PUBLIC RECORDS THAT RELY ON INFORMATION SUPPLIED BY OUTSIDE SOURCES OR CONTAIN EVALUATIONS OR STATEMENTS OF OPINION BY A PUBLIC OFFICIAL ARE INADMISSIBLE – DOCUMENT IS NOT ADMISSIBLE AS COUNTER-EVIDENCE SUFFICIENT TO AVOID SUMMARY JUDGMENT IF INADMISSIBLE

Arce v. The Wackenhut Corp., 35 Fla. L. Weekly D1471 (Fla. 3^rd DCA July 7, 2010).

THIRD DISTRICT UPHOLDS DISMISSAL OF COMPLAINT FOR FRAUD

Sky Development v. Vista View Development, 35 Fla. L. Weekly D1478 (Fla. 3^rd DCA July 7, 2010):

During the deposition of plaintiff’s manager, the plaintiff’s CFO passed him a note that read “don’t worry about pleasing him, just say no.”  The note was brought to the attention of the magistrate presiding over the deposition who forbade further notes.  The CFO then sent two text messages with pertinent information. 

Upon discovering those, the trial judge declared a mistrial and invited defendants to move for a dismissal which they did.  The motion was granted. 

Because there was ample evidence for the trial court to conclude that there was an unconscionable scheme calculated to interfere with the judicial system’s ability to impartially adjudicate the matter, this was not a case where the dismissal was unreasonably harsh.  The court found there was no abuse of discretion in dismissing the case. 

ERROR TO DENY DEFENDANT’S REQUEST FOR ATTORNEY’S FEES PURSUANT TO PROPOSAL FOR SETTLEMENT, ON GROUND THAT PLAINTIFFS WERE REQUIRED TO ACKNOWLEDGE IN WRITING DEFENDANTS WERE NOT ADMITTING TO DOING ANYTHING IMPROPER

Marine v. Delmonico, 35 Fla. L. Weekly D1495 (Fla. 4^th DCA July 7, 2010):

Plaintiff filed a complaint against two defendants for defamation – one defendant was the employee of the other.  The complaint alleged the employee made defamatory statements, and the other defendant was vicariously responsible. 

Defendant filed a proposal for settlement, and the plaintiff settled with the employee defendant (not based on the proposal though).  The case went to trial against the employer, who won the trial. 

In the proposal, the defendant required plaintiff to accept in writing and include an explicit acknowledgment that the defendants were not admitting that they had said or done anything wrong, and that the defendants were simply attempting to purchase their peace from the plaintiff.  The trial judge found these terms ambiguous.

The Fourth District disagreed.  Rather than be ambiguous, the court wrote, the defendants specifically directed the language to be contained within the written acceptance.  The plaintiff also argued that the joint proposal was not made in good faith because it was made after the employee admitted to making the defamatory statement.  The trial court found the proposal was made in good faith, and the Fourth agreed. 

The court also refused to find the proposal void due to its joint nature.  The appellate court disagreed, and found it unambiguous.  It also held the plaintiff maintained the ability to independently evaluate and act upon the proposal and was not dependent upon the evaluation and acceptance of another offeree before he could make his decision. 

TRIAL COURT CORRECTLY GRANTED SUMMARY JUDGMENT IN FAVOR OF SURGICAL CENTER, BECAUSE CENTER OWED NO DUTY OF CARE TO DECEDENT WITH REGARD TO PROCEDURE PERFORMED BY A PHYSICIAN SELECTED BY THE DECEDENT – DEFENDANT HAD NO RIGHT TO CONTROL NOR DIRECT ANESTHESIOLOGIST’S TREATMENT SO IT CANNOT BE HELD LIABLE FOR THE DOCTOR’S NEGLIGENCE

Kristensen-Kepler v. Cooney, 35 Fla. L. Weekly D1510 (Fla. 4^th DCA July 7, 2010):

A man went to the Northpoint Surgi-Center to have an anesthesiologist treat him for long-term back pain.  The man contracted an infection and died.  The PR sued Northpoint for the doctor’s negligence, alleging that under Wax, the surgi-center had a non-delegable duty to provide the patient with non-negligent anesthesiology services.

The Fourth District affirmed the summary judgment.  It distinguished this case (an anesthesiologist chosen by the patient to perform treatment for back pain) from the situation where the anesthesiologist is chosen for the patient by a physician or a hospital where he is being treated.  The court said that if a treating physician directs a patient to a hospital for a particular procedure, that patient has little if any control over who administers the anesthesia.  However, where the patient actually chooses the anesthesiologist–as in this case–the Wax rationale does not apply. 

The Fourth District also rejected that there were questions of fact as to apparent agency, because there was no evidence that Northpoint made a representation to the patient, that he relied on the representation, or that he changed his position as a result of that reliance.

TRIAL COURT ERRED IN ENTERING SUMMARY JUDGMENT FOR DEFENDANT ON BASIS OF RELEASE, WHERE THERE WAS GENUINE ISSUE OF FACT AS TO WHETHER THE RELEASE WAS A GENERAL RELEASE OR A PROPERTY DAMAGE RELEASE (AS IT WAS TITLED)

Mckeever v. Rushing, 35 Fla. L. Weekly D1530 (Fla. 2^nd DCA July 9, 2010):

Plaintiff was rear-ended in an accident and sustained property damage in the amount of $8,009.73.  A month later, defendant’s insurer tendered a check in that exact amount of the repair estimate and sent the plaintiff a document entitled “Property Damage Release.” 

After payment and release, plaintiff had conversations with the insurance company regarding his personal injury claim.  When no settlement was reached, plaintiffs filed suit.  The defendant then filed a motion for summary judgment arguing he had waived his personal injury claim, by executing the release. 

The plaintiffs also filed an affidavit where plaintiff stated under oath he never intended to release his personal injury claim, and if that’s what the release was doing, he executed it by mistake.  The release language stated that plaintiff read and understood the contents and signed it waiving any and all claims.  The court dismissed the case based on that language.

The Second District reversed.  It found the plaintiffs clearly raised both the intent of the parties and mistake as unresolved issues of fact.  The letter showed evidence that the insurer was still anticipating the pending personal injury claim.  Also, the plaintiff had signed an affidavit, and there was an inconsistency between the title of the document and the language therein.

SECOND DISTRICT, IRONICALLY, FINDS HOSPITAL DOES NOT OWE NON-DELEGABLE DUTY TO PROVIDE ANESTHESIA SERVICES, AND CERTIFIES CONFLICT WITH WAX

Tarpon Springs v. Reth, 35 Fla. L. Weekly D1532 (Fla. 2^nd DCA July 9, 2010):

While the hospital has a statutory obligation to have an anesthesia department directed by a physician member of the hospital’s professional staff, the applicable statutes and rules do not impose a non-delegable duty to provide anesthesia services to surgical patients.  Thus, the trial court erred in denying the hospital’s motion for directed verdict, and the court certified conflict with Wax to the extent that it determined a hospital does have a non-delegable duty to provide non-negligent anesthesia services to patients.

The court found that Wax erroneously interpreted §395.1055(1)(d) to apply anesthesiology standards of practice to hospitals.  Chapter 395 regulates hospitals and addresses standards governing them, not standards applicable to the practice of medicine regulated by other chapters of the statutes (like Chapter 458).  If a hospital fails to have an anesthesia service directed by a physician member of its medical staff, or if it allows an incompetent anesthesia provider to be granted privileges, it can be held liable if that is the proximate cause of the injury to a patient.

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

AMENDMENT TO THE BAR RULES ON ADVERTISING COMMUNICATIONS FOR LAWYER-TO-LAWYER COMMUNICATIONS

In Re: Amendments to Rule Regulating Florida Bar 4-7.1, 35 Fla. L. Weekly S435 (Fla. July 8, 2010):

The court adopted an amendment to the Rules Regulating the Florida Bar 4-7.1(e) which says that Subchapter 4-7 on advertising does not apply to communications between lawyers.  4-7.1(g) exempts communications with current and former clients from the section. 

PETITIONER IS ENTITLED TO WRIT OF PROHIBITION WHERE ALLEGED COMMENTS OF TRIAL JUDGE COULD REASONABLY HAVE CAUSED HER TO FEAR THAT SHE WOULD NOT RECEIVE A FAIR TRIAL

Haas v. Davis, 35 Fla. L. Weekly D1455 (Fla. 3^rd DCA June 30, 2010):

When the comments made by the trial judge may not have been intended to reflect on his beliefs as to the merits of the underlying claims, the applicable standard looks to the reasonable effect on the party seeking disqualification, not the subjective intent of the judge.  The comments could reasonably have caused her to fear that she would not receive a fair trial and therefore the writ should have been granted. 

CITIZENS PROPERTY INSURANCE CORP. IS IMMUNE FROM FIRST-PARTY BAD FAITH CLAIMS

Citizens v. La Mer, 35 Fla. L. Weekly D1468 (Fla. 5^th DCA July 2, 2010):

Citizens sought a 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 respondent, La Mer Condominium Association.  The court held that Citizens is immune from first-party bad faith claims pursuant to §627.351(7)(r)1 and §624.155(1)(b)1. 

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

TRIAL COURT ERRED IN DENYING REMITTITUR OF JURY’S AWARD FOR FUTURE MEDICAL EXPENSES AND FUTURE LOST EARNING CAPACITY

Pruitt v. Perez-Gervert, 35 Fla. L. Weekly D1401 (Fla. 2^nd DCA June 23, 2010):

The plaintiff received injuries to his neck and back in an automobile accident.  His treating physician testified he had suffered a permanent injury and performed surgery as a result of the accident.  The evidence presented regarding his future medical expenses amounted to $88,960.00. 

The jury awarded over $163,000.00.  Because the amount was clearly excessive in light of the medical expenses reasonably supported by the evidence at trial, it was error for the trial judge not to grant defendant’s remittitur. 

Also, as to the loss of future earning capacity, the only evidence introduced was that the plaintiff was a 57 year-old drywall installer who had earned $16.00 per hour before the accident.  He testified he could no longer hang drywall after the accident.  However, his doctors did not testify that he was completely disabled from employment.  The jury awarded the plaintiff $580,000.00 for future lost earning capacity.

The court found that although the plaintiff presented evidence of past wages as a drywall installer, and evidence that he could no longer work, he did not present evidence of his post-accident earning capacity, or evidence that he was completely disabled from further employment.  In fact, his counsel argued during closing argument that he could probably earn at least minimum wage until his retirement at 65 or 70.

The court reversed, and entered a directed verdict on the future lost earning capacity.  It then remanded for a new trial on the future medical expenses.

ERROR TO DISMISS ACTION BECAUSE MOTION FOR SUBSTITUTION OF PERSONAL REPRESENTATIVE FOR PLAINTIFF WHO DIED DURING COURSE OF LITIGATION WAS UNTIMELY, WITHOUT CONSIDERING EVIDENCE ESTABLISHING EXCUSABLE NEGLECT

Mims v. American Senior Living of Dade City, 35 Fla. L. Weekly D1404 (Fla. 2^nd DCA June 23, 2010):

The plaintiff died during the litigation, and counsel did not file a motion for substitution of the personal representative until 115 days after the filing of the suggestion of death.  Plaintiff’s counsel presented evidence to the trial court that demonstrated excusable neglect for the untimely finding (based on a clerical error in counsel’s office).  The trial court refused to consider the excusable neglect evidence and dismissed the case with prejudice. 

The court reminded us that Rule 1.260(a)(1) has been liberally interpreted to permit a substitution of parties beyond the 90 day period set forth in the rule.  Furthermore, the courts of Florida have a longstanding tradition in favor of disposing of actions on their merits. 

ERROR TO GRANT MOTION TO DISMISS ON GROUND THAT PLAINTIFF’S AFFIDAVIT FAILED TO MEET THE “SIMILAR SPECIALITY” REQUIREMENT OF CHAPTER 766–ON REMAND, COURT SHALL CONDUCT AN EVIDENTIARY HEARING TO DETERMINE WHETHER AN AFFIDAVIT FROM AN EMERGENCY DEPARTMENT PHYSICIAN COMPLIED WITH “SIMILAR SPECIALITY” REQUIREMENT

Holden v. Bober, 35 Fla. L. Weekly D1405 (Fla. 2^nd DCA June 23, 2010):

A man who suffered an acute ischemic stroke sued a hospital emergency department.  In support of his notice of intent, he attached a corroborating affidavit of a Board certified ER physician.  Co-defendants, Dr. Gu and the Malka Institute, alleged that the plaintiff’s expert affidavit was facially insufficient with respect to the neurology claims, because their expert was an ER physician and not a neurologist.  The trial court dismissed the plaintiff’s complaint.

The appellate court observed it had to look at the dismissal in a light most favorable to the plaintiff.  Because this physician–though a neurologist–was in an emergency department setting, the court found it could envision a scenario where an ER physician could be considered an expert specializing in a “similar specialty.”  The court further noted an evidentiary hearing would provide the plaintiff with the opportunity to introduce witnesses and explain how the ER doctor’s qualifications could be considered a similar specialty of Dr. Gu and clarify any inconsistencies in the corroborating affidavit.

The court found it was error to dismiss plaintiff’s complaint as to those defendants, without determining in a light most favorable to the plaintiff, whether his affidavit complied with the requirements of Chapter 766.  Upon remand, the court ordered an evidentiary hearing to see if the physician could meet the “similar specialty” requirement. 

NO ABUSE OF DISCRETION IN PRECLUDING PLAINTIFF FROM CROSS EXAMINING DEFENSE EXPERT REGARDING CREDIBILITY OF ANOTHER WITNESS–TRIAL COURT PROPERLY FOUND ISSUE WAS COLLATERAL AND HAD NO BEARING ON WHETHER A DEFENDANT WAS NEGLIGENT–EVEN IF ERROR, IT WAS HARMLESS

Special v. Baux, 35 Fla. L. Weekly D1419 (Fla. 4^th DCA June 23, 2010):

After a woman underwent a routine cesarean section for her breach birth, she suffered two cardiac arrests and died within five hours of delivery.  Plaintiff sued the defendants for negligently administering anesthesia and for negligent monitoring.  The defendant alleged that the death was caused by amniotic fluid embolus (AFE), an allergic reaction from mother’s blood mixing with amniotic fluid sometimes causing heart and lung collapse.

The AFE diagnosis figured prominently at trial.  There was evidence that Boca Hospital had a disproportionate number of AFE cases.  During the cross of defendants’ expert regarding AFE, the defendants objected when plaintiff began to ask the expert to address another expert’s testimony regarding the appearance of between 1 and 2 cases of AFE annually at West Boca (even though ranges from 1 in 8,000 to 1 in 80,000).  The trial court sustained the objection, finding it was impeachment on a collateral issue. 

The court explained that a general claim of the “over-diagnosis” of AFE at the Center, did not affect whether the doctor was negligent in attending to the decedent.  The court found such “over-diagnoses” was an immaterial fact.  It then found that even if the issue were not collateral, the plaintiff argued prominently both in the center’s interrogatory answers and in closing argument that there was an epidemic in “over diagnosing” AFE.

The court then using the civil standard for harmless error (whether a different result would have been reached but for the error), and found the error was harmless.

NO CLEARLY ESTABLISHED LAW PROHIBITING APPLICATION OF A MULTIPLIER TO PARALEGAL FEES THAT ARE INCLUDED AS PART OF AN ATTORNEY’S FEE AWARD

State Farm v. Wise, 35 Fla. L. Weekly D1438 (Fla. 1^st DCA June 25, 2010).

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

APPELLATE RULES AMENDED TO IMPLEMENT THE SAFE-HARBOR PROVISION OF §57.105

In Re: Amendment to the Florida Rules of Appellate Procedure, 35 Fla. L. Weekly S367 (Fla. June 24, 2010):

The supreme court approved a new rule, 9.410(b), which provides for motions made under §57.105, and implements the safe-harbor provisions of that statute.

WORKERS COMPENSATION RETALIATION CLAIMS BROUGHT AGAINST THE STATE UNDER §440.205, ARE NOT SUBJECT TO THE PRESUIT NOTICE REQUIREMENTS OF §768.28

Bifulco v. Patient Business & Financial Services, 35 Fla. L. Weekly S368 (Fla. June 24, 2010):

The supreme court said that §768.28 waives sovereign immunity specifically for common law torts.  Other than that though, the statute must explicitly note its applicability for statutory causes of action.  Because there is no mention of this statutory cause of action in the statute, the rules regarding presuit did not apply.

FOURTH DISTRICT REVERSES PRODUCT LIABILITY VERDICT BASED ON TRIAL COURT’S REFUSAL TO ALLOW DEFENDANT TO INTRODUCE DEMONSTRATIVE AIDS WHICH JUDGE FOUND WERE MORE PREJUDICIAL THAN PROBATIVE; FOURTH FURTHER FOUND PURPORTED ERROR NOT HARMLESS

Mitsubishi Motors Corp. v. Laliberte, 35 Fla. L. Weekly D1327 (Fla. 4^th DCA June 16, 2010):

The majority found that Judge Maass erred in refusing to allow Mitsubishi to introduce some demonstrative aids in conjunction with its experts’ opinions.  Both parties agreed that the experts’ opinions themselves had come into evidence fully.  However, the majority ruled that without the demonstrative aids, the opinions were “barren and unsubstantiated,” and lacked “force and color.”

The dissent emphatically disagreed.  Judge Ciklin explained that Judge Maass weighed the proffered demonstrative evidence, and determined that based upon some of it being too similar and some of it being too dissimilar, that it was unfairly prejudicial and should not come in.  Judge Ciklin pointed out how many of Mitsubishi’s demonstrations–both substantive and otherwise–did get into evidence.

The majority then found that the error was not harmless, applying the criminal standard.  Ironically, a week later, in the decision of Special v. Baux, the Fourth applied the civil standard for harmless error, which is different (and requires a showing that the outcome of the trial would have been different but for the error).

Hopefully, the motion for rehearing and rehearing en banc filed will correct this intra-district conflict, and get this opinion reversed. 

TRIAL COURT ERRED IN SUA SPONTE DISMISSING WITH PREJUDICE AN AMENDED COMPLAINT BASED SOLELY ON PLAINTIFF’S FAILURE TO OBTAIN LEAVE OF COURT TO AMEND

Cooper v. Town of Jupiter, 35 Fla. L. Weekly D1335 (Fla. 4^th DCA June 16, 2010):

The court reminded us that leave to amend should be liberally given, and dismissal with prejudice is not proper, unless the privilege to amend is abused, or it is clear that the pleading cannot be amended to state a cause of action.

In this case, the trial court specifically stated it was dismissing the action with prejudice because the plaintiff failed to obtain leave of court prior to filing the amended complaint.  That was a drastic and unwarranted measure, and therefore the court reversed.

WHEN A PATIENT FALLS FROM A HOSPITAL BED WHILE RESTRAINED AND UNATTENDED, AND PLAINTIFF ALLEGES THE HOSPITAL FAILED TO MONITOR AND SUPERVISE, CLAIM IS ONE OF MEDICAL NEGLIGENCE SUBJECT TO PRESUIT REQUIREMENTS

South Miami Hospital v. Perez, 35 Fla. L. Weekly D1340 (Fla. 3^rd DCA June 13, 2010):

The personal representative filed a complaint alleging negligence against the hospital in connection with her husband’s death after he fell out of his hospital bed and ultimately died.  She sued for negligence, and did not comply with medical malpractice presuit requirements.  The trial judge denied the hospital’s motion to dismiss.

While in some slip-and-fall settings, presuit notice is not necessary, here, the plaintiff’s amended complaint alleged that while the decedent was left unrestrained and unattended in the critical care unit, he fell from his bed, and suffered a displaced fracture, which ultimately caused his death.

The court said it was clear that the allegations and the injuries suffered arose from the rendering of/or failure to render medical services to the decedent.  The court further noted that the allegations could only be proven through evidence that the alleged negligence of the health care provider fell below the prevailing standard of care.  Because the claim was essentially a medical negligence action, the plaintiff’s failure to comply with presuit was fatal, and dismissal was proper.

TRIAL JUDGE PROPERLY GRANTED SUMMARY JUDGMENT FOR INSURER, WHEN INSURED FAILED TO DISCLOSE THAT THE DRIVER IN THE ACCIDENT WAS GOING TO BE A DRIVER OF THE VEHICLE

Telemundo Television v. Aequicap Insurance Co., 35 Fla. L. Weekly D1341 (Fla. 3^rd DCA June 16, 2010):

Under the plain language of the policy, all drivers had to be reported to the insurer.  Thus, the policy did not provide coverage for an accident involving a non-listed driver.

LITIGANT WHO WAS SUED BUT NEVER PARTICIPATED IN THE LITIGATION, AND WAS ON THE LOSING END OF THE FINAL JUDGMENT, COULD NOT BRING A RULE 1.540(b)(1) MOTION MORE THAN ONE YEAR AFTER THE JUDGMENT WAS ENTERED

Mumenthaler v. Williams, 35 Fla. L. Weekly D1345 (Fla. 3^rd DCA June 16, 2010).

TO ADD A NEW PARTY WITH SUFFICIENT IDENTITY OF INTEREST AFTER STATUTE OF LIMITATIONS HAS RUN, PLAINTIFF MUST MAKE SHOWING THAT NEW PARTY HAD KNOWLEDGE OF LAWSUIT

Rayner v. Aircraft Spruce-Advantage, Inc., 35 Fla. L. Weekly D1346 (Fla. 5^th DCA June 18, 2010):

The underlying lawsuit related to an aircraft accident.  Plaintiffs timely filed suit against one of the defendants.  Shortly before the statute ran, plaintiff’s attorney inquired about another possible defendant, a distributor.  It was years later before plaintiff sought to add the distributor as a defendant.

Amendments should be permitted to relate back when they merely change the capacity in which a defendant has been sued.  More often than not, the original defendant lulls the plaintiff into believing that he has sued the correct party, until the statute of limitations runs.

However, the plaintiff may not do more than merely correct a misnomer.  Here, the plaintiff sought to bring in an entirely new party after the statute had expired.  While there is an exception to the rule when separate parties have a sufficient “identity of interest” such that the addition will not prejudice the new party, the exception is usually applied when the new party knew or should have known that the plaintiff made a mistake. 

In this case, the records show that the distributor was not aware of the lawsuit against the installer until after the statute had run.  Plaintiff alleged that “lack of prejudice” was demonstrated because the distributor was “on notice” that it might be sued shortly before the statute ran.  However, a “claim” is not necessarily a “lawsuit,” and thus mere notice of a potential claim does not support the application of the relation back doctrine (must be a lawsuit).

ABUSE OF DISCRETION TO DISMISS LAWSUIT FOR FAILURE TO TIMELY EFFECT SERVICE OF PROCESS WHERE DEFENDANT WAS SERVED WITH PROCESS, ALBEIT DEFECTIVELY, WITHIN THE TIME PERIOD DESIGNATED BY THE TRIAL COURT

Hannah v. Olivio, 35 Fla. L. Weekly D1347 (Fla. 5^th DCA June 18, 2010).

TRIAL COURT DOES NOT HAVE AUTHORITY TO DEFER ASSESSMENT OF COSTS INCURRED IN VOLUNTARILY DISMISSED ACTION

Shepheard v. Deutsche Bank, 35 Fla. L. Weekly D1350 (Fla. 5^th DCA June 18, 2010).

NICA STATUTE PROVIDING FOR AN AWARD OF COMPENSATION TO THE PARENTS OR LEGAL GUARDIAN NOT TO EXCEED $100,000, LIMITS PARENTAL COMPENSATION TO A SINGLE AWARD UNDER NICA – QUESTION CERTIFIED

Samples v. Florida Birth-Related Neurological, Inc., 35 Fla. L. Weekly D1350 (Fla. 5^th DCA June 18, 2010):

Under §766.31(1)(b)1, parents and legal guardians are eligible for an award not to exceed $100,000.  The parents argued that the provision was ambiguous, and should be construed to authorize an award of up to $100,000 to each parent rather than a single award of $100,000 to both parents.  They argued that such construction avoided the constitutional problems of equal protection, vagueness and access to courts.

The court found the statute clearly limited the parental compensation to a single award not to exceed $100,000.  However, it did certify the question to ask if that interpretation violates equal protection.

IN ORDER TO MAKE AN ORDER REVIEWABLE AS A NON-FINAL ORDER UNDER RULE 9.130(a)(3)c BASED ON WORKERS COMPENSATION IMMUNITY, THE ORDER MUST STATE THAT AN IMMUNITY DEFENSE IS NOT AVAILABLE AS A MATTER OF LAW

International Ship Repair v. Aleman, 35 Fla. L. Weekly D1357 (Fla. 2^nd DCA June 18, 2010).

ALABAMA LICENSED PHYSICIAN NOT A “HEALTH CARE PROVIDER” AS DEFINED BY §766.202(4) AND NOT ENTITLED TO PRESUIT NOTICE – TRIAL COURT IMPROPERLY DISMISSED ESTATE’S COMPLAINT

Dirga v. Butler, 35 Fla. L. Weekly D1385 (Fla. 1^st DCA June 21, 2010):

Plaintiff appealed the trial court’s order dismissing her complaint against an Alabama licensed physician, for failure to comply with the presuit provisions of Chapter 766.  Because this doctor was not a health care provider as defined under §766.202(4), he was not entitled to presuit notice.

The statute defines health care provider very specifically, and courts have strictly construed the term as sued in medical malpractice actions, in accord with the rule that statutory restrictions must be construed in a manner that favors access to court.

Under Chapter 766, the legislature specifically enumerated the class of persons entitled to presuit notice, which includes physicians licensed under Chapter 458.  The doctor defendant urged the court to review that term as a mere shorthand by the legislature for all physicians, including those from out-of-state.

However, the court rejected that argument.  It held that had the Florida Legislature wanted to broaden the scope of health care provider to apply to out-of-state physicians in Chapter 766, it certainly could have done so (and did not).

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

SUPREME COURT RULES THAT COMMERCIAL FISHERMEN HAD A CAUSE OF ACTION AGAINST A COMPANY WHICH OWNED OR CONTROLLED A PHOSPHOGYPSUM STORAGE AREA FROM WHICH WASTEWATER SPILLED, POLLUTING WATERS OF TAMPA BAY AND REDUCING AVAILABLE SUPPLY OF FISH, WHICH PLAINTIFFS ALLEGED REDUCED THEIR INCOME; COURT FURTHER RULED THAT SUCH CAUSE OF ACTION WAS NOT BARRED BY THE ECONOMIC LOSS RULE

Curd v. Mosaic Fertilizer, 35 Fla. L. Weekly S341 (Fla. June 17, 2010):

The Second District had certified two questions as those of great public importance:

1.     DOES FLORIDA RECOGNIZE A COMMON LAW THEORY UNDER WHICH COMMERCIAL FISHERMEN CAN RECOVER FOR ECONOMIC LOSSES PROXIMATELY CAUSED BY THE NEGLIGENT RELEASE OF POLLUTANTS DESPITE THE FACT THAT THE FISHERMEN DO NOT OWN ANY PROPERTY DAMAGED BY THE POLLUTION?

2.     DOES THE PRIVATE CAUSE OF ACTION RECOGNIZED IN SECTION 376.313 PERMIT COMMERCIAL FISHERMEN TO RECOVER DAMAGES FOR THEIR LOSS OF INCOME DESPITE THE FACT THAT THE FISHERMEN DO NOT OWN ANY PROPERTY DAMAGED BY THE POLLUTION?

The supreme court answered both questions in the affirmative. 

The fishermen plaintiffs had alleged that in the summer of 2004, the Hillsborough County Environmental Protection Commission and the Florida Department of Environmental Protection warned defendant Mosaic that the quantity of wastewater in its storage facility was dangerously close to exceeding the safe storage level and that its dike was three feet narrower than the minimum required width.  One month later, the dike gave way and pollutants were spilled into Tampa Bay. 

The fishermen filed a complaint containing three counts:  Count I alleged statutory liability under §376.313(3); Count II alleged common law strict liability based on damages resulting from Mosaic’s use of its property for a ultra-hazardous activity; and Count III alleged simple negligence. 

The supreme court first found that §376.313(3) did allow commercial fishermen to recover damages for the loss of income, despite the fact that the fishermen did not own the property damaged by the pollution.  Because the statute (entitled “pollutant discharge prevention and removal”) broadly allows any person to recover for damages suffered as a result of pollution, and because that statute explicitly allows for an individual cause of action for damages caused by the destruction of the environment, the statute does subsume this cause of action.

The statute also allows a private cause of action for damages for a non-negligent discharge of pollution without proof that the defendant caused it.  Because the statute enumerates specific defenses like acts of God, acts of war, acts by a governmental entity or omissions or acts by a third party, and does not specifically list the lack of property ownership as a defense, the court found that the defense of not owning property was not a valid one.  Since there was nothing in the statutory provisions to prevent commercial fishermen from bringing an action pursuant to Chapter 376, the court held the cause of action was valid. 

Importantly, the court also ruled the economic loss rule did not bar the action.  The court noted that the economic loss rule in Florida applies in only two situations:  (1) where the parties are in contractual privity and one seeks to recover damages in tort for matters arising out of the contract, or (2) where the defendant is a manufacturer/distributor of a defective product which damages itself, but does not cause personal injury or damage to any other property.  Because the fishermen’s claims did not fall into either one of those two categories, the economic loss rule did not apply.

The court also rejected the claim that Mosaic did not owe an independent duty of care to protect the fishermen’s purely economic interests.  In Florida, the question of duty is linked to the concept of foreseeability.  As these fishermen were in the zone of risk, the court found a duty arose because there was a foreseeable risk created by the acts of the defendants.  For these reasons, the court found the fishermen had both a statutory and a common law cause of action, and ruled to allow the case to go forward.

A NON-RESIDENT COMMITS A TORTIOUS ACT WITHIN FLORIDA FOR PURPOSES OF §48.193(1)(b) WHEN HE OR SHE ALLEGEDLY MAKES DEFAMATORY STATEMENTS ABOUT A COMPANY WITH ITS PRINCIPLE PLACE OF BUSINESS IN FLORIDA, BY POSTING STATEMENTS ON A WEBSITE, WHERE SUCH WEBSITE POSTS ARE ACCESSIBLE AND ACCESSED IN FLORIDA

Internet Solutions Corp. v. Marshall, 35 Fla. L. Weekly S349 (Fla. June 17, 2010):

Because a woman who posted on her website in Washington made the material accessible to anyone with Internet access worldwide, once the allegedly defamatory material was published in Florida, the defendant committed the tortious act of defamation within Florida for the purposes of Florida’s long-arm statute.

However, the court noted that while it was only addressing the first step of the inquiry regarding personal jurisdiction, the second step is more restrictive, and precludes suit in any situation where the exercise of jurisdiction over a non-resident defendant would violate due process.  Because the question of whether due process concerns prevented the exercise of jurisdiction was not before the court, it did not answer it.

THE TRIAL COURT ERRS IN PROCEEDING WITH AN ACTION AFTER A DEFENDANT DIES, UNLESS THERE IS SUBSTITUTION OF THE DEFENDANT’S ESTATE AS THE PARTY

Schaeffler v. Deych, 35 Fla. L. Weekly D1296 (Fla. 4^th DCA June 9, 2010):

A woman was injured when a man made a right turn and negligently drove into her as she was walking her bicycle across the street.  The case was set for trial on a September 2008 docket.  In July, the defendant died from cancer. 

Notwithstanding that defense counsel was aware of the defendant’s death, the admission of liability and the agreement that there was no comparative negligence, the case went to trial and resulted in a $1.6 million dollar verdict, and a final judgment against the deceased. 

The defense moved for a new trial, and also sought to join the estate as an indispensable party.  The defense argued that the trial court erred in proceeding without substituting the estate as a party.  The estate was ultimately substituted, and the final judgment was amended to reflect entry of final judgment against the estate. 

Pursuant to Rule 1.260(a)(1), when an indispensable party to an action dies, the action abates until the deceased party’s estate or other appropriate legal representative has been substituted.  Here, the defendant was the sole defendant and an indispensable party to the action.  Because the case proceeded without the estate participating, the court ruled the estate’s due process rights were violated.  Even though the estate was “constructively” before the court, and everyone knew the defendant had died, plaintiff argued the estate was indeed constructively before the court.  Notwithstanding that this seemed to be a hyper-technical and illogical application of the rule, the violation of due process required a new trial.

ERROR TO ENTER SUMMARY JUDGMENT FOR INSURED IN A PIP CASE WHERE A SECOND AFFIDAVIT WAS FILED AND COULD NOT BE CONSIDERED A REPUDIATION OF THE FIRST AFFIDAVIT

United Automobile Insurance Co. v. Seffar, 35 Fla. L. Weekly D1302 (Fla. 3^rd DCA June 9, 2010):

In this PIP case, the physician admitted he had not reviewed any medical records, and said he would be happy to review any further material available on the patient.  Subsequently, the doctor received the records and reviewed them and concluded that much of the treatment was unreasonable, unrelated, and medically unnecessary.

The trial court struck the second affidavit, finding that it was a repudiation of the first and invalid.

The Third District reversed.  It found that any discrepancy in the second affidavit was not a bald repudiation of the first because the doctor did not have all the records and admitted that fact in his first affidavit.  Thus, it was error for the trial court to enter summary judgment in favor of the insured in the face of that affidavit.

APPELLATE COURT LACKED THE DISCRETION TO GRANT A NEW TRIAL BASED ON UNPRESERVED ERROR – ALTHOUGH COUNSEL TOLD JUDGE AT SIDEBAR HE THOUGHT AMENDED VERDICT WAS INCONSISTENT, FLORIDA LAW REQUIRES THERE BE A SPECIFIC REQUEST TO RESUBMIT THE MATTER TO THE JURY – ANY INCONSISTENCY WAS WAIVED WITHOUT SUCH A REQUEST

Barreto v. Wray, 35 Fla. L. Weekly D1307 (Fla. 3^rd DCA June 9, 2010):

Florida law requires there be a specific request to resubmit a matter to the jury when there is a perceived inconsistency, and the failure to do so waives it.  In this case, the evidence was consistent with the verdict and therefore the final judgment was affirmed.  

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