourth District reversed.  It found that the plaintiff’s rights had vested or accrued at the same time as the cause of action, and that retroactive application could not pass the test set forth in Old Port Cove Holdings, 986 So. 2d 1279, 1284 (Fla. 2008), for appropriate retroactive application of a statute.  Unfortunately, the court did not address any of the other issues (i.e., of constitutionality) raised by the plaintiff.

BY ENTERING INTO A MEDIATED SETTLEMENT AGREEMENT WITH THE DEFENDANT EMPLOYER, THE PLAINTIFF EMPLOYEE LITIGATED HER WORKER’S COMPENSATION CLAIM TO CONCLUSION, CHOOSING TO RECEIVE WORKER’S COMPENSATION BENEFITS TO THE EXCLUSION OF TORT BENEFITS IN AN INTENTIONAL TORT CASE

Petro Shopping Centers v. Gall, 34 Fla. L. Weekly D1943 (Fla. 5^th DCA September 25, 2009):

Plaintiff sued her employer alleging she was injured while operating a meat tenderizer which the employer’s general manager knew was inherently dangerous because its safety guard had been intentionally removed.  Pursuant to the intentional tort exception to work comp., plaintiff accepted worker’s compensation benefits and litigated her tort claim.

The employer moved for summary judgment contending it was entitled to immunity because it actively pursued to conclusion a claim for work comp. benefits.  The trial court denied the motion.

However, the appellate court reversed.  It found that plaintiff had mediated her worker’s compensation claim to an agreement, which constituted a conclusion on the merits of that claim. 

The court pointed out that the election of remedies is not such an easy analysis in Florida.  Florida courts have fashioned an election of remedies analysis that is based not on the claimant’s employment status but on evidence of the claimant’s conscious intent to elect a compensation remedy and to waive his or her other rights.  Thus, mere acceptance of compensation benefits is not enough and the remedy chosen must be pursued to full satisfaction (meaning a determination or conclusion on the merits). 

The court reminded us of those cases where a plaintiff accepts benefits but then can show an exception to the worker’s compensation statute to bring the tort claim.  However, in this case, because the parties entered into a mediated settlement agreement providing that the defendant accepted the plaintiff as being permanently and totally disabled, was liable for making payments, and further provided that it resolved the issues contained in the currently pending petition for benefits, and constituted a conclusion on the merits of her claim for work comp. benefits.  In this case, the plaintiff elected her remedy litigating a worker’s compensation case to a conclusion on the merits.  She manifested a “conscious intent” to choose work comp. benefits to the exclusion of tort benefits and therefore summary judgment should have been entered for employer.

QUESTIONS OF FACT ON ISSUES OF ESTOPPEL RENDERED SUMMARY JUDGMENT ON THE DEFENSE OF WORKER’S COMPENSATION IMMUNITY IMPROPER

Schroeder v. Peoplease Corp., 34 Fla. L. Weekly D1960 (Fla. 1^st DCA September 25, 2009):

The defendant employer denied work comp. initially based on the fact that plaintiff did not suffer injury in the course and scope of his employment.  It was also undisputed that the employer paid no benefits to the plaintiff.  Because there were issues with respect to the ambiguity of the denial and potential estoppel issues, it was error to enter summary judgment in favor of the defendant on worker’s compensation immunity.

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ERROR TO VACATE DEFAULT FINAL JUDGMENT ON THE GROUND THAT THE PLAINTIFF’S COMPLAINT DID NOT STATE A CAUSE OF ACTION

Infante v. Vantage Plus Corp., 34 Fla. L. Weekly D1902 (Fla. 3^rd DCA September 16, 2009):

The trial court improperly vacated a default final judgment on the ground that the complaint was technically deficient.  Because the trial court erred when it ruled that the default judgment was void for failing to properly plead the certain counts, the court reversed the order vacating the ultimate default final judgment.

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