NO CAUSE OF ACTION FOR THIRD-PARTY BAD FAITH AGAINST AN INSURER WHEN THE INSURER’S ACTIONS ARE NOT THE CAUSE OF DAMAGES TO THE INSURED OR WHEN THE INSURER’S ACTIONS DID NOT RESULT IN EXPOSURE TO LIABILITY IN EXCESS OF THE POLICY LIMITS

Perera v. USF&G, 35 Fla. L. Weekly S235 (Fla. May 6, 2010):

The plaintiff’s husband was crushed to death by a piece of equipment during the course of his employment with Estes Express.  At the time of his death, the employer maintained three policies.  One of them was issued by USF&G and had a limit of a million dollars which was an excess work comp liability policy. 

USF&G denied coverage based on a coverage exclusion.  The plaintiff formally demanded $12 million dollars to settle the case.  USF&G was asked to leave mediation when it advised it would not tender its limits due to its coverage defense. 

In the months that followed there were many settlement negotiations.  The plaintiff, the employer and the employees entered into a stipulation to settle for $10 million dollars.  The stipulation provided that the defendant and the employees would pay $5 million dollars and provide a written waiver of the work comp. lien.  Although not stated in the stipulation, the negotiated settlement also provided that $750,000 would come from the employer, $500,000 from another insurer, and $3.75 from a third insurer.  The remaining $5 million was to be sought in a lawsuit against USF&G. 

The trial court found the settlement was in good faith and reasonable, the court approved the stipulation.  Thereafter, the $5 million dollars was paid, and the plaintiff sued USF&G for the remaining $5 million dollars.  One cause of action was for breach of contract, and the other was for bad faith. 

USF&G removed the case to Federal court, and the Federal court granted summary judgment in favor of the plaintiff on the breach of contract claim, requiring it to pay its policy limits of $1 million.  That left $4 million dollars from the consent judgment outstanding.  The Federal court found there was no bad faith because the employer still had millions of dollars in insurance coverage from another insurer at the time of the settlement.  The district court entered summary judgment in favor of USF&G, stating that without an excess judgment, there could be no bad faith. 

The Eleventh Circuit reversed.  It found the determination regarding bad faith had the potential to moot the case and remanded to the Federal court for a jury to consider that issue. 

After the case returned to the Eleventh Circuit subsequent to the bad faith finding, the court found there could be no excess judgment because the employer had additional coverage, and the stipulation was for less than that.  The Eleventh Circuit then said that even in situations where an excess judgment is not required, the bad faith claim was barred, because the insured was never exposed to liability in excess of the limits of the policies.  The Eleventh Circuit found that the employer was never exposed to liability, because any exposure above USF&G’s limits was covered by the policy with $25 million dollars in coverage.

Ultimately, the court concluded that USF&G’s actions did not cause the employer to sustain the damages claimed, nor did it expose the employer to liability in excess of its limits.  Accordingly, the plaintiff as the assignee was not entitled to recover the unpaid portion of the consent judgment.

NEW TRIAL REQUIRED WHEN TRIAL JUDGE ERRONEOUSLY FAILED TO GIVE PLAINTIFF’S REQUESTED JURY INSTRUCTION THAT DEFENDANTS WERE RESPONSIBLE FOR ANY DAMAGES RESULTING FROM NEGLIGENT OR IMPROPER MEDICAL TREATMENT

Nason v. Shafranski, 35 Fla. L. Weekly D943 (Fla. 4^th DCA April 28, 2010):

Defendants admitted negligence in causing an accident, but disputed the amount of damages.  Plaintiff argued on appeal that the trial judge erred by allowing defendants to present expert medical testimony regarding unnecessary surgeries, which thereby shifted the blame for plaintiff’s damages from the defendants, to plaintiff’s treating physician.  The plaintiff argued that the trial judge compounded the error, by refusing to give plaintiff’s requested jury instruction that defendants were responsible for any damages resulting from negligent or improper medical treatment.

The defense doctor was allowed to testify over the plaintiff’s objection that he would not have recommended plaintiff undergo reconstructive surgery, and that the plaintiff had disk bulges like everybody does.  Defendant hammered the point of the unnecessary surgeries home during closing.  During jury deliberations, the juror asked whether the defendant would be relieved of liability if the plaintiff was a victim of “unscrupulous” medical treatment. 

The Fourth District rejected defendants’ argument that the defendants were merely contesting the reasonableness of the medical expenses.  Instead, the defense medical expert was allowed to focus on the treating physician’s lack of skill and judgment and poor results, and the denial of the special jury instruction amounted to reversible error.

In the special concurring opinion, Judge Farmer proposed a “draft” of a jury instruction.  Obviously, I would suggest everyone use this until such time as the Jury Instruction Committee approves one of its own.  (THL – You should use this on a rehearing of your denied Motion in Limine).

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

TRIAL COURT PROPERLY ENTERED SUMMARY JUDGMENT FOR INSURER IN INSURED’S ACTION TO RECOVER PIP BENEFITS BASED ON THE INSURED’S FRAUD – TRIAL COURT ABUSED DISCRETION IN REFUSING TO AWARD INSURER ATTORNEY’S FEES WHEN THERE WAS NO EVIDENCE THAT OFFER OF JUDGMENT NOT MADE IN GOOD FAITH

Bosem v. Commerce and Industry Insurance Co., 35 Fla. L. Weekly D892 (Fla. 3^rd DCA April 21, 2010):

Noting that cases alleging fraud are generally unsuitable for summary judgment, the court wrote that it had an “extraordinary case” before it where the facts of fraud were so clear, that entry of summary judgment was not only appropriate but compelled. 

In this case, the plaintiff insured, an attorney, sought insurance benefits for lost wages, but had been fully compensated by his employer for a year’s worth of income.  Additionally, his calculation of weekly earnings was immensely exaggerated. 

The insured attempted to separate the fraud for the lost wages from the compensation for medical expenses.  However, the court pointed out that §627.736(4)(g) states that any insurance fraud voids all coverages arising from the claim. 

The court agreed with the insurer’s assertion that the trial judge should have granted the claim for attorney’s fees under the proposal for settlement.  Because there was no evidence that the offer was not made in good faith, and the trial court made no finding to that effect, it was error not to award fees.

TRIAL COURT ABUSED DISCRETION IN DISMISSING ACTION BASED ON FORUM NON-CONVENIENS, WHERE MOTION TO DISMISS WAS UNTIMELY – DEFENDANT ALSO WAIVED THE ISSUE BY INITIALLY REPRESENTING IT WOULD NOT MOVE TO DISMISS ON THAT BASIS

Caraffa v. Carnival Corp., 35 Fla. L. Weekly D892 (Fla. 3^rd DCA April 21, 2010):

The plaintiff sued Carnival for the wrongful death of her husband due to his prolonged exposure to asbestos while working on Carnival ships.  Suit was filed on January 17, 2006, and Carnival served its motion to dismiss in March which included a forum non-conveniens argument.  The case was litigated, amended complaint and new motions to dismiss filed (where Carnival did not raise the forum non-conveniens argument), and finally three years after the original complaint was filed, Carnival asked for dismissal based on forum non-conveniens.

The Third District reversed this dismissal for an abuse of discretion.  Florida Rule of Civil Procedure 1.061(g) requires the service of a motion to dismiss no later than 60 days after service of process on the moving party.  Not only was Carnival well beyond this time frame, the parties conducted discovery and expended time and resources, thereby waiving the right to claim the issue. 

The court further noted that while Carnival included a forum non-conveniens argument in its first motion to dismiss, it declined to contest jurisdiction shortly thereafter, and in responses to requests for production, declared it was not moving to dismiss based on that doctrine anyway.  The court reversed the dismissal.

CIRCUIT COURT IMPROPERLY ORDERED PLAINTIFF TO SUBMIT TO COMPULSORY MEDICAL EXAM IN PRESENCE OF VIDEOGRAPHER HIRED BY AND ACTING FOR DEFENDANT’S COUNSEL

Prince v. Mallari, 35 Fla. L. Weekly D909 (Fla. 5^th DCA April 23, 2010):

The trial judge ordered plaintiff to submit to a compulsory exam under Rule 1.360 in the presence of a videographer hired by the defendant.  The notice setting the exam stated that if the plaintiff videotaped it, the defendant would also at its own expense. 

The plaintiff objected on multiple grounds (no authority under Rule 1.360 to allow a defendant’s rep. besides the IME doctor to be there, IME’s permit only minimal invasion of privacy rights of patients, HIPAA, IME is done by defendant’s expert and plaintiff can have a representative because of its adversarial nature). 

Defense counsel argued he was entitled to his own videotape because plaintiff’s videotape would be work product that defendant could not get.  The plaintiff argued that allowing defendant to videotape would impermissibly invade plaintiff’s privacy, and the videographer was there for the plaintiff’s benefit and protection. 

While it is well established that a plaintiff may be accompanied at a CME by counsel or videographer of her choosing, Florida courts have made it clear that although the defense has a right, by rule to a compulsory exam, defense counsel does not have the right to be present there.  The compulsory physical puts plaintiff in an awkward position of being examined by someone who is not only not of her choosing, but has no interest in the plaintiff’s well being or the plaintiff’s medical treatment.

The defense also loses nothing, because in the event plaintiff chooses to use the video, it must be produced to the defendant before trial.

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

TRIAL COURT DID NOT ABUSE DISCRETION IN DENYING MOTIONS TO TRANSFER VENUE TO COUNTY WHERE ACCIDENT OCCURRED BASED ON THE FACTS OF THIS WRONGFUL DEATH PRODUCTS LIABILITY CASE

Ford Motor Co. v. James, 35 Fla. L. Weekly D836 (Fla. 4^th DCA April 14, 2010):

Plaintiff sued Ford and Michelin for negligence and strict liability after her daughter was killed in a car accident while on a trip with her dance team that left from Broward County and was heading to Alabama.  The tire blew out near Lake City, and the decedent was ejected from the vehicle and later died from her injuries.

Plaintiff filed suit in Broward County.  Ford and Michelin each filed a motion to transfer venue to Columbia County pursuant to §47.122 (forum non-conveniens).  Defendant contended that the accident occurred in Columbia County and the most significant witnesses in the case resided there including law enforcement officers, emergency medical personnel, eyewitness and the medical staff from the hospital as well as the medical examiner.

The plaintiff opposed the motions, pointing out that eight of the other passengers in the vehicle were eyewitnesses to the accident and resided in Broward, as did the driver who was a named defendant.  The decedent was a resident of Broward at the time of her death, and her mother resided there, and the subject vehicle was rented there. 

The court noted the three statutory factors used to determine whether to grant a motion pursuant to §47.122:  (1) convenience of the parties; (2) the convenience of the witnesses (most important); and (3) the interest of justice.

Plaintiff identified nine eyewitnesses who were in the vehicle at the time of the accident and were the only individuals to witness it.  This van was also rented in Broward and kept and maintained in Dade.  

Also, as the court noted, the material allegations of the complaint involved a potential manufacturing defect in the tire and the design defect in the van and negligent maintenance.  Thus, the determination on liability was going to turn primarily on expert testimony.  Because there was no suggestion that the experts would be inconvenienced by a trial in Broward, the court held the trial judge properly denied defendant’s motion to transfer venue based on forum non-conveniens. 

TRIAL COURT DID NOT ERR IN ENTERING DIRECTED VERDICT FOR TRUCKING COMPANY ON NEGLIGENT INSPECTION AND MAINTENANCE – DID NOT ERR IN REFUSING TO GIVE VICARIOUS LIABILITY INSTRUCTION BECAUSE OF STIPULATION AND DID NOT ERR IN REFUSING TO GIVE ADDITIONAL CONCURRENT CAUSE INSTRUCTION

Beltran v. Rodriguez, 35 Fla. L. Weekly D844 (Fla. 3^rd DCA April 14, 2010):

The decedent made a u-turn, and her car collided with another car.  The parties stipulated she did not stop before making the turn.  She was hit in a sideswipe collision, causing her vehicle to slide 46 feet before coming to rest on the opposite side of the road, at which point (7 seconds later), she was hit by another car.  The decedent died as a result of the two crashes. 

At the close of the plaintiff’s case, the trucking company (involved in the second collision) moved for a directed verdict.  The case proceeded against the truck driver with the stipulation that if the driver was found liable, the company would be held vicariously responsible.  The jury found no liability on the part of the driver. 

Plaintiff had alleged that the trucking company was negligent in inspecting and maintaining the vehicle.  With the scant evidence of negligent maintenance, plaintiff’s expert testified there was also no evidence that the driver took measures to avoid the collision, thereby showing that none of the truck’s defects contributed to the accident. 

There was evidence of the truck’s defective condition, but no evidence that the condition of the truck caused or contributed to the accident.  Thus, there was no jury question presented, and directed verdict was proper. 

It was also not error to refuse to give the jury the vicarious liability instruction.  Because there was a stipulation on that, there was no need.

The trial judge also properly refused plaintiff’s special instruction on concurrent cause, because the standard instruction covered it, and the plaintiff failed to show the instruction she requested was necessary to properly resolve the issues in the case.  There was also no showing that the standard instruction was not sufficient to resolve the issues, and that the jury was in some way misled or prejudiced by the failure to give the additional instruction. 

TRIAL COURT ABUSED ITS DISCRETION IN STRIKING PLEADINGS AND DISMISSING ACTION WITH PREJUDICE FOR FRAUD ON THE COURT, WITHOUT CLEAR AND CONVINCING EVIDENTIARY BASIS

Hernandez v. City of Miami, 35 Fla. L. Weekly D847 (Fla. 3^rd DCA April 14, 2010):

Based on discrepancies about his injuries in the plaintiff’s answers to interrogatories and during his deposition testimony, the trial court struck the pleadings, and dismissed the plaintiff’s case with prejudice. 

While a trial court does have inherent authority to dismiss an action as a sanction when a plaintiff has perpetuated a fraud, the power must be exercised cautiously, sparingly and only upon a clear showing of fraud.  For the trial court to properly exercise its discretion, there must be an evidentiary basis to dismiss the case.

Here, the trial court did not have clear and convincing basis to dismiss for fraud.

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

TRIAL COURT ABUSED DISCRETION IN DISMISSING CASE FOR FAILURE TO SERVE DEFENDANT WITHIN 120 DAYS

Amaran v. Marath, 35 Fla. L. Weekly D764 (Fla. 3^rd DCA April 7, 2010):

The plaintiffs had evidence of trying to locate defendant.  She was told through interrogatories that this particular defendant could be contacted through a South African employment agency, and it was later learned that he maintained a residence in Florida. 

After many wranglings, a deposition, etc., the defendant was finally served.  However, he moved to dismiss the amended complaint for untimely service. 

While the statute of limitations had run, the trial court still dismissed.  It failed to acknowledge that incorrect or misleading information was knowingly provided by one of the defendants to delay service of the co-defendant.  When the trial court dismissed the case under these circumstances, it abused its discretion. 

WHEN A CLAIM IS COMPENSABLE UNDER NICA AS TO SOME PERSONS OR ENTITIES INVOLVED, BUT NOT OTHERS, A CLAIMANT MUST ELECT TO ACCEPT NICA NO FAULT BENEFITS, OR INSTEAD PURSUE A CIVIL ACTION AGAINST THE NON-COVERED PERSONS OR ENTITIES

Pediatrix Medical Group v. Falconer, 35 Fla. L. Weekly D780 (Fla. 4^th DCA April 7, 2010):

In light of a recent supreme court decision, once a claimant accepts NICA benefits for a compensable claim, the claimant then foregoes a civil suit against any person or entity (including non-covered persons or entities) directly involved with the labor, delivery or immediate post-delivery resuscitation (see §766.303(2)).  Because the remedies are mutually exclusive, when a claim is compensable under NICA as to some persons but not others, the claimant must elect to accept the no-fault benefits under NICA, or to pursue a civil action against the non-covered persons instead.

ERROR TO FIND PLAINTIFF ESTOPPED FROM BRINGING A LAWSUIT INCONSISTENT TO HER POSITION IN A PRIOR LAWSUIT, WHERE THE POSITION WAS NOT SUCCESSFULLY MAINTAINED IN THE FIRST LAWSUIT

Batie v. Batie, 35 Fla. L. Weekly D800 (Fla. 1^st DCA April 7, 2010):

This case contains few facts but is reported for the principal of law found therein. 

PRESUMPTION OF NEGLIGENCE ON PART OF REAR DRIVER IS NOT APPLICABLE IN AN ACTION BY A PASSENBER OF THE REAR VEHICLE AGAINST THE DRIVER OF A LEAD VEHICLE – THE ISSUE IS WHETHER THE DEFENDANT WAS NEGLIGENT AS TO THE FORWARD DRIVER

Charron v. Birge, 35 Fla. L. Weekly D805 (Fla. 5^th DCA April 9, 2010):

A motorcyclist was driving his motorcycle, and plaintiff was riding as a passenger.  A car traveling in front of him rounded a curve, and as plaintiff looked down a crossover side road to ensure nobody was coming, he found the car just about “stopped” in front of him.  He said he was unable to avoid hitting it, which caused the motorcycle to flip and come to rest on top of the passenger plaintiff. 

The defendant testified that he and his wife were on their way to the zoo, and that he slowed down as he saw another car approaching the yield sign.  The defendant said he was being cautious to slowly step on the brake at this “hairy” intersection.  He said he pulled ahead, and then passed the truck and heard a thump on the left. 

The driver of the front car said he slowed down when he saw the defendant’s car coming from behind him. 

The defendant filed a motion for summary judgment asserting that presumption of negligence attached to the motorcycle driver as the rear-ending driver, and that the plaintiff passenger failed to overcome the presumption.  The trial judge granted the summary judgment, ruling that Florida law makes the person in the rear responsible for the accident if the person in the front stops. 

The appellate court ruled that the presumption does not apply where a passenger of the following vehicle sues the lead driver for his negligence.  The issue is whether the defendant was negligent as the forward driver, not whether the motorcycle driver’s presumed negligence as the following driver was rebutted.  To the extent that there exists evidence sufficiently demonstrating the defendant was negligent as the forward driver, summary judgment against the rear driver is improper.

The court said that the issue properly framed is not whether any presumption of the motorcycle driver’s negligence was rebutted, but whether there was record evidence that the defendant was negligent as the forward driver, and solely caused or in connection with the motorcyclist, caused the injuries to the passenger plaintiff.  The evidence could support a verdict.  The negligence on part of the defendant was that he “suddenly stopped” in the middle of the street, and did so unnecessarily under the mistaken belief that another vehicle had the right to proceed.

ERROR TO GRANT COUNTY’S MOTION FOR DIRECTED VERDICT ON GENERAL NEGLIGENCE CLAIM WHEN THERE WAS EVIDENCE THAT JURY COULD FIND DEFENDANT BREACHED ITS DUTY OF CARE

Soltwisch v. Pasco County, 35 Fla. L. Weekly D812 (Fla. 2^nd DCA April 9, 2010):

Standard of review on a ruling for a motion for directed verdict is de novo.  In considering the merits of such a motion, the court must review the evidence in a light most favorable to the non-moving party.  Motions for directed verdict should only be granted where no view of the evidence or inferences made therefrom could support the verdict for the non-moving party. 

When looking at the evidence that way, 75 year-old decedent was at a wound-care clinic with his wife receiving a hyperbaric oxygen therapy to relieve pressure sores on his left foot.  He experienced some mild tremors according to one of his doctors during that process, and there were no signs that he had suffered a stroke at that time.  Still, the staff of that facility called 911.

A Pasco County Fire Rescue ambulance arrived at the clinic to take the man to the hospital.  The paramedic indicated the initial vital signs were normal, and the man was semi-responsive.  However, by the time he arrived at the hospital, he was complaining of pain from his hip.  There was also an indication that his blood pressure sharply increased when he got to the emergency room.  An x-ray showed a neck fracture.  The man underwent surgery to repair the fracture, acquired an infection, and then died from it.

The decedent’s wife testified she heard a loud bang when the paramedics put the man in the ambulance, and the estate presented several experts who testified that his fracture occurred as a result of transport by the paramedics, not from a seizure or osteoporosis.  There was evidence adduced that the man somehow obtained a fracture while he was in Pasco County’s exclusive control.  The court found those facts sufficient to overcome the directed verdict, and it was error for the trial court to enter it. 

TRIAL COURT DID NOT DEPART FROM ESSENTIAL REQUIREMENTS OF LAW IN COMPELLING DEFENDANT NURSING HOME TO PROVIDE PLAINTIFF THE NAMES, BIRTH DATE, SOCIAL SECURITY NUMBER, AND FORWARDING CONTACT PERSONS OF A FORMER NURSING HOME RESIDENT WHO PLAINTIFF SOUGHT TO LOCATE AS A MATERIAL WITNESS – THE ORDER WAS NARROWLY TAILORED AND THE COURT PROPERLY BALANCED THE INDIVIDUAL’S FORMER RESIDENTS’ PRIVACY CONSIDERATIONS AGAINST THE PLAINTIFF’S NEED FOR THE INFORMATION ALREADY POSSESSED BY THE NURSING HOME

Delta Health Group v. Estate of Collins, 35 Fla. L. Weekly D814 (Fla. 1^st DCA April 9, 2010).

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

WHERE INSURER ISSUED POLICY TO FLORIDA RESIDENTS COVERING VEHICLES PRINCIPALLY GARAGED AND REGISTERED IN FLORIDA, AND ALSO DELIVERED A DELAWARE POLICY COVERING THE VEHICLE REGISTERED AND PRINCIPALLY GARAGED THERE, DELAWARE POLICY COULD NOT BE ENFORCED WHERE INSURER DID NOT OBTAIN INFORMED CONSENT UNDER FLORIDA LAW

Rando v. Government Employee’s Insurance Co., 35 Fla. L. Weekly S201 (Fla. April 8, 2010):

A plaintiff sustained life-altering injuries in an accident caused by an underinsured driver.  At the time, the plaintiff and his wife were named insureds on two policies issued by GEICO.  One was a Florida policy covering two vehicles registered and principally garaged in Florida.  The other, a Delaware policy, covered a vehicle registered and principally garaged in Delaware where the plaintiffs’ daughter resided.  The Delaware policy was executed and delivered in Florida (the plaintiffs moved in 2004).  There was no express choice of law provision in that policy.

After the accident, the plaintiffs were paid the full amounts under the Florida UM policy.  However, they were denied benefits under the Delaware policy because of a provision prohibiting the combining or stacking of UM benefits from separate GEICO policies. 

Guided by the principle of lex loci contractus, the court looked to the law of the state where the insurance contract was executed as the one governing the rights and liabilities of the parties.  Because this Delaware policy was executed and delivered in Florida, Florida law governed. 

While Florida also has an anti-stacking law, it requires insurers to inform the named insured that non-stacking is alternative coverage.  Florida law requires informed consent by the insured.

The supreme court concluded that §627.727(9) applied because the plaintiffs’ car was principally garaged and registered in Florida, and ruled that informed consent was required by Florida law in order to validate the anti-stacking provision contained in the Delaware policy.  Because GEICO did not obtain the plaintiffs’ informed consent before the Delaware policy was executed in Florida, the anti-stacking provision was not enforceable under Florida law.

IN AN EN BANC DECISION OF THE FIRST DISTRICT, A MARRIAGE LICENSE NOT RETURNED TO THE CLERK OR MADE PART OF THE OFFICIAL RECORDS OF THE COUNTY, RENDERS THE MARRIAGE INVALID

Hall v. Maal, 35 Fla. L. Weekly D709 (Fla. 1^st DCA March 30, 2010):

The parties were engaged to be married.  The week before they were to get their marriage license, the man called the woman and told her they were not going to be able to get it because they had not agreed to a pre-nup.  The woman was upset because all of the arrangements had been made and the guests were arriving.  The man persuaded her to go ahead with the ceremony reassuring her that everything would be all right, and they participated in a full wedding ceremony performed by a minister at a church.  They did this fully knowing they had never applied or received a marriage license.

The couple then had two children, obtained a mortgage as husband and wife, and a year after the ceremony, appeared to get a marriage license.  However, the license was never solemnized nor returned to the clerk to be part of the official records. 

The court ruled there was no valid marriage.  The court said if it allowed one (a marriage ceremony without a license, a couple living together and acting married), it would recreate a species of common law marriage in violation of §741.211 which banned such marriages.  The court did not discuss the “fallout” from its ruling.

COURT RULES THAT STATUTE CAPPING NON-ECONOMIC DAMAGES IN MED MAL ARBITRATION CASES IS CONSTITUTIONAL – HOWEVER, COURT CERTIFIED THE QUESTION OF WHETHER THE $350,000 LIMITATION OR CAP ON LIABILITY FOR NON-ECONOMIC DAMAGES ESTABLISHED IN 1988 CAN STILL BE CONSTITUTIONAL EVEN THOUGH IT HAS NEVER BEEN ADJUSTED TO ACCOUNT FOR INFLATION AND THE LEGISLATURE HAS NEVER BEEN REQUIRED TO RECONFIRM THE CONTINUED EXISTENCE OF AN OVERPOWERING PUBLIC NECESSITY

Parham v. Florida Health Sciences Center, 35 Fla. L. Weekly D722 (Fla. 2^nd DCA March 31, 2010):

The case involved the death of a premature newborn.  The primary dispute centered on the fact that the hospital did not have a pediatric surgeon on staff to handle emergencies in its neonatal unit. 

Defendant denied plaintiff’s arbitration request, and the jury returned a verdict for $12,000,000.  As a result of post-trial motions, the trial court reduced the mother’s award from $8,000,000 to $350,000 based on the limitation of liability cap for non-economic damages contained in §766.209(4) (the arbitration statute). 

The court ultimately found that §766.209(4) is constitutional.  However, the court questioned whether financial limitations established in 1988 can still be constitutional when they have never been increased.  Inflation alone has substantially increased, and the limitation prescribed by this statute and has substantially reduced the “reasonable alternative,” essential to upholding the statute against a charge that it denies access to courts.  The court certified that question to the supreme court, and further questioned that court as to whether the legislature should have some obligation to re-assess conditions occasionally to confirm the continued existence of an overpowering public necessity as first articulated in that law when passed in 1988.

INSURER NOT REQUIRED TO INCLUDE INFORMATION ABOUT UM COVERAGE OPTIONS IN SIX MONTH POLICY RENEWAL NOTICE – TRIAL COURT CORRECTLY INTERPRETED PLAIN LANGUAGE OF STATUTE AS REQUIRING ONLY ANNUAL NOTICE EVEN WHERE POLICY RENEWS EVERY SIX MONTHS

Wolf v. Progressive American Insurance, 35 Fla. L. Weekly D732 (Fla. 1^st DCA March 31, 2010):

The insured had rejected UM.  Before the policy period expired, Progressive sent him a renewal reminder due to continue the policy for another six months.  The renewal notice did not include information regarding the coverage options, and the insured did not elect such coverage for the renewal policy period. 

Because the statute states that notice need only be sent “at least annually,” Progressive was not required to include it in its six month renewal notice. 

THIRD DISTRICT GOES OUT OF ITS WAY TO AFFIRM DEFENSE VERDICT

Griffin v. Ellis Aluminum, 35 Fla. L. Weekly D733 (Fla. 3^rd DCA March 31, 2010):

Defendant had installed a handrail along the stairway at the plaintiffs’ home.  Between the installation and the day of the incident, there were no complaints about the railing.  Ten months after the installation, the plaintiff and his wife went kayaking and during lunch he consumed three to four alcoholic drinks.

Plaintiffs then invited the bartender at the restaurant and her husband to their home.  They arrived around 4:00, and sat in the hot tub into the evening, drinking margaritas.  Sometime between 7:30 and 9:00, plaintiff’s wife went to bed, and the bartender and her husband went home.  Plaintiff testified that he grabbed the four tumblers from which they had been drinking, left the hot tub, and proceeded up the stairs.  He testified on the last step he grabbed the handrail which detached from the snap plate, causing him to fall and suffer extensive injuries. 

The court found the trial court did not err in allowing the defendant to present evidence of a subsequent fall by the plaintiff at another location.  The defense argued that the court correctly allowed the evidence in because it was presented to show that plaintiff was able to return to his pre-accident activities, and that there may have been another cause for some of his injuries he sustained. 

The plaintiff also argued that the trial court erred in allowing the defendant to disclose the fact that the manufacturer of the aluminum used by the defendant had been involved in the lawsuit, suggesting settlement.  The mention of the manufacturer occurred during the defendant’s cross examination of the plaintiff.  Counsel had brought forward two sets of interrogatories, one propounded by the manufacturer and prior co-defendant.  In both answers, plaintiff stated he had only had 1.5 ounces of alcohol to drink that night.  The court rejected plaintiffs’ argument that this mention impermissibly suggested a settlement entitling plaintiffs to a new trial.

The plaintiff also asserted the trial court committed reversible error in permitting defendant to comment on the plaintiff’s failure to call his wife at trial.  According to the court, any error was harmless.

The plaintiff then argued that the trial court erred in allowing defendant’s counsel to comment in opening that defendant had never been sued.  The court said counsel had merely stated that defendant had installed the railing ten months prior to the incident, and there had never been any complaints from the plaintiffs.  A few minutes later, counsel told the jury, plaintiffs were suing the respected businessman, Bill Ellis and his wife, Joyce, whose railing “never had a failure of this nature except for this claim.”

The Third District said although the comment was susceptible of the interpretation that Ellis has never been sued for a railing failure, it could have been interpreted to mean that there were no complaints from the plaintiffs.  Again, the court found the error harmless.

The Third District refused to even reverse based on a sleeping juror, which it found was not prejudicial under the circumstances.

After reading this case, it certainly seems that this trial was far less than fair.  The Third District, however, certainly went out of its way to affirm the defense verdict.  The lesson learned is try not to get hurt in Miami!

LAW FIRM MAY NOT ASSERT A RETAINING LIEN FOR FEES OWED IN A CONTINGENCY FEE CASE UNTIL THE CONTINGENCY HAS OCCURRED

Brickell Place Condo v. Ganguzza, 35 Fla. L. Weekly D738 (Fla. 3^rd DCA March 31, 2010):

A retaining lien differs from a charging lien.  A charging lien is placed on any monetary recovery due the client at the conclusion of a lawsuit.  On the other hand, a retaining lien is a passive lien resting entirely on the right of an attorney to retain possession of his client’s papers, money, securities and files as security for payment of the fees and costs earned by the law firm to that point.  When the fee is contingent, however, there cannot be a retaining lien until the contingency occurs.  All the law firm can do is file a charging lien, and seek the reasonable value of its services on the basis of quantum meruit (limited by the contract flat fee the parties agreed to).

CIRCUIT COURT DEPARTED FROM ESSENTIAL REQUIREMENTS OF LAW BY REQUIRING PLAINTIFF’S ATTORNEY TO PRODUCE IN COURT FOR IN CAMERA INSPECTION HIS CASE FILE FROM AN UNRELATED AUTOMOBILE ACCIDENT, TO ENABLE DEFENDANTS TO DETERMINE WHETHER THERE WERE DOCUMENTS IN THE FILE RELAVANT TO THE SLIP AND FALL CASE AND FURTHER THERE WAS DEMONSTRATION THAT DEFENDANTS WERE UNABLE WITHOUT UNDUE HARDSHIP TO OBTAIN THE SUBSTANTIAL EQUIVALENT OF THESE MATERIALS BY OTHER MEANS

Toledo v. Publix, 35 Fla. L. Weekly D747 (Fla. 4^th DCA March 31, 2010).

ERROR TO DISMISS EXCESS INSURER’S COMPLAINT FOR BAD FAITH AGAINST PRIMARY INSURER, BECAUSE INJURED PARTY HAD RELEASED THE INSURED AND EXCESS INSURER DID NOT RECEIVE AN ASSIGNMENT FROM THE INSURED OF ANY BAD FAITH CLAIM – EXCESS INSURER COULD BRING BAD FAITH CLAIM BASED UPON SETTLEMENT EXECUTED BY THE EXCESS CARRIER, AND WAS NOT REQUIRED TO SUFFER AN EXCESS JUDGMENT

Vigilant Insurance Co. v. Continental Casualty Co., 35 Fla. L. Weekly D750 (Fla. 4^th DCA March 31, 2010):

A man was injured while using a wood chipper.  The manufacturer had a primary policy in the amount of $1,000,000 subject to a $500,000 self-insured retention.  The manufacturer also had excess coverage for $25,000,000.

Plaintiff sued the manufacturer.  The excess carrier alleged that the underlying carrier’s limit was $1,000,000 and that there was self-insured retention.  The primary carrier informed the excess carrier that the claim was within its limit of liability, and advised the excess carrier, it could close its file. 

After protracted litigation, the primary carrier (that never paid plaintiff) advised the excess carrier after three years, that plaintiff was demanding amounts in excess of the primary policy.  The plaintiff’s claim was finally settled with the excess carrier paying over $1,200,000.  The manufacturer did not pay the self-insured retention.  The excess carrier did not obtain an assignment of the bad faith claim the manufacturer may have had before the release was executed. 

The excess carrier then sued the primary carrier for bad faith and promissory estoppel.  The primary carrier moved for summary judgment, stating that the plaintiff had released the insured as to all claims in the underlying litigation, without any assignment of bad faith to the excess carrier, therefore, prohibiting the excess carrier from bringing a bad faith claim.  The court noted that the excess insurer steps into the shoes of the insured with respect to the bad faith claim against the primary company.

In this case, only the plaintiff had released the insured.  While that release would prevent the plaintiff from suing the carriers for bad faith, the manufacturer did not release any potential claim it had for such action.  Only if the manufacturer had released the primary carrier as to any claims, might the release have affected the excess carrier’s ability to make a claim against the primary carrier. 

PLAINTIFF FAILED TO COMPLY WITH STATUTORY NOTICE REQUIREMENTS FOR PERFECTING SUBSTITUTED SERVICE, WHERE PLAINTIFF FILED UNSIGNED RETURN RECEIPT FOR CERTIFIED MAIL AND RECORD DOES NOT SHOW THAT FAILURE TO DELIVER WAS RESULT OF DEFENDANT ACTIVELY REFUSING OR REJECTING

Hernandez v. State Farm, 35 Fla. L. Weekly D753 (Fla. 4^th DCA March 31, 2010):

Where plaintiff resorts to substituted service, strict compliance with the statutes governing the service is essential to obtaining valid personal jurisdiction over the defendant.  In this case, plaintiff failed to strictly adhere to proper pleading and notice requirements necessary to perfect substitute service upon him.  When using substituted service under §48.171, a plaintiff must meet two requirements.  First, the complaint must allege the ultimate facts bringing the defendant within the purview of the statute (i.e., if defendant is a non-resident, the resident is concealing whereabouts or resident subsequently became a non-resident).  Second, the service must strictly comply with §48.161 which sets forth the method of substituted service. 

The fact that State Farm filed an unsigned return receipt was not sufficient to comply with the statute.

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

JOINT PROPOSALS FOR SETTLEMENT CONDITIONED ON MUTUAL ACCEPTANCE ARE INVALID AND UNENFORCEABLE BECAUSE THEY PREVENT AN INDEPENDENT EVALUATION BY THE OFFEREE

Attorneys’ Title Insurance Fund v. Gorka, 35 Fla. L. Weekly S196 (Fla. April 1, 2010):

The defendant served a proposal for settlement offering payment of $12,500.00 to each party in full settlement of a case involving a property dispute.  The offer was conditioned upon being accepted by both offerees.

Following Second District precedent, the supreme court ruled the offer was invalid and unenforceable, because it was conditioned in such a way that neither offeree could independently evaluate or settle his or her respective claim by accepting the proposal.  The conditional nature of the offer divested each party of independent control of the decision to settle. 

The three dissenting judges found that the plain language of Rule 1.442 allows offers of settlement to be conditioned upon a joint acceptance, and therefore ruled the proposal should have been enforceable.

TRIAL COURT DID NOT ABUSE DISCRETION IN DENYING PLAINTIFF’S MOTION FOR NEW TRIAL AS TO TWO DEFENDANTS AND GRANTING IT AS TO A THIRD

Pena v. Vectour of Florida, 35 Fla. L. Weekly D677 (Fla. 1^st DCA March 25, 2010):

Plaintiff was a passenger on a bus that was rear ended.  She sued the owner and driver of the bus, as well as the driver who rear ended her.  The jury found no negligence on the part of any of the defendants, and plaintiff moved for a new trial based on the verdict being against the manifest weight of the evidence.  The trial judge granted the motion as to the rear-ending driver, but denied it as to the bus driver and bus owner.

The court explained that the trial court determines whether a jury’s verdict is supported by the manifest weight of the evidence, and the appellate court is limited to the question of whether the lower court abused its discretion in denying a new trial.  In reaching that conclusion the evidence must be clear and obvious and not conflicting. 

Here, the jury weighed evidence and concluded that the bus driver and company were not negligent.  The court observed that the plaintiff simply disagreed with the trial court’s order and was seeking a more favorable outcome.  The court admonished that it is one “of review,” and not simply another forum “to which the dissatisfied litigant may submit his or her list of grievances in hopes of a more favorable outcome.” 

TRIAL COURT ERRED IN FAILING TO DETERMINE WHETHER STATE’S PURPORTED RACE NEUTRAL REASONS FOR STRIKING TWO JURORS WERE GENUINE OR PRETEXTUAL – NEW TRIAL REQUIRED

Bellamy v. Crosby, 35 Fla. L. Weekly D680 (Fla. 1^st DCA March 25, 2010):

While the trial court found that the state had race neutral reasons for striking certain jurors, the court’s failure to engage in a “genuineness” determination was erroneous.  A court may not simply determine that an articulated reason is “race neutral,” without doing an inquiry into the genuineness of the reason. 

COURT SUA SPONTE AWARDS §57.105 FEES TO SANCTION APPELLANT FOR FILING A MOTION FOR REHEARING AND REHEARNG EN BANC ON A PCA

Unifirst Corp. v. City of Jacksonville, 35 Fla. L. Weekly D689 (Fla. March 25, 2010):

After the appellant filed motions for rehearing, clarification, written opinion and rehearing en banc, the appellee filed a motion for §57.105 fees, acknowledging that it had to do so early (in less than 21 days because the appellate rules required a response in ten).  Even though the motion was filed improperly, the appellate court on its own initiative awarded attorney’s fees. 

The court successfully made its point that a motion for rehearing is not meant to re-argue the merits of a court’s order.  It cited a case stating that it is not an open invitation for an unhappy litigant or attorney to re-argue the same points previously presented.  It is also not designed to address issues already addressed in briefs and at oral argument like was the case here. 

One rather troubling aspect of the opinion, was the court’s acknowledgment that appellant requested a written opinion because it believed that the PCA conflicted with an opinion by another district court.  Rejecting that argument (and in turn, the rule which allows litigants to file such motions), the court stated “it is meritless to argue that an opinion which says nothing more than ‘affirmed’ conflicts with a written opinion issued by another district court.”

I would imagine this decision will have chilling effect on the filing of motions for rehearing and even on those seeking a written opinion (designed to allow ultimate supreme court review based on a conflict).  While it may very well be a reaction to the lack of funding the courts are receiving, and their overloaded dockets, it still will chill legitimate motions.

TRIAL COURT ABUSED DISCRETION IN DISMISSING COMPLAINT FOR FAILURE TO COMPLY WITH ORDERS COMPELLING DISCOVERY WITHOUT MAKING THE REQUISITE FINDINGS OF FACT PURSUANT TO KOZEL V. OSTENDORF

Sanders v. Gussin, 35 Fla. L. Weekly D693 (Fla. 5^th DCA March 26, 2010).

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

ERROR TO AWARD ATTORNEY’S FEES PURSUANT TO A PROPOSAL FOR SETTLEMENT WHERE THE AMOUNT OF JUDGMENT WAS NOT 25% GREATER THAN THE AMOUNT OF THE PROPOSAL – IN DETERMINING WHETHER TOTAL JUDGMENT MEETS THRESHOLD FOR AWARD OF ATTORNEY’S FEES, IT IS IMPROPER TO INCLUDE COSTS INCURRED AFTER THE PROPOSAL WAS TENDERED

Nilo v. Fugate, 35 Fla. L. Weekly D592 (Fla. 1^st DCA March 17, 2010):

Only costs incurred “pre-demand” may be considered in determining whether the total judgment meets the statutory threshold when a court evaluates attorney’s fees under a proposal for settlement. 

TRIAL COURT DID NOT ABUSE DISCRETION IN ADMITTING TESTIMONY OF UNDISCLOSED WITNESS WHERE DEFENDANTS COULD NOT HAVE BEEN SURPRISED – NO ABUSE IN DENYING MISTRIAL FOR COMMENTS MADE IN CLOSING ARGUMENT

Philippon v. Shreffler, 35 Fla. L. Weekly D606 (Fla. 4^th DCA March 17, 2010):

In this negligent credentialing case, the patient sought to introduce eyewitness testimony of a surgical technician who had been present during an ill-fated operation.  During discovery, the patient had repeatedly requested contact information regarding the technician, and despite court order defendants never provided it.  The patient’s counsel did not locate the witness until he did an Internet search during the trial.  The patient maintained there was no prejudice to the defendants because they clearly knew of this tech, her name was in the hospital records, and she was listed in their answers to interrogatories. 

Defendants argued they would be prejudiced by her testimony, because had they known she was going to testify, they would have tailored their opening statements, their cross examinations, and handled their entire defense differently.  They would have also researched her background for cross examination. 

Because the court found the patient had attempted to obtain the witness’s information, and both sides knew the name and of her presence in the operating room, the court found there was no “surprise,” and she was allowed to testify.  While the court did not find any evidence of willful non-disclosure or bad faith, it ruled that allowing the witness’s deposition to be taken cured any prejudice towards the hospital, and felt this was not an abuse of discretion under these circumstances. 

Despite plaintiff’s closing regarding evidence that counsel never moved into evidence, and the reference to a “cocksure attorney,” the Fourth ruled the trial court did not abuse its discretion in refusing to grant a mistrial. 

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

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.