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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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