A PARTY’S UNSUPPORTED “BAD FEELING” ABOUT A JUROR IS NOT A SUFFICIENT EXPLANATION TO REBUT THE ASSERTION THAT THE STRIKE WAS MOTIVATED BY GENDER

Johnson v. State, 35 Fla. L. Weekly D321 (Fla. 2^nd DCA February 10, 2010):

After seating an entire jury of women, the State moved to strike the last juror, who was a man.  As part of the analysis, the court looked at the strike side-by-side, and found that both the defense and the State had struck several males and females (respectively).

However, the defendant alleged that the last juror belonged to a specific gender group, and requested a gender-neutral reason to support the strike.  The State responded it “didn’t get a good feeling” for the juror and “had a bad feeling.”  Based on the composition of the jury that had been seated, the court allowed the juror to serve. 

The appellate court reversed for a new trial.  It found that a party’s unsupported “bad feeling” about a juror is not a sufficient explanation to rebut the assertion that the strike was motivated by gender.  It was also improper for the court to consider the overall make up of the jurors that have been seated, to determine the sufficiency of a gender-neutral reason for a peremptory strike.  A gender-neutral justification cannot be inferred from the composition of the panel.  Because the state’s reason was insufficient, the trial court erred in sustaining the State’s use of the peremptory strike. 

A VALID REPORT UNDER §627.736(7)(a) DOES NOT REQUIRE AN INSURER TO ORDER AN IME BEFORE DENYING A CLAIM FOR PIP BENEFITS

United Automobile Insurance Co. v. Hollywood Injury Rehab Center, 35 Fla. L. Weekly D334 (Fla. 4^th DCA February 10, 2010).

RULE 1.540 AUTHORIZES TRIAL COURTS TO VACATE FINAL JUDGMENTS BECAUSE OF NEGLIGENT MISTAKES BUT NOT FOR JUDGMENTAL MISTAKES OR TACTICAL ERRORS

Hermitage Insurance Co. v. Oxygen In The Grove, 35 Fla. L. Weekly D342 (Fla. 3^rd DCA February 10, 2010):

Plaintiff sued a night club, for injuries he sustained at the hands of the bouncers.  The club forwarded the complaint to its insurance company, demanding a defense.  The company denied coverage on the basis that the complaint alleged intentional tort and assault and battery.  The club resolved the dispute in voluntary binding arbitration (after hiring its own lawyer).  The award expressly found the club negligent.  At the plaintiff’s request, the trial court confirmed the award, and entered final judgment.

Seven months later, the plaintiff moved to amend the complaint to comport with final judgment.  The plaintiff then alleged for the first time, that the club was negligent in its care and treatment of the plaintiff, and that he was struck in the face by a door when one of the bouncers opened it.  The plaintiff sought leave to add the insurer as a defendant.  The trial judge denied the motion but lined through the ruling stating it was withdrawn and could be renewed.

Shortly after that, plaintiff filed an unsworn motion to vacate final judgment asserting that due to inadvertence or error, the arbitration award should not have been entered because the liability carrier should have been made a party to the claim.  The trial judge granted the motion, and later granted the insurer leave to intervene as a party and to file a dec action on the coverage issue.  The insurer appealed the order vacating the final judgment.

The court reversed.  It found that the motion to vacate was made pursuant to Rule 1.540, but that rule was not intended to spare counsel from tactical errors or mistakes.  Because the judgment was not entered based on oversight, neglect or accident, the motion vacating the final judgment was reversed.

WHERE DEFENDANT DENIED PLAINTIFF’S WORKER’S COMPENSATION CLAIM ON THE BASIS THAT PLANTIFF’S CONDITION WAS NOT THE RESULT OF AN INJURY BY AN ACCIDENT ARISING OUT OF THE COURSE AND SCOPE OF EMPLOYMENT, DEFENDANT WAS ESTOPPED FROM RAISING WORK COMP DEFENSE

Masonry v. Gutierrez, 35 Fla. L. Weekly D342 (Fla. 3^rd DCA February 10, 2010):

Plaintiff sought work comp benefits from his employer for injuries sustained while lifting concrete blocks.  The carrier denied the claim, stating that the plaintiff’s condition was not a result of an injury by an accident arising out of the course and scope of the employment.  The carrier then raised work comp immunity as an affirmative defense and moved for summary judgment on that issue.  The trial court denied the summary judgment motion finding that it was not entitled to work comp immunity as a matter of law. 

An employer may be equitably estopped from raising a worker’s compensation exclusivity defense, if the employer denies the employee’s claim by asserting that the injury did not occur in the course and scope of her employment.  It is available only when the employer attempts to take inconsistent positions, which the insurer here did. 

As a result of the denial, the plaintiff dismissed his work comp claim, incurred medical expenses and filed a negligence action.  Because the record establishes the elements of estoppel (representation by the party estopped to the party claiming the estoppel as to a material fact which representation is contrary to the condition of affairs later asserted by the estopped party; (2) a reliance upon the representation by the party claiming the estoppel; and (3) a change in the position of the party claiming the estoppel to his detriment, caused by the representation and his reliance thereon), the trial court’s denial of summary judgment was affirmed.

SCHOOL NOT LIABLE FOR INJURIES SUFFERED BY A STUDENT IN AN AUTOMOBILE ACCIDENT THAT OCCURRED WHILE STUDENT WAS DRIVING CAR AFTER CONSUMING ALCOHOL AT END-OF-THE-YEAR PARTY AT A PRIVATE RESIDENCE

Archbishop Coleman F. Carroll High School v. Maynoldi, 35 Fla. L. Weekly D344 (Fla. 3^rd DCA February 10, 2010):

This case involves a parochial high school’s alleged liability after a 17 year-old consumed alcohol at a private party the school knew about at the end of the year at a private residence, and was seriously injured.  The party was to take place after final exams at a residence several miles away from the school.  On the morning before the party, the principal talked to the two brothers at whose home the party was to take place to ask them questions.  The principal also indicated he was going to attend the party, writing a skit for the students to illustrate his point.

The mother of the hosting students arrived home at the party sometime between 1:45 and 3:30, and the party began around 1.  While she called her husband, neither party called the police or tried to stop the party before the injured plaintiff drove away.

The plaintiff and his friend drank in his car for almost an hour before arriving at the party, between 2 and 2:30.  At 4, the principal and a school employee arrived at the party.  The principal testified he wanted to personally see that things were okay and make good on his threat to visit the home.  Nobody notified the police or called any parents.

Thirty to 45 minutes after the principal left, the plaintiff got in his car with his friend and drove away.  His vehicle struck a tree, killing the friend and catastrophically injuring the plaintiff.  He is now a quadriplegic suffering a traumatic brain injury.

The school’s parent and student handbook was admitted into evidence talking about outside parties and stating that the school would not be responsible for events not officially sanctioned by the school, though leaving room for interpretation.  There was also a substance abuse policy. 

At trial, the drug and alcohol defense arose.  The trial judge found the affirmative defense did not apply because his parents were the plaintiffs, and the statute applied to the “plaintiff.”  The court found such a statutory interpretation was absurd, and that the personal representative’s derivative claims apply with equal force to parents’ claims arising entirely from their minor child’s accident and injuries. 

The court concluded by finding that no one could feel but the deepest sympathy for the tragic result of this accident.  It acknowledged the school’s interception of the invitation, the skit it did in response (advising the party would be crashed) and the parent and student handbook provisions, as well as the principal’s visit to the residence while the party was underway made the case interesting.  Still, the court concluded that those circumstances were insufficient as a matter of law to impose upon the school a duty to supervise or a duty under the undertaker’s doctrine regarding the plaintiff’s consumption of alcohol, attendance at the party and his fatal decision to get behind the wheel.

The court reversed and entered judgment for the school (55 million dollar verdict).

RULE 1.525 APPLIES (THE 30 DAY RULE) TO MOTIONS FOR ATTORNEY’S FEES WHEN THE TRIAL COURT HAS NOT DETERMINED ENTITLEMENT

Ramle International Corp. v. The Green’s Condominium, 35 Fla. L. Weekly D356 (Fla. 3^rd DCA February 10, 2010):

Rule 1.525 does not apply when the trial court has determined an entitlement to fees in its final judgment but reserves jurisdiction only to determine the amount.  In this case, the hearing was not held for 11 months but was still timely because entitlement was not in question.

WHEN PARTY IS SEEKING TO RECOVER PREVIOUSLY INCURRED ATTORNEY’S FEES AS AN ELEMENT OF DAMAGES IN A BREACH OF CONTRACT ACTION, IT IS NOT NECESSARY FOR THE PARTY TO PRESENT INDEPENDENT EXPERT TESTIMONY TO CORROBORATE THE REASONABLENESS OF THE FEES INCURRED IN THE UNDERLYING LAWSUIT

Seaworld v. Ace American Insurance Co., 35 Fla. L. Weekly D361 (Fla. 5^th DCA February 12, 2010):

The Fifth District certified conflict with the Third District’s decision in Seitlin v. Phoenix Insurance Co., 650 So. 2d 624 (Fla. 3^rd DCA 1994).

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

CASE REVERSED AGAINST DEFENDANT WHO SOLD CRANE AND AGREED TO KEEP IT IN GOOD REPAIR – DEFENDANT CANNOT BE FOUND LIABLE FOR BREACH OF OBLIGATION IF PRODUCT NOT FOUND TO BE DEFECTIVE

Liebherr-America, Inc., etc. v. McCollum, 35 Fla. L. Weekly D297 (Fla. 3^rd DCA February 3, 2010):

The decedent was run over and killed by a huge mobile crane at the Port of Miami.  Although it neither designed, manufactured, or operated the crane at the time of the accident, nor did it own or control the property where the decedent was killed, the jury found defendant crane seller partially liable for the death.  Finding no legal basis for the liability, the court reversed for entry of judgment in the defendant’s favor. 

The defendant, Liebherr-America, was a seller and servicer of equipment.  Had the equipment contained a defect which rendered it unreasonably dangerous, this defendant could have been found  responsible.  However, when the jury found the crane was not defective at the time of sale, this defendant could not be responsible. 

Plaintiffs additionally asserted that defendant had an obligation to appropriately service the crane after its sale.  There was some evidence that one of the horns and another warning device was not operating properly.  However, the court found that fact alone could not give rise to liability in the absence of certain evidence:  (a) evidence that the asserted failure had occurred previously; and (b) that the defendant was on notice of such an impropriety and had been guilty in failing to repair it.  Additionally, because there was no showing that the failure of the horn had anything to do with the accident rendered such shortcomings incapable of being a legal cause of death. 

The court reminded us that there is no duty on the part of a seller or anyone in the distributive chain to warn of dangers presented by the product’s operation after it has passed from its control.  That duty lies either with the allegedly negligent operator of the crane, or on the owner of the property. 

ERROR TO DISMISS COMPLAINT WITH PREJUDICE WITHOUT INCLUDING EXPLICIT FINDINGS OF NON-COMPLIANCE IN ORDER AND WITHOUT CONSIDERING FACTORS SET FORTH IN KOZEL

Johnson v. Skarvan, 35 Fla. L. Weekly D302 (Fla. 5^th DCA February 5, 2010):

Despite the trial judge’s perception that plaintiff was non-compliant with the court’s orders, dismissal with prejudice is an extreme sanction reserved for those aggravating circumstances where a lesser sanction would fail to achieve a just result.  A trial court has discretion, after due consideration of the Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1993) factors, to dismiss a case but the dismissal order must contain explicit findings of willful non-compliance.  While the trial court may have been justified in dismissing the case, the lack of the requisite finding of willful non-compliance and failure to consider the Kozel factors required reversal. 

FAILURE TO RETURN UNEARNED PORTION OF RETAINER PAID TO DEFENDANT PSYCHOLOGIST TO CONDUCT CHILD CUSTODY EVALUATION AMOUNTS TO CIVIL THEFT – PREMATURE FILING OF COMPLAINT DID NOT LEAD TO PAYMENT OF TREBLE DAMAGE AMOUNT ANY WAY, AND DEFENDANT FAILED TO DEMONSTRATE PREJUDICE

McCormack v. Flens, 35 Fla. L. Weekly D308 (Fla. 2^nd DCA February 5, 2010):

Mr. McCormack paid a psychologist an $8,000.00 retainer to conduct a child custody evaluation in a divorce case.  The psychologist used $4,750.00 of the retainer, but refused to return the rest which had not been used. 

Mr. McCormack filed his amended complaint less than 30 days after the second civil theft demand letter was delivered to the psychologist.  Based on that, the trial court determined that a directed verdict had to be granted for the psychologist.  The court disagreed.  Because the doctor never paid the amended treble damage amount, he failed to demonstrate he was prejudiced by the premature filing.  The court also found there was evidence to support the jury’s verdict of civil theft. 

TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR DEFENDANT ON GROUND PLAINTIFF FAILED TO PRESENT EVIDENCE TO OVERCOME PRESUMPTION OF NEGLIGENCE IN REAR END COLLISION

Itiat v. Foskey, 35 Fla. L. Weekly D313 (Fla. 1^st DCA February 5, 2010):

The decedent died as a result of rear ending a tow truck on I-10 following a rain storm.  The trial court entered summary judgment in favor of the defendant based upon its determination that the plaintiff failed to provide evidence sufficient to overcome the presumption of negligence. 

The summary judgment was based on the trial court’s determination that the plaintiff failed to provide sufficient evidence to overcome the presumption.  The court explained there are three general categories of affirmative explanations that have been held to rebut the presumption of negligence: (a) an abrupt and arbitrary stop in a place where it could not reasonably be expected, or an unexpected change of lanes; (b) a mechanical failure that causes the rear driver to collide with the lead driver; or where (c) the lead vehicle is illegally and unexpectedly stopped. 

After reviewing the record and drawing inferences in favor of the plaintiff, the court found that whether the defendant had suddenly changed lanes and reduced his speed, and whether those actions caused the collision, did provide evidence to overcome the presumption, and therefore, summary judgment was improper. 

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

FINAL SUMMARY JUDGMENT FOR INSURER REVERSED – CASE DISMISSED WITHOUT PREJUDICE FOR FAILING TO FILE SUFFICIENTLY SPECIFIC CIVIL REMEDY NOTICE

Fenderson v. United Automobile, 35 Fla. L. Weekly D235 (Fla. 4^th DCA January 27, 2010):

Plaintiff failed to file a sufficiently specific civil remedy notice to comply with §624.155(3)(a).  Because plaintiff still had time to comply with the statutory notice provision, the dismissal was reversed without prejudice for re-filing.

A HOSPITAL-BASED, BUT NON-CONTRACTED PROVIDER OF HEALTH CARE SERVICES TO THE SUBSCRIBERS OF AN HMO PLAN, MAY NOT BALANCE BILL SUBCRIBERS FOR UNPAID PORTION OF ITS STATEMENTS FOR MEDICAL SERVICES THAT HAVE NOT BEEN PAID BY THE HMO

Joseph Riley Anesthesia Associates v. Stein, 35 Fla. L. Weekly D257 (Fla. 5^th DCA January 29, 2010):

An anesthesia group provided services to patients in conjunction with their surgical procedures.  The group did not have a contractual agreement with Florida Healthcare regarding the amounts to be paid for medical services it provided to the subscribers of the Florida Healthcare HMO.

In light of §641.3154, a provider may not balance bill the subscriber even when the subscriber does not have a contract with the HMO.  While there may be a dispute over payment amounts for bills rendered for the services to subscribers of the HMO, that is a dispute to be resolved between the medical group and the HMO, and does not affect the patient.

ERROR TO ENTER FINAL JUDGMENT IN FAVOR OF PLAINTIFF WHERE HE FAILED TO PROVE CAUSATION ELEMENT OF CIVIL THEFT CLAIM – ALTHOUGH PLAINTIFF PROVED DEFENDANT LEFT PLAINTIFF’S LAW FIRM AND TOOK PAPER CLIENT FILES WITH HIM, AND ALSO PROVED DEFENDANT’S PARAMOUR ALTERED CERTAIN COMPUTER FILES, PLAINTIFF PRESENTED NO EVIDENCE TO PROVE THAT THEFT OF FILES CAUSED LOSS OF CLIENTS

Winters v. Mulholland, 35 Fla. L. Weekly D267 (Fla. 2^nd DCA January 29, 2010):

A lawyer left his firm and took many clients with him.  According to the court, the facts of the case were enough to make “any legal ethics professor cringe.”  The evidence showed that after working as an associate at their firm for over 15 years, the associate decided to leave.  The associate took at least one client file from the firm and copied it before returning it.  He simply took other files with him, rather than leaving them at the office.  The associate’s paramour and former paralegal hacked into the firm’s computer system and altered client contact data for some of the clients to make it more difficult for the firm to contact those clients (charming).  All of this was done when the associate knew he was leaving but had not told the firm of his plans.

After the associate left, the firm told him he was going to sue them.  The associate told clients that the other lawyer in the firm was retiring and no one would be available to handle their case.  The firm brought suit for civil RICO, federal RICO, civil theft, conversion, intentional interference with advantageous business relationship and an accounting after 12 of the firm’s most lucrative clients left.  For reasons not apparent from the record, after the close of all the evidence, the firm chose to submit only the civil theft claim to the jury.  The jury awarded the firm almost $800,000.00 in damages and $130,000.00 in attorney’s fees. 

While the firm did prove that a theft occurred, it presented no evidence to prove that the theft was connected with the loss of the clients and thus was the cause of the damages.  In other words, the firm presented no evidence that any client who chose to leave went with the other lawyer because he had a copy of their file.  The firm also failed to present any evidence to establish that any of the clients left because the associate told them that the firm’s lawyer was retiring.  In fact, many of the clients testified that they left because the associate was the one who was handling their case. 

The court rejected the law firm’s argument that the conduct of the associate was so repugnant that causation and damages should be presumed finding there was valid civil theft claim.

In this rather distasteful scenario, the court reversed for entry of final judgment in favor of the associate.

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

PRIOR SIMILAR INCIDENT PROPERLY ADMITTED – REVERSED FOR NEW TRIAL ON UNSUPPORTED DAMAGES

Subaqueous Services v. Corbin, 35 Fla. L. Weekly D208 (Fla. 1^st DCA January 21, 2010):

A commercial crabber was a victim of a crash between his boat and a large pipeline that was submerged 2 to 8 inches below the surface of a water marker.  The collision threw the man to the ground significantly injuring his back. 

On the same day, a grade school friend of the plaintiff’s was working the same area as a commercial crabber, and around the same time, his boat also collided with the same pipeline.  On that date, the defendant was at work dredging canals in and around where the plaintiff was traveling. 

As part of the evidence at trial, plaintiff’s voc. rehab. testified that plaintiff’s earning capacity as a commercial fisherman was about $12.36 per hour or $25,790.00 annually.  The expert called the estimate conservative and found that the plaintiff was suited only to perform sedentary and light duty work to earn between $7.00 and $9.00 an hour or $15,000.00 to $18,000.00 annually.  His information was based on a series of compiled general statistics.

The court found there was no abuse of discretion in admitting the prior incident, because it was relevant to the existence of a dangerous condition, which the testimony supported defendant denied notice of.  Additionally, evidence of prior similar accidents at or near the same place are admissible if they are not too remote in time and similar, and there were numerous similarities between the testimony about the prior incident and plaintiff’s accident.

However, the court criticized the expert’s computation of damages based on the plaintiff’s tax returns showing an average net annual income of over just $11,000.00.  The expert explained that the tax returns did not reflect the extent of gross revenue in a cash-based business like fishing, but meanwhile the plaintiff alluded to unreported sources of income.  The court also criticized the information upon which the expert relied in reaching his conclusion about earning capacity.

Rather than limiting the inquiry to “fishing-related” occupations, the expert surveyed a broad range of vocations and used income statistics from occupational codes compiled by the U.S. Bureau of Labor Statistics which included managers in farming, forestry, animal breeding, etc.  Because the evidence supported that the plaintiff would only ever be a fisherman, these statistics were inapplicable.

The court also rejected the award for future medical expenses finding that there was no testimony to support the need for the future surgery which cost $30,000.00.  However, counsel suggested a value of $5.00 an hour for non-economic compensation ($1,231,000.00).  Though the defendant argued the award was “titantic,”, the court further found that it was not so inordinately large as to lack a reasonable relation to the damages proven.

FIFTH DISTRICT UPHELD DENIAL OF ATTORNEY’S FEES UNDER PROPOSAL FOR SETTLEMENT THAT FAILED TO DIFFERENTIATE BETWEEN ACTIVE AND PURELY VICARIOUS TORTFEASOR – CONCURRING JUDGE TAKES OPPORTUNITY, HOWEVER, TO POINT OUT THE FALLACY IN THE LAW

Andrews v. Mcpartland, 35 Fla. L. Weekly D214 (Fla. 5^th DCA January 22, 2010):

Citing to the supreme court’s decision in Lamb v. Matetzschk, 906 So. 2d 1037 (Fla. 2005), where the issue of vicarious liability was disputed, a concurring judge who felt bound by existing law, wrote to point out that it is unworkable to require differentiated proposals when vicarious liability is undisputed.  He further noted how requiring this could potentially wreak havoc with jury instructions and verdict forms and result in additional unnecessary litigation.  Still, because Lamb is the “law of the land,” he had to concur with the denial.

SUBMISSION OF FLAWLESS DISCLOSURE AND ACKNOWLEDGMENT FORM TO BE COMPLETED AND FURNISHED TO INSURER UPON INITIAL TREATMENT, NOT CONDITION PRECEDENT TO RIGHT OF ACCESS TO COURTS TO RECOVER UNPAID CLAIMS IN PIP CASES

Florida Medical and Injury Center v. Progressive, 35 Fla. L. Weekly D215 (Fla. 5^th DCA January 22, 2010).

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