SUMMARY JUDGMENT IN FAVOR OF SUBCONTRACTOR UPHELD, WHERE NO EVIDENCE THAT DEFENDANT NEGLIGENTLY INSTALLED GUARDRAIL SYSTEM

Howard v. Boulanger Drywall Corp., 34 Fla. L. Weekly D2484 (Fla. 4^th DCA December 2, 2009):

The plaintiff, an employee of a window subcontractor, sued another subcontractor who installed safety railings at the construction site after the employee was injured.  The employee fell from a third story balcony while working on a unit’s sliding glass door track.  Plaintiffs alleged that defendant was negligent for not installing and/or constructing the safety boot rail system in accordance with the specific and detailed instructions provided with the system.

The uncontested facts established that the defendant was responsible for installing the guardrails, but not responsible for selecting or paying for the type of material used, or for maintaining the guardrail system.  Defendant also submitted an affidavit from an independent safety consultant who attested to their proper construction.

Plaintiff later filed a motion from a human factors and industrial safety expert who stated that the safety boot guardrail system was not properly installed based on his reference to the manufacturer’s installation instructions depicting the required railings.  However, and significantly, the affidavit was not based on his personal knowledge.  Instead, the expert had simply reviewed the installation booklet, viewed photographs of the chain link guardrails, and provided his opinion.  There was no proof that he ever even examined the safety rail system, or had any other personal knowledge regarding the system. 

Because the defendant established it did not negligently install the guardrail system, summary judgment was proper. 

DEFENDANT ENTITLED TO AWARD OF ATTORNEY’S FEES AGAINST PARTIES WHO WERE NOT NAMED AS PLAINTIFFS, BUT WHO FINANCED AND HAD CONTROL OVER LITIGATION – NON-NAMED PARTIES’ INVOLVEMENT IN LITIGATION WAS SUCH THAT THEIR STATUS ROSE TO THE LEVEL OF A “PARTY”

Abu-Ghazaleh v. Martin, 34 Fla. L. Weekly D2496 (Fla. 3^rd DCA December 2, 2009).

COURT PROPERLY DENIED NEW TRIAL IN CASE WITH CONFLICTING EVIDENCE ON LIABILITY

Weatherly v. Louis, 34 Fla. L. Weekly D2498 (Fla. 3^rd DCA December 2, 2009):

Plaintiff was riding his motorcycle and was in an accident with an SUV.  Plaintiff testified just before the accident he was traveling on the left-hand side of the southbound lane when he saw the defendant’s SUV exiting a parking lot making a left-hand turn across the southbound lane onto the northbound lane.  Plaintiff testified he flashed his headlights and honked his horn, but could not avoid running into the left side of the defendant’s SUV.  The defendant testified he pulled out of the parking lot and saw no vehicles, and that the light was red when he pulled out.  A disinterested witness testified that before the plaintiff passed him on the left, he saw him run two red lights.  The witness even said he thought the plaintiff was going to “kill himself.”

Plaintiff argued that the trial court abused its discretion denying his motion for new trial on liability, because the verdict was contrary to the manifest weight of the evidence.  However, because the evidence was conflicting, it was within the province of the jury. 

The trial court properly denied the motion for new trial.  It also did not have to specify either orally or in writing why it was denying the new trial.

ADJUDICTION OF COMPULSORY COUNTERCLAIM IS NOT APPEALABLE UNTIL FINAL DISPOSITION OF ORIGINAL CAUSE HAS BEEN OBTAINED ON THE MERITS—SUMMARY JUDGMENT DISPOSING OF COUNTERCLAIM WAS NOT IN FACT A FINAL JUDGMENT EVEN THOUGH IT CONTAINED WORDS OF FINALITY

The Haven Center v. Meruelo, 34 Fla. L. Weekly D2508 (Fla. 3^rd DCA December 2, 2009).

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ERROR TO AWARD ATTORNEY’S FEES WITHOUT WRITTEN FINDINGS AS TO REASONABLE NUMBER OF HOURS EXPENDED

Palm Beach Polo v. TJ Palm Beach Associates, 34 Fla. L. Weekly D2436 (Fla. 4^th DCA November 25, 2009).

NO ERROR IN DISMISSING COMPLAINT FOR FAILURE TO STATE CAUSE OF ACTION EVEN THOUGH COURT PREVIOUSLY GRANTED MOTION FOR DEFAULT

Lincks v. Keenan, 34 Fla. L. Weekly D2436 (Fla. 4^th DCA November 25, 2009):

The court dismissed the plaintiff’s fifth amended complaint, claiming that the court should not have dismissed it as to the defendant, because earlier it had granted a default against her.  Still, the court dismissed the complaint for failure to state a cause of action.

Because the entry of a default constitutes an admission only to the well-pleaded factual allegations of the complaint, a complaint which fails to state a cause of action cannot be the basis of a judgment against the defendant.  Thus, the court did not err in dismissing the complaint against the defendant for failure to state a cause of action, despite the earlier default. 

FORUM SELECTION CLAUSE IN CRUISE TICKET REQUIRING CASE BE FILED IN UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT IS ENFORCEABLE

Leslie v. Carnival Corporation, 34 Fla. L. Weekly D2448 (Fla. 3^rd DCA November 25, 2009):

On a motion for rehearing en banc, the court advised that it was evenly divided on whether to affirm the circuit court’s ruling.  Because the breakdown was even, the effect of the vote was that the panel opinion stands, and forum selection clauses are still considered prima facie valid and enforceable under general maritime law, allowing Carnival to insist that cases be tried in the United States District Court for the Southern District based on the ticket.

The dissenting judges found that the federal court portion of the forum clause at issue was unenforceable because it operated to deprive victims of their constitutional rights to a jury trial without notice and without consent.  Because there is no federal jurisdiction on the basis of diversity of citizenship, the dissent said the provision constitutionally is infirm and unenforceable. 

THE THIRD DISTRICT CERTIFIED THE QUESTION TO THE SUPREME COURT IN THE NEXT CASE

Spivey-Ferguson v. Carnival Corporation, 34 Fla. L. Weekly D2457 (Fla. 3^rd DCA November 25, 2009):

The Third District in this case certified the following question to the Florida Supreme Court:

IS CARNIVAL’S FORUM SELECTION ENFORCEABLE IN CIRCUMSTANCES WHERE, BECAUSE OF THE JURISDICTIONAL LIMITATIONS OF FEDERAL COURTS, THE CLAUSE OPERATES TO DENY CERTAIN PLAINTIFFS, INCLUDING ALL FLORIDA CITIZENS, A RIGHT TO A JURY TRIAL IN FLORIDA WITHOUT NOTICE AND WITHOUT CONSENT TO WAIVING THIS RIGHT AS GUARANTEED UNDER ARTICLE I, SECTION 22 OF THE FLORIDA CONSTITUTION?

JUDGE HAD NO AUTHORITY TO ENTER CONTEMPT ORDER AFTER ISSUING ORDER TO RECUSE HIMSELF – EXCEPTION TO DISQUALIFICATION RULE APPLIES ONLY WHEN COURT PERFORMS MINISTERIAL ACT OF SIMPLY REDUCING A WRITTEN ORAL RULING TO WRITING

Plaza v. Plaza, 34 Fla. L. Weekly D2458 (Fla. 3^rd DCA November 25, 2009):

As a general rule, once an order disqualifying a judge is entered, the judge is prohibited from any further participation in the case.  The exception to the rule is where a trial judge orally announces a ruling, and subsequently enters an order of recusal, and thereafter simply performs the ministerial act of entering a written order or judgment to “reflect” the prior oral ruling. 

If the ruling is anything more than ministerial though, the judge may not make it.

COURT REVERSED DISMISSAL OF PLAINTIFF’S COMPLAINT FINDING PLAINTIFF ALLEGED A PROPER DUTY AGAINST THE DEFENDANT

Herndon v. Shands Teaching Hospital, 34 Fla. L. Weekly D2470 (Fla. 1^st DCA November 30, 2009):

Plaintiffs alleged that a surgical nurse employed by the hospital murdered the decedent with an injection of hazardous controlled drugs.  Plaintiffs alleged that the hospital had a legal duty to the decedent, and breached it by its negligent hiring and supervision of this nurse (based on a history of stealing controlled substances that the hospital would have known about had it done a competent background check).  Plaintiffs also alleged that the hospital should have been mindful that controlled substances had been taken from it in the past while he worked there.  This nurse had apparently become infatuated with the decedent, and actually murdered her with a cocktail of controlled substances he injected into her when he found out she was engaged.

On these alleged facts, even though the nurse had taken the Fifth Amendment, the court found that this death was a foreseeable consequence of the hospital’s failure to use reasonable care in hiring and supervision as alleged.  The court concluded that such facts and allegations were sufficient to establish a duty, and it was error to dismiss the complaint.

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ERROR TO AWARD ATTORNEY’S FEES PURSUANT TO PROPOSAL FOR SETTLEMENT WHERE PROPOSAL APPLIED TO A CASE THAT INCLUDED CLAIMS FOR DAMAGES AND FOR DECLARATORY RELIEF

Palm Beach Polo Holdings v. Equestrian Club Estates, 34 Fla. L. Weekly D2394 (Fla. 4^th DCA November 18, 2009):

A property owner’s association owned a private road that plaintiff, Palm Beach Polo, wanted to use to access a landlocked parcel of property.  Plaintiff’s complaint sought both damages and equitable relief (Palm Beach Polo asserted it was entitled to 300 votes in the election of the board for the owner association).  Plaintiff also sought declaratory and injunctive relief. 

A non-jury trial resulted in a verdict for the defendant, and the defendant moved for attorney’s fees based on three proposals for settlement. 

The trial court had ruled that because plaintiff had sought 8.6 million dollars in damages, it defied common sense and logic to argue that the case was not one for damages.  The court subsequently conducted an evidentiary hearing and awarded the defendant over $500,000 in fees. 

The Fourth District found that the complaint contained two independent claims, and could be characterized both as an action for damages and non-monetary relief.  The question, then, according to the court, was whether a general offer applying to an entire case that includes both claims for damages and other claims (not set forth in §768.79) can be binding on the unsuccessful party. 

The court reminded us that the offer of judgment statute is in derogation of common law.  It then stated that the statute only applies to claims for damages, and thus could not be valid here.

However, the court’s opinion seems to suggest that no proposal for settlement could ever be valid in a case where there were claims for non-economic relief, even if the offering party somehow separated out the claims in making the offer.  A potentially wide-reaching decision, and another one in the recent trend of courts refusing to uphold attorney’s fees awards because of the proposal’s failure or inability to appropriately address all of the claims. 

LASER HAIR REMOVAL IS A MEDICAL PROCEDURE REQUIRING COMPLIANCE WITH MEDICAL MALPRACTICE PRESUIT REQUIREMENTS WHEN IT GOES AWRY

Dr. Navarro’s Vein Center of the Palm Beaches v. Miller, 34 Fla. L. Weekly D2396 (Fla. 4^th DCA November 18, 2009):

The defendant’s petitioned for writ of certiorari, to review an order denying a motion to dismiss the plaintiff’s complaint for non-compliance with medical malpractice presuit in a case involving laser hair removal.  Plaintiff alleged that the doctor’s negligence in performing the procedure caused severe burns, but specifically alleged that the doctor was not performing medical treatment but rather cosmetic electrolysis as defined by §478.42(5). 

The court granted the petition and quashed the order advising the trial court to dismiss the complaint. The court ruled that laser hair removal is a “medical” procedure because it must be performed by a physician or a non-physician supervised by a physician.  However, the court went out of its way to grant the petition, acknowledging that while it normally does not review orders denying motions to dismiss because there are adequate remedies at law in the final appeal, “declining to do so in this case would cause irreparable harm.”  The court said that the Medical Malpractice Reform Act was designed to provide cost-saving pretrial procedures as a response to the medical malpractice crisis and to allow this case to proceed to a possible judgment only to be reversed would eliminate the very cost-saving procedures for which the Act was created.  Quoting an earlier case, the court said that “relief by a direct appeal would be no relief at all.” 

This case seems to be another one where the court seems to flout well established procedure to achieve a desired result.

INSURER IS NOT REQUIRED TO OBTAIN AN INDEPENDENT MEDICAL EXAM BEFORE DENYING A PIP CLAIM – A VALID REPORT MAY BE BASED ON A PHYSICIAN’S REVIEW OF THE TREATMENT RECORDS OF THE INSURED

Central Magnetic Imaging v. State Farm, 34 Fla. L. Weekly D2396 (Fla. 4^th DCA November 18, 2009).

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AMENDMENT TO FLORIDA BAR RULES – WEBSITES ARE SUBJECT TO ALL OF THE SAME SUBSTANTIVE ADVERTISING REGULATIONS APPLICABLE TO OTHER ADVERTISING MEDIA EXCEPT FOR THE FILING REQUIREMENT

In Re: Amendments to the Rules Regulating the Florida Bar Rule 4-7.6, “Computer Accessed Communications,” 34 Fla. L. Weekly S627 (Fla. November 19, 2009).

STATUTORY REQUIREMENT IN PIP STATUTE THAT PHYSICIAN’S REPORT BE FACTUALLY SUPPORTED BY EXAMINATION AND TREATMENT RECORDS DOES NOT APPLY TO CASES WHERE THE INSURER HAS DENIED BENEFITS RATHER THAN WITHDRAWN THEM

State Farm v. Hyma Medical Center, 34 Fla. L. Weekly D2305 (Fla. 3^rd DCA November 12, 2009):

Under §627.736(7)(a), the insured contended the reviewing physician’s affidavit was not factually supported by the examination and treatment records of the insured.  While that is correct, the court reminded us that in a “denial” case, where the insurer never pays any of the claims, the appropriate statute is §627.736(4)(b).  That section pertains to circumstances where the insurer has either reduced, omitted, or declined payment of PIP claims.

By contrast, §627.736(7)(a) is applicable in a withdrawal case, where the insurer has made payments but then seeks to withdraw future ones for the same injury. 

Because this case involved withdrawal, the section requiring the affidavit and review did not apply.  The circuit court departed from the essential requirements of law in upholding judgment for the insured on that basis. 

TRIAL COURT ERRED WHEN IT FOUND ARBITRATION CLAUSE IN NURSING HOME ADMISSION AGREEMENT SIGNED BY DECEDENT’S DAUGHTER UNENFORCEABLE

Candansk v. State of Hicks, 34 Fla. L. Weekly D2326 (Fla. 2^nd DCA November 13, 2009):

The language in the power of attorney granted the power to act in the person’s name, place and stead in any way “which I myself could do if I were personally present with respect to…claims and litigation.”  The court noted the power of attorney need not expressly refer to arbitration to confer the authority to agree to such a method of dispute resolution. 

The power of attorney was modeled on a widely used statutory form, and the court found it unambiguously conferred on the “attorney in fact,” the general power to act in any way the decedent could have acted with respect to claims and litigation.  As that general power included the power to agree to submit to an arbitration, the court should have ordered the clause enforceable. 

DURABLE POWER OF ATTORNEY ALSO SUFFICIENTLY BROAD TO CONFER UPON INDIVIDUAL WHO SIGNED NURSING HOME ARBITRATION AGREEMENT THE AUTHORITY TO BIND DECEDENT TO ARBITRATION IN ADMISSIONS CONTRACT – WHETHER ARBITRATION AGREEMENT’S LIMITATION ON STATUTORY REMEDIES RENDERS THE AGREEMENT UNENFORCEABLE ON PUBLIC POLICY GROUNDS IS QUESTION FOR ARBITRATOR, NOT TRIAL COURT

Jaylene, Inc. v. Steuer, 34 Fla. L. Weekly D2333 (Fla. 2^nd DCA November 13, 2009):

This case is basically the same as the one reported above, except that the Second District’s decision finding that the arbitrator and not the trial court should look at the enforceability of the agreement on public policy grounds, conflicts with the First, Fourth and Fifth Districts.  The court certified the conflict.

CIRCUIT COURT ACTING IN APPELLATE CAPACITY DEPARTED FROM ESSENTIAL REQUIREMENTS OF LAW WHEN IT REVERSED TRIAL JUDGE’S ORDER AWARDING A CONTINGENCY FEE MULTIPLIER BECAUSE PLAINTIFF DID NOT TESTIFY SHE HAD DIFFICULTY SECURING COUNSEL TO REPRESENT HER WITHOUT A MULTIPLIER – EXPERT TESTIMONY, HOWEVER, SUPPORTED IT

Massie v. Progressive Express Insurance, 34 Fla. L. Weekly D2364 (Fla. 1^st DCA November 17, 2009):

The circuit court reversed the trial judge’s order awarding a multiplier based on the plaintiff’s failure to testify that she had difficulty securing counsel to represent her without a multiplier.  However, because there was expert testimony that the plaintiff would have had difficulty securing counsel without the opportunity of a multiplier, the record supported the imposition of one. 

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