PUBLIC ACCESS TO JUDICIAL BRANCH RECORDS 

In Re: Amendments to Florida Rule of Judicial Administration 2.420 and Florida Rules of Appellate Procedure, 35 Fla. L. Weekly S180 (Fla. March 18, 2010):

The court addressed and accepted proposals designed to ensure the integrity of court records in the electronic age.  Rule 2.420 now governs the procedures for sealing court records.

TRIAL COURT IMPROPERLY ORDERED PLAINTIFF TO ATTEND A COMPULSORY VOCATIONAL REHABILITATION EXAM TO BE RECORDED BY USE OF AN UNATTENDED VIDEOTAPE OR AUDIOTAPE, WITHOUT THE PRESENCE OF A THIRD PERSON SUCH AS A VIDEOGRAPHER OR THE PLAINTIFF’S ATTORNEY

Gaskins v. Canty, 35 Fla. L. Weekly D538 (Fla. 2^nd DCA March 10, 2010):

The defendant sought to compel a vocational rehabilitation exam pursuant to Rule 1.360, subject to certain limitations.  The expert affidavit attached to the motion asserted that the examination involved time testing that could not be interrupted by the changing of videotapes; that the presence of a videographer could negatively affect the exam; and that there was lots of psychological literature with studies and analysis showing that observation may affect a test. 

The court noted that the party opposing a third person’s presence at an exam has the burden to establish case-specific reasons why such attendance would disrupt it.  If that burden is met, the party must then show that no other examiner in the area would conduct an examination with a third party present. 

Because the defendant met neither of these burdens (while the affidavit was specific it discussed “rehabilitation exams”), the court granted the petition. 

A RENTAL CAR DID NOT QUALIFY AS A TEMPORARY SUBSTITUTE AUTO UNDER AN AUTO POLICY, WHERE THE CAR WAS NOT BEING USED WITH THE RENTAL COMPANY’S PERMISSION BECAUSE IT WAS BEING DRIVEN BY AN UNAUTHORIZED DRIVER

Geico v. Shazier, 35 Fla. L. Weekly D539 (Fla. 1^st DCA March 10, 2010):

Plaintiff owned a Ford Expedition covered under a Geico policy.  The policy contained a standard “temporary substitute auto” provision which extended coverage to a vehicle used with permission of the owner.  Under the policy, the vehicle had to be used as a substitute for the owned auto withdrawn from normal use due to breakdown, repair, servicing, loss or destruction.

When plaintiff began experiencing car trouble, she rented a car from Avis.  Pursuant to the rental agreement, she was the only one authorized to drive the rental car.  The car was ultimately involved in an accident while being driven by an unauthorized driver. 

Geico filed a complaint for declaratory judgment, alleging it owed no duty to defend or indemnify because the policy provided no coverage to the unauthorized driver who caused significant injuries of seven other people.

Because the vehicle was not being used with the permission of Avis, it did not qualify as a “temporary substitute auto” under the policy and, thus, there was no coverage.

CERT WAS NOT PROPER TO REVIEW A TRIAL COURT’S ORDER DETERMINING PLAINTIFF’S CLAIMS WERE NOT BARRED BY STATUTES OF REPOSE UNDER THE GENERAL AVIATION REVITALIZATION ACT OF 1994 AND §95.031(2)(b), BECAUSE DEFENDANTS DEMONSTRATE IRREPARABLE HARM

Avco Corp. v. Textron, 35 Fla. L. Weekly D541 (Fla. 1^st DCA March 10, 2010):

A private Cessna plane was involved in a crash in 2004.  The NTSB found a device in the carburetor was damaged, and that some of the related parts were worn.  The personal representatives filed a complaint alleging defective design of the carburetor (among many other claims).

Petitioners moved for summary judgment, arguing the claims were barred by the 18 year statute of repose in GARA, and the 12 year statute of repose under Florida law.  Avco asserted it did not manufacture anything for the aircraft subsequent to original delivery in 1981.  The other defendants had similar evidence to exonerate them.

The trial court denied defendants’ motions for summary judgment, and the defendants petitioned for a writ of cert. 

The court noted how it has repeatedly refused to find that “incurring of litigation expenses” is not enough to meet the test for irreparable harm.  However, when the statute provides immunity from suit, cert may be proper. 

Here, these statutes were more akin to statutes of limitations, rather than grants of qualified immunity.  Statutes of repose in Florida are generally treated like statutes of limitations or affirmative defenses.  Therefore, as an error concerning the trial court’s ruling on such an affirmative defense can be corrected on an appeal from a final order, defendants could not demonstrate the necessary irreparable harm to have the court grant the writ. 

TRIAL COURT DEPARTED FROM ESSENTIAL REQUIREMENTS OF LAW IN SEVERING MULTIPLE SURETY AND THIRD-PARTY CLAIMS FOR TRIAL, BECAUSE THE CLAIMS OVERLAPPED AND WERE INTERTWINED

ACT Services v. School Board of Miami-Dade County, 35 Fla. L. Weekly D546 (Fla. 3^rd DCA March 10, 2010).

IMPROPER TO DISQUALIFY A DEFENDANT’S ATTORNEY ON THE GROUND THAT LAW FIRM HAD PREVIOUSLY PERSONALLY REPRESENTED ONE OF THE PRINCIPALS OF THE PLAINTIFF LLC IN UNRELATED MATTERS

PMG Collins v. R and G Enterprises, 35 Fla. L. Weekly D547 (Fla. 3^rd DCA March 10, 2010).

FOURTH DISTRICT AFFIRMED DISMISSAL OF PLAINTIFF’S COMPLAINT AGAINST SCHOOL BOARD FOR DEATH OF HER DAUGHTER WHO WAS STRUCK AND KILLED BY A CAR ON HER WAY TO THE SCHOOL BUS STOP – CLAIM BARRED BY SOVEREIGN IMMUNITY AND BUSY ROADWAY NOT SO INCONSPICUOUS TO VIRTUALLY CONSTITUTE A TRAP

Francis v. School Board of Palm Beach County, 35 Fla. L. Weekly D559 (Fla. 4^th DCA March 10, 2010):

A woman sued the School Board seeking damages for the death of her daughter who was struck and killed by a car while walking to the school bus stop.  The School Board moved to dismiss arguing it was sovereignly immune from suit because the placement of the bus stop was a planning-level function.  The trial court agreed, and the Fourth District affirmed.

The mother attempted to argue that the School Board was negligent in failing to control the students on the original bus, negligent in instructing the child to cross the road to another bus stop, and negligent in failing to warn the child of the dangers in crossing the road, and that those were operational-level actions.  The School Board argued it did not owe a duty of care to the child while she was in route to her bus stop, and that the School Board’s acts were not the proximate cause of her death.  The Fourth agreed.

The Fourth District also rejected that the School Board created a known dangerous condition.  The duty to warn is limited only when a dangerous condition is so serious and so inconspicuous that it constitutes a trap.  Here, the court found that a busy roadway was not so inconspicuous as to virtually constitute a trap. 

TRIAL COURT ERRED IN DENYING PLAINTIFF’S MOTION FOR MISTRIAL AFTER DEFENSE COUNSEL DISCLOSED TO JURY DURING OPENING STATEMENT HOW LITTLE DEFENDANT EARNED – NEW TRIAL ON DAMAGES REQUIRED

Samuels v. Torres, 35 Fla. L. Weekly D575 (Fla. 5^th DCA March 12, 2010):

The liability in this auto case was admitted.  Defense counsel made two improper comments regarding his client’s inability to pay a judgment – once in voir dire and once during opening.  After the comment in voir dire, the trial court granted a mistrial and brought up another panel of jurors.

During opening, counsel advised that in a good week, defendant only makes $1,500.00 as a truck driver.  The trial judge sustained the objection but denied the request for a curative instruction.  Simultaneous with this bench conference, the bailiff told the court that a juror was crying and upset.  The juror reported that she had never been in a setting like this before, and listening to the stories was making her sad. 

Plaintiff again moved for a mistrial.  This time the court denied, because it was concerned about granting a second mistrial.

The jury reached a verdict representing only a fraction of what the evidence supported.  The court found that defense counsel had employed a strategy to create sympathy from the jury, and he succeeded.  As a result, plaintiff was deprived of a fair trial, necessitating the need for a new one.

TIMELY FILED NOTICE OF APPEAL WAS SUFFICIENT TO CONFER APPELLATE JURISDICTION EVEN IF THE NOTICE IS ERRONEOUSLY TIME STAMPED – CONFLICT CERTIFIED WITH DECISION HOLDING THAT APPELLATE JURISDICTION MAY ONLY BE DETERMINED FROM TRIAL CLERK’S TIME STAMP

OCR-EDS v. S&S Enterprises, 35 Fla. L. Weekly D577 (Fla. 5^th DCA March 12, 2010):

Expressing its disagreement with Strax v. Shield, 24 So. 3d 666 (Fla. 4^th DCA 2009), which held that appellate court jurisdiction may only be determined from the trial clerk’s time stamp on a notice of appeal–even if a timely filed notice was incorrectly date stamped after the deadline–the Fifth District found that a timely filed notice is sufficient to confer appellate jurisdiction even when erroneously time stamped.  The court certified conflict with Strax.

TRIAL COURT SHOULD HAVE GRANTED DEFENDANT’S MOTION TO DISMISS FOR FAILURE TO COMPLY WITH PRESUIT, WHERE PLAINTIFF DID NOT PROVIDE CORROBORATING AFFIDAVIT

Hunt v. Vein Center, 35 Fla. L. Weekly D582 (Fla. 2^nd DCA March 12, 2010):

Certified medical assistants who have not met degree or licensing requirements may not submit corroborating affidavits in malpractice cases and therefore plaintiff’s complaint should have been dismissed for failure to comply with presuit.

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

THIRD DISTRICT FINDS MED MAL CAPS ON NON-ECONOMIC DAMAGES TO APPLY RETROACTIVELY

Weingrad v. Miles, 35 Fla. L. Weekly D508 (Fla. 3^rd DCA March 3, 2010):

A woman and her husband were awarded $1.5 million dollars in non-economic damages in a medical malpractice case.  The sole issue before the court was whether the retroactive application (capping non-economic damages in certain med mal actions at $500,000) was constitutionally permissible as applied in a case where the incident occurred before the effective date of the statute, but the notice of intent and suit was filed after the law took effect. 

The court began its analysis by quoting Justice Pariente from another case where she said “we do not take lightly a contention that a statute passed by the Legislature is unconstitutional and we start with the well-established principle that a legislative enactment is presumed to be constitutional.”  The court then described the test for whether a statute may be retroactively applied, requiring an analysis of four issues:  (1) whether the statute is procedural or substantive; (2) whether there is an unambiguous legislative intent for retroactive application; (3) whether the plaintiff’s right is vested or inchoate; and (4) whether the application of the law to the particular facts would be unconstitutionally retroactive.

While the court found this was a substantive statute, it found that the Legislature unambiguously provided that §766.118 was to apply retrospectively, and to apply to any medical incidents for which a notice of intent to initiate litigation was mailed on or after 9/15/03 (as long as the application would not be prohibited by state or federal constitutions). 

Finding this clear intent, the court then analyzed whether the plaintiff had a vested right prior to the enactment of the law.  Unfortunately, the court found that the plaintiff at most had a “mere expectation” that she had a cause of action, and possessed no vested right to pursue her common law tort to recover damages.  It then cited numerous federal and cases from outside of Florida, in support of this principle which came from the decision of the Florida Supreme Court in Clausell v. Hobart Corp., 515 So. 2d 1275 (Fla. 1987). 

The court went on to criticize the Fourth District’s “inconsistent ruling” on the vested right issue, citing the ruling in Raphael v. Shecter, 18 So. 3d 1152, 1156 (Fla. 4^th DCA 2009)(which found retroactive application to be unconstitutional).  The Third District said the Fourth ignored the Florida Supreme Court’s decision in Clausell when it found that a vested right occurs when a cause of action accrues, and criticized it for providing no analysis or authority for its conclusion to the contrary. 

The court ultimately held that although the injury occurred in 2003–prior to the effective date of the amendment of §766.118–and because the notice of intent was not filed until after the effective date of the statute, the plaintiffs had no vested right to a particular damage award and thus suffered no due process violation when the caps were applied to their case.  Judge Cope dissented.

ORDER REQUIRING DISCLOSURE OF DEFENDANT’S SUBSTANCE ABUSE TREATMENT INFORMATION AND RECORDS VIOLATED THE PSYCHOTHERAPIST-PATIENT PRIVILEGE – DEFENDANT DID NOT PLACE HIS MENTAL OR EMOTIONAL CONDITION AT ISSUE BY DENYING PLAINTIFF’S ALLEGATIONS THAT HE WAS UNDER THE INFLUENCE OF DRUGS, ALCOHOL OR MEDICATION AT THE TIME OF THE ACCIDENT

Cruz-Govin v. Torres, 35 Fla. L. Weekly D520 (Fla. 3^rd DCA March 3, 2010):

After a car accident where the plaintiff’s wife was killed and he himself was injured, plaintiff filed suit and later learned that the defendant driver had recently been admitted to a drug rehabilitation facility.  Plaintiff then sought the production of the defendant driver’s post-accident substance abuse treatment records.  He also sought orders to compel defendant’s parents to answer interrogatories concerning their son’s treatment. 

Plaintiff asserted that §90.503(4)(c) provides an exception to the psychotherapist patient statute requiring a party to produce communications relevant to an issue on the mental or emotional condition of a patient when that patient relies upon the condition as an element of his or her claim or defense.

The court concluded that the plaintiff did not meet his burden of showing that said exception applied.  The statutory exception only applies when the patient, not the opposing party who seeks privileged information places his mental health at issue.  The plaintiff cannot pierce the privilege by filing a claim that makes an issue of the person’s mental health. 

Additionally, defendant did not place his mental or emotional condition at issue by merely denying the allegations or suggestions of impairment at the time of the accident.  It was the plaintiff’s allegations of impairment that made the treatment part of the case.  Absent the allegations, the defendant would not have addressed the issue.  The defendant also did not rely on any mental or emotional condition as part of his defense.  Accordingly, the court granted certiorari against the order compelling that discovery.

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

SUPREME COURT UPHOLDS THE REORGANIZATION AND MODIFICATION OF THE STANDARD JURY INSTRUCTION BOOK IN CIVIL CASES

In Re:  Standard Jury Instructions in Civil Cases, 35 Fla. L. Weekly S149 (Fla. March 4, 2010):

The court explained how the reorganization of the standard jury civil instructions is now based upon the delineation of separate sections which includes oaths, preliminary instructions, evidence instructions, substantive instructions, damages, general substantive instructions, closing instructions and supplemental matters.  The book is broken down into substantive areas (i.e., general negligence, professional negligence, products liability, insurer’s bad faith, defamation, malicious prosecution, false imprisonment, tortious interference with business relationships, misrepresentation, outrageous conduct causing the severe emotional distress, civil theft, contribution among tortfeasors, claims for PIP benefits, intentional torts exception to work compensation immunity and unlawful retaliation). 

The basic template used in the reorganization includes an introduction instruction, an instruction with a simple summary of the case, instructions with the rules, and instructions on the issues with the applicable burden of proof.  The substantive sections generally include instructions covering areas for summary of claims, greater weight of the evidence, clear and convincing evidence, legal cause defense issues, etc. 

Under the amended instructions, a trial court may choose in its discretion to instruct the jury at the beginning of the case as to substantive matters before the introduction of evidence.  The court authorized introductory instructions, allowing the decision as to the timing to rest with the trial judge. 

Interestingly, the court did not accept the committee’s redefinition of the greater weight of the evidence instruction.  Instead, the court wanted to retain the original instruction. 

However, the court did accept the proposed substantive changes to a number of the instructions.  The court authorized for publication and use the reorganization and modification of the standard jury instructions, and noted which substantive matters it did not accept.  Obviously, these will not be included when it is published. 

Importantly, the court did remind litigants that it was not expressing any opinion as to the correctness of the instructions.  It reminded all interested parties that the authorization of the book does not foreclose on the possibility of requesting additional or alternative instructions or contesting the legal correctness.   Of course, this seems to clash with recent law urging trial courts to use the standard instructions.

WHILE TRIAL COURT MAY HAVE ABUSED ITS DISCRETION IN DENYING ADMISSION OF EVIDENCE IN THE PRODUCTS LIABILITY CASE, THE ERROR WAS HARMLESS BECAUSE THE JURY COULD HAVE BELIEVED THAT THE UNSAFE PRODUCT WAS NOT IN THE PLAINTIFF’S SYSTEM AT THE TIME HE HAD A STROKE

Webster v. Body Dynamics, 35 Fla. L. Weekly D440 (Fla. 1^st DCA February 24, 2010):

The plaintiff, at the time of the incident a 26 year-old University student, suffered a stroke after taking certain dietary supplements containing ephedrine.  He sued the manufacturers/distributors/sellers of the product for negligent failure to warn. 

The plaintiff had testified that he took these ephedrine-based supplements twice a day for approximately four months.  Still, neither his blood nor his urine yielded any evidence of ephedrine present in his system during the pertinent time.  There was also evidence that when young people suffer strokes, physicians often have no idea why.  One of the treating physicians concluded this was one of those cases. 

Plaintiff attempted to admit evidence that the FDA banned ephedrine products six years after this accident.  The judge refused to allow him to admit the 135 page document into evidence, and would not let the evidence come in in any form. 

The First District found that it was likely error for the trial court not to admit this evidence.  However, it found the error to be harmless because the plaintiff did not demonstrate it was reasonably probable that a result more favorable to him would have been reached had the error not been committed.  Under these facts, the court found, there was no evidence of ephedrine in the plaintiff’s system, and the court found the jury could have reasonably concluded that he was one of the 40% of young people who have an unexplained stroke.  The court also noted that there was evidence that the FDA had banned these supplements (it was just that the FDA report itself did not come into evidence).

On 2-1 ruling, the court refused to reverse the defense verdict.

SLEEPING IS A RACE-NEUTRAL REASON FOR CHALLENGING A PROSPECTIVE JUROR

Harriell v. State, 35 Fla. L. Weekly D450 (Fla. 4^th DCA February 24, 2010):

On appeal, the defendant argued that the state improperly exercised a peremptory challenge against an African-American juror.  When the prosecutor sought to remove the juror for having his eyes closed, the defendant objected generally, but did not directly refute the prosecutor’s adamant claim that the juror had been sleeping. 

Because opposing counsel did not challenge the factual basis for the explanation, the Fourth District found the issue was not preserved.  The court also noted that sleeping is a race-neutral reason for exercising a challenge. 

DISMISSAL PROPER IN A CRUISE SHIP CASE, WHERE CRUISE SHIP TICKET PROVIDED IN ITS FORUM SELECTION CLAUSE THAT ANY SUIT AGAINST THE CRUISE LINE HAD TO BE BROUGHT IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA

Wiesenberg v. Costa Crociere, 35 Fla. L. Weekly D467 (Fla. 3^rd DCA February 24, 2010).

WHEN CONTRACTOR HAS DUTY TO PROVIDE COVERAGE IN THE ABSENCE OF COVERAGE BY THE SUBCONTRACTOR, CONTRACTOR IS PROTECTED FROM NEGLIGENCE SUITS

Catalfumo Construction v. Varella, 35 Fla. L. Weekly D469 (Fla. 3^rd DCA February 24, 2010):

A subcontractor was leaving his jobsite, and as he was going home on his bicycle out of the gate, he fell over some cement runoff and was injured.  His employer denied compensability on the grounds that the accident did not happen within the course and scope of his employment.  The worker then sued the general contractor for negligence. 

The court found the general contractor was a statutory employer as defined in §440.11, and was obligated to provide worker’s compensation insurance when the subcontractor did not.  As a consequence, the general contractor was required not only to provide the coverage for its employee, but was also protected from suits at law such as this negligence case.  The court reversed the order finding no compensation immunity.

ERROR TO GRANT SUMMARY JUDGMENT ON WORK COMP. IMMUNITY WHERE DISPUTED ISSUES OF FACT ON WHETHER VICTIM WAS “EMPLOYEE” AT THE TIME OF HIS INJURY

Vasquez v. Sorrells Grove Care, 35 Fla. L. Weekly D474 (Fla. 2^nd DCA February 26, 2010):

Plaintiff sustained injuries while picking oranges for a packing company.  The trial court granted the packing company summary judgment on the basis of election of remedies.  The court reversed.

In this related second appeal, the defendant argued it was undisputed that plaintiff was an employee of the packing company at the time of the injury, and therefore entitled to work comp. immunity.  However, the court found a factual dispute to exist.  While there was no dispute that the plaintiff was hired to pick oranges by an employee of the packing company, the depositions raised a question as to whether the man who hired him to pick oranges was authorized to “hire” him.  Plaintiff was not registered to work in the U.S., and was paid under the table by the man who hired him.  Nobody else in the company except for some of the fruit pickers knew about this arrangement.  After the accident, the “employer” told the plaintiff not to tell anybody about the arrangement. 

Because there were disputed facts as to whether the man was authorized by the packing company to hire the plaintiff to pick oranges, summary judgment was entered improperly.

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

ERROR TO REVERSE JUDGMENT FOR PLAINTIFF FOR NEW TRIAL BASED ON CLAIM OF IMPROPER ARGUMENT WHERE DEFENDANT FAILED TO ADVANCE THAT AS SPECIFIC GROUND FOR OBJECTION DURING TRIAL

Aills v. Boemi, 35 Fla. L. Weekly S137 (Fla. February 25, 2010):

In this medical malpractice case arising out of breast reconstruction surgery gone wrong, a jury (somewhere in the Second District), awarded the plaintiff $8,250,000.  The doctor had moved for a JNOV or for a new trial, and further sought a remittitur of the various jury awards.  The trial court granted the remittitur on certain elements, but rejected it on the awards for non-economic damages.  The trial court ordered a new trial on damages only, and the plaintiff appealed.  The doctor cross-appealed.

On cross-appeal, the doctor raised the issue of improper closing argument as an issue.  The Second District had reversed based on those improper closing arguments made by plaintiff’s counsel.  However, the supreme court reversed, because the doctor had failed to advance the specific ground of the objection relied upon by the district court for reversal.

The supreme court explained that while defendant had objected when plaintiff’s counsel began to argue that the doctor failed to provide the plaintiff with appropriate post-operative care, defendant’s expert objection was that the remarks were improper, because there was no basis in the record that the post-operative care was negligent or would have made a difference.  The Second District then concluded that the issue of post-operative negligence had neither been pled in the complaint nor tried by consent and therefore the argument was improper. 

The supreme court reminded us that proper preservation for error for appellate review requires three components:  (1) a timely contemporaneous objection at the time of the alleged error; (2) a legal ground for the objection; and (3) that the argument made on appeal reflects the specific contention asserted as the legal ground for the objection.  While no magic words are required to make a proper objection, it must be sufficiently specific to inform the court of the perceived error.

The supreme court then found that the defendant’s objection did not properly articulate his concern that post-operative negligence had not been pled, or tried with the requisite specificity to inform the trial court of the perceived error.  The supreme court found defendant’s objection to the closing remarks was directed solely at the insufficiency of the evidence.  Accordingly, the court concluded that the Second District erred in reversing for a new trial on the basis of grounds not presented and reversed for entry of judgment based on the jury’s verdict. 

ATTORNEY NOT LICENSED TO PRACTICE IN FLORIDA WHO DID NOT COMPLY WITH RULES WHICH WOULD PERMIT HIM TO PRACTICE IN ASSOCIATION WITH A FLORIDA LAWYER WAS NOT ENTITLED TO COLLECT QUANTUM MERUIT VALUE OF HIS FEE PROVIDED IN A FLORIDA PROBATE AND TRUST MATTER – IT VIOLATES PUBLIC POLICY FOR A COURT TO AWARD A FEE EVEN IN QUANTUM MERUIT, FOR THE UNLICENSED PRACTICE OF LAW

Morrison v. West, 35 Fla. L. Weekly D391 (Fla. 4^th DCA February 17, 2010).

TRIAL COURT DEPARTED FROM ESSENTIAL REQUIREMENTS OF LAW IN DENYING HOSPITAL’S MOTIONS FOR PROTECTIVE ORDER AND TO QUASH SUBPOENA DUCES TECUM, WHERE PLAINTIFF SERVED SUBPOENAS TO HOSPITAL PERSONNEL ON THE SAME DAY THE NOTICE OF INTENT WAS SERVED ON THE HOSPITAL – PLAINTIFFS CANNOT OBTAIN RECORD DISCOVERY PRIOR TO THE COMPLETION OF THE STATUTORILY REQUIRED INFORMAL DISCOVERY

Variety Children’s Hospital d/b/a Miami Children’s Hospital v. Boice, 35 Fla. L. Weekly D406 (Fla. 3^rd DCA February 17, 2010):

Pursuant to §766.106, plaintiff served a notice of intent on their deceased child’s treating physician and medical association.  Six months later, they filed an amended complaint naming the hospital as a defendant.  The trial court dismissed for failure to comply with pre-suit.  Plaintiffs then served a statutory notice of intent on the hospital.  However, on the same day, they also served a notice to produce documents and a subpoena duces tecum for videotaped depositions of numerous hospital personnel.  The hospital moved for protective order and to quash the subpoenas on the grounds that pre-suit had not been completed.  The trial judge denied those motions. 

The Third District issued a writ of certiorari.  Even though the complaint against the doctor involved the same issues relevant to the impending suit against the hospital, because the hospital was not yet a party to the action, the plaintiffs were not entitled to take discovery from the hospital pursuant to the rules. 

COVERAGE PROVIDED UNDER POLICY, WHERE INSURER’S BANK RECEIVED INSURED’S ELECTRONIC PAYMENT FILE BEFORE CANCELLATION DATE, EVEN THOUGH THERE WAS A DELAY IN DEPOSIT OF PAYMENT INTO INSURER’S BANK DUE TO PROCESSING DELAY BY THE BANK

Nationwide Mutual Fire Insurance v. Smith, 35 Fla. L. Weekly D419 (Fla. 1^st DCA February 18, 2010):

The trial court granted summary judgment in favor of the insured, concluding that the insurance company had to provide insurance coverage on the date of the insured’s automobile accident, because the insured had paid his overdue premium before the effective cancellation date of the policy.

The insurance company provided the insured with a grace period which allowed the insured to avoid cancellation if he made the overdue premium payment before a certain date.  The trial court concluded that because the last day of the grace period fell on a Sunday, the payment deadline was extended to the next business day, under the Florida Rule of Procedure. 

The court corrected the trial court’s reasoning, finding the only applicable statute was §627.728(3)(a), which requires an insurer to give its insured ten days notice before cancelling a policy for non-payment of a premium.  Because the statute does not require the insurer to allow the insured to make an overdue payment before the cancellation date to avoid cancellation, the time computation provisions of Rule 1.090(a) were not applicable.

By extending the payment deadline to the next business day, the trial court stacked “grace” upon “grace,” which cannot be done by implication in contract law.

However, even if the payment deadline was not extended, summary judgment was proper because the bank had received the electronic payment before the cancellation date, and the delay in the deposit was the bank’s doing. 

TRIAL COURT ABUSED DISCRETION BY ALLOWING NURSING HOME TO INTRODUCE OPINION TESTIMONY BY DECEDENT’S PHYSICIAN THAT NURSING HOME WAS NOT NEGLIGENT

Estate of Murray v. Delta Health Group, 35 Fla. L. Weekly D425 (Fla. 2^nd DCA February 19, 2010):

A resident of a nursing home died and his personal representative sued the nursing home for negligence. 

The trial court had allowed portions of the decedent’s doctor’s deposition to be read, where the doctor opined that the nursing home was not negligent in its care of the decedent.  Plaintiff argued that the physician was an expert who should not have been permitted to render an opinion that applied a legal standard to the facts of the case, and that his testimony invaded the province of the jury.

The nursing home had used the doctor’s deposition to impeach him during his cross exam.  Plaintiff objected it was not proper to have the doctor opine as to whether someone was negligent, but the trial court overruled him finding the doctor was an expert.

The court noted that both parties saw this physician as a “expert.”  While experts may render opinions on the ultimate issue in the case, they are not permitted to render opinions that apply legal standards to a set of facts.  Experts cannot be permitted to testify regarding legal conclusions so that the jury can be free to reach conclusions independently from the facts presented.  It was error to allow the nursing home to introduce the doctor’s opinion over objection that the nursing home was not negligent.  The court reversed for a new trial.

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