JURY VERDICT FINDING THAT DEFENDANT BREACHED CONTRACT BUT AWARDING NO DAMAGES WAS NOT A COMPROMISE VERDICT REQUIRING A NEW TRIAL, WHERE JURY COULD HAVE REASONABLY CONCLUDED THAT PLAINTIFF SUSTAINED ZERO DAMAGES

Smith v. Florida Healthy Kids Corp., 35 Fla. L. Weekly D155 (Fla. 4^th DCA January 13, 2010):

Plaintiff brought a breach of contract case against his insurer for failure to pay health insurance benefits under his health policy.  The case proceeded to trial seeking the amount of unpaid medical bills incurred by the plaintiff as a result of injuries he sustained after being shot several times by a police officer.  The health insurer denied coverage based on a felony exclusion, and also contested the amount of damages including the total amount of medical bills and whether the plaintiff was owed anything under the policy.

Plaintiff asserted that the zero verdict was the result of a “compromise” requiring a new trial.  The court pointed out that there is a difference between a compromise verdict and an inconsistent verdict.  The court explained that a compromise verdict results from the combination of two factors:  (1) hotly contested liability; (2) a legal inadequacy of damages.

A compromise verdict is one reached only by the surrender of conscientious convictions upon a material issue by some jurors in return for a relinquishment of others.  Normal give and take in the jury room does not create one. 

An inconsistent verdict is one where the jury’s multiple findings cannot both be true and therefore stand at the same time, and are therefore in fatal conflict. 

Even though the jury had several questions and sent out a note stating it was deadlocked, there was no evidence of a clearly inadequate verdict.  In fact, the court found there was evidence from which a jury could have reasonably concluded that the plaintiff sustained zero damages.

Because the plaintiff did not preserve the issue of the inadequate verdict, the court did not reach that question.  However, it also affirmed the verdict based on the evidence presented demonstrating that no damages were suffered.

TRIAL COURT IS PERMITTED TO SUA SPONTE ORDER REHEARING OR NEW TRIAL WITHIN TEN DAYS AFTER ENTRY OF A JUDGMENT – ORDER GRANTING MOTION TO VACATE DEFAULT JUDGMENT IS REVIEWED UNDER GROSS ABUSE OF DISCRETION STANDARD

D&D Mail Corp. v. Andgen Properties, 35 Fla. L. Weekly D156 (Fla. 4^th DCA January 13, 2010):

One day after the entry of a default judgment, the trial judge sua sponte reconsidered his ruling and vacated the default.  An appellate court reviews an order granting a motion to vacate a default final judgment under the gross abuse of discretion standard.  The court’s decision to sua sponte grant rehearing and vacate the default final judgment was not such a gross abuse of discretion.

THE PROVISION IN THE STANDARD FEE AGREEMENT THAT 33 1/3 % OF ANY RECOVERY THROUGH THE TIME OF FILING OF AN ANSWER, ONLY ENTITLES AN ATTORNEY TO RECEIVE 33 1/3% AS A FEE IF NO ANSWER FILED

Rose v. Steigleman, 35 Fla. L. Weekly D169 (Fla. 1^st DCA January 15, 2010):

The attorney in this case filed suit, but then engaged in protracted settlement negotiations.  The defendants never filed an answer and the plaintiff never sought to compel the filing of an answer.  Eventually, a settlement was reached. 

The trial judge interpreted the provision in the contract reading “through the time of filing of an answer” to deal with the time frame and not actually requiring the “filing” of an answer to bring the 40% provision into effect. 

The First District reversed.  It held that the filing of an answer does actually require the actual “filing” of the answer, and as such, the plaintiff’s attorney’s fee in this case was limited to 33 1/3 % of the recovery, no matter how much time or work it took.

TRIAL COURT ERRED IN DISMISSING ACTION FOR INSUFFICIENCY OF SERVICE WHEN PLAINTIFF DEMONSTRATED DUE DILIGENCE IN ATTEMPTING TO LOCATE DEFENDANT

Delancy v. Tobias, 35 Fla. L. Weekly D173 (Fla. 3^rd DCA January 20, 2010):

Plaintiff could not find the defendant and proceeded to seek substituted service.  Plaintiff attached an affidavit of diligent search to the amended complaint, describing the efforts to locate and serve the defendant.  The trial court granted the plaintiff’s motion for an extension of time to perfect service.  The Secretary of State confirmed service which was mailed to the defendant by regular and certified mail.  Plaintiff then filed a notice of filing affidavit of service with the trial court. 

Thereafter, defendant sought to quash service and to dismiss the complaint contending that plaintiff did not demonstrate due diligence or that the defendant had concealed his whereabouts.  The trial court quashed service of process and dismissed the complaint, finding the affidavit did not demonstrate due diligence. 

Because plaintiff made an “honest and conscientious” effort to obtain information that would have enabled her to serve defendant personally, she demonstrated the requisite diligence in attempting to serve the defendant.  There was also no issue as to whether the plaintiff properly served the defendant or complied with substitute service requirements within the time for the extension.  Accordingly, because the plaintiff properly and timely served the defendant by substituted service during the trial court’s extension of the service, the court reversed the order dismissing the complaint.

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

IN ORDER TO SATISFY NOTICE REQUIREMENTS OF NICA STATUTE, BOTH PARTICIPATING PHYSICIANS, AND HOSPITALS WITH PARTICIPATING PHYSICIANS ON STAFF MUST PROVIDE PATIENTS WITH NOTICE OF PARTICIPATION IN PLAN

Florida Birth Related Neurological Injury Compensation Association v. Department of Administrative Hearings, 35 Fla. L. Weekly S40 (Fla. January 14, 2010):

In answering a certified question of great public importance, the court held that a physician’s pre-delivery notice to his or her patient of the plan and his or her participation in the plan is not enough to satisfy the requirements of §766.316, Florida Statute, if the hospital where the delivery took place failed to provide notice of any kind.  The court quashed the decisions in All Children’s Hospital v. Department of Administrative Hearings and Bayfront Medical Center v. Florida Birth Related Neurological Injury Compensation Association in rendering its decision.                                                                                                                                             

THE FEDERAL AVIATION ACT PREEMPTS FLORIDA’S DANGEROUS INSTRUMENTALITY LAW, AS IT WOULD APPLY TO A CLAIM FOR PURE VICARIOUS LIABILITY AGAINST THE OWNER OF A PRIVATE PLANE

Vreeland v. Martinez, 35 Fla. L. Weekly D115 (Fla. 2^nd DCA January 5, 2010):

The personal representative of a passenger killed in a private airplane crash sued the owner of the plane, the company to which the owner had leased the plane, and the pilot’s estate.  This appeal involved only the claims against the owner.

The trial court granted summary judgment under the Federal Aviation Act 49 U.S.C. §44112.  It found that section preempted Florida’s dangerous instrumentality law, as it related to owners or leasors of aircraft, because the purpose of the federal statute is to shield an owner from liability of the negligence of others, when the aircraft is not in the owner’s or leasor’s possession or control.

However, the Second District reversed the summary judgment on the issue of the owner’s negligent maintenance and inspection of the aircraft (before it leased the plane).  Because that statute does not preempt Florida negligence law, the defendant was not entitled to summary judgment on that count.

COURT ADDRESSES AHLBORN AND MEDICAID LIENS – FINDS UNDISPUTED COST OF MEDICAL CARE PROVIDED BY MEDICAID DOES NOT EXCEED 50% AND THUS AHCA IS ENTITLED TO FULL SATISFACTION OF LIEN

Russell v. Agency for Healthcare Administration, 35 Fla. L. Weekly D118 (Fla. 2^nd DCA January 6, 2010).

The plaintiff in a medical malpractice case challenged the court’s ruling, ordering full satisfaction of a Medicaid lien from the proceeds of the settlement.  The case was settled for 3 million dollars, and the lien asserted by ACHA was for $221,000.  The settlement agreement contained no allocation of the amounts recovered for the various elements of damages. 

The court noted that under §409.910(11)(f)(1), AHCA is entitled to full satisfaction of its lien as long as that amount it does not exceed 50% of the amount recovered in the settlement. 

Plaintiff argued that the Ahlborn decision limited the lien AHCA  could take.  However, the court observed that Ahlborn does not establish a rule of law as to a formula to determine the portion of a settlement attributable to medical expenses.  It also observed that in Ahlborn, the parties stipulated as to the value of the claim, and further stipulated that only 1/6th of the claim ($35,000) represented compensation for medical expenses. 

Central to the Ahlborn  court’s reasoning was  the State’s stipulation concerning the  portion of settlement attributable to medical expenses, and on the basis of that stipulation, the court reached its conclusion that the State’s lien exceeded that portion of the settlement that represented payments for medical care. 

The court then observed that in Florida, a Medicaid recipient who settles a tort claim with a third party, does so against the backdrop of a 50% allocation rule set forth in 409.910(11)(f).  Because the plaintiff failed to establish any basis for concluding that the lien asserted by AHCA exceeded a portion of the settlement meant to compensate the recipient for damages distinct from medical costs, it was valid. 

The Second District then admonished that unless parties agree to a figure for the cost of medical expenses, a unilateral determination in the settlement agreement is not unavailing.  The court cited to Smith v. ACHA, to remind us that the Ahlborn decision did not establish a rule of law on the formula used to pay back medical expenses from a settlement.

Note: At least it’s good to know that Medicaid cannot claim a lien beyond 50% of the settlement to pay back the total amount of medical expenses provided.

TRIAL COURT PROPERLY DETERMINED THAT PROVISION EXCLUDING COVERAGE FOR “ANY BODILY INJURY TO ANY INSURED OR ANY MEMBER OF AN INSURED’S FAMILY RESIDING IN THE INSURED’S HOUSEHOLD” WAS AMBIGUOUS

State Farm v. Menendez, 35 Fla. L. Weekly D133 (Fla. 3^rd DCA January 6, 2010):

State Farm’s named insured permitted her granddaughter to use her vehicle.  While operating the vehicle, the granddaughter negligently collided with another car, resulting in injuries to herself, her parents, and the named insured.  When the accident occurred, the named insured’s granddaughter was living with her parents, and the named insured was living at a separate address. 

When the parents filed suit against the named insured to recover damages for their injuries under the policy, State Farm denied coverage based on the household exclusion, which provided there was no coverage for “any insured or any member of an insured’s family residing in the insured’s household.” 

Because the named insured’s granddaughter was a permissive user of the insured vehicle, State Farm asserted she was also an “insured” also under the policy.  Since the named insured’s granddaughter and her parents resided in the same house, State Farm argued there was no coverage based on the exclusion. 

Plaintiffs claimed that the phrase “the insured” referred to the named insured only, and that the definition did not include permissive users of the insured. 

Referring to the definitional section of the policy for the definition of “insured,” “you or your” was defined as the named insured shown on the declaration page, and it went on to also state that any person using “your car” fell within the household exclusion.  Because there was an ambiguity about whether the parents fell within the exclusion, the court found there was coverage. 

ERROR TO DENY MOTION TO QUASH SERVICE OF PROCESS WHERE PLAINTIFF DID NOT STRICTLY COMPLY WITH REQUIREMENTS OF §48.161

Cohen v. Aponte, 35 Fla. L. Weekly D137 (Fla. 4^th DCA January 6, 2010):

Plaintiff was unable to locate the defendants.  He moved for an extension to serve them.  The plaintiff served the employer defendant,  but was unable to locate the employee defendant. 

The plaintiff then filed an amended complaint alleging that numerous attempts were made locate and serve the individual defendant, but it appeared he was no longer in the jurisdiction or was concealing his whereabouts.  The complaint further alleged that plaintiff conducted a diligent search, and was serving a copy of the complaint and summons on the Secretary of State under §48.161. 

Because plaintiff ultimately failed to comply with two of the three requirements ((1) notice by registered or certified mail; (2) filing the defendant’s return receipt; and (3) filing an affidavit of compliance on or before the return day of the processor within such time as the court allows) of the pertinent statute, the court held service was invalid.  This case provides a very helpful “how to” on substituting service if anyone needs such guidance. 

DURABLE POWER OF ATTORNEY DECEDENT’S DAUGHTER ACTED UNDER IN EXECUTING DECEDENT’S NURSING HOME ADMISSION CONTRACT WAS BROAD ENOUGH TO AUTHORIZE BINDING ARBITRATION, EVEN THOUGH IT DID NOT SPECIFICALLY REFERENCE ARBITRATION AGREEMENTS

Estate of Smith v. Southland Suites of Ormond Beach, 35 Fla. L. Weekly D145 (Fla. 5^th DCA January 8, 2010).

INSURED CANNOT CIRCUMVENT PAYMENT PROCEDURES OUTLINED IN §627.736(5)(C)(1) AFTER HEALTH INSURER PLACED LIEN ON HER SETTLEMENT PROCEEDS, BY SEEKING REIMBURSEMENT FROM PIP INSURER THREE YEARS AFTER ACCIDENT

State Farm v. Pressley, 35 Fla. L. Weekly D150 (Fla. 1^st DCA January 12, 2010):

State Farm moved for summary judgment on a claim for PIP benefits.  After her accident, the insured did not seek medical treatment for seven months, at which time her health carrier paid for her medical treatment.  The health carrier then asserted a lien on the settlement proceeds.  Three years after the accident, plaintiff filed a complaint against State Farm for unpaid and overdue PIP benefits.  In essence, she sought reimbursement from State Farm for the health insurance lien asserted by the health carrier. 

State Farm moved for summary judgment arguing that none of the bills were submitted in accordance with the PIP statute or on the proper forms.  Plaintiff countered that it was impractical to subject insureds to the requirements of those statutes, and cited cases to support her argument that reimbursement of the health insurance lien was permissible under the PIP statute. 

The court reversed the trial court’s decision to deny State Farm’s motion for summary judgment.  It found that State Farm owed no PIP benefits because neither plaintiff nor her medical providers’ complied with the sections of statute 627.736(5)(c)(a) and 627.736(5)(d).  It said that the PIP statute outlines the procedure for securing payment of medical expenses with a time line and instructions.  There is a time limit and specific directives on how to submit bills. 

The court admonished that the plaintiff could not circumvent the payment by procedures outlined in the statute after her health insurer placed a lien on her settlement proceeds, seeking reimbursement from the PIP carrier three years after the accident.  Allowing her to do so would render the statutory time limitations in the statute useless.  Had the plaintiff promptly notified State Farm of the accident and allowed the medical providers to file timely claims, the situation could have been avoided. 

The court rejected the cases cited by the plaintiff which allowed submission of liens to the PIP carrier after the fact, noting that both decisions were rendered before the current PIP law went into effect. 

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

ERROR TO ORDER PLAINTIFF TO PRODUCE VIDEO AND TRANSCRIPT OF COMPULSORY MEDICAL EXAM OF PLAINTIFF BECAUSE BOTH WERE PROTECTED WORK PRODUCT

Maguire v. Pool Doctor of the Palm Beaches, 35 Fla. L. Weekly D10 (Fla. 4^th DCA December 23, 2009):

The Fourth District found the Second District’s decision in McGarrah v. Bayfront Medical Center, 889 So. 2d 923 (Fla. 2^nd DCA 2004), was controlling, and that the video and transcript of a compulsory medical exam are work product.  The court noted the items would be discoverable if plaintiffs decided to use the material at trial. 

FILING OF A BANKRUPTCY PETITION IMPOSES AN AUTOMATIC STAY WHICH PROTECTS THE DEBTOR AND IS TRIGGERED BY THE FILING OF A VOLUNTARY OR INVOLUNTARY PETITION.  THE SCOPE OF THE STAY DOES NOT INCLUDE THE NON-DEBTORS

Puig v. PADC Marketing, 35 Fla. L. Weekly D20 (Fla. 3^rd DCA December 23, 2009):

The scope of an automatic bankruptcy stay does not include non-debtors.  Thus, the only way an action can properly be stayed is through the discretionary power of the lower court.  A stay for an indefinite period of time though, is overbroad and improper. 

The scope of the automatic stay under 11 U.S.C. §362 is only against the debtor and refers to actions against the debtor not to other interparty claims. 

ERROR TO DENY MOTION TO STRIKE JURORS FOR CAUSE WHOSE RESPONSES WERE SUFFICIENTLY EQUIVOCAL ON WHETHER THEY COULD PRESUME DEFENDANT INNOCENT UNTIL PROVEN GUILTY TO GENERATE REASONABLE DOUBT ABOUT THEIR FITNESS TO SERVE – NEW TRIAL REQUIRED WHERE COURT REFUSED TO GRANT ADDITIONAL REQUESTED PEREMPTORY CHALLENGE AND OBJECTIONABLE JUROR SERVED

Tabares v. State, 35 Fla. L. Weekly D20 (Fla. 3^rd DCA December 23, 2009).

COURT MUST CONSIDER RELEVANT CIRCUMSTANCES TEST IN DECIDING WHETHER THERE HAS BEEN A WAIVER OF THE ATTORNEY/CLIENT PRIVILEGE

Nova Southeastern v. Jacobson, 35 Fla. L. Weekly D27 (Fla. 4^th DCA December 23, 2009):

Nova terminated the employment of a middle school associate director for failing to comply with an earlier written final warning, as well as for negligence and inefficiency.  The woman sued Nova, alleging she was terminated for discriminatory reasons and that her termination was retaliatory in violation of the Florida Whistle Blower Act. 

On the day the woman was to be deposed, she was at the fax machine at the middle school receiving papers on an insurance claim for her son.  Mixed in with the papers was a letter from Nova’s law firm to the headmaster of the school.  The letter stated the University did not have enough performance issues to fire her, and it was a business decision as to whether she would remain an employee.  Counsel for Nova said at the deposition that he was recording his objection to the letter as attorney/client privilege, noting that it was obviously communicated accidentally.  The letter was not produced during the deposition. 

After other witnesses who were copied on the letter were asked about it, counsel objected to questions, and Nova moved for a protective order to prevent plaintiff from referring to the letter based on the privilege.  Nova filed affidavits from each person to whom the letter was sent, indicating they did not intend for third persons to see it.  Further underscoring the letter’s confidentiality, counsel produced a cover sheet which accompanied the faxed letter stating that the attached communication was protected by attorney/client privilege.  Plaintiff’s attorney admitted that his whole strategy was built around the sentiments expressed in the letter.

The court applied the five factor test outlined in General Motors v. McGee to determine whether inadvertent disclosure of privileged material waives the privilege.  Those criteria are (1) the reasonableness of the precautions taken to prevent inadvertent disclosure; (2) the number of inadvertent disclosures; (3) the extent of the disclosure; (4) the delay in measures taken to rectify the inadvertent disclosures; and (5) whether overriding interest of justice would be served by relieving the party of its error.

The trial court ultimately entered a written order determining that the letter was no longer protected by the privilege after engaging in the relevant factor analysis.  The court found, however, that the judge put emphasis on the wrong points.

The trial judge considered Nova’s delay in filing its motion for protective order, but Nova had objected as soon as it learned of the disclosure.  The Fourth District conducted the relevant factor test again, and found that the overriding interests would support returning the letter to Nova, if the privilege was not waived by the facts.  The court found that the trial court departed from the essential requirements of law in evaluating the relevance test factors for waiver of attorney/client privilege.  It therefore remanded for a new hearing based on the rulings made with respect to which factors should get the most emphasis.

FINAL JUDGMENT’S AWARD OF ATTORNEY’S FEES FUNDAMENTALLY ERRONEOUS WHEN IT DID NOT CONTAIN SPECIFIC FINDINGS CONCERNING HOURS EXPENDED AND REASONABLENESS OF RATE

Peacock v. Ace, 35 Fla. L. Weekly D46 (Fla. 2^nd DCA December 30, 2009):

Appellant argued that the final judgment’s award of attorney’s fees was fundamentally erroneous because it did not contain specific findings regarding the number of hours reasonably expended or the reasonableness of the rate.  There was no transcript or authorized statement under Rule 9.200(b)(4).

The court certified the question as one of great public importance as to whether an order awarding fees pursuant to Rowe is fundamentally erroneous when there is no appellate record, and there is no required findings of the number of hours or the rate. 

NO ERROR IN DISMISSING TIMELY FILED ACTION FOR PERSONAL INJURY SUFFERED ON CRUISE SHIP, WHEN ACTION WAS FILED IN STATE COURT RATHER THAN BROUGHT BEFORE THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT AS REQUIRED BY THE CONTRACT

Morrissette v. Norwegian Cruise Lines, 35 Fla. L. Weekly D48 (Fla. 3^rd DCA December 30, 2009):

The plaintiff timely sued for personal injuries, but brought the case in Miami-Dade County rather than in the United States District Court for the Southern District as required by the contract formed by the cruise ticket. 

The court then noted that the plaintiff lost nothing substantively by the decision, because on the authority of the equitable tolling principle, the federal district court denied Norwegian’s motion to dismiss for identical protective action in that court, even though it was filed after the one year expired.  The equitable tolling principle recognizes a timely filing in state court with a subsequently untimely filed federal case when the defendant is aware of the pursuit of the cause of action, because there is no harm.

CLAIM THAT MANUFACTURER’S FAILURE TO WARN OF RISKS OF HEART-RELATED ILLNESS ON LABELS OF OVER-THE-COUNTER COLD MEDICATION BREACHED STATE LAW REQUIREMENTS AND WAS NOT PREEMPTED BY FEDERAL LAW – ERROR TO ENTER SUMMARY JUDGMENT FOR DEFENDANT

Valdes v. Optimist Club of Suniland, 35 Fla. L. Weekly D51 (Fla. 3^rd DCA December 30, 2009):

A boy collapsed during a roller hockey game and had to be resuscitated at the scene.  He had suffered a heat stroke and cardiorespiratory arrest which resulted in a brain injury, leaving him completely disabled.  On the morning of his collapse, he had taken Tylenol Cold. 

The plaintiffs contended that the Tylenol Cold increased the risk of heat-related illness and heart-related risks when ingested with caffeinated products (he had taken it with a soda) and coupled with strenuous athletic events.  It contains pseudoephedrine.  Plaintiffs asserted that the manufacturer’s failure to warn of these risks on the label breached Florida state law requirements. 

The defendant argued that Federal law governs the labeling of medication and therefore preempted state law requirements.  However, an exception contained in the Federal law states that nothing shall be construed to modify or otherwise affect any action,  or the liability of any person under the product liability law of any state. 

The court looked to the Supreme Court’s recent decision in Wyeth v. Levine and found there was no preemption.  The Supreme Court had in fact concluded that the FDA long maintained that state law offers an additional and important layer of consumer protection that complements the FDA regulation, thereby allowing for product liability actions. 

TRIAL COURT PROPERLY ENTERED SUMMARY JUDGMENT FOR DEALERSHIP AGAINST WHOM PLAINTIFF BROUGHT SUIT, AFTER BEING INJURED BY A VEHICLE STOLEN FROM THE DEALERSHIP’S PROPERTY BY A GANG

Demelus v. King Motor Co., 35 Fla. L. Weekly D59 (Fla. 4^th DCA December 30, 2009):

King employed an evening security guard who patrolled a well-lit property.  There were metal posts surrounding the perimeter of the property, and ingress and egress of a vehicle was possible only through designated entry ways.  The vehicles on the property were locked and the keys were stored inside locked buildings. 

King Motors experienced 36 break-ins and thefts during the 6-year period prior to the date of the theft of the accident.  The thefts were a combination of employee thefts, customer thefts and unexplained thefts. 

A man was injured in an accident involving one of three vehicles stolen from King Motor’s property by a juvenile gang.  The locked showroom had its hurricane-proof windows smashed to allow entry.  Glass windows were broken, the cubicles were ransacked, locked doors opened, etc. 

The trial judge granted summary judgment for King Motor.  It noted that this particular form of theft was unforeseeable, because King Motor had not experienced similar thefts in the past.  Furthermore, the court found King Motor’s conduct did not create a risk, and summary judgment was proper. 

TRIAL COURT ERRED IN ENTERING SUMMARY JUDGMENT FOR DEFENDANT ON GROUND THAT EXCULPATORY CLAUSE WAS NOT AMBIGUOUS – AS IT WAS AMBIGUOUS, SUMMARY JUDGMENT IMPROPER

Tatman v. Space Coast Kennel Club, 35 Fla. L. Weekly D76 (Fla. 5^th DCA December 31, 2009):

The question was whether the Space Coast Kennel Club would be relieved of its liability for a victim’s dog bite injury.  Exculpatory clauses are disfavored because they relieve one party of the obligation to use care, and shift the risk of injury to a party who is less equipped to take the precautions to avoid the injury.  They are only enforceable when the intention to be relieved from liability is clear,  unequivocal and so understandable that an ordinary knowledgeable person will know what he is contracting away. 

In this case, the initials “SCKC” were used in the clause along with the Brevard County Parks and Rec Department.  The court found that the agreement not to hold those entities liable for any accident or injury failed to define whose injuries were covered in a circumstance, even though there were multiple possibilities.  It did not say for example that injuries to the “signer” of the form, or to the dog or to both would be covered by the exculpation, nor did it assert an exculpation for injuries caused by the dog to third parties. 

Because the clause was ambiguous, the court refused to enforce it. 

NO ERROR IN DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ON DEFENSE OF ACCORD AND SATISFACTION, BASED ON FINDING THAT PARTIES DID NOT ENTER INTO ENFORCEABLE SETTLEMENT AGREEMENT

Gonzalez v. Claywell, 35 Fla. L. Weekly D88 (Fla. 1^st DCA December 31, 2009): 

Defendant claimed a settlement agreement existed based on a series of letters between the plaintiff’s lawyer and the defendant’s lawyer.  The plaintiff’s lawyer offered to settle the case for an amount representing the policy limits for bodily injury, $25,000.00 and additional compensation for property damage.  The lawyer informed GEICO that the plaintiff would be willing to sign “a release form that released the defendant, Gonzalez, and the co-owners of the vehicle he was driving and would not include any indemnification language.” 

The letter stated the offer would stay open until October 31^st.  GEICO sent the plaintiff’s lawyer a check for the bodily injury but the release included with the check required the plaintiff to release GEICO as well as defendant, Gonzalez.  The letter said prior to negotiating the check, the client should sign the release and return it to GEICO.  The letter went on to say if there was an aspect of the document which did not reflect the settlement, the lawyer should contact the adjuster immediately to revise the document to reflect the exact terms of the agreement. 

The plaintiff’s lawyer informed the insurance adjuster he would not sign the release because it deviated from the terms of the offer.  The case proceeded to trial and the jury returned a verdict far in excess of the limits.  The defendant argued that plaintiffs had entered into an enforceable settlement agreement. 

The court rejected that argument.  The plaintiff’s offer was specific and the only logical conclusion was that there was no settlement agreement.  A concurring judge added that if the offer in the case were made to set up a bad faith claim, absent extraordinary circumstances, it was not readily apparent to him how a request by an insurance carrier to be added to a release could constitute bad faith. 

COSTS CONSIDERED OVERHEAD ARE NOT TAXABLE

The Landmark Winter Park v. Colman, 35 Fla. L. Weekly D102 (Fla. 5^th DCA December 31, 2009): 

Appellate courts have consistently held that certain costs and expenses are not taxable because they are considered overhead (even though the statewide uniform guidelines expressly state that they are only advisory and that the taxation of costs is within the broad discretion of the judge). 

The court then concluded it was improper for the trial court to tax overhead costs in the form of postage, on-line research, fax charges, courier charges, photocopies, scanning documents and trial supplies. 

It is also not appropriate to tax costs for parking, overtime, after hours heating and cooling, mileage, meals and long distance phone calls. 

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

COURT UPHELD SIZEABLE VERDICT FOR WORKER AGAINST OWNER/GENERAL CONTRACTOR IN CHARGE OF CONSTRUCTION OF CONDOMINIUM UNITS

Worthington Communities v. Mejia, 34 Fla. L. Weekly D2565 (Fla. 2^nd DCA December 16, 2009):

Worthington was developing a condominium project and was acting as both owner and general contractor in charge of construction.  It contracted with Sunshine Masonry for the masonry work, and Mr. Mejia was employed by Sunshine as an unskilled laborer. 

As part of the construction, an unbraced joist system collapsed on the plaintiff rendering him quadriplegic.  The jury reached a 6.5 million dollar verdict, apportioning 5% of the negligence to the plaintiff, 10% to Worthington, and 85% to the plaintiff’s employer, Sunshine.  Under the applicable version of §768.81, Worthington was responsible for 5 million dollars of the judgment (for the economic damages).

Worthington contended that the trial court erred in denying its motion for directed verdict because there was no evidence that it breached any duty owed to the plaintiff. 

The court reminded us that an owner who hires an independent contractor is not generally liable for injuries sustained by the contractor’s employees, except when the owner has been actively participating in the construction to the extent that he directly influences the manner in which the work is performed, or engages in acts either negligently creating or negligently approving a dangerous condition, resulting in injury or death to the employee.

Because there was evidence of Worthington’s direct involvement and direct negligence, the court found denial of the directed verdict was proper. 

Additionally, Worthington challenged a jury instruction which told the jury that as owner/general contractor for the project, Worthington had the “ultimate duty” to maintain the site in a reasonably safe condition.  While the court said it tended to agree with Worthington that it was improper to apply the “ultimate” duty language applicable to non-delegable duties outside of the context of inherently dangerous instrumentalities, it found there could be no abuse of discretion when the rationale and legal authority for finding a jury instruction was erroneous was never argued to the trial court.  Additionally, the jury instructions when considered as a whole properly explained the scope of Worthington’s duty and therefore the court found the instruction was not reversible.

COURT DISMISSED APPEAL AS UNTIMELY WHERE CLERK’S DATE STAMP INDICATED THAT NOTICE WAS FILED AFTER EXPIRATION OF TIME LIMIT FOR FILING – CLERK’S DATE STAMP IS DISPOSITIVE ON ISSUE OF DATE OF FILING A PAPER WITH TRIAL COURT

Strax Rejuvenation and Aesthetics Institute v. Shield, 34 Fla. L. Weekly D2569 (Fla. 4^th DCA December 16, 2009):

Despite affidavits demonstrating that the notice of appeal was properly filed in the Broward County Courthouse on August 19^th, the Clerk’s time stamp on the notice showed it was filed on August 21^st (a day late).  The court dismissed the appeal as untimely.

The moral to this story is always bring a second copy of your notice to the Clerk’s office, so that you can get it date stamped and safely tuck it away in your files for future reference!

EVEN WHEN THE FACE OF THE PLEADINGS ARE CLEAR THAT PLAINTIFF NOT ENTITLED TO RELIEF, WRIT OF CERTIORARI NOT PROPER BECAUSE EXPENSE OF UNNECESSARY TRIAL IS NOT IRREPARABLE HARM

Nationwide v. Garrity, 34 Fla. L. Weekly D2588 (Fla. 3^rd DCA December 16, 2009):

Plaintiff recovered the $100,000.00 liability limits under policy, and then sought recovery under the UM portion of the same policy, contrary to well established law.  While the court found that on the face of the pleadings it was undisputed that the plaintiff could not obtain further relief, the court found it had to deny the petition for writ of certiorari because the insurance company could not establish the irreparable harm that is a requisite element of such an application.  The prospect of being put to the expense and inconvenience of a trial does not satisfy that element. 

The court also said it could not treat the order as a judgment based on the existence or non-existence of insurance coverage under 9.110(m), because that provision requires an explicit ruling on coverage in a case in which a claim has been made against the insured.  The respondent’s claim here was only asserted against the insurer (not the insured).

ERROR TO INCLUDE WORDS OF FINALITY “FOR WHICH SUM LET EXECUTION ISSUE” IN PARTIAL SUMMARY JUDGMENT ENTERED AGAINST ONE DEFENDANT WHERE PARTIAL SUMMARY JUDGMENT DID NOT FULLY ADJUDICATE ANY OF THE CAUSES  OF ACTION AGAINST THE DEFENDANT

Rothermel v. BXL Associates, 34 Fla. L. Weekly D2589 (Fla. 3^rd DCA December 16, 2009).

CITIZENS PROPERTY INSURANCE CORPORATION IS SHIELDED BY SOVEREIGN IMMUNITY FROM BAD FAITH CLAIMS

Citizens Property Insurance Co. v. Garfinkel, 34 Fla. L. Weekly D2599 (Fla. 5^th DCA December 18, 2009):

The Fifth District granted Citizens writ of prohibition directed to the trial court to prevent the court from taking any further action with respect to a first-party bad faith claim brought by the plaintiff against Citizens.

Citizens was created by the Florida Legislature in order to ensure the existence of orderly market for property insurance and windstorm insurance.  It specifically states that it is a governmental entity and not a private insurance company.  Thus, it is immune from first-party bad faith claims.

TRIAL COURT MAY NOT DISMISS A NEGLIGENCE ACTION AS A SANCTION FOR AN ATTORNEY’S DILATORY BEHAVIOR WITHOUT MAKING FINDINGS REGARDING THE FACTORS SET FORTH IN KOZEL V. OSTENDORF

Houser v. County of Volusia, 34 Fla. L. Weekly D2604 (Fla. 5^th DCA December 18, 2009).

ERROR TO ENTER SUMMARY JUDGMENT IN FAVOR OF INSURER IN BAD FAITH CASE

Mills v. State Farm, 34 Fla. L. Weekly D2614 (Fla. 1^st DCA December 22, 2009):

The insured alleged that State Farm acted in bad faith by failing to settle a claim within policy limits, failing to properly advise her of the possibility of an excess verdict, and failing to inform her of remedial steps available to minimize her risk of substantial money judgment against her.  When an insured has surrendered to the insurer all control over a claim brought against her, the insurer is obligated to make litigation settlement decisions in good faith and with the insured’s best interest in mind.

The question of whether a liability insurer has acted in bad faith in handling a claim depends upon the totality of the circumstances with each case determined on its own unique facts.  The question of failure to act in good faith is ordinarily one for the jury.  In this case, the trial court concluded as a matter of law that State Farm could not have done more towards settling the claim against the defendant and that State Farm adequately advised her of the possibility of an excess verdict and steps she could have taken.  Given the unique factual circumstances, however, this conclusion was error, and summary judgment was improper.

RECORD SUPPORTS JUDGE OF COMPENSATION CLAIMS FINDING THAT FEE CLAIMED BY CLAIMANT’S ATTORNEY FOR SECURING REIMBURSEMENT OF MILEAGE IN AN AMOUNT JUST OVER $200.00 WAS CLEARLY EXCESSIVE AND UNCONSCIONABLE

Jackson v. Ryan’s Family Steakhouse, 34 Fla. L. Weekly D2615 (Fla. 1^st DCA December 22, 2009):

In this work comp appeal, the claimant challenged an order of the JCC awarding his attorney $3,860.00 in attorney’s fees for securing reimbursement of medial mileage in the amount of $201.44.  The claimant argued that the JCC reversibly erred by unilaterally reducing the hours expended based on non-record evidence.  The court affirmed finding that a reasonable fee would never exceed the amount awarded (almost $8,000.00 was originally sought).

TRIAL COURT DID NOT DEPART FROM ESSENTIAL REQUIREMENTS OF LAW IN REQUIRING DEFENDANT TO PRODUCE INCIDENT REPORTS AFTER CONCLUDING THEY WERE NOT PROTECTED UNDER THE WORK PRODUCT PRIVILGE AND EXPRESSLY STATING PLAINTIFFS HAD DEMONSTRATED NEED FOR THEM

Paradise Pines Healthcare v. Harts Harbor Health Center, 34 Fla. L. Weekly D2621 (Fla. 1^st DCA December 22, 2009):

Because the trial court did not misapply the law pertaining to how a moving party may overcome work product privilege, the court affirmed the trial judge’s ruling and denied certiorari.

ERROR TO DISMISS COMPLAINT WITH PREJUDICE FOR FAILURE TO EFFECT SERVICE OF PROCESS WITHIN 120 DAYS FROM FILING WHEN STATUTE OF LIMITATIONS HAD EXPIRED – IN SITUATIONS WHERE STATUTE HAS RUN, TRIAL COURT SHOULD NORMALLY EXERCISE DISCRETION IN FAVOR OF GIVING PLAINTIFF ADDITIONAL TIME TO PERFECT SERVICE

Sly v. McKeithen, 34 Fla. L. Weekly D2622 (Fla. 1^st DCA December 22, 2009):

Defendant filed a motion to dismiss for failure to comply with 120 day requirement (service was not effected until almost a year after the filing of a complaint).  The trial court dismissed the case with prejudice declining to exercise discretion to allow the plaintiff additional time, finding that plaintiff failed to demonstrate good cause or excusable neglect for the delay.

Since Rule 1.070(j) was amended in 1999 to broaden the trial court’s discretion to allow an extension of time even without a showing of good cause.  The courts have frowned upon dismissing cases when statutes of limitations have run, because to do so results in far too severe a sanction and the rule was meant to be a case management tool.  The court reversed the dismissal. 

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

BY ENTERING INTO A MEDIATED SETTLEMENT AGREEMENT WITH DEFENDANT EMPLOYER, PLAINTIFF LITIGATED HER WORK COMP CLAIM TO CONCLUSION “CHOOSING TO RECEIVE WORK COMP BENEFITS TO THE EXCLUSION OF TORT BENEFITS,” AND IT WAS ERROR TO DENY DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Petro Stopping Centers v. Gall, 34 Fla. L. Weekly D2547 (Fla. 5^th DCA December 11, 2009):

The court clarified its original opinion, but maintained its conclusion that the trial judge should have granted summary judgment for the employer, because the parties mediated settlement agreement constituted a conclusion on the merits of the plaintiff’s worker’s compensation claim.  The court found because plaintiff actively pursued her tort litigation showed she had elected her remedy.

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