Florida High Court to Decide If Party Must Object to a Fundamentally Inconsistent Verdict to Preserve Issue

VERDICT FORM
We, the jury, return the following verdict:
1. Did Defendants place the product 
    on the market with a design defect,
    which was a legal cause of the
    decedent’s death?
    YES _______ NO X
2.  Was there negligence on the part of
     Defendants which was a legal cause of
     decedent’s death?
     YES X NO ________

The Florida Supreme Court has accepted review of a Third District case involving whether a party waives a challenge to a fundamentally inconsistent verdict by failing to object before the jury is discharged.  See Coba v. Tricam Indus., Inc., No. SC12-2624. The Third District decided that a waiver does not occur under these circumstances.  To view the Third District’s opinion, click here.

After Robert Coba, a civil engineer, died from a falling from a ladder, his estate sued Tricam, the ladder manufacturer, and Home Depot, the seller, for strict liability and negligence.  The verdict form contained the following two interrogatories:

(1) Did Defendants, Tricam Industries and/or Home Depot, place the ladder on the market with a design defect, which was a legal cause of Roberto Coba’s death?

(2) Was there negligence on the part of Defendants, Tricam Industries and/or Home Depot, which was a legal cause of Roberto Coba’s death?

Because plaintiff’s products liability theory at trial was based on a design defect only, the jury inconsistently found that there was no design defect, but that the defendants’ negligence was the legal cause of the Coba’s death.  After the jury was discharged, defendants moved to set aside the verdict, claiming that there was insufficient evidence to sustain the jury’s negligence finding. The trial court denied the motion.

On appeal, the Third District found that the trial court erred in denying defendants’ motion to set aside the verdict in accordance with their motion for directed verdict. The court acknowledged that normally, a party would have waived their objection to a purportedly inconsistent verdict if they failed to object before the jury was discharged. The court, however, held that an exception to this rule exists where the inconsistency “is of a fundamental nature.”

The court relied on the Fourth District’s 2004 opinion in Nissan Motor Co. v. Alvarez and the Fifth District’s 1985 decision in American Catamaran Racing Ass’n v. McCollister—both factually similar cases where the jury was presented with a similar verdict form. In both decisions, the district courts considered the fact that the only evidence of negligence that had been introduced related to the alleged design defect. Because both juries found that there was no defect, the Fourth and Fifth Districts held that a concurrent finding of negligence could not be sustained. The Third District adopted the reasoning in these cases to hold that a party does not have to object to such a fundamentally inconsistent verdict.

The court also stated there was no need to remand for a new trial because the jury had already decided on the only evidence that had been presented—specifically, the alleged design defect. Because no other evidence had been introduced to support any other cause of action, the Third District held that no issue remained to be resolved.

Senior Judge Schwartz dissented in part, reasoning that defendants had waived their right to complain of an inconsistent verdict because they failed to request that the inconsistency be resolved after the verdict was returned. Judge Schwartz further explained that even if this were not the case, he believed that the appropriate remedy is to grant a new trial so that a jury—not the court—can resolve the inconsistency.

This article will be updated once the Florida Supreme Court decides the case.

Tags:

Florida High Court to Decide Whether Statute of Frauds Applies to Oral Agreement to Split Lottery Winnings

 

       

On June 20, 2014, the Florida Supreme Court accepted review of a Fifth District decision that certified the following question of great public importance:

Is an oral agreement to play the lottery and split the proceeds in the event a winning ticket is purchased unenforceable under the statute of frauds when: there is no time agreed for the complete performance of the agreement; the parties intended the agreement to extend for longer than one year and it did extend for a period of fourteen years; and it clearly appears from the surrounding circumstances and the object to be accomplished that the oral agreement would last longer than one year.

See Browning v. Poirier, No. SC13-2416. To view the Fifth District’s opinion click here.

Howard Browning and Lynn Poirier lived together as a couple between 1991 and 2009.  In 1993, the couple orally agreed that they would split the winnings of any lottery tickets purchased by either of them while they remained in a relationship. In  2007, Poirier purchased a winning ticket and received $1 million dollars less taxes. Poirier, however, refused to give Browning half of the proceeds. Browning in turn sued for breach of an oral contract and unjust enrichment, seeking half of Poirier’s winnings. Poirier moved for directed verdict on both causes of actions, claiming the statute of frauds as a defense. The trial court granted Poirier’s motion on both counts, entering final judgment in favor of Poirier.

Rehearing the case en banc, the Fifth District held that Poirier was entitled to a directed verdict on the breach of contract claim because the couple’s agreement was voided by the statute of frauds. Citing the Florida Supreme Court case of Yates v. Ball, the district court explained that an oral contract with no specified date for performance is subject to the statute of frauds if it is clear that the parties intended for it to last longer than one year.  The district court highlighted that Browning and Poirier’s lottery agreement was to extend until the couple’s relationship ended. The court stated that any suggestion that the couple had intended for their relationship—and thereby, the lottery agreement—to end within one year was belied by the evidence indicating their intention for a long-term commitment. Ultimately, the district court certified this issue to the supreme court.

The Fifth District reversed the trial court’s judgment on Browning’s claim for unjust enrichment. Because Browning testified that he had given Poirier the money to purchase the winning ticket with the implied understanding that they would share the proceeds, the district court held that a directed verdict should not have been granted in Poirer’s favor.

Judges Torpy and Griffin dissented in part.  They agreed that the directed verdict on the unjust enrichment count was error, but characterized the majority’s conclusion on the contract claim as ignoring the plain language of the statute, stating that it only considers contracts which clearly cannot—as opposed to likely will not—be performed within one year. Browning made a similar argument in his initial brief to the supreme court, contending that the qualifying rule articulated in Yates contradicts the plain language of the statute of frauds and improperly brings the subject contract within its reach.

This article will be updated once this Court decides the case.

Image courtesy of Flickr by Mark Ou.

 

     

Tags:

Florida High Court to Decide Which Test Governs Component Parts Doctrine

 

On April 8, 2014, the Florida Supreme Court heard oral arguments in an asbestos case concerning the liability of a defendant who has sold a component part to a manufacturer who then incorporates the part into its own products.  See Aubin v. Union Carbide Corp., No. SC12-2075.  On review was a decision from the Third District Court of Appeal which held that the Third Restatement of Torts’ component parts doctrine was the governing standard, expressly rejecting the Second Restatement’s test.   See Union Carbide Corp. v. Aubin, 97 So. 3d 886 (Fla. 3d DCA 2012).  To view the district court opinion click here and to view the supreme court oral argument click here.

Aubin worked as a superintendent at his father’s construction company from 1972 to 1974. During this time, he routinely handled and was exposed to joint compounds and ceiling textures. One of the ingredients in these materials was a chrysotile asbestos product mined, processed, and sold by Carbide. After contracting mesothelioma, Aubin filed suit alleging negligence and strict liability as a result of design, manufacturing, and warning defects.

The Third District held that the trial court had erred in: (1) deciding that Aubin’s claims were governed by the Second Restatement’s “consumer expectations” test as opposed to the Third Restatement “risk-utility/risk-benefit” test, (2) denying Carbide’s motion for directed verdict on the design defect claim, and (3) failing to instruct the jury that Carbide could have discharged its duty to warn end-users by adequately warning the intermediary manufacturer.

The district court disagreed that its own precedent in Kohler v. Marcotte—which adopts the Third Restatement’s component parts doctrine—was not binding because the Florida Supreme Court had previously adopted the Second (rather than the Third) Restatement.  The district court stated that absent overruling from the supreme court, the Third Restatement’s test controls in the Third District.  That test provides that a component part seller or distributor is liable when: (a) the component is defective in itself and the defect causes the harm; or (b) the seller or distributor substantially participates in the integration of the component into the design of the product; and (c) the integration of the component causes the product to be defective; and (d) the defect in  the product causes the harm.

Focusing on the first “avenue” of liability under the Third Restatement, the district court held that Aubin’s design defect claim failed because he did not establish how the design of the product caused his harm—specifically, that its design caused the product to be more dangerous than raw chrysotile asbestos is in its natural state.  

The Third District also acknowledged that there was no general rule for determining whether a manufacturer may rely on an intermediary to warn end-users, thereby discharging its own duty to warn. Citing the Third Restatement’s comments, the court stated that the inquiry was controlled by a reasonableness standard and included factors such as the gravity of the product’s risk, the likelihood that the intermediary will convey the warning, and the feasibility of warning the end-user. The court also referenced the “learned intermediary” doctrine—which considers the intermediary’s education, knowledge, expertise, and relationship with the end-user—as an informative (but not dispositive) factor. Therefore, the court affirmed the trial court’s finding that there was sufficient evidence to create a factual issue over Aubin’s claim that product had a defective warning.

After acknowledging that a manufacturer’s duty to warn may be discharged by reasonable reliance on an intermediary, the court also held that it was error for the trial court to not have incorporated this into the jury instructions.

Aubin later moved to certify direct conflict, claiming that the Third District’s decision directly conflicted with Fourth District precedent applying the Second Restatement. The court denied Aubin’s motion, explaining that the outcome of its decision would have been the same under the Second Restatement, because the pertinent tests were comparable.

 

Image courtesy of Flickr by Aaron Suggs.

Tags:

Florida High Court Poised to Clarify Harmless Error Standard in Civil Appeals

 

photo

On June 20, 2012, the Florida Supreme Court accepted review of a Fourth District Court of Appeal case that certified the following question of great public importance: “In a civil appeal, shall error be held harmless where it is more likely than not that the error did not contribute to the judgment?”  See Special v. West Boca West Med. Ctr., No. SC11-2511.  To view the district court opinion click here. 

The Estate of the Susan Special sued Dr. Ivo Baux, his related corporations, and West Boca Medical Center, Inc., alleging negligence in administering her anesthesia and in responding to her cardiopulmonary arrests during her cesarean delivery.  The defendants denied the allegations, claiming that her death was a result of amniotic fluid embolus, an allergic reaction caused by a mother’s blood mixing with amniotic fluid. Sitting en banc, the Fourth District held that the trial judge had abused his discretion by disallowing the estate’s cross-examination of a defense expert who testified as to the cause of death. The main issue, therefore, was whether the denial of the cross-examination was harmless error.

The district court reviewed the history of the harmless error rule under Florida law, examining two types of tests: (1) the “but-for,” “correct result” test, which focuses on whether the outcome of the trial would have been different but for the error, and (2) the “effect on the fact finder” test, which focuses on whether there is a reasonable possibility that the error influenced the trier of fact and contributed to the verdict—even if the verdict would have been the same without the error.

The Fourth District described the effect of the Florida Supreme Court’s decision in State v. DiGuilio in 1986, which “firmly established an ‘effect on the fact finder’ harmless error test for criminal cases.” The court explained that the supreme court adopted the DiGuilio test in subsequent civil cases—even though it did not explicitly declare that it was doing so—and that the burden of proving the harmlessness of an error had been placed on the party who improperly introduced the evidence and benefitted from the error.

The court explained that, absent specific guidance from the supreme court, the district courts had relied on varying standards for deciding harmless error in civil cases. The most stringent test, used primarily in the Fourth District, asks whether the result would have been different but for the error. A second test, used in the First and Third Districts, asks whether the result may have been different but for the error. The third test, used primarily in the Second District, asks whether it is reasonably probable that the appellant would have obtained a more favorable verdict without the error.

The Fourth District held that it was receding from those cases that applied the more stringent, outcome-determinative “but-for” test for harmless error. The court adopted a new standard, holding that error is harmless when the error more likely than not did not contribute to the judgment.  Applying this newly-adopted standard, the Fourth District affirmed the judgment below, concluding that it was more likely than not that disallowing the cross-examination of the defendant’s expert did not contribute to the jury’s verdict.

The parties completed their briefing on December 19, 2012.  The Court held oral argument on April 3, 2013.  To view the oral argument video click here.   This article will be updated once the Court decides the case.

 Image courtesy of Flickr by Duncan Hull.

Florida Supreme Court Strikes Down Red Light Ordinances as Preempted by State Law

On June 12, 2014, the Florida Supreme Court decided two cases that involved whether municipal ordinances imposing penalties for red light violations detected by devices using cameras were invalid because they were preempted by state law. See Mason v. City of Aventura, No. SC12-644; City of Orlando v. Udowychenko, No. SC12-1471. At issue in the cases was the operation of ordinances prior to July 1, 2010, the effective date of the Mark Wandall Traffic Safety Act, which authorized the use of the red light traffic infraction detectors by local governments and the Florida Department of Highway Safety and Motor Vehicles.

In both cases, plaintiffs challenged the validity of the municipal ordinances in order to set aside fines imposed per the ordinances, arguing that section 316.008(1)(w), Florida Statutes (2008), which specifically grants “local authorities [authority for] regulating, restricting, or monitoring traffic by security devices or personnel on public streets and highways.” In City of Aventura v. Mason, 89 So. 3d 233 (Fla. 3d DCA 2011), the Third District held that Aventura’s ordinance was a valid exercise of municipal power under section 316.008(1)(w). In City of Orlando v. Udowychenko, 98 So. 3d 589 (Fla. 5th DCA 2012), the Fifth District held that Orlando’s ordinance was invalid because it was expressly and impliedly preempted by state law. The Fifth District ruled that the imposition of penalties for running a red light other than those specifically provided for by state statute does not fall under section 316.008(1)(w)’s authority. The Fifth District certified conflict with the Third District’s decision. 

The Court explained that while a municipality is given broad authority to enact ordinances, such ordinances must yield to state statutes. Preemption of local ordinances by state law may be accomplished by either express or implied preemption. Chapter 316, Florida Statutes (2008), regulates traffic throughout the state and contains two broad preemption provisions. Section 316.002 provides, “It is unlawful for any local authority to pass or to attempt to enforce any ordinance in conflict with the provisions of this chapter.” Section 316.007 provides, “No local authority shall enact or enforce any ordinance on a matter covered by this chapter unless expressly authorized.”

Section 316.075 contains rules governing the conduct of drivers and pedestrians relating to traffic control signal devices. One rule is that “vehicular traffic facing a steady red signal shall stop before entering . . . .” Any violation of the rules contained in section 316.075 “is a non-criminal traffic infraction, punishable pursuant to Chapter 318.” Chapter 318, Florida Statutes (2008), sets forth the rules governing the handling of traffic infractions, including the issue of penalties. Chapter 318 also contains a preemption provision regarding fines which states, “Notwithstanding any general or special law, or municipal or county ordinance, additional fees, fines, surcharges, or costs other than the court costs and surcharges assessed under s. 318.18(11)(13) and (18) may not be added to the civil traffic penalties assessed in this Chapter.”

Each of the ordinances at issue in the underlying cases handles red light violations in an entirely different manner than the system established under Chapters 316 and 318. Chapter 316 provides that local ordinances on “a matter covered by” the chapter are preempted, unless an ordinance is “expressly authorized” by the statute. The subject ordinances – in providing for the punishment of red light violations – relate to matters “covered by” Chapter 316. Thus, the ordinances can be sustained as a valid exercise of municipal authority only if they are expressly authorized by statute. 

The Court held, contrary to the arguments advanced by the municipalities, that section 316.008(1)(w)’s grant of authority for “regulating, restricting, or monitoring traffic by security devices” does not explicitly provide authority for local governments to adopt measures for the punishment of conduct that is already subject to punishment under Chapters 316 and 318. Thus, the Court held, the Orlando and Aventura ordinances are expressly preempted by state law. 

The Court quashed the decision of the Third District in City of Aventura and approved the decision of the Fifth District in City of Orlando. Justice Pariente wrote a dissenting opinion, in which Justice Quince concurred.

Image courtesy of Flickr by Heather.

Florida's High Court Limits Role of Senior Judges Serving as Mediators

 

On June 19, 2014, the Florida Supreme Court amended the Code of Judicial Conduct and six rules of procedure relating to senior judges who also serve as mediators.  To view the opinion click here. 

Senior judges were first authorized to perform dual service when a new Code of Judicial Conduct was adopted in 1994.  In its opinion, the Court described its ongoing concern that senior judges who serve as private mediators could potentially be seen as violating the Code, particularly as it relates to impropriety, exploitation of judicial position, and the impermissible lending of the prestige of judicial office to advance the private interests of others.  In view of this, the Court previously published for comment amendments to the Code and rules that would have prohibited dual service.

Responding to significant opposition to the proposed prohibition, the Court decided to allow senior judges to continue to serve as mediators. To address its concerns, however, the Court chose to add two new provisions to the Code and rules:

                       Senior judges are now prohibited from serving as a mediator in any case in a judicial circuit where they preside as a judge.

                       The mediation firm affiliated with the judge is required to follow the same prohibitions on advertising and promotion that are imposed on the judge.

The Court characterized these amendments as two additional safeguards to further alleviate the concern that dual service inappropriately creates an advantage in generating mediation business.  

These changes will become effective on October 1, 2014.

Tags:

Florida Appellate Court Finds Daubert Standard Applies Retrospectively and Prohibits "Pure Opinion" Testimony

 

In the first civil appellate case in Florida to address the newly adopted Daubert standard for the admissibility of expert testimony, Florida’s Third District Court of Appeal held that the standard applies retrospectively and, unlike the former Frye test, prohibits “pure opinion” testimony.  See Perez v. Bell South Telecommunications, Inc., 39 Fla. L. Weekly D865b, 2014 WL 1613654 (Fla. 3d DCA Apr. 23, 2014).  To read the full opinion click here. 

In this case, Maria Perez sued Bell South for damages stemming from the premature birth of her first son.  To establish causation, Ms. Perez offered Dr. Isidro Cardella, a board-certified obstetrician and gynecologist, who “opined in his deposition that workplace stress, exacerbated by Bell South’s alleged refusal to accommodate Ms. Perez’s medical condition, was the causal agent of the [placental] abruption and early delivery of her son with medical consequences.”  Dr. Cardella testified that there was no way of ever knowing for sure what caused Ms. Perez’s placental abruption and that his conclusions were purely his own personal opinion, not supported by any credible scientific research.  The basis of Dr. Cardella’s opinion was that Ms. Perez worked during this first pregnancy, but did not work during the pregnancy leading to the birth of her second child.

The trial court struck Dr. Cardella’s opinion as inadmissible under Frye and granted Bell South’s motion for summary judgment based on Ms. Perez’s failure to proffer admissible evidence to prove causation.  Ms. Perez appealed.  In observing that the legislature’s purpose in adopting Daubert was “to tighten the rules for admissibility of expert testimony,” the court recognized that the Daubert test applies to all expert testimony and expressly prohibits “pure opinion” testimony.  The Frye test was held not to apply to “pure opinion” testimony.  Agreeing with the First District, the court also found that the new standard “indisputably applies retrospectively” because, as a rule of evidence, it is procedural in nature.

The court succinctly stated the Daubert standard as requiring expert testimony to be based on “scientific knowledge.”  In order to qualify as “scientific knowledge,” the court said, “an inference or assertion must be derived by the scientific method.”  The court also noted that while the Frye test (i.e., general acceptance in the scientific community) is no longer a sufficient basis to admit expert testimony, it is now “simply one factor among several.”  In upholding the trial court’s ruling, the Third District stated:  “Dr. Cardella had never before related a placental abruption to workplace stress and knew of no one who had.  There is no scientific support for his opinion.  The opinion he proffers is a classic example of the common fallacy of assuming causality from temporal sequence.”

Plaintiff did not file a motion for rehearing and the decision is now final.

Tags:

Florida Supreme Court Decides that Florida Civil Rights Act Prohibits Pregnancy Discrimination

             On April 17, 2014, the Florida Supreme Court resolved a certified conflict between two of Florida’s district courts of appeal, to hold that the Florida Civil Rights Act (FCRA) prohibits pregnancy discrimination. To read the full opinion click here.  In so doing, the supreme court quashed the Third District’s decision in Delva v. Continental Group, Inc., 96 So. 3d 956 (Fla. 3d DCA 2012), and approved the Fourth District’s decision in Carsillo v. City of Lake Worth, 995 So. 2d 1118 (Fla. 4th DCA 2008).    

            The FCRA (formerly known as the Florida Human Relations Act and the Florida Human Rights Act) was enacted five years after the Civil Rights Act of 1964 (Title VII), and is patterned after it.  In 1978, Congress enacted the Pregnancy Discrimination Act, which amended Title VII by redefining sex discrimination to include discrimination on the basis of pregnancy:  “The terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions.”  42 U.S.C § 2000e(k).  The FCRA, unlike the federal statute, has never been amended to specifically say that pregnancy discrimination is sex discrimination. 

            The supreme court found that the FCRA phrase making it an “unlawful employment practice for an employer . . . to discriminate . . . because of . . . sex” includes discrimination based on pregnancy, which is a natural condition and primary characteristic unique to the female sex.  The court also concluded that this construction of the FCRA is consistent with the FCRA’s legislative intent, which “shall be liberally construed.”  The Court rejected the Third District’s reasoning in Delva that “ascribed legal significance to the Florida Legislature’s failure to amend the FCRA” after Title VII was amended to specifically include discrimination based on pregnancy.

            Chief Justice Polston, who dissented, took a more literal reading of the statute, believing that “the plain meaning of the [FCRA] does not encompass pregnancy discrimination.”  The word “sex,” he reasoned, “does not refer to whether one is pregnant or not pregnant even though that status is biologically confined to one gender.”

 

Image courtesy of Flickr by Joe Goldberg .

Tags:

Florida High Court Declares that Person Who Facilitates Attack on Third-Party Owes Duty of Care to Third-Party

On March 27, 2014, the Florida Supreme Court reversed the Third District Court of Appeal’s decision in Reider v. Dorsey, 98 So. 3d 1223 (Fla. 3d DCA 2012), and ruled that a person in an altercation with another person owes that other person a duty of care when he blocks his means of escape, allowing a third party to strike him from behind with a weapon.  The supreme court’s review was premised on conflict with its decision in McCain v. Florida Power Corp., 593 So. 2d 500 (Fla. 1992), the seminal case in Florida on “duty” in negligence cases. 

 

To read the opinion, click here.

 

Background & Earlier Court Proceedings

 

Dorsey was drinking with Reider and Reider’s friend, Noordhoek, at a local bar and all were intoxicated over the legal limit.  While in the bar, Reider became belligerent, saying that he wanted to fight everyone.  Dorsey called Reider a vulgar name and walked out of the bar.  Reider and Noordhoek followed him, with Reider demanding to know why Dorsey called him the vulgar name.

 

Dorsey’s path took him between Reider’s parked truck and an adjacent car and as Dorsey walked between the vehicles, Reider managed to trap Dorsey between them.  Noordhoek followed Dorsey between the vehicles.  After several minutes of Reider harassing Dorsey over the epithet he used, Noordhoek reached into Reider’s truck and retrieved a tomahawk, a tool which Reider used as part of his work to help him clear land.  Dorsey attempted to push Reider aside in order to escape and after the two men grappled for about fifteen seconds, Noordhoek suddenly struck Dorsey in the head with the tomahawk, rendering him temporarily unconscious.  Noordhoek and Reider fled the scene.  Dorsey regained consciousness and drove himself to the hospital. 

 

Dorsey sued Reider for negligence and following a jury trial, Reider filed a motion for a judgment in accordance with a prior motion for directed verdict.  The trial court denied the motion and awarded damages to Dorsey.  Reider appealed the order. 

 

On appeal, Dorsey argued that Reider created a foreseeable zone of risk because (1) he failed to lock the doors of his truck before he went into the bar or at the time he accosted Dorsey in the parking lot; and (2) he thwarted Dorsey's efforts to escape after Noordhoek retrieved the tomahawk from Reider's vehicle.   The Third District Court of Appeal disagreed and held that Reider did not owe a duty of care to Dorsey, as a duty of care could exist only if keeping a tool in a truck “has so frequently previously resulted in the same type of injury or harm that in the field of human experience the same type of result may be expected again.”  The court further held that while Reider’s resistance to Dorsey's effort to escape enabled the strike, there was no record evidence that Reider colluded with Noordhoek to harm Dorsey, or that Reider knew Noordhoek had the tomahawk in his hand before the strike. 

 

Supreme Court Proceedings

 

The supreme court noted that it recognized in McCain that a duty of care arises from four potential sources, including the general facts of the case.  Whether a common law duty flows from the general facts of the case depends upon an evaluation and application of the concept of foreseeability of harm.  When a person’s conduct is such that it creates a “foreseeable zone of risk” posing a general threat of harm to others, a legal duty will ordinarily be recognized to ensure the conduct is carried out reasonably.

 

The supreme court stated that it cautioned in McCain that it is important to note the difference between the type of foreseeability required to establish duty as opposed to that which is required to establish proximate causation – establishing the existence of duty is primarily a legal question and requires demonstrating that the activity at issue created a general zone of foreseeable danger of harm to others.  Establishing proximate cause requires a factual showing that the dangerous activity foreseeably caused the specific harm suffered. 

 

The supreme court found that Reider’s conduct in blocking Dorsey’s escape from the situation created a foreseeable zone of risk posing a general threat of harm to others, thus establishing a legal duty on the part of Reider.  The supreme court then analyzed whether this duty of care extended to the misconduct of Noordhoek, a third party, and held that it did, as the facts of this case met the exception to the general rule that a party has no legal duty to prevent the misconduct of third persons.  In particular, Reider was present and had the ability to control access to his truck where the tomahawk was located.  Furthermore, Reider not only provided access to the tomahawk, but he blocked Dorsey’s escape and was present when the tomahawk was used to injure Dorsey.  Finally, and significantly, Reider was in a position to retake control of the tomahawk and prevent an injury, as Dorsey testified that when Noordhoek took the tomahawk out of Reider’s truck, Dorsey asked Reider, “Bobby, what is this?”  Ten or fifteen seconds passed before Dorsey was then struck.  In this amount of time, Reider had the opportunity to prevent the injury.

 

The district court thus misapplied the supreme court’s precedent in McCain when it concluded that the evidence failed to demonstrate that Reider owed a legal duty of care to Dorsey under the facts of the case.  The McCain decision does not require that there be evidence that the defendant colluded with the third party to cause harm or knew exactly what form the harm might take – only that his conduct created a general zone of foreseeable danger of harm.  The supreme court quashed the district court’s decision and remanded the case for reinstatement of the trial court’s judgments.

 

 

Image courtesy of Flickr by Alan English.

Tags:

Florida Supreme Court Strikes Down Wrongful Death Non-Economic Damages Cap for Med Mal Cases

 

On March 13, 2014, the Florida Supreme Court, in a 5-2 ruling, issued its long-awaited opinion following review of the Eleventh Circuit Court of Appeal’s decision in Estate of McCall v. United States, 642 F.3d 944 (11th Cir. 2011), and answered the following rephrased certified question in the affirmative:

Does the statutory cap on wrongful death noneconomic damages, Fla. Stat. §766.118, violate the right to equal protection under Article I, Section 2 of the Florida Constitution?

 

The Supreme Court did not address three additional questions certified by the Eleventh Circuit.

 

To read the Court’s opinion, click here. 

 

Background and Earlier Court Proceedings

Hours after giving birth, Michele McCall went into shock and cardiac arrest as a result of severe blood loss.  She never regained consciousness and was removed from life support. The Estate of Michele McCall, Mrs. McCall’s parents, and the father of Mrs. McCall’s son sued the United States under the Federal Tort Claims Act, as Mrs. McCall’s care took place at a military hospital.  The United States District Court for the Northern District of Florida found the United States liable and determined that the plaintiffs’ economic damages totaled $980,462.40 and that their non-economic damages totaled $2,000,000.00.  However, the district court limited the plaintiffs’ total recovery of non-economic damages to $1,000,000.00 pursuant to Florida Statutes §766.118(2) (2005), which imposes a cap on wrongful death non-economic damages in medical malpractice cases. 

 

§766.118(2) provides:

 

(2) Limitation on noneconomic damages for negligence of practitioners.--

 

(a) With respect to a cause of action for personal injury or wrongful death arising from medical negligence of practitioners, regardless of the number of such practitioner defendants, noneconomic damages shall not exceed $500,000 per claimant. No practitioner shall be liable for more than $500,000 in noneconomic damages, regardless of the number of claimants.

 

(b) Notwithstanding paragraph (a), if the negligence resulted in a permanent vegetative state or death, the total noneconomic damages recoverable from all practitioners, regardless of the number of claimants, under this paragraph shall not exceed $1 million. In cases that do not involve death or permanent vegetative state, the patient injured by medical negligence may recover noneconomic damages not to exceed $1 million if:

 

1. The trial court determines that a manifest injustice would occur unless increased noneconomic damages are awarded, based on a finding that because of the special circumstances of the case, the noneconomic harm sustained by the injured patient was particularly severe; and

 

2. The trier of fact determines that the defendant's negligence caused a catastrophic injury to the patient.

 

(c) The total noneconomic damages recoverable by all claimants from all practitioner defendants under this subsection shall not exceed $1 million in the aggregate.

 

On appeal to the Eleventh Circuit, the plaintiffs argued that the statutory cap violates the Equal Protection Clause and constitutes an unlawful taking.  They also asserted that the cap violates numerous provisions of the Florida Constitution.  The Eleventh Circuit held that §766.118 does not constitute a taking in violation of the Florida Constitution and that it does not violate either the Equal Protection Clause or the Takings Clause of the U.S. Constitution.  However, the court certified to the Florida Supreme Court four questions regarding the remaining challenges to the statutory cap under the Florida Constitution.

 

Supreme Court Proceedings

The Florida Supreme Court found that §766.118 violates the Equal Protection Clause of the Florida Constitution, which provides that all natural persons are equal before the law, because the cap on wrongful death non-economic damages imposes unfair, illogical burdens on injured parties when medical negligence gives rise to multiple claims.  Claimants in cases involving multiple claims do not receive the same rights or full compensation as compared to claimants in cases involving one claim.  In this case, three separate non-economic damage determinations were assessed by the district court.  The damages suffered by Mrs. McCall’s parents were determined to be $750,000.00 each and the damages suffered by Mrs. McCall’s surviving son were determined to be $500,000.00.  Applying the caps, the federal court reduced these amounts so that each claimant would receive only half of his or her respective damages.  However, if Mrs. McCall had been only survived by her son, he would have recovered the full amount of his non-economic damages:  $500,000.00.  Thus, the cap limited the recovery of a surviving child simply because others also suffered losses. 

 

The Court stated that in addition to causing discrimination between classes of claimants, the caps also violate Florida’s Equal Protection Clause because they bear no rational relationship to a legitimate state objective.  In analyzing this issue, the Court analyzed at length the Florida Legislature’s justification for the caps – the alleged medical malpractice insurance crisis in Florida – and found that there was no support for such a conclusion.  Moreover, even if there were such a crisis, there was no evidence that the statutory caps alleviated the crisis.  Finally, even if there were a crisis when §766.118 was enacted, no rational basis existed to justify the continued use of the caps. 

 

Conclusion

 

In sum, the Court held that the caps on wrongful death non-economic damages set forth in §766.118 violate the Equal Protection Clause of the Florida Constitution.  As the Court made clear, however, “The legal analyses for personal injury damages and wrongful death damages are not the same.  The present case is exclusively related to wrongful death, and our analysis is limited accordingly.”  As such, the Court’s opinion is not applicable to the caps in place when a medical malpractice claimant does not die.

 

 

Tags:

Florida High Court Liberally Construes Self-Insured Retention Endorsement

 

             On February 6, 2014, the Florida Supreme Court took a liberal view of self-insured retentions (SIRs) and held that an insured can apply indemnification payments from a third party to satisfy its SIR under a general liability policy.  See Intervest Constr. of Jax, Inc. v. Gen. Fid. Ins. Co., 39 Fla. L. Weekly S75, 2014 WL 463309 (Fla. Feb. 6, 2014) (to read the slip opinion click here).  The Court decided the case on two certified questions from the Eleventh Circuit Court of Appeals. 

            General Fidelity issued a general liability insurance policy to a homebuilder with an SIR of $1 million.  The SIR endorsement stated that General Fidelity would provide coverage only after the insured had exhausted the $1 million SIR.  The homebuilder contracted with a third-party to, among other things, install attic stairs in a house under construction.  The contract between the homebuilder and the subcontractor contained an indemnification provision requiring the subcontractor to indemnify the homebuilder for any damages resulting from the subcontractor’s negligence.

            After the house was built, the homeowner fell while using the attic stairs and sued only the homebuilder for her injuries.  The homebuilder sought indemnification from the subcontractor.  Following mediation the parties and their insurers agreed to settle the homeowner’s claim for $1.6 million with the subcontractor’s insurer paying the homebuilder $1 million to settle the homebuilder’s indemnification claim against the subcontractor; the homebuilder would then pay the $1 million to the homeowner.  A dispute then arose as to whether the homebuilder or its insurer was responsible for paying the $600,000 settlement balance.

            The homebuilder argued that the $1 million contribution from the subcontractor’s insurer satisfied its SIR obligation and that General Fidelity was required to pay the remaining $600,000.  General Fidelity, on the other hand, argued that the $1 million payment to settle the indemnity claim did not reduce the SIR because the payment originated from the subcontractor, not its insured.  Thus, General Fidelity maintained that the terms of the policy required its insured—the homebuilder—to pay the additional $600,000 to settle the homeowner’s claim.

            The Court adopted the position advanced by General Fidelity.  While the SIR endorsement required that the payment be “made by the insured,” the Court looked to other policies’ SIR provisions that contained more restrictive language.  These other policies specify that the SIR must be paid from the insured’s “own account” or make clear that payments from additional insureds or insurers could not satisfy the SIR.  Because the General Fidelity policy did not employ this more restrictive language, the Court took a more expansive view of General Fidelity’s SIR endorsement.

            The second prong of the dispute centered around whether the transfer of rights provision in the General Fidelity policy gave General Fidelity priority over its insured to the $1 million that the subcontractor’s insurer paid.  If it did, then the homebuilder could not claim the $1 million as satisfying the SIR.  The majority found that the provision did not give General Fidelity priority over its insured.  The majority rested it conclusion on the fact that the provision “does not address the priority of reimbursement nor does the clause provide that it abrogates the ‘made whole doctrine.’”

            Justices Polston and Canady dissented.  They believed the majority had “rewritten” the SIR provision “to allow satisfaction of the self-insured retention limit in a manner other than the manner specifically provided for in the policy.”  They also characterized the majority’s reasoning as creating a “legal fiction” that “effectively reads the phrase ‘by you’ out of [the SIR endorsement].”

            To view the history of this case in the Florida Supreme Court, please click here. 

            Image courtesy of Flickr by Alan Cleaver.

Tags:

Amendments to Florida Rules of Civil Procedure Effective January 1, 2014

The Florida Supreme Court has adopted various amendments to the rules of civil procedure that became effective on January 1, 2014.  To see all of the redlined changes and to read the decision of the Court adopting these changes, please click here.  The significant changes are highlighted below.

Deadline Changes

            The amendments made noteworthy changes to the deadlines for certain post-trial motions.

 

Motion

 

 

Rule

 

Old Rule

 

New Rule

 

Service of motion for judgment in accordance with motion for directed verdict

 

1.480(b)

 

10 days after return of verdict

 

15 days

 

Service of a motion for new trial or for rehearing

 

1.530(b)

 

10 days after return of verdict in a jury action or the date of filing of the judgment in a non-jury action

 

15 days

 

Order of rehearing or new trial on court’s initiative

 

1.530(d)

 

10 days after entry of judgment or within the time of ruling on a timely motion for rehearing or a new trial may by the party

 

15 days

Substantive Rule Changes

Rule 1.431 (Trial Jury) – The Court added paragraph (i) which addresses communications between the judge or courtroom personnel and the jury.  It specifies what communications must be on the record, what communications may be off the record, how jurors should be instructed regarding the limitations on communications, and when courtroom personnel should notify the court of juror communications.

Rule 1.442 (Proposals for Settlement) – A proposal no longer has to “identify the claim or claims the proposal is attempting to resolve.”  Instead, the proposal must “state that the proposal resolves all damages that would otherwise be awarded in a final judgment in the action in which the proposal is served.”  Subdivision (F) still requires offerors to “state whether the proposal includes attorneys’ fees and whether attorneys’ fees are part of the legal claim.”

Rule 1.451 (Taking Testimony) – This is a new rule that allows the parties to agree, or one or more parties to request, that the court authorize presentation of witness testimony by contemporaneous video or audio communications equipment.  It states the general rule that a witness must be physically present when testifying at a hearing or trial unless otherwise provided by law or rule.

Rule 1.490 (Magistrates) – This rule was amended to:  require that the notice or order setting a hearing before a magistrate state if electronic recording or a court reporter will be used; allow the magistrate to examine “all witnesses produced by the parties”;  require the magistrate to include certain bolded language in his report; require the filing (not service) of exceptions within 10 days from time of service of the report; specifies that cross-exceptions must be filed within 5 days after service of the exceptions; and require the party filing exceptions to provide to the court a record sufficient to support the exceptions.

Form Changes

            The Court also amended the subpoena forms to require a person with a disability to notify the appropriate person of any needed assistance at least 7 days before the person’s scheduled appearance or immediately upon receipt of the subpoena if the time before the scheduled appearance is less than 7 days.  This change affects:  Rules 1.910 (Subpoena for Trial); 1.911 (Subpoena Duces Tecum for trial); 1.912 (Subpoena for Deposition); 1.913 (Subpoena Duces Tecum for Deposition); 1.922 (Subpoena Duces Tecum without Deposition); and 1.982 (Contempt Notice).

           

 

Florida Supreme Court Clarifies the Scope of Discovery of Records of Adverse Medical Incidents and Reaffirms Buster

On January 30, 2014, the Florida Supreme Court concluded its review of Cedars Healthcare Group, Ltd. v. Ampuero-Martinez, 88 So. 3d 190 (Fla. 3d DCA 2000), (Case Nos. SC11-2208 and SC11-2336), by quashing the Third District’s decision and remanding the case for reconsideration by the Third District pursuant to Florida Hospital Waterman, Inc. v. Buster, 984 So. 2d 478 (Fla. 2008).

Background

The right to discovery of records of adverse medical incidents was created by the passage of Amendment 7 to the Florida Constitution in November 2004.  The Florida Legislature enacted § 381.028 in 2005 to clarify the operation and effect of the amendment.  The amendment and statute engendered a firestorm of litigation over their constitutionality, scope and enforcement and resulted in numerous district court and Florida Supreme Court decisions that tried to calm the storm.

District Court Proceedings

The Third District granted and denied in part a petition for writ of certiorari filed by a defendant-medical center requesting the court to quash the trial court’s order requiring production of documents requested by the plaintiff in a request for production.  Though the medical center raised numerous grounds in its petition, the Third District granted the petition solely on the ground that the request to produce asked for records of adverse medical incidents involving patients other than the plaintiff, without limiting the production of those records to the same or substantially similar condition, treatment, or diagnosis as the plaintiff as required by section 381.028(7)(a), Florida Statutes.  Section 381.028(7)(a) provides that “the adverse medical incident records to which a patient is granted access are those of the facility or provider of which he or she is a patient and which pertain to any adverse medical incident affecting the patient or any other patient which involves the same or substantially similar condition, treatment, or diagnosis as that of the patient requesting access.”

The Third District held that by not limiting the request as required by section 381.028(7)(a), the trial court departed from the essential requirements of the law.  The Third District quashed the portion of the trial court’s order requiring the medical center to produce records of adverse medical incidents that were not limited to the same or substantially similar condition, treatment, or diagnosis of the plaintiff.

Supreme Court Decision

Though the case settled after the parties completed briefing, the supreme court retained jurisdiction and decided the case without oral argument.

The supreme court stated that in Buster, decided three years prior to the Third District’s decision below, it declared subsection 7(a) of section 381.028 invalid, as it “unconstitutionally impinge[d] upon the rights granted pursuant to amendment 7 . . . .”  Holding that the Third District’s reliance on subsection (7)(a) impermissibly conflicts with Buster, the supreme court quashed the Third District’s decision and remanded the case for reconsideration by the district court pursuant to Buster.

 

 

Florida Appellate Court Construes Term "Legal Relationship" in Med-Mal Presuit Screening Rule

On January 3, 2014, Florida’s Second District Court of Appeal held, in a case of first impression, that a medical malpractice plaintiff’s direct notice to a medical provider of its intent to sue would also operate as notice to a physician who was an independent contractor of the medical provider.  To read the full opinion click here. 

In Young v. Naples Community Hospital, Inc., No. 2D12-3679, 2014 WL 26040 (Fla. 2d DCA Jan. 3, 2014), the plaintiffs, Mr. and Mrs. Young, brought a medical malpractice action against Naples Community Hospital, Naples Radiologists, the local provider of the hospital’s radiological services, Nighthawk Radiology Services, the company that provided nighttime radiological services for Naples Radiologists, and Jason Grennan, M.D., an independent contractor with Nighthawk.  Mrs. Young went to the hospital complaining of severe abdominal pain.  She underwent a CT scan that was read by Dr. Grennan as “unremarkable.”  After her admission to the hospital, Mrs. Young underwent additional testing which revealed a blood clot that required immediate surgery.  She was discharged on April 12, 2006, following complications in the recovery process. 

The plaintiffs alleged that the initial misreading of Mrs. Young’s CT scan by Dr. Grennan was the cause of her complications and that the contractual relationships between all of the defendants resulted in the CT scan going to Dr. Grennan for review.  On April 1, 2008, the plaintiffs gave notice of their intent to initiate a lawsuit to Naples Radiologists and on June 17, 2008, gave their notice of intent to initiate a lawsuit to Nighthawk and Dr. Grennan.  On August 28, 2008, the plaintiffs sued all defendants, who moved for summary judgment on the ground that the plaintiffs failed to serve their notices of intent within the two-year statute of limitations.  The trial court denied the motions of the hospital and Naples Radiologists, but granted the joint motion of Nighthawk and Dr. Grennan.  In its order, the trial court determined that the plaintiffs were required to file their notice of intent by May 8, 2008 and that the plaintiffs’ June 17, 2008 notice to Nighthawk and Dr. Grennan was untimely.

On appeal, the plaintiffs argued that their notice to Naples Radiologists on April 1, 2008 constituted timely notice to Nighthawk and Dr. Grennan, as Nighthawk and Dr. Grennan were in a “legal relationship” with Naples Radiologists per Florida Rule of Civil Procedure 1.650.  That rule provides that “notice of intent to initiate litigation sent  . . . to . . . any prospective defendant shall operate as notice to the person and any other prospective defendant who bears a legal relationship to the prospective defendant receiving the notice.” The Second District disagreed with the position of Nighthawk and Dr. Grennan that the term “legal relationship” refers only to employees or servants.  The court noted that there is no definition of “legal relationship” in the rule. The court also noted that in their answer to the plaintiffs’ complaint, Nighthawk and Dr. Grennan admitted that Nighthawk had a contractual relationship with Naples Radiologists and that Dr. Grennan was an independent contractor for Nighthawk. The Second District held that these are business relationships defined by the law of contracts that bestow legal rights and legal obligations upon the parties to the relationships.  As such, timely notice to Naples Radiologists was notice to Nighthawk and Dr. Grennan, rendering summary judgment improper as a matter of law.

Florida Supreme Court Compels Legislator Depositions in Redistricting Case

On December 13, 2013, the Florida Supreme Court decided that Florida legislators and legislative staff members can be forced to give deposition testimony and produce documents relating to legislation establishing new congressional districts.  See Fla. House of Representatives v. League of Women Voters of Fla.; Romo v. Fla. House of Representatives, Nos. SC13-949 & SC13-951.  For a summary of the proceedings leading up to the Florida Supreme Court’s decision, please click here.  To read the Court’s opinion, click here.

In a 5-2 opinion the Florida high court held that the legislative privilege is founded on the constitutional principle of separation of powers, but declared that the privilege is not absolute when there is a competing interest of effectuating the explicit constitutional mandate that prohibits partisan political gerrymandering and improper discriminatory intent in redistricting.  The Court concluded that “there is no unbending right for legislators and legislative staff members to hide behind a broad assertion of privilege to prevent the discovery of relevant evidence necessary to vindicate” the prohibition against political gerrymandering and improper discriminatory intent.  The Court rejected the Legislature’s argument that requiring the testimony of individual legislators and legislative staff members will have a “chilling effect” on the reapportionment process.  Instead, the Court found that “this type of ‘chilling effect’ was the precise purpose of the constitutional amendment outlawing partisan political gerrymandering and improper discriminatory intent.”

Justice Charles Canady, who authored a strong dissent joined by Chief Justice Ricky Polston, considered the majority’s decision “unprecedented.” He characterized the majority’s approach as “the exercise of unfettered judicial discretion,” and “the nadir of judicial restraint.”  He believed the majority’s view “works a radical change in the relationship between the judicial branch and the legislative branch by thrusting judicial officers into the internal workings of the legislative process.”

No parties filed a post-decision motion and the decision is now final.

Florida High Court To Examine Exculpatory Clauses That Do Not Specifically Reference Negligence

On November 5, 2013, the Florida Supreme Court heard oral argument in a case examining whether a release clearly and unambiguously releases the defendant from liability for a plaintiff’s physical injuries when the release does not expressly reference the defendant’s negligence.  See Sanislo v. Give Kids The World, Inc., 98 So. 3d 759 (Fla. 5th DCA 2012) (No. SC12-2409).

Give Kids The World, Inc. (“GKTW”) provides free vacations to sick children and their families at its resort.  Stacy and Eric Sanislo are the parents of a young girl with a serious illness who wished to participate in GKTW’s program.  The Sanislos executed a liability release in connection with a “wish request” that benefitted their daughter.  The release stated:

I/we hereby release Give Kids the World, Inc. . . . from any liability whatsoever in connection with the preparation, execution, and fulfillment of said wish . . . .  The scope of the release shall include, but not be limited to, damages or losses or injuries encountered in connection with . . . physical injury of any kind . . . .

I/we further agree to hold harmless and to release Give Kids the World, Inc. from any and all claims and causes of action of every kind arising from any and all physical or emotional injuries and/or damages which may happen to me/us . . . .

During the family’s stay at the resort, Mrs. Sanislo was injured.  The Sanislos sued GKTW, alleging that Mrs. Sanislo’s injuries were caused by GKTW’s negligence.  GKTW moved for summary judgment based on the release.  The trial court denied the motion and, following a jury verdict, entered judgment in favor of the Sanislos.  GKTW appealed, arguing that it was entitled to summary judgment because of the release.

While exculpatory clauses are disfavored under the law, unambiguous exculpatory contracts are enforceable unless they contravene public policy.  The Sanislos argued that the release was not clear and unambiguous because it applied to liability arising “in connection with the preparation, execution, and fulfillment of said wish” and that the nature and scope of the wish was not clear or defined.  The Fifth District stated that it has expressly “rejected the need for express language referring to release of the defendant for negligence or negligent acts in order to render a release effective to bar a negligence action.”  The Fifth District therefore held that the wish, which was requested by the Sanislos, clearly encompassed events at the resort related to their stay and that the Sanislos’ interpretation of the clause was not likely the interpretation that an “ordinary and knowledgeable person” would give it.  Thus, the release was sufficiently clear to make the Sanislos aware of the breadth of the scope of the release and what rights they were contracting away.  The court stated that the ability to predict each and every potential injury is not required to uphold an exculpatory provision within a release.

The Fifth District also considered the parties’ relative bargaining power in determining the enforceability of the release.  Florida courts have refused to find an inequality of bargaining power in recreational settings.  GKTW also argued that the bargaining power of the parties was not unequal, because the Sanislos voluntarily participated in the program.  The Sanislos disagreed and argued that they were given a contract and GKTW gave them no choice but to sign the release in order to participate in the program.  The Fifth District held that the bargaining power of the parties was not unequal; the Sanislos were provided with the release and they made a decision to waive certain rights in order to participate in the program.  The Fifth District reversed the trial court and certified conflict with the First, Second, Third, and Fourth District Courts of Appeal.

The author will update this article after the Florida Supreme Court has ruled.

 

 

 

 

Florida High Court Reinstates $1.2 million Judgment Against Law Firm of Prospective Client

 

             On October 24, 2013, the Florida Supreme Court reinstated a $1.2 million final judgment awarded to a prospective client of a personal injury law firm who sat in a chair that collapsed during a consultation at the firm.  See Friedrich v. Fetterman & Assocs., P.A., No. SC11-2188, 2013 WL 5745617 (Fla. Oct. 24, 2013) (to read the slip opinion, click here).  The issue in the case centered around whether plaintiff’s expert’s testimony was legally sufficient to establish causation.  In finding that it was legally sufficient, the supreme court quashed the Fourth District Court of Appeal’s decision vacating the judgment.

            The facts are straightforward.  Following a car accident, Robert Friedrich met with an attorney at the personal injury firm of Fetterman & Associates, P.A. regarding possible legal representation.  The conference room chair Friedrich was sitting on collapsed, causing Friedrich injuries.  Friedrich in turn sued Fetterman for negligently failing to warn him of the chair’s dangerous condition. 

            At trial, it was undisputed that the chair had a defect that was not visible to the naked eye and that none of the chairs in the conference room had any prior problems.  Plaintiff’s expert testified that he inspects his own chairs every six months by performing a “flex test.”  He also testified that it was possible to inspect a chair today, find no problem, and have it fail tomorrow.  As for the chair in question, he testified that a hands-on inspection of it before the accident would have found the defect.  Fetterman’s expert, on the other hand, testified that the best test for a chair is to sit on it and that a reasonable inspection, including a flex test, would not have revealed the defect in the subject chair.

            The trial court denied Fetterman’s multiple motions for a directed verdict and the jury returned a verdict in favor of Friedrich.  On appeal, the Fourth District reversed the trial court and ordered that a directed verdict be entered in favor of Fetterman.  The supreme court quashed the Fourth District’s decision, concluding that it “impermissibly reweighed the evidence and substituted its own evaluation of the evidence in place of that of the jury.”  The Court concluded that there was sufficient proof to support the jury’s finding that the defendant’s negligence “probably caused” the plaintiff’s injury.

            Chief Justice Polston dissented with an opinion and Justice Canady concurred in the dissent.  As a threshold issue, Justice Polston believed that there was no basis for the Court to exercise conflict jurisdiction over the case.  He next stated that the majority failed to mention two critical aspects of the testimony of plaintiff’s expert that he believed supported the directed verdict:  (1) he testified that he had no opinion as to how quickly the failure in the chair occurred and that the weakened condition could have manifested in seconds, minutes, hours, days, or weeks before the accident; and (2) he conceded that the defect may not have been detectable by an inspection until just before the collapse and offered “no time frame concerning how long before the accident such testing would have been effective.”

            The Court’s decision will not be final until the time to file a motion for rehearing expires or until the Court decides any filed motions for hearing.  To check on the current status of this case, please click here. 

Florida High Court to Examine Retroactive Application of Noneconomic Damages Cap in Med Mal Cases

            

            On October 15, 2013, the Florida Supreme Court accepted review of a case to decide whether the retroactive application of the cap on noneconomic damages for certain medical malpractice cases found in section 766.118, Florida Statutes is constitutional.  See Weingrad v Miles, 29 So. 3d 406 (Fla. 3d DCA 2010).

            In the trial court, the jury found in favor of the plaintiffs and awarded them $1.5 million in noneconomic damages:  $1.45 million for the patient’s pain and suffering and $50,000 for her husband’s consortium claim.  The trial court denied the defendant-doctor’s motion to limit the judgment pursuant to the statutory cap.  The applicable statutory cap would have limited the plaintiffs’ total recovery to $500,000.  See § 766.118(2)(a), Fla. Stat.

            On appeal, the Third District reached the opposite conclusion.  It first found that the statute at issue was substantive in nature and that the legislature expressed clear legislative intent for retroactive application.  On the third prong of the analysis—whether plaintiffs had vested rights that were impaired—the district court found that they “had at most a ‘mere expectation’ or a prospect that they might recover damages of an indeterminate amount at an unspecified date in the future.”  The court based this conclusion on the fact that plaintiffs did not file their notice of intent, file their complaint, or obtain a judgment before the enactment of the statute.

            The parties are presently briefing the issues in the supreme court.  The author will update this article once the supreme court decides the case.  To check on the status of this case, please click here. 

            The supreme court is also reviewing in a different case whether the statutory cap on noneconomic damages is unconstitutional on other grounds.  See Estate of McCall v. United States, No. SC11-1148 (review granted June 14, 2011). That case is awaiting a decision. 

Florida High Court to Examine Proximate Cause in Negligent Security Case

 

On August 2, 2013, the Florida Supreme Court accepted review of a case to examine the issue of proximate cause in a negligent security case. See Sanders v. ERP Operating Ltd. Partnership, 96 So. 3d 929 (Fla. 4th DCA 2012) (No.SC12-2416).Two young adults moved into an apartment complex marketed as a “gated community.” Water surrounded approximately 70% of the complex and a fence surrounded the remainder. The complex had a policy of providing reasonable lighting, locks, and peepholes. The apartments contained alarm systems, which the residents could activate.  

A year after they moved in, the victims were shot to death by unknown assailants inside their apartment.  While there was no sign of forced entry, cash and other valuables were stolen from the apartment.

The plaintiff, as personal representative of the decedents’ estates, filed a complaint alleging that the complex owner’s negligence was a proximate cause of the deaths. The complaint alleged that the complex owner did not maintain the premises in a reasonably safe condition by failing to: (1) maintain the front gate; (2) have adequate security; (3) prevent dangerous persons from gaining access to the premises; and (4) protect and warn residents of dangerous condition and criminal acts. The complex owner had a manual recommending notice to residents when a “significant crime” occurred on the property, especially a violent crime or forced-entry burglary.  The owner did not notify the residents of 20 criminal incidents that occurred in the 3 years before the decedents’ murders.  Three years before the murders, there was an armed robbery and assault on the property after the perpetrators broke the entrance gate and followed residents onto the property. The gate was broken for about 2 months before the murders.

The owner’s expert, a security consultant, testified that the murders were not foreseeable because the 20 prior crimes were not violent crimes or predictive of future homicides.  The expert opined that the existing security measures were more than reasonable and that there was no sign of forced entry and that he believed that the door was opened to the person that committed the murders.

The plaintiff’s expert, a criminology expert, testified that most of the prior crimes at the complex were opportunistic and that the murders also occurred in the course of an opportunistic crime (i.e., a home invasion).  The expert conceded, however, that there had not been a murder, shooting, or rape at the complex previously and that there was no way of knowing precisely how the murders took place.

The defendant moved for a directed verdict arguing that the plaintiff had not established proximate cause.  The trial court denied the motion.  The jury found the defendant 40% comparatively negligent and awarded damages of $4.5 million.  The defendant moved for a new trial and a judgment notwithstanding the verdict, which the trial court denied.

In negligence actions, Florida courts follow the “more likely than not” standard of causation and require proof that the negligence “probably” caused the plaintiff’s injuries. In this case, although there was evidence to support a breach of duty to provide adequate security, the plaintiff could not establish that the breach was the proximate cause of the murders.  The victims were murdered inside their apartment, there was no sign of a forced entry, and the plaintiff’s expert acknowledged that it was unknown what happened on the night of the murders.  Without proof of how the assailants gained entry into the apartment, the appellate court concluded that the plaintiff could not prove causation.  As such, the appellate court reversed and remanded the matter to the trial court.

The parties concluded their briefing on October 7, 2013.  Because the Florida Supreme Court dispensed with oral argument, it should release its decision in the next 3 to 6 months. I will update this article after the Florida Supreme Court has ruled.

 

 

Florida Supreme Court Poised Again to Clarify the Scope of the Discovery of Records of Adverse Medical Incidents

The Florida Supreme Court has accepted review of the Third District’s decision in Ampuero-Martinez v. Cedars Healthcare Group, 88 So. 3d 190 (Fla. 3d DCA 2000), (Case Nos. SC11-2208 and SC11-2336), which will decide when the discovery of records of adverse medical incidents may extend to patients other than a plaintiff.

Background

The right to discovery of records of adverse medical incidents was created by the passage of Amendment 7 to the Florida Constitution in November 2004.  The Florida Legislature enacted § 381.028 in 2005 to clarify the operation and effect of the amendment.  The amendment and statute engendered a firestorm of litigation over their constitutionality, scope and enforcement and resulted in numerous district court and Florida Supreme Court decisions that tried to calm the storm.

Proceedings Below

On September 21, 2011, the Third District granted and denied in part a petition for writ of certiorari filed by a defendant-medical center requesting the court to quash the trial court’s order requiring production of documents requested by the plaintiff in a request for production.  Though the medical center raised numerous grounds in its petition, the Third District granted the petition solely on the ground that the request to produce asked for records of adverse medical incidents involving patients other than the plaintiff, without limiting the production of those records to the same or substantially similar condition, treatment, or diagnosis as the plaintiff as required by § 381.028(7)(a), Florida Statutes.

The Third District held that by not limiting the request as required by § 381.028(7)(a), the trial court departed from the essential requirements of the law.  Thus, the Third District quashed the portion of the trial court’s order requiring the medical center to produce records of adverse medical incidents that were not limited to the same or substantially similar condition, treatment, or diagnosis of the plaintiff.

Status

Following the completion of briefing on January 28, 2013, the case settled; however, upon motion, the Court decided to retain jurisdiction.  The supreme court will decide this case without oral argument.

Florida High Court to Examine Burden-Shifting in Medical Malpractice Cases

On June 3, 2013, the Florida Supreme Court accepted review of a medical malpractice case to address the issue of whether it is impermissible burden shifting for a defendant-doctor to argue that the plaintiff failed to present testimony from another doctor that he or she would have done anything differently than the defendant-doctor.  See Saunders v. Dickens, 103 So. 3d 871 (Fla. 4th DCA 2012) (No. SC12-2314).

Facts

The plaintiff presented to Dr. Dickens, a neurologist, with symptoms consistent with lumbar stenosis.  Dr. Dickens requested a neurosurgical consultation with Dr. Pasarin, who examined and then operated on the plaintiff’s lumbar spine.  Two months later, when the plaintiff’s condition had not improved, Dr. Pasarin ordered additional MRIs, which showed that the lumbar surgery had not been successful.  Dr. Pasarin determined that the plaintiff had cervical myelopathy and recommended cervical decompression surgery within the next month.  Although the plaintiff was cleared for surgery in November 2003, Dr. Pasarin failed to schedule him for surgery that month.  In December, the plaintiff developed a deep venous thrombosis, which prevented him from undergoing surgery.  The plaintiff was thereafter never able to have the cervical surgery and was ultimately rendered a quadriplegic.

The Trial

After the plaintiff settled with the hospital, the surgical group, and Dr. Pasarin, the case proceeded to trial against Dr. Dickens only.  The plaintiff’s surgical expert testified that had the plaintiff received a neck operation to remove the compression when he first presented to Dr. Dickens, the plaintiff would not have become a quadriplegic.  The defense presented expert testimony that Dr. Dickens met the standard of care and that the plaintiff’s problems were related to his lumbar disc disease. The defense also introduced the deposition testimony of Dr. Pasarin, who testified that nothing in Dr. Dickens’ note would have prompted him to order an MRI of the neck.  Dr. Pasarin also testified that had Dr. Dickens ordered a cervical MRI at that point, and had the findings been identical to those seen in later films, he would still not have performed neck surgery if his exam did not find upper extremity dysfunction.  Dr. Dickens moved for a directed verdict, arguing that Dr. Pasarin’s testimony made it impossible for the plaintiff to prove that Dr. Dickens’ negligence caused the plaintiff’s damages.  The trial court denied the motion, reasoning that the issue was for the jury.

During closing arguments, defense counsel argued that there was no causation, relying on Dr. Pasarin’s testimony that he would have done nothing differently if he had seen an MRI of the plaintiff’s cervical spine when he first presented to Dr. Dickens. Defense counsel argued that the plaintiff needed to prove and did not prove that “but for Dr. Dickens not doing the [neck] MRI, Dr. Pasarin would have operated on [the plaintiff’s] neck in July.”  Counsel for the plaintiff objected that this was not a correct statement of the law and argued that defense counsel was improperly shifting the burden of proof on the issue of Dr. Pasarin’s negligence, which was an affirmative defense that Dr. Dickens had the burden to prove.  The jury returned a verdict finding no negligence on Dr. Dickens’ part that was a legal cause of injury to the plaintiff. 

Appeal

The plaintiff argued on appeal that defense counsel’s closing argument was improper and warranted a new trial.  The Fourth District, however, held that defense counsel’s causation argument was not improper, based on its own precedent.  In Ewing v. Sellinger, 758 So. 2d 1196 (Fla. 4th DCA 2000), the Fourth District concluded that the plaintiffs failed to prove causation where the obstetrician’s alleged negligence would not have affected the treatment decision of a subsequent physician and thus would not have affected the patient’s outcome.

The Fourth District noted that two of its sister courts have rejected its reasoning in Ewing.  In Goolsby v. Qazi, the Fifth District stated, “We disagree with Ewing if it means that the negligent failure to diagnose a condition cannot be the cause of damages if a subsequent treater testifies that he would have shrugged off the correct diagnosis.”  In Munoz v. South Miami Hospital, Inc., the Third District stated, “What the [non-party] doctor might or might not have done had he been adequately warned is not an element plaintiff must prove as a part of her case.”

Despite the foregoing, the Fourth District held that defense counsel's closing argument on causation was proper. The Fourth District noted that unlike in Ewing, the trial court in the case before it declined to grant the defendant's motion for a directed verdict, and, instead, submitted the case to the jury, thus allowing the plaintiff to argue to the jury in closing why they should reject Dr. Dickens's causation argument.

The parties are currently in the midst of the briefing process.  Oral argument will be scheduled at a later date.

Florida Supreme Court to Decide Whether the Florida Civil Rights Act Prohibits Pregnancy Discrimination

            The Florida Supreme Court has granted review to resolve a conflict between two of Florida’s district courts of appeal on whether the Florida Civil Rights Act (FCRA) prohibits pregnancy discrimination.  In Delva v. Continental Group, Inc., 96 So. 3d 956 (Fla. 3d DCA 2012), the Third District Court of Appeal concluded that the FCRA, which provides that it is unlawful for an employer to discriminate against an individual on the basis of sex, does not prohibit pregnancy discrimination.  The Third District certified conflict with the Fourth District Court of Appeal’s decision in Carsillo v. City of Lake Worth, 995 So. 2d 1118 (Fla. 4th DCA 2008), which held the opposite. 

            The FCRA (formerly known as the Florida Human Relations Act and the Florida Human Rights Act) was enacted five years after the Civil Rights Act of 1964 (Title VII), and is patterned after it.  In 1978, Congress enacted the Pregnancy Discrimination Act, which amended Title VII by redefining sex discrimination to include discrimination on the basis of pregnancy:  “The terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions.”  42 U.S.C § 2000e(k).  The FCRA, unlike the federal statute, has never been amended to specifically say that pregnancy discrimination is sex discrimination.  In Delva, the Third District, relying on an earlier Florida decision, O’Loughlin v. Pinchback, 579 So. 2d 788 (Fla. 1st DCA 1991), held that because Florida has not amended the Florida Civil Rights Act to add language similar to the Pregnancy Discrimination Act, the Florida legislature did not intend to include pregnancy discrimination in the FCRA.  But the Fourth District, in Carsillo, reasoned that because the FCRA was patterned after Title VII, which considers pregnancy discrimination to be sex discrimination, the FCRA does bar pregnancy discrimination.  “Congress made clear in 1978 that its intent in the original enactment of Title VII in 1964 was to prohibit discrimination based on pregnancy as sex discrimination[.]  [I]t was [therefore] unnecessary for Florida to amend its law to prohibit pregnancy discrimination.”  The Carsillo court based its decision on the principle that Florida courts have “the right and the duty, in arriving at the correct meaning of a prior statute, to consider subsequent legislation,” citing Gay v. Canada Dry Bottling Co. of Florida, 59 So. 2d 788, 790 (Fla. 1952). 

            Florida federal district courts are also divided, some following the O’Loughlin decision (on which Delva was based), but others following Carsillo based on their predictions that the Florida Supreme Court would adopt Carsillo’s reasoning.  A decision from Florida’s highest court will finally resolve this significant issue.

            The supreme court granted review of the case on May 2, 2013 and assigned it Case No. SC12-2315.  Briefing is complete, and oral argument is to be set.  For the current status of the case, click on the case number above.

Florida High Court to Tackle Duty Owed By Person Who Facilitates Attack on Third-Party

On April 23, 2013, the Florida Supreme Court accepted review of a case involving the issue of whether a person in an altercation with another person owes that other person a duty of care when he blocks his means of escape, allowing a third party to strike him from behind with a weapon.  See Reider v. Dorsey, 98 So. 3d 1223 (Fla. 3d DCA 2012) (Fla. Sup. Ct. Case No. SC12-2197).

Trial Court Proceedings

The facts of the case are unique.  Dorsey was drinking with Reider and Reider’s friend, Noordhoek, at a local bar and all were intoxicated.  While in the bar, Reider became belligerent, saying that he wanted to fight everyone.  Dorsey then insulted Reider and walked out of the bar.  Reider and Noordhoek followed him, with Reider demanding to know why Dorsey insulted him.

Dorsey’s path took him between Reider’s parked truck and an adjacent car and as Dorsey walked between the vehicles, Reider managed to trap Dorsey between them.  Noordhoek followed Dorsey between the vehicles.  After several minutes of Reider harassing Dorsey over the epithet he used, Noordhoek reached into Reider’s truck and retrieved a tomahawk, a tool which Reider used as part of his work to help him clear land.  Dorsey attempted to push Reider aside in order to escape and after the two men grappled for about fifteen seconds, Noordhoek suddenly struck Dorsey in the head with the tomahawk, rendering him unconscious.  Noordhoek and Reider fled the scene.  Dorsey regained consciousness and drove himself to the hospital. 

Dorsey sued Reider for negligence and following a jury trial, Reider moved for a judgment in accordance with a prior motion for directed verdict.  The trial court denied the motion and awarded damages to Dorsey.  Reider appealed to the Third District Court of Appeal.

                    Appellate Proceedings

The Third District reversed the entry of judgment for Reider, holding that “Reider did not owe a relevant duty of care to Dorsey when Dorsey was attacked and therefore cannot be held liable for his injuries.” 

This case turned on the three exceptions to the general rule that there is “no duty to control the conduct of a third person to prevent him or her from causing physical harm to another.”  The exceptions arise if, “at the time of the injury, the defendant is in actual or constructive control of: (1) the instrumentality; (2) the premises on which the tort was committed; or (3) the tortfeasor.” It was undisputed that Dorsey was injured by Noordhoek, not Reider.  Dorsey, however, argued that Reider could be held liable under the first and third exceptions.

The appellate court rejected the application of both exceptions.  As for the instrumentality exception, it stated that a duty of care could exist only if keeping a tool in a truck “has so frequently previously resulted in the same type of injury or harm that in the field of human experience the same type of result may be expected again.”   While many people keep tools of their trade in their vehicles, the field of human experience does not lead us to expect that an acquaintance of ours might take such an item from a vehicle in a parking lot and use it to strike another acquaintance in the back of the head.

The appellate court analogized this case to cases where a person uses another person’s gun to shoot someone and the owner of the gun is found not to owe a duty of care to the person who was shot.  A common theme runs through the cases: merely providing access to an instrument—even a potentially dangerous one and even if that access is the result of negligence—does not equate to a duty to control another person's use of that instrument.  Applying that rule to this case, the court stated that the most that could be said is that Noordhoek seized the opportunity to gain access to the tomahawk.  Reider did not affirmatively give it to him, authorize him to take it, or in fact even know he had taken it. Thus, Reider had neither the duty nor the ability to control Nordhoek's conduct.

With regard to the third exception, that Reider created a foreseeable zone of risk by blocking Dorsey’s escape, the appellate court noted that while Reider’s resistance to Dorsey's effort to escape enabled the strike, there was no record evidence that Reider colluded with Noordhoek to harm Dorsey, or that Reider knew Noordhoek had the tomahawk in his hand before the strike.The court concluded from the record that Reider's main purpose for following Dorsey out of the bar was to confront Dorsey about insulting him.  Reider therefore did not create a foreseeable zone of risk and Reider did not owe a relevant duty of care to Dorsey.

   Status Before Florida Supreme Court

The parties have completed their briefing and oral argument is scheduled for October 8, 2013 at 9:00 am.  The author will update this article after the Court decides the case.

 

Florida High Court Upholds Florida's Birth Injury Compensation Plan (NICA)

 

            Last term, the Florida Supreme Court upheld the constitutionality of a state plan that provides up to $100,000 to the parents or legal guardians of an infant found to have sustained a birth-related neurological injury.  See Samples v. Florida Birth-Related Neurological Injury Compensation Ass’n, 114 So. 3d 912 (Fla. 2013) (click here to view the slip opinion).  In so doing, the supreme court agreed with the lower appellate court’s decision (click here to view this decision) and answered the following certified question in the negative:  “Does the limitation in section 766.31(1)(b)1., Florida, Statutes, of a single award of $100,000 to both parents violate the Equal Protection Clause of the United States and Florida Constitutions?”

The Plan

            The Plan, regulated by §§ 766.301-.316, Florida Statutes, was enacted to stabilize and reduce malpractice insurance premiums for obstetricians. To further this goal, the Plan established a limited system of compensation irrespective of fault for certain catastrophic birth-related injuries that result in unusually high costs for custodial care and rehabilitation.  Whether claims are covered by the Plan is determined in an administrative proceeding.

The Decision

            The petitioners’ challenge to the Plan centered around its $100,000 cap of a parental award regardless of whether there was one parent or two parents involved in the claim.  The supreme court rejected all three constitutional challenges to the Plan—it found that it did not violate equal protection guarantees and the right of access to courts and found that it was not unconstitutionally vague. Specifically, the Court found the following on each challenge: 

           Equal Protection: The parental award provision does not treat similarly situated persons differently because all people within the statutory classification of “parents” are treated equally in that all “parents”—whether applying for an award singly or jointly—can receive no more than $100,000.  Limiting the parental award to $100,000 per claim—as        opposed to per parent—is rationally related to maintaining “the actuarial soundness of the Plan.”

           Vagueness:  Because the parental award provision does not require or forbid conduct, the void-for-vagueness doctrine does not apply in this context.

           Access to Courts:  The Plan’s no-fault compensation scheme provides a reasonable alternative remedy to parents’ right to access the courts for redress of their child’s neurological birth-related injury.

            Three justices dissented from the majority. Justices Perry, Pariente and Quince believed that the parental award provision violated equal protection.

Florida Supreme Court to Review Scope of Legislative Privilege in Redistricting Case

 

           One of the cases the Supreme Court of Florida will be considering this Fall concerns “legislative privilege” – specifically, whether Florida legislators or legislative staff members can be forced to give deposition testimony and produce documents relating to legislation establishing new congressional districts.  See Fla. House of Representatives v. League of Women Voters of Fla.; Romo v. Fla. House of Representatives, Nos. SC13-949 & SC13-951, accepted for review July 2, 2013, on review from 113 So. 3d 117 (Fla. 1st DCA 2013).

Proceedings in the Trial Court

           When the Florida Legislature enacted a new redistricting plan in February of 2012, various individuals and organizations filed lawsuits claiming that the plan as a whole, and a number of individual districts, violated the Florida Constitution by impermissibly favoring Republicans and incumbents and by diminishing the ability of minorities to elect representatives of their choice.  The plaintiffs sought an order declaring the plan or the challenged districts unconstitutional and enjoining future elections. 

            Because the constitutional provision alleged to be violated prohibits drawing an apportionment plan with the intent to favor a political party or an incumbent or with the intent to deny or abridge the equal opportunity of minorities to participate in the political process, the plaintiffs served a notice of taking depositions of the Senate Majority Leader and two staff members to obtain evidence of the intent underlying the plan.  The plaintiffs also requested unfiled draft reapportionment maps and related documents.  The Legislature sought a protective order to prevent the depositions and, more broadly, prohibit the deposition of any legislator or legislative staff member based on “legislative privilege,” a privilege earlier established by Florida’s First District Court of Appeal in Florida House of Representatives v. Expedia, Inc. 85 So. 3d 517 (Fla. 1st DCA 2012).

            The trial court granted the Legislature’s motion for protective order in part and denied it in part, acknowledging Expedia, but reasoning that the legislative privilege “must bend somewhat” because of the constitutional requirement that the motive or intent of legislators be considered in determining the validity of the redistricting plan.  The court distinguished between “subjective” and “objective” information and concluded that only the subjective thought processes and confidential communications of legislators and their staff warranted the full protection of legislative privilege.  The court authorized the plaintiffs to depose legislators or staff members regarding objective information or communication that did not encroach on their subjective thoughts or impressions. The court applied the same subjective/objective dichotomy to the maps and documents, but ordered an in camera review.  The Legislature petitioned the First District Court of Appeal for certiorari review of the trial court’s order.

Proceedings in the First District Court of Appeal

            The First District quashed the trial court’s order.  To view the First District’s slip opinion click here.  Relying heavily on its earlier decision in Expedia, the court determined that because Expedia held that legislative privilege broadly protects legislators and legislative staff members from being compelled to testify about any matter “that is an essential part of the legislative process” or pertains to the performance of “a legitimate legislative function,” the privilege equally protects subjective information like the legislator’s rationale or motivation for proposing or voting on a piece of legislation, and objective information like data or materials relied on by legislators and their staff in the legislative process.  The court concluded that the trial court departed from the essential requirements of law when it permitted the plaintiffs to depose legislators and legislative staff members on any matter pertaining to their activities in the reapportionment process.  The court added that the trial court’s objective/subjective dichotomy was unworkable because there was no clear demarcation between subjective and objective.  The court applied the same analysis to the plaintiffs’ request for maps and supporting documents, subject to Florida’s public records law. 

Dissenting Opinion

            Chief Judge Benton dissented on the basis that the First District had no jurisdiction “absent a demonstrated need to prevent irremediable harm.”  In his view, that harm had not been demonstrated because no one knew what questions would have been asked at the depositions, and “[t]he mere appearance for deposition of a senator and two staff persons” was not sufficient harm to justify certiorari review.  “The . . . Constitution makes plain that how and why the Legislature redistricts is a matter of paramount public concern.  Petitioners have fallen far short of demonstrating why failing to keep this quintessentially public business under wraps would work irreparable harm.”

Status

           The Florida Supreme Court designated this case as “high profile” and expedited the briefing, which was completed on August 12, 2013.  Oral argument is scheduled for September 16, 2013 at 9:00 am.  To check the current status of this case, click on the hyperlinked supreme court case number at the beginning of this article.

 

          

Florida High Court to Clarify Content of Pre-Suit Expert Affidavits in Medical Malpractice Cases

Florida has established a statutory framework for the pre-suit investigation of medical malpractice cases.  See §766.201-.212, Fla. Stat.  Part of that framework requires that a claimant, prior to noticing its intent to initiate medical negligence litigation, “corroborate reasonable grounds to support the claim of medical negligence” with a “verified written medical expert opinion.”  On July 17, 2013, the Florida Supreme Court accepted review of a case that centers around the sufficiency of a plaintiff’s pre-suit expert corroborating affidavit.  See Rell v. McCulla, 101 So. 3d 878 (Fla. 2d DCA 2012) (Fla. Sup. Ct. Case No. SC12-2598).

Origin of Dispute

 

In the case, the plaintiffs, a husband and wife, filed a complaint based on injuries that the husband suffered to a tendon in his right ankle.  The plaintiffs claimed that the injuries were the result of two arthroscopic surgeries and a steroid injection performed by Dr. Rell, a podiatrist.  Following treatment with Dr. Rell, the husband sought a second opinion from Dr. Cottom, who ultimately performed two more surgeries on the husband’s ankle, stating that he suffered a “partial tear with tibialis anterior tendon as a result of previous arthroscopic debridement.”

 

The plaintiffs served a notice of intent to initiate a medical malpractice action on Dr. Rell and Coastal Orthopedics and Sports Medicine of Southwest Florida, P.A. and attached the affidavit Dr. Jeff Kopelman, which provided, in relevant part:

 

Dr. Rell injected 25% of dexamethasone phosphate into some scar buildup along the medical portal incision site. The concerns here, which would warrant further investigation, are (a) did the steroid go into the tendon and possibly weaken it and/or (b) predispose it to tearing? The evaluation of these concerns warrants further investigation....

 

In my expert opinion, based on the records provided, there are reasonable grounds that the patient's tibialis anterior tendon could have been weakened or injured by the steroid shot given by Dr. Rell. This is notwithstanding that we are dealing with a patient with previous ankle medical history, as well as five surgeries on his foot, and therefore with increases in his risks of scarring, arthritis and possible future foot problems.

 

Dr. Kopelman did not opine whether he believed that Dr. Rell’s treatment fell below the standard of care or whether the injury was outside of the foreseeable results of the procedures.

 

Dr. Rell and Coastal responded to the notice of intent with a letter to the plaintiffs, advising them that the affidavit was deficient.  Dr. Kopelman then executed an addendum to his original affidavit, which provided: 

 

To clarify and supplement my Verified Opinion dated March 4, 2001, I would state that, based on the records reviewed, there exists reasonable corroborating grounds to further investigate a claim of medical negligence against Brian Rell, DPM and the causation of damage to patient David McCulla's anterior tibialis tendon. I continue to reserve the right to modify my opinions based on additional information.

 

As with Dr. Kopelman’s original affidavit, the addendum did not include any opinion stating that there were reasonable grounds to believe that Dr. Rell’s treatment fell below the standard of care.

 

Trial Court Proceedings

 

After the plaintiffs filed their complaint, Dr. Rell and Coastal moved to dismiss, arguing that the plaintiffs failed to comply with Florida’s pre-suit notice requirements because they did not obtain a corroborating opinion from a medical expert attesting that the husband’s injuries were caused by medical negligence. The trial court denied the motion to dismiss, stating that while Dr. Kopelman’s affidavits may have been less than adequate to independently support a claim of medical negligence, the affidavits, in conjunction with the plaintiffs’ counsel’s review of the records, were sufficient to satisfy the statutory pre-suit requirements.  See §766.203(2), Fla. Stat. Dr. Rell and Coastal sought a writ of certiorari in the Second District Court of Appeal to quash the order denying the motion to dismiss.

 

Certiorari Proceeding

 

The Second District stated that the purpose of the medical expert opinion is to assure the defendant and the court that a medical expert has determined that there is justification for the plaintiff’s claim; i.e., to “corroborate that the claim is legitimate.”  The purpose is not to simply give notice of the plaintiff’s claim.  Thus, the issue was whether the plaintiffs’ expert’s affidavit sufficiently indicated that the husband had a legitimate claim for medical malpractice.  “In other words, did the corroborating affidavit sufficiently set forth that Dr. Rell was negligent in the care and treatment of [the husband] and that such negligence resulted in injury to [the husband]?”

 

The court found that while Dr. Kopelman noted in his affidavit that Dr. Cottom believed that the arthroscopic surgery performed by Dr. Rell tore the husband’s anterior tendon, Dr. Kopelman did not go so far as to opine that such action constituted medical negligence.  In addition, while Dr. Kopelman opined that there were reasonable grounds “to further investigate a claim of medical negligence” against Dr. Rell, he never provided any definitive corroboration that the plaintiffs’ claims were legitimate; that is, that Dr. Rell provided negligent care and treatment and that such negligence resulted in injury.  The court also stated that because the affidavit failed to indicate in which manner Dr. Rell deviated from the standard of care, Dr. Rell was prevented from conducting a full evaluation of the merits of the plaintiffs’ claim. Thus, the court held that the requirements of Section 766.203(2) were not met and that the trial court departed from the essential requirements of the law when it failed to grant the motion to dismiss.

 

The parties have begun the briefing process in the Florida Supreme Court, which will schedule oral argument in the future.  The author will update this article after the Court decides the case.

Tags:

Florida High Court Precludes Use of Extrinsic Evidence to Construe Ambiguous Policy Language

 

In a controversial 4-3 decision, the Florida Supreme Court in Washington National Insurance Corp. v. Ruderman, No. SC12-323, 2013 WL 3333059 (Fla. July 3, 2013), held that  ambiguous language in an insurance policy “must be construed against the insurer and in favor of coverage without resort to consideration of extrinsic evidence.”  (Emphasis added).  While the first part of the Court’s holding, which is embodied in the Latin phrase contra proferentem, was nothing new, the second part of its holding—excluding the use of extrinsic evidence—appears to be a significant departure from well-established Florida jurisprudence.  The Court limited its analysis on this issue to a 34-year old decision, Excelsior Ins. Co. v. Pomona Park Bar & Pkg. Store, 369 So. 2d 938 (Fla. 1979), and found that the Court never “expressly” held there that “extrinsic evidence must be considered in determining if an ambiguity exists.”

 

The Dissent

The dissent, authored by Chief Justice Polston, disagreed that the policy was ambiguous and charges that the “majority improperly rewrites the parties’ contract to provide coverage for which the parties did not bargain and the insureds did not pay.”  Even if the policy was ambiguous, the dissent contends that the majority “improper recedes from [its own] precedent” since “it is well-settled Florida law that parties may attempt to resolve an ambiguity through available extrinsic evidence before applying the last-resort principle of construction against the drafter.”  To support its position, the dissent cites to decisions from the supreme court (one dating back over 100 years) and the district courts.  The sheer volume of authority referenced by the dissent with selected quotations appears to render the majority’s analysis facially incomplete.

 

Potential Ramifications

 

             The Court’s decision will probably have a tremendous impact on coverage disputes in the state of Florida.  The holding effectively precludes insurers from introducing any evidence to oppose a claim that a policy provision is ambiguous.  Consequently, insurers will have to focus their legal energy on convincing the court that the policy is clear and unambiguous.  On the other hand, given that ambiguity is an extremely subjective determination (as evidenced by this decision), if an insurer offers what the trial court believes to be a reasonable (and favorable) construction of the policy, the courts will have to side with the insured.

 

 While it remains to be seen, the decision could also obviate the need for experts and streamline cases.  The decision also leaves unanswered whether the sophisticated insured defense—an exception to the doctrine of contra proferentem—is viable.  Similarly, while insurers can try to insulate themselves from the effect of the decision by allowing insureds to actively negotiate insurance policies, this would only be realistic for large, sophisticated commercial policyholders.  Finally, litigants may try to use the decision in run-of-the-mill contract disputes where the contract was drafted by one party without negotiation or input by the other party.

Florida Adopts New Standard Jury Instructions for Contract and Business Cases

Florida’s Supreme Court recently adopted new standard jury instructions for contract and business cases.  The instructions, drafted over a period of six years by a committee of Florida trial and appellate lawyers and judges, and modeled in form after California’s contract instructions, cover all aspects of contract and business disputes, including contract formation, breach, interpretation, oral and implied contracts, affirmative defenses and damages.  Many of the instructions cite extensive sources and authorities, making them an excellent Florida contract law resource.  To review the decision adopting these new instructions click here.*  Below is a list of the substantive instructions (Sections 400 and 500):

Breach of Contract

416.1    Introduction

416.2    Third-Party Beneficiary

416.4    Essential Factual Elements

416.23  Anticipatory Breach

Contract Formation

416.3    Essential Factual Elements

416.8    Offer

416.9    Revocation of Offer

416.10  Acceptance

416.11  Acceptance by Silence or Conduct

Oral and Implied Contracts

416.5  Oral or Written Contract Terms

416.6  Contract Implied in Fact

416.7  Contract Implied in Law

 

Contract Interpretation

416.14  Disputed Term(s)

416.15  Meaning of Ordinary Words

416.16  Meaning of Disputed Technical or Special Words

416.17  Construction of Contract As a Whole

416.18  Construction by Conduct

416.19  Reasonable Time

416.20  Construction Against Drafter

 

 

Affirmative Defenses

416.25  Mutual Mistake of Fact

416.26  Unilateral Mistake of Fact

416.27  Undue Influence

416.28  Fraud

416.29  Negligent Misrepresentation

416.30  Waiver

416.31  Novation

416.32  Statute of Limitations

416.33  Equitable Estoppel

416.35  Judicial Estoppel

416.36  Ratification

 

Other Instructions

416.12  Substantial Performance

416.13  Modification

416.21  Existence of Conditions Precedent Disputed

416.22  Occurrence of Agreed Condition Precedent

416.24  Breach of Implied Covenant of Good Faith and Fair Dealing

416.37  Goods Sold and Delivered

416.38  Open Account

416.39  Account Stated

416.40  Money Had and Received

Damages

504.1  Introduction to Contract Damages

504.2  Breach of Contract Damages

504.3  Lost Profits

504.4  Damages for Complete Destruction of Business

504.5  Owner’s Damages for Breach of Contract to Construct Improvements on Real Property

504.6  Obligation to Pay Money Only

504.7  Buyer’s Damages for Breach of Contract for Sale of Real Property

504.8  Seller’s Damages for Breach of Contract to Purchase Real Property

504.9  Mitigation of Damages

504.10  Present Cash Value of Future Damages

504.11  Nominal Damages

 

 

 

*  The new instructions have not yet been posted to the supreme court’s website.  This link is to the opinion adopting the instructions, and the instructions can be found in the appendix.

Florida Legislature Allows Plaintiffs to Contest Their Reimbursement to Medicaid

 

Effective July 1, 2013, Florida’s Medicaid Third-Party Liability Act now provides a mechanism for recipients of Medicaid to challenge the amount they must reimburse Florida’s Agency for Healthcare Administration (AHCA) after settling with or obtaining a judgment or award against liable third-parties.  See § 409.910(17), Fla. Stat. (to see the amendments as reflected in the session law click here and go to the bottom of page 6; to read the legislative staff analyses on the new law click here and here).  Under the Act, a Medicaid recipient who receives a settlement, award or judgment in a third-party tort action is required to reimburse AHCA for any related Medicaid medical costs.  The medical costs are calculated as the lesser of 37.5% of the total recovery or the total amount of medical assistance paid by Medicaid.  See § 409.910(11)(f), Fla. Stat.  The Act contains a super-priority provision requiring repayment “in full and [p]rior to any other person, program or entity . . . regardless of whether a recipient is made whole or other creditors paid.”  § 409.910(1), Fla. Stat.

 

Wos

 

The amendment is a direct response to the United States Supreme Court’s decision in Wos v. E.M.A., 2013 WL 1131709 (U.S. Mar. 20, 2013), invalidating a North Carolina statute that required up to one-third of any damages recovered by a Medicaid beneficiary to be repaid to the state.  The Supreme Court held that North Carolina’s statute was preempted by the federal anti-lien provision due to the fact that the state statute created an irrebuttable, one-size-fits-all statutory presumption that one-third of a tort recovery is attributable to medical expenses.  Such an irrebuttable presumption was found to be incompatible with the Medicaid Act’s clear mandate that a state may not demand any portion of a beneficiary’s tort recovery except the share that is attributable to medical expenses. 

 

The Amendment

 

In light of Wos, the Act was amended to allow a Medicaid recipient to contest the amount designated as a medical expense by filing an administrative petition in Tallahassee, Florida.  Prior to the amendment and like the stricken North Carolina statute, there was an irrebuttable presumption that AHCA was entitled to 37.5% of the total recovery.  To prove that a lesser portion of the total recovery should be allocated as reimbursement, the recipient must present clear and convincing evidence.  The amendment does not address the type of evidence a recipient may present at a hearing, although the high burden suggests that expert testimony will probably be required.  The recipient must also bear its own fees and costs for the administrative proceeding. 

 

This new statutory procedure is the exclusive method for challenging the amount of third-party benefits payable to AHCA.  While it remains to be seen how many beneficiaries avail themselves of this new provision, the non-central venue, high burden of proof and unrecoverable fees and costs clearly reflect Florida’s intention to maintain its presumptive 37.5% recovery.

Florida High Court to Clarify Apportionment of Joint Proposals for Settlement

 

On May 3, 2013, the Florida Supreme Court accepted for review two cases involving the apportionment of joint proposals for settlement: Arnold v. Audiffred,98 So. 3d 746 (Fla. 1st DCA 2012) (Fla. Sup. Ct. Case No.: SC12-2377) and Pratt v. Weiss, 92 So. 3d 851 (Fla. 4th DCA 2012)(Fla. Sup. Ct. Case No.: SC12-1783). In Arnold, the district court declared the proposal unenforceable; in Pratt, the district court found the proposal enforceable.  The governing rule of procedure in Florida provides that “[a] joint proposal shall state the amount and terms attributable to each party.”  Fla. R. Civ. P. 1.442(c)(3).  The rule excuses apportionment “when a party is alleged to be solely vicariously, constructively, derivatively, or technically liable.” Id. 1.442(c)(4).

 

Arnold

 

In Arnold, the husband and wife plaintiffs sued for damages sustained as a result of a car accident.  The wife sued for her personal injuries and damages to the car and the husband sought loss of consortium damages.  The wife served a proposal for settlement seeking to resolve the following claims:  “Any and all claims Plaintiffs have brought against the Defendant set forth in the Complaint in the above-captioned case and any other claim or claims that may have risen as a result of the subject incident set forth in Plaintiffs’ Complaint, including attorney’s fees or costs.”  After a trial, the jury awarded the wife her past medical expenses, but did not award her anything for permanent damages or to her husband for his loss of consortium claim.  The plaintiffs moved for attorney’s fees pursuant to the proposal for settlement.  The defendant moved to strike the proposal, arguing that it was a joint proposal that should have apportioned the amount attributable to each plaintiff.  The trial court denied the motion and granted the motion for attorney’s fees and costs.

 

The First District Court of Appeal stated that proposals for settlement are governed by the rules for interpretation of contracts and that a proposal should be looked at as a whole and construed “according to its own clear and unambiguous terms.”  Accordingly, while the first two paragraphs of the proposal for settlement stated that the wife was the sole offeror, the proposal, as a whole, offered that both the husband and the wife would dismiss their claims against the defendant upon the defendant’s acceptance.  As such, the proposal for settlement was a joint proposal and it should have apportioned the settlement amount between the two plaintiffs.

 

Pratt

 

In Pratt, the plaintiff sued numerous defendants for medical negligence, including FMC Hospital, Ltd., d/b/a Florida Medical Center, and FMC Medical, Inc., d/b/a Florida Medical Center.  The complaint alleged that these two entities “owned, operated, maintained, and controlled” Florida Medical Center.  The complaint also alleged that FMC Hospital, Ltd. was a limited partnership and that FMC Medical, Inc. was a general partner of Florida Medical Center.  While the complaint named the two entities as defendants, each was alleged to be responsible for the negligence of a single entity, Florida Medical Center.

 

The two defendants submitted a proposal for settlement to the plaintiff, identifying the “party” making the proposal as both defendants and seeking to resolve “all pending matters between the plaintiff and the named defendants.”  The settlement agreement and release attached to the proposal required the plaintiff to also release any “agents” of the two defendants.

 

At trial, the plaintiff and FMC Hospital, Ltd. stipulated that the proper party in interest was FMC Hospital, Ltd. d/b/a Florida Medical Center.  The jury found in favor of FMC Hospital, Ltd., which then moved for attorney’s fees pursuant to the proposal.  The trial court found the proposal enforceable because it had been made by a single entity, the hospital, and was unambiguous. 

 

On appeal, the plaintiff argued, among other things, that the proposal was unenforceable because it did not apportion the offer between the two named defendants.  The defendants countered that they were treated as a single entity throughout the litigation, they were represented by the same lawyer, they filed a single answer, and they were listed as FMC Hospital, Ltd., a Florida limited partnership d/b/a Florida Medical Center, on the verdict form.  The appellate court noted that the singular nature of the entity was most evident in the parties’ stipulation that FMC Hospital, Ltd. was the only proper defendant.  The appellate court also disagreed with plaintiff that the release was ambiguous because it required the plaintiff to release the hospital’s agents; the court noted that the language provided for the release of only unnamed agents of the hospital.  The appellate court further noted that the plaintiff’s suggestion that the release applied to future unknown claims was debunked by the language in the release that restricted future claims to “the injuries and damaged alleged” by the plaintiff.  The appellate court affirmed the trial court decision, finding that the defendants’ failure to apportion the proposal did not render it unenforceable.

 

Both cases are currently being briefed before the Florida Supreme Court.  The Court has dispensed with oral argument in both cases.

 

Florida Legislature Reforms Medical Malpractice Laws

             Effective July 1, 2013, the Florida Senate passed legislation that clarifies when a non-defendant physician may retain legal representation when called as a witness and limited who may qualify as an expert witness in medical negligence cases.  See Senate Bill 1792 (legislative history for the law can be found here). 

             As for the first change, the amendment was aimed at reversing and clarifying the Florida Supreme Court’s decision in Hasan v. Garvar, 108 So. 3d 570 (Fla. 2012), which curtailed a non-defendant physician’s right to counsel when subpoenaed for deposition in a medical malpractice case.  The new law allows a physician, during a consultation, to disclose to his or her counsel information disclosed by a patient or records created during the patient’s care or treatment.  The new law, however, prohibits counsel from being a conduit for ex parte communications between the physician and the defendant or the defendant’s insurer.  For example, if the physician’s liability insurer represents a defendant or prospective defendant:

 

          The insurer may not choose an attorney for the provider, but may recommend attorneys other than the attorney representing the defendant or a prospective defendant; and

 

          The provider’s attorney may not disclose any information to the insurer, other than categories of work performed or time billed.

 

             As for the second major change, the new law limits who may offer expert testimony in a medical negligence action against a specialist.  Under the prior law, the experts must specialize in the same or similar specialty as the defendant.  The new law requires these experts to specialize in the same medical specialty as the defendant-physician.

 

            The plaintiffs’ bar has filed five different lawsuits in Florida state and federal court challenging the constitutionality of these reforms.

 

Florida Legislature Adopts Daubert

Florida’s legislature recently amended the state’s evidence code to adopt the Daubert standard for admissibility of expert testimony. Despite the U.S. Supreme Court’s abandonment of the Frye “general acceptance” standard in 1993, Florida until now has continued to employ that standard. With these amendments, Florida joins the majority of states that have modernized and improved their admissibility standards by adopting Daubert or some form of it by statute or common law. The Daubert standard requires the court to determine if the testimony is based upon sufficient facts or data and is the product of reliable principles and methods, and if the witness has reliably applied the principles and methods to the facts.

The Florida bill and the statutory amendments show the legislature’s explicit intent to pattern section 90.702 of Florida’s Evidence Code after Federal Rule 702, amended in 2000 to incorporate Daubert’s admissibility requirementsThe bill also makes clear the legislature’s intent to banish “pure opinion” testimony based on an expert’s own experience, observation or research, which an expert in a Florida state court was free to give without satisfying any general acceptance test, avoiding scrutiny altogether.                                                          

Florida Appellate Court Clarifies Knowledge Base for Corporate Representative Deponents

On March 20, 2013, Florida’s Fourth District Court of Appeal issued an opinion clarifying the procedure for designating, and producing, a corporate representative for deposition pursuant to Florida Rule of Civil Procedure 1.310(b)(6). In Carriage Hills Condominium, Inc. v. JBH Roofing and Constructors, Inc., 109 So. 3d 329 (Fla. 4th DCA 2013), a roofing contractor brought an action against a condominium owners’ association for breach of contract and other claims. JBH noticed for deposition the “corporate representative of [the Association] with the most knowledge of the allegations contained in the complaint.” The Association designated its president to appear at the deposition, during which the witness testified as to her opinions and beliefs. In analyzing whether summary judgment was properly entered in favor of JBH, the Fourth District held that JBH did not properly notice the Association’s corporate representative for deposition and the Association did not designate the proper deponent, per Rule 1.310(b)(6).

As the Fourth District explained, Rule 1.310(b)(6) was borrowed from a 1970 amendment to its federal counterpart, Federal Rule of Civil Procedure 30(b)(6), and is designed, in part, to streamline litigation. The rule imposes burdens upon both parties; the party seeking the discovery is required to describe, with reasonable particularity, the matter(s) for examination and the responding party must then produce one or more witnesses who can testify as to the corporation’s knowledge of the specified topics. “This enables the deposing party to gather information from the corporation by way of a human being named by that corporation to serve as the corporation’s voice.” As the corporation’s “voice,” the deponent does not testify about matters within his or her personal knowledge, but rather speaks for the corporation.

The Fourth District confirmed that Rule 1.310(b)(6) does not require – or even contemplate, for that matter – that the corporation produce the witness with the “most knowledge” on the specified topic(s); in fact, the witness is not required to possess any personal knowledge at all. Rather, the corporation must prepare the witness, whether from documents, past employees, or other sources, so that the witness can give “complete, knowledgeable, and binding answers on behalf of the corporation.” The appellate court’s conclusion is consistent with federal cases interpreting the corollary federal rule. See, e.g., United States v. Taylor, 166 F.R.D. 356, 361 (M.D.N.C. 1996).

When a Rule 1.310(b)(6) deposition is properly noticed and conducted, the testimony of the witness “is deemed to be the testimony of the corporation itself.” Thus, the testimony is binding on the corporation. The appellate court noted that this does not mean that the testimony conclusively establishes a fact and estops the corporation from offering other evidence on the issue. Rather, “testimony given at a Rule 1.310(b)(6) deposition is evidence which, like other deposition testimony, can be contradicted.” 

The Carriage Hills Court noted that in the case before it, the deposition was not properly noticed, per Rule 1.310(b)(6), because JBH’s notice did not request the Association to designate a witness “to testify on its behalf . . . about matters known or reasonably available to the organization.” Rather, it requested the deposition of the corporate representative with “the most knowledge of the allegations in the complaint.” The deposition notice also failed to designate with reasonable particularity the issues to be examined. In response to the defective notice, the Association produced a person it believed had the “most knowledge” of the allegations in the complaint, despite the fact that the deponent testified that she disagreed with many of the corporation’s positions and simply gave her opinions and beliefs. Thus, the Association failed to satisfy its burden under the rule, as it did not prepare the witness to testify regarding the corporation’s position.

Utilized properly, Rule 1.310(b)(6) gives the corporation being deposed more control by permitting it to select and prepare a witness to testify on its behalf. In exchange for that control, the corporation is required to “have the right person present at the deposition.”

Florida's Change of Venue Law for Jury Pool Bias

The authority of changing venue based on a party’s concern about not receiving a fair trial because of a biased or prejudiced jury pool can be found in section 47.101, Florida Statutes—not  Florida Rule of Civil Procedure 1.060.

Procedural Requirements. The statute requires that a motion to change venue contain a verified statement of facts, be supported by affidavits of at least two “reputable” citizens of the county in which the case was filed, and be filed within 10 days after the action is “at issue,” unless good cause is shown.

A case is “at issue” 20 days after service of the last pleading or once all motions directed to that last pleading are decided. See Fla. R. Civ. P. Rule 1.440. Pleading as used in this rule connotes those finite number of pleadings recognized by the Florida Rules of Civil Procedure (complaint, answer, counterclaim, etc.). See Fla. R. Civ. P. 1.100(a). Some courts have strictly construed these requirements, denying a motion outright for non-compliance.

Standards. The statute contains two bases for changing venue: (1) “Because the adverse party has an undue influence over the minds of the inhabitants of the county”; or (2) “Because movant is so odious to the inhabitants of the county that he or she could not receive a fair trial.” The Florida Supreme Court has announced a succinct test for determining whether a change of venue is proper:

Whether the general state of mind of the inhabitants of the community is so infected by knowledge of the incident and accompanying prejudice, bias, and pre-conceived opinions that jurors could not possibly put these matters out of their minds and try the case solely on the evidence presented in the courtroom.

Rolling v. State, 695 So. 2d 278, 285 (Fla. 1997) (quoting McCaskill v. State, 344 So. 2d 1276, 1278 (Fla. 1977)).

Once a defendant raises the partiality of the venire, the trial court must look at two prongs: (1) the extent and nature of any pretrial publicity; and (2) the difficulty encountered in actually selecting a jury.

On the first prong, courts should consider 5 factors for determining the effect of pretrial publicity on the knowledge and impartiality of the prospective jurors:

(1) the length of time that has passed from the incident to the trial and when within that time the publicity occurred;
(2) whether the publicity consisted of straight, factual news stories or inflammatory stories;
(3) whether the publicity favored the non-movant’s case or version of events;
(4) the size of the community in question; and
(5) whether the defendant exhausted all of his peremptory challenges.

Florida courts have placed great emphasis on the second factor above. “Publicity, in and of itself, is not sufficient grounds for change of venue. The publicity must be hostile publicity.”

The second prong of the analysis requires the trial court to examine the extent of difficulty in actually selecting an impartial jury at voir dire. If voir dire shows that it is impossible to select jurors who will decide the case based on the evidence, rather than the jurors’ extrinsic knowledge, then a change of venue is required. The ability to seat an impartial jury in a high-profile case may be demonstrated by either a lack of extrinsic knowledge among members of the venire or, assuming such knowledge, a lack of partiality.

On this point, the supreme court has encouraged trial courts “to attempt to impanel a jury before ruling on a change of venue.” This provides trial courts an opportunity to determine through voir dire whether it is actually possible to find individuals who have not been seriously infected by the publicity. If the trial court finds such individuals, a jury is selected. Where the voir dire fails to produce these individuals, the trial court must grant the motion for change of venue.

The supreme court has, on numerous occasions, emphasized that to be qualified, jurors need not be totally ignorant of the facts of the case, nor do they need to be free from any preconceived notion. In fact, knowledge of the incidence because of its notoriety is not, in and of itself, a ground for a change of venue. Rather, the issue may turn on the nature and extent of the pretrial information the juror has acquired and an analysis as to whether a juror “can lay aside his impression or opinion” based upon any pretrial information and “render a verdict based on the evidence presented in court.”

Appellate Standard of Review. A motion for change of venue is addressed to the trial court’s discretion and will not be overturned on appeal absent a “palpable abuse of discretion” or a “grossly improvident” exercise of discretion. The determination is usually one of fact which the presiding judge, who has knowledge of all the circumstances of the case, is in a much better position to pass on that the appellate court. Because of this heightened standard of review, most of the cases in Florida have affirmed the trial court’s denial of a motion for change of venue.
 

Florida Adopts Mandatory E-Service Rules

As of September 1, 2012, service by e-mail of pleadings and other court documents is mandatory in Florida state court civil cases.Every pleading subsequent to the initial pleading and every other document filed in any court proceeding must be served on each party in accordance with these new rules, which are summarized below. The decision implementing these changes can be found here [pdf].

  1. Designation of Email Addresses – At the outset of any new action, or by Sept. 1, 2012 for any pending action, all parties must file a designation of a primary email address, and up to two secondary email addresses (this can be other attorneys on the file, secretaries, paralegals, etc.), for service of all court documents. See Fla. R. Jud. Admin. 2.516(b)(1)(A).
     
  2. Signature Block – ALL signature blocks should now also contain the attorney’s primary email address. See Fla. R. Jud. Admin. 2.516(b)(1)(A).
     
  3. Signing Court Documents – Documents served on other parties by email may be signed electronically (with an “/s/”). However, the original document filed with the clerk must still be physically signed by the attorney. See Fla. R. Jud. Admin. 2.516(b)(1)(E)(iii).
     
  4. Time Computation – Although service is complete upon sending the email, the rule specifically provides that for purposes of time computation, email service shall be treated as service by U.S. Mail. This provides the additional 5 days for service when computing deadlines. It appears that the only way to cut off the 5-day addition is to additionally serve by hand delivery or fax. See Fla. R. Jud. Admin. 2.516(b)(1)(D)(iii).
     
  5. Filing – The Florida Supreme Court has also issued a new rule regarding e-filing, but this does not take effect until April 2013. For now, filing shall be as usual, but the e-service rule requires that filing be made either before service or immediately thereafter. See Fla. R. Jud. Admin. 2.516(d).
     
  6. Return Error Message – If you receive a server response that the email was not delivered, you must immediately send another copy by email, or by U.S. Mail, fax or hand delivery. See Fla. R. Jud. Admin. 2.516(b)(1)(D)(ii).
     
  7. Unusual Number of Parties – The rule provides an exception for cases with an unusually large number of parties. In such actions, the court may modify the service requirements of this rule on motion or on its own initiative in such a manner as may be found to be “just and reasonable.” See Fla. R. Jud. Admin. 2.516(c).
     
  8. Non-Compliance – If an attorney does not file a designation of email addresses for service, service may still be made by email at the email address on record for that attorney with the Florida Bar. The Florida Bar has released a guide suggesting that if a party fails to serve documents by email after September 1, 2012, good practice should be to call the attorney and direct them to the new rule. 
     
  9. E-Mail Format – The rule contains strict guidelines for the format of the email in which the document is served: Subject Line – The email subject must begin with: “SERVICE OF COURT DOCUMENT CASE NO. xx-xxxxx.” All caps are required. To: all primary and secondary emails as designated by each attorney of record. Body of Email – The body of the email must contain: 1) the court in which the case in pending; 2) the case number; 3) the name of each initial party on each side of the case; 4) the title of each document being served (more than one may be served in one email); and 5) the sender’s name and telephone number.
     
  10. Attachments – The document being served must be attached in PDF format. The email and the attachment combined may NOT exceed 5 MB. Where the document exceeds 5 MB, it must be split up into separate files smaller than 5 MB, and sent in multiple emails, labeled sequentially in the subject line. The subject line of the string of emails should look like this: Subject: SERVICE OF COURT DOCUMENT CASE NO: xx-xxxxx (1 of 4)

Florida Supreme Court Expands Physical Presence Requirement for Mediations

Effective January 1, 2012, the Florida Supreme Court amended the civil rule regulating mediation procedures in Florida. See In re Amends. to Florida Rule of Civil Procedure 1.720, 75 So. 3d 264 (Fla. 2011). Significantly, the Court added subparagraph c which defines the phrase “party representative having full authority to settle” found in subparagraph b. (Subparagraph b considers a party to have “appeared” at mediation only if the following individuals are physically present: (1) a party or its representative “having full authority to settle without further consultation”; (2) the party’s counsel of record; and (3) an insurer’s representative for any insured party who has full authority to settle up to the amount of plaintiff’s last demand or policy limits.). The changes to the rule are designed to promote the efficacy of mediation by requiring that all parties be represented by persons in attendance who are authorized to settle, while preserving the parties’ ability, by mutual consent, to determine their own course.

Presence of Final Decision Maker

 

The new rule now mandates that the “final decision maker” be present for mediations. Under the new rule, a final decision maker is a “party representative having full authority to settle” without further consultation from supervisory personnel at the insurance company. The party representative must also have “the legal capacity to execute a binding settlement agreement on behalf of the party.” The committee notes clarify that a party representative’s mere decision not to settle does not, in and of itself, signify the absence of full authority to settle. While this requirement may present logistical issues for large corporations and institutions that operate through boards and committees, some courts have been unsympathetic. The practical solution is for parties to recognize the problem in advance of mediation and either by agreement of counsel or application to the court, devise an appropriate resolution.

Exception

This new requirement, however, may be dispensed with by court order or by written stipulation between the parties. There is also some authority predating this rule change that a violation of subparagraph b can be waived by the opposing party proceeding with mediation once it learns of the violation.

Compliance & Sanctions

The amended rule provides an objective standard for determining compliance with the physical presence requirement. New subsection (e) requires identification of the party representative prior to the date of the mediation. It also provides that 10 days before the scheduled mediation, each party must file a written notice identifying the name of the person attending and certifying that the attendee has the legal capacity to bind the settling party. Failure to file the “certificate of authority” creates a rebuttable presumption of failing to physically appear and may subject that party to sanctions which may include an award of mediation fees, attorney’s fees, and costs.

Tags:

Is It Time For Florida to Adopt Daubert and Reject Frye?

Witnesses called to testify as “experts” are cloaked with prestige and authority, and positioned to exert heavy influence on juries. This is accentuated with areas of expert testimony that are highly technical or specialized. The U.S. Supreme Court recognized in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 595 (1993), that “[e]xpert evidence can be both powerful and quite misleading because of the difficulty in evaluating it.”  

In Daubert, the United States Supreme Court created a seismic shift in the test for the admissibility of expert testimony. Daubert held that Congress’ adoption of the Federal Rules of Evidence displaces the general acceptance test and requires the federal trial judge to ensure that any expert testimony admitted is both reliable and relevant. The Court has also clarified that an expert’s conclusions are not beyond the reach of the relevance/reliability test, and that the relevance/reliability test is not limited to the “scientific” and applies to all expert testimony. The Court has therefore given federal trial court judges the important responsibility of ensuring that expert testimony is based on reliable methodology and fits the facts of the case.

Florida, on the other hand, is among a shrinking minority of states still clinging to the antiquated Frye test. See Frye v. United States, 293 F. 1013, 1013-14 (D.C. Cir. 1923). This test does not provide trial judges with the legal tools for ensuring that “expert” witnesses are qualified and that their testimony is relevant, reliable and appropriate for a jury. Instead, the “test” is nothing more than a determination whether an expert’s methodology is “generally accepted.” This nebulous standard of “general acceptance” is not an adequate check on the integrity of expert evidence. The problem is compounded by Florida Supreme Court precedent holding that the Frye test applies only to a minority of cases involving expert testimony – those involving “new science.” If an expert’s testimony is based on science that the court does not deem “new” or derived from a field that is not traditionally “science,” then the test is not even triggered. So-called “pure opinion” testimony purportedly based on an expert’s overall experience is also beyond the reach of the Frye test.

This shortcoming in Florida jurisprudence undermines the integrity of the court system and quality of justice dispensed by trial courts. It also threatens to diminish the State’s many advantages in attracting business, particularly in light of the fact that most states in the Southeast have already modernized their laws governing the admissibility of expert evidence, including  Georgia by legislation enacted in 2005 and North Carolina by legislation effective as of October 1, 2011.

The Florida Legislature can and should solve this problem by statutorily adopting Daubert to place Florida on equal footing with most other jurisdictions and federal courts.

[Robert C. Weill has co-authored a full-length article advocating for the Florida Legislature’s adoption of Daubert which will be published in the Nova Law Review in February 2012.]

Reach of Litigation Privilege To Be Tested By Florida Supreme Court

In a day and age when every other day there seems to be a sex scandal involving a politician’s “indiscretions,” the Florida Supreme Court has been asked to examine a legal issue arising out of an alleged sex scandal. In DelMonico v. Traynor, No. SC10-1397, the Court must determine whether an attorney is protected by the litigation privilege against claims for defamation and tortious interference when he related to another party’s ex-spouses and former business associates during witness interviews that the party used prostitutes to entice business clients. The Court accepted the case for review based on conflict with the Court’s prior decision in Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell P.A. v. U.S. Fire Insurance Co., 639 So. 2d 606 (Fla. 1994). The district court’s decision is reported at 47 So. 3d 1287 (Fla. 4th DCA 2010), and the slip opinion can be found here. The Court heard oral argument on June 9, 2011.

The District Court’s Decision. The district court affirmed the application of the privilege to bar the claims against the attorney and his law firm. Over the dissent of one judge, the district court held that “[b]ecause the statements complained of were made by the [attorney] while he was acting as defense counsel in the underlying litigation, and the statements bore ‘some relation’ to the proceeding, they were absolutely privileged as a matter of law.” 

The dissent, on the other hand, questioned whether a qualified, rather than absolute, privilege applied since the attorney’s defamatory statements targeted a person outside a “judicial proceeding.”  It then concluded that disposition by summary judgment was not appropriate because “there remain disputed issues of material facts as to whether the attorney made the statements and whether they were made with the intent to injure the appellant.”

Review before the Florida Supreme Court. The Florida Supreme Court accepted review of the case based on express and direct conflict with its decision in Levin Middlebrooks which held that “absolute immunity must be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious behavior . . . so long as the act has some relation to the proceeding.” Petitioners asserted that the district court’s holding conflicted with Levin Middlebrooks “by applying an absolute privilege to statements defaming a party outside of a judicial proceeding, at a time when the defamed party and/or his lawyer are not present, not provided an opportunity to be heard, and not able to have any judicial recourse because the defamatory statements are not made in the ‘course of the judicial proceeding.’”

In sum, the issue before the Court turns on the meaning of the phrase “course of judicial proceeding.” Does the “course of judicial proceedings” requirement become non-issue once a lawsuit is filed? Does it sweep into its net comments made during potential witness interviews outside the presence of the defamed party or a judge? Does the term require that the statements be made during a formal discovery process (e.g., deposition, answer to interrogatories), a court filing, or in open court? In the end, the Court will have to balance “the chilling effect on free testimony” versus “the right of an individual to enjoy a reputation unimpaired by defamatory attacks” based on the facts of this case.

Tags:

Rear-End Collision Presumption to be Further Defined by Florida Supreme Court

In the blog posting dated March 25, 2011, the author discussed the Florida Supreme Court’s review of Cevallos v. Rideout, No. SC09-2238, where the Court will determine how, or if, the rebuttable presumption that a rear-driver was the sole, proximate cause of a rear-end collision applies when the rear-driver was the plaintiff. No decision has been released yet. However, the Florida Supreme Court may further clarify the scope of the presumption in Birge v. Charron, No. SC10-1755 (review granted May 13, 2011), which was the basis for the supreme court’s conflict review of Cevallos. See Charron v. Birge, 37 So. 3d 292 (Fla. 5th DCA 2010). Birge presents the additional issue of whether the rear-end collision presumption applies where a passenger in the following vehicle sues the lead driver for negligence. The supreme court will not hold oral argument on this new case.

The Charron court held that the presumption does not apply when a rear-vehicle passenger sues the lead driver for his negligence. The district court’s succinct reasoning was grounded on principles of contributory negligence; specifically, even under Florida’s now defunct contributory negligence rule, a passenger in the rear vehicle was entitled to pursue all potential tortfeasors, including the forward drivers, in a rear-end collision. 

The Charron decision on this point, though, appears to conflict with other district court decisions. For example, the Fourth District in Marcellus v. Cronan, 963 So. 2d 364 (Fla. 4th DCA 2007), held that the passenger in a lead vehicle who sued the driver of a rear vehicle could not avail herself of the presumption because the lead vehicle may have been improperly parked or stopped on shoulder of roadway at time of accident. To the same effect is the decision in Keyser v. Brunette, 188 So. 2d 840 (Fla. 2d DCA 1966), where the Second District held that the plaintiff, who was passenger in a vehicle struck by the defendant, could not rely on the presumption because the circumstances of the accident “clearly dissipated” it. Id. at 841. On the other hand, in Kimenker v. Greater Miami Car Rental, Inc., 115 So. 2d 191 (Fla. 3d DCA 1959), the Third District held that plaintiffs, who were passengers in a vehicle struck from behind by defendant, were entitled to a directed verdict on liability based on the presumption which the defendant had not rebutted with “substantial evidence.” Id. at 192.

Charron seems to be at odds with Marcellus, Keyser and Kimenker. If a rear-vehicle passenger is immune from the presumption when a plaintiff (i.e., he or she should not be penalized by the driver’s negligence), then it would seem unfair to prevent a lead-vehicle passenger from asserting the presumption by virtue of the lead driver’s negligence.

The Appellate Strategist is currently tracking the status of this case and provides periodic updates on the link to the pending Florida Supreme Court cases. Once a decision is released, it will be linked there.

Tags:

Florida's High Court Set to Tackle Scope of Rear-End Collision Presumption

In Cevallos v. Rideout, No. SC09-2238 (review granted Apr. 20, 2010), the Florida Supreme Court must determine how, or if, the rebuttable presumption that a rear-driver was the sole, proximate cause of rear-end collision applies when the rear-driver was the plaintiff.  The lower court decision is reported at 18 So. 3d 661 (Fla. 4th DCA 2009).  Oral argument took place on February 8, 2011.  Before discussing the actual case under review, it might be useful to discuss the history of Florida law on this issue and where it stands today.

HISTORY OF THE REAR-END COLLISION PRESUMPTION

The rear-end collision rule was recognized by Florida appellate courts in 1958 and approved by the supreme court shortly thereafter in 1959.  The rule arose to fill the evidentiary void created by a lead-driver’s inability to explain the reason for the rear driver’s collision with his or her vehicle.  That is, while a plaintiff ordinarily bears the burden of proving the four elements of negligence, obtaining proof of a breach and causation in a rear-end collision is difficult because while a plaintiff-driver may know he or she has been rear-ended, the plaintiff usually does not know why.

THE REBUTTABLE PRESUMPTION TODAY

 Florida law currently presumes that the driver of a rear vehicle was negligent unless that driver provides a substantial and reasonable explanation as to why he or she was not negligent, in which case the presumption would vanish and the case could go to the jury on the merits. Stated another way, there is a rebuttable presumption that the negligence of the rear driver in a rear-end collision was the sole proximate cause of the accident.  This presumption may be rebutted when the defendant produces evidence that the rear-end collision was not the result of the rear-driver’s negligence.  Florida courts have recognized three specific fact patterns which may rebut this presumption:

(1) affirmative testimony regarding a mechanical failure (e.g., brake failure);

(2) affirmative testimony of a sudden and unexpected stop or unexpected lane change by the car in front; and

(3) when a vehicle has been illegally and, therefore, unexpectedly stopped.

Continue Reading...

Eleventh Circuit Concludes Significant Litigation Involving Surplus Lines Carrier

On January 18, 2011, the Eleventh Circuit Court of Appeals in Essex Insurance Co. v. Zota (.pdf) brought an end to seven years of litigation and four appellate proceedings, when it affirmed a final declaratory judgment entered in favor of a surplus lines insurer, Essex Insurance Company, following a jury trial.  Although the Eleventh Circuit’s decision is brief and unpublished, the Court’s decision and the earlier appeals in the case established certain significant precedent for surplus lines insurers doing business in the State of Florida on issues relating to policy form filing, policy delivery, and the reach of Chapter 627, Florida Statutes to surplus lines carriers.

BACKGROUND

Mercedes Zota was injured when she fell while painting a mural on the second-story ceiling of a “spec” home under construction in Lighthouse Point, Florida.  After the incident, Zota and her husband brought a negligence action against Lighthouse Intracoastal, Inc.; Broward Executive Builders, Inc., the general contractor for the project; and Jack Farji, a 50% shareholder of Lighthouse and the owner of Broward Executive.  Lighthouse’s insurer, Essex, then sought declaratory relief in federal district court regarding its obligations with respect to the defendants in the negligence action.  After the district court narrowed the issues for trial during summary judgment proceedings, the case proceeded to trial on the two remaining factual issues arising from the policy exclusion at issue:  (1) Whether Lighthouse was a contractor at the time of the construction; and (2) Whether Lighthouse was a builder at the time of the construction.  Because the jury found that Lighthouse was a builder, the Essex policy did not provide coverage and final judgment was entered in Essex’s favor.

Continue Reading...

Florida Supreme Court: Failure to Timely Move for Mistrial After an Objection to Attorney Misconduct Is Sustained Waives Motion for New Trial on That Basis Absent Fundamental Error

Resolving an express conflict between the District Courts of Appeal, the Florida Supreme Court held that when a party objects to instances of attorney misconduct during trial, and the objection is sustained, the party must also timely move for a mistrial in order to preserve the issue for a trial court’s review of a motion for new trial.  If the issue is not preserved in this manner, the conduct may still be subject to fundamental error analysis.  Ramiro Companioni, Jr. v. City of Tampa, 35 Fla. L. Weekly S738a (.pdf)

In the underlying case, Plaintiff sued the City of Tampa for personal injuries.  Throughout the trial, the City objected to several instances of misconduct on the part of Plaintiff’s counsel.  Although the objections were sustained, the City did not move for a mistrial.  After judgment was entered in favor of Plaintiff, the City moved for a new trial alleging that the cumulative effect of opposing counsel’s misconduct throughout trial deprived it of a fair trial.  The trial court found that although Plaintiff’s counsel’s conduct was so pervasive and prejudicial that it impaired the City’s right to a fair trial, the City had not moved for a mistrial and the conduct was not so extreme that “it would undermine the public’s confidence in the judicial system,” and on that basis denied the City’s motion.  The City appealed to Florida’s Second District Court of Appeal, which reversed the denial of a new trial based on the holding that the City’s contemporaneous objections to the misconduct were sufficient.  The Second District did not reach the separate issue of whether the complained of misconduct constituted fundamental error.  Because the Second District’s holding was in direct conflict with other appellate courts in Florida, the Florida Supreme Court accepted discretionary review.

The Court analogized the need for moving for a mistrial with the contemporaneous objection rule: 


“…failure to alert the trial judge that an error may be incurable results in delay and wastes judicial resources, especially if the error complained of occurs early on in the proceedings.  In cases such as the instant case where the trial judge sustains an objection, the trial judge is not put on notice that any further action is needed.  Without a request for mistrial or a curative instruction, the trial judge presumes that the objecting party has been satisfied that the error has been cured.”

As such, the Court quashed the Second District’s decision and remanded the case for consideration of whether the trial court abused its discretion in denying a new trial under a fundamental error analysis.

Florida Appellate Court Reaffirms Prohibition of "Mary Carter" Agreements

Conditional settlement agreements between a plaintiff and a codefendant are nothing new.  But when such an agreement is premised on the notion that the “settling” codefendant will continue to defend itself at trial, diminishing its own liability proportionately by increasing the liability of the other codefendants, it is against public policy.

The term “Mary Carter agreement” originated in the case Booth v. Mary Carter Paint Co. and evolved through its progeny.  It is essentially a contract by which one codefendant secretly agrees with the plaintiff that, if the defendant will proceed to defend itself in court, its own maximum liability will be diminished proportionately by increasing the liability  of the other codefendants.

Secrecy is the essence of such an agreement, because the court or jury as trier of the facts, if apprised of this, would likely weigh differently the testimony and conduct of the signing defendant as related to the nonsigning defendants.  By painting a gruesome testimonial picture of the other defendants’ misconduct or, in some cases, by admissions against himself and the other codefendants, he could diminish or eliminate his own liability by use of the secret “Mary Carter Agreement.”

Continue Reading...

Website Posters Beware - Florida Supreme Court Extends Long-Arm Statute to Nonresident Who Posts Allegedly Defamatory Comments About a Florida Resident on a Website Accessible and Accessed in Florida

The Supreme Court of Florida, answering a question certified by the Eleventh Circuit Court of Appeals, recently held that posting defamatory material on a website about a Florida resident does constitute the commission of a tortious act within Florida for purposes of the State’s long-arm statute, section 48.193(1)(b), Florida Statutes, if the material on the website is accessible in Florida and is accessed by a third party in Florida.

In Internet Solutions Corporation v. Tabatha Marshall (.pdf), the defendant, Tabatha Marshall, a resident of the State of Washington, owned and operated a website on which she posted about consumer-related issues.  Plaintiff, Internet Solutions Corporation (“ISC”), was an employment and recruiting firm whose principal place of business was in Florida.  ISC filed a defamation action in federal court alleging that Marshall posted statements on her website claiming that ISC was engaged in certain ongoing criminal activity.  Marshall moved to dismiss the complaint for lack of personal jurisdiction on the basis that she had not committed a tortious act in Florida for purpose of Florida’s long-arm statute and that even if ISC could satisfy the long-arm statute, subjecting her to personal jurisdiction would violate her due process rights.  The district court ruled that Marshall was subject to personal jurisdiction under Florida’s long-arm statute, but determined that the exercise of jurisdiction under the circumstances would violate due process.  The complaint was dismissed. 

Continue Reading...

Florida Supreme Court Decides That Bad-Faith Claim Cannot Be Maintained Against Indemnity Insurer Where Bad Faith Did Not Cause Insured's Damages

The Florida Supreme Court recently decided, in a case of first impression, that a cause of action for third-party bad faith against an indemnity insurer cannot be maintained when the insurer’s actions were not a cause of the damages to the insured or when the insurer’s actions never resulted in exposure to liability in excess of the policy limits of the insured’s policies.  

In Perera v. United States Fidelity & Guaranty Co. (.pdf), the plaintiff’s husband, an employee of Estes Express Lines Corporation, was crushed to death by a piece of equipment, and his wife filed a wrongful death suit against Estes.  Estes had three insurance policies:  a $1 million commercial liability policy issued by Cigna, a $1 million excess worker’s compensation employer’s liability policy issued by USF&G, and a $25 million umbrella excess liability policy issued by Chubb.  USF&G denied coverage.  The parties entered into a settlement for $10 million, with Estes to pay $5 million, made up of $750,000 from Estes, $500,000 from Cigna, and $3.75 million from Chubb.  The remaining $5 million was to be sought by Estes or Perera in a lawsuit against USF&G. 

Continue Reading...

What's Good for the Goose Is not Necessarily Good for the Gander: Florida Defendants May Not Videotape Compulsory Medical Examinations of Plaintiffs

An appellate court in Florida granted certiorari and quashed a lower court’s order requiring the Plaintiff to submit to a compulsory medical examination in the presence of a videographer hired by the Defendant.

In Prince v. Mallari (.pdf), Defendant served a notice of compulsory medical examination to be performed by a defense-retained physician.  The notice stated in bold type: “If the plaintiff videotapes the examination, Defendant will also videotape the examination, at its expense.”  Over Plaintiff’s objection, the trial court ordered that if Plaintiff was going to videotape the examination, then the defense should also be allowed to have a videographer present.

Florida’s Fifth District Court of Appeal quashed the order, and in so doing reaffirmed Florida case law that although the defense can require a plaintiff to submit to a compulsory medical examination pursuant to Fla. R. Civ. P. 1.360, defense counsel does not have the right to be present at the examination.  The court reasoned that because a compulsory medical examination is an “adversarial” proceeding, a plaintiff must be afforded certain protections such as the right to privacy, the right to have counsel present, and the right to have the examination videotaped.  A plaintiff’s videotape of a compulsory medical examination would typically be protected from production under the work product doctrine unless the videotape was to be introduced as evidence at trial.

Defendant argued that because he could not obtain Plaintiff’s videotape of the examination through discovery due to the work product privilege, the only way to be on equal footing at the examination and to insure the accuracy of the videotape was to have his own videographer present.  The Fifth DCA, however, disagreed and held that just because a plaintiff has an examination videotaped, that does not permit defense counsel to simultaneously videotape the examination. Otherwise, defense counsel could do by proxy what they are not permitted to do in person.

Florida Insurance Brokers Beware: Liability Expands

Insurance brokers in Florida can now be liable to insurance companies which suffer a loss as a result of the broker’s own fraud or negligence in providing information in an application material to the issuance of a policy.

An appellate court in Florida has issued an opinion applying section 552 of the Restatement (Second) of Torts to insurance brokers, thus allowing claims for negligence and fraudulent misrepresentation to proceed against a broker who did not fully disclose all material information relied upon by the insurance company in issuing a policy.

In Liberty Surplus Ins. Corp., Inc. v. First Indemnity Ins. Servs., Inc. (.pdf), Florida’s Fourth District Court of Appeal reversed the trial court’s dismissal of a complaint filed by an insurance company against a broker for, among other things, negligence and fraudulent misrepresentation. The broker had submitted an application for professional liability insurance on behalf of a law firm. The law firm provided full disclosure to the broker of numerous malpractice claims and disciplinary proceedings involving the firm and its members over the preceding 5-year period; however, the broker only forwarded some, but not all, of that information to the insurance company as part of the application. The insurance company issued and subsequently renewed the professional liability policy to the law firm.

After the law firm was sued in a class action for professional malpractice action, the insurance company discovered the information about the prior claims and proceedings that the broker had not disclosed. The insurance company settled the underlying lawsuit against its insured and filed a complaint against the broker to recover the amount it paid. The trial court dismissed the complaint with prejudice on the ground that any misrepresentations or altering of the application by the broker were imputed to the insured and no legal relationship existed between the insurer and broker.

Section 552 of the Restatement (Second) of Torts provides:

(1) One who, in the course, of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.

Although Florida had previously adopted section 552 and applied it to professionals such as accountants, title agents, and other types of professionals who supply information to business transactions, that provision had never been expressly applied to insurance brokers – until now. The court found the application of section 552 to an insurance broker to be appropriate when the broker submits an application for insurance that fails to disclose material facts about the applicant that the insurer justifiably relies upon in issuing a policy.

As such, insurance companies can now sue brokers in Florida for negligently or fraudulently misrepresenting or withholding material facts in an application for insurance.

Torts

UPDATED THROUGH October 14, 2014

Indemity -Department of Transportation.Questions Certified:  Is DOT bound by a railroad crossing agreement under which it received a revocable license to use land as right-of-way if the sole consideration for the license was an agreement to indemnify the railroad for losses arising out of DOT’s activity on the land?  If so, is DOT’s liability under the crossing agreement limited by section 768.28(5), Florida Statutes (2002)?  FDOT v. Schwefringhaus, No. SC14-69 (review granted Apr. 3, 2014).  DCA decision: 128 So. 3d 209 (Fla. 2d DCA 2013).  Status: oral argument scheduled for Nov, 5, 2014; breifing complete (Sept. 5, 2014)

Carriers; Federal Preemption. Are Florida statutory and common law claims against an interstate carrier preempted by the Carmack Amendment if the claims are not based on conduct separate and distinct from the delivery, loss of, or damage to goods?  Mlinar v. United Parcel Service, Inc., No. SC14-54 (review granted Apr. 30, 2014). DCA decision:  129 So. 3d 406 (Fla. 4th DCA 2013). Status: briefing; oral argument scheduled for Nov, 5, 2014; briefing complete (July 29, 2014).

Products Liability – Manifestation.  To determine class membership in an Engle-progeny case, does manifestation of an injury occur when the smoker experiences any symptoms of the disease or must the symptoms put a reasonable person on notice that smoking may have been the cause.  R.J. Reynolds Tobacco Co. v. Ciccone, No. SC13-2415 (review granted June 13, 2014).  DCA decision: 123 So. 3d 604 (Fla. 4th DCA 2013).  Status:  briefing; oral argument scheduled for Dec. 4, 2014.

Negligence – Duty of Care. Does a public school owe a duty to maintain, make available, and use an automated external defribrillator on a student athlete who collapses during a school-sanctioned athletic competition?  Limones v. School District of Lee County, No. SC13-932 (review granted Feb. 6, 2014).  DCA decision:  111 So. 3d 901 (Fla. 2d DCA 2013).  Status:  decision pending; Oral Argument Video (Oct. 6, 2014); briefing complete (July 21, 2014).

Punitive Damages – Strict Liability/Negligence.Question Certified: Are members of the class in Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006), entitled to pursue an award of punitive damages under theories of negligence or strict liability? Soffer v. R.J. Reynolds Tobacco Co., No. SC13-139 (review granted Feb. 28, 2014). DCA decision: 106 So. 3d 456 (Fla. 1st DCA 2012). Status: oral argument rescheduled to Dec. 4, 2014; briefing complete (May 5, 2014).

Medical Malpractice - Experts.  Under section 766.102, Florida Statutes, is an infectious disease doctor not in a “similar specialty” to an opthalmologist and therefore not qualified to provide an expert affidavit in a medical malpractice action alleging that the plaintiff contracted a rare bacterial infection as a result of eyelid surgery? Edwards v. The Sunrise Opthamology ASC, LLC, No. SC13-2168 (review granted July 9, 2014). DCA decision: 134 So. 3d 1056 (Fla. 4th DCA 2013). Status: briefing; no oral argument.

Medical Malpractice – Statutory Cap on Noneconomic Damages. Was the retroactive application of the statutory cap on noneconomic damages, see Fla. Stat. § 766.118, constitutionally permissible as applied to the facts of the case?  Miles v. Weingrad, No. SC13-54 (review granted Oct. 15, 2013).  DCA decision:  29 So. 3d 406 (Fla. 3d DCA 2010).  Status:  decision pending; Oral Argument Video (Jun. 4, 2014); briefing complete (Mar. 17, 2014).

For further treatment of this case, please click here.

Inconsistent Verdict - Preservation of Error. Does a defendant have to object to an inconsistent verdict when the inconsistency is fundamental in nature?  Coba v. Tricam Industries, Inc., No. SC12-2624 (review granted Nov. 4, 2013).  DCA decision:  100 So. 3d 105 (Fla. 3d DCA 2012).  Status:  decision pending; Oral Argument Video (Sept. 17, 2014); briefing complete (May 5, 2014).

For further treatment of this case, please click here.

Wrongful Death – Causation.  In a wrongful death case involving murders at an apartment complex, did the plaintiff fail to establish that the owner’s breach of a duty to provide adequate security was the proximate cause of the murders? Sanders v. ERP Operating Ltd. P’ship, No. SC12-2416(review granted August 2, 2013). DCA decision: 96 So. 3d 929 (Fla. 4th DCA 2012). Status: decision pending; briefing complete (Jan. 28, 2014); no oral argument.

For further treatment of the above case, please click here.

Releases - Exculpatory Clauses. Conflict Certified: Does a release clearly and unambiguously release defendant from liability for the physical injuries sustained during plaintiffs’ stay at defendant’s resort when the release does not expressly reference negligence? Sanislo v. Give Kids The World, Inc., No. SC12-2409 (review granted June 3, 2013). DCA decision: 98 So. 3d 759 (Fla. 5th DCA 2012).  Status: decision pending; Oral Argument Video (Nov. 5, 2013); briefing complete (Aug. 27, 2013).

For further treatment of this case, please click here.

Settlement - Medicaid Lien. Whether Florida Statute § 409.901 governing reimbursement of Medicaid is preempted by federal law requiring the trial court to allocate any settlement based upon fair evaluation of plaintiff’s injuries between past and unreimbursable future Medicaid payments and between medical expenses and intangibles. Garcon v. Fla. Agency for Health Care Admin., No. SC12-2406 (review granted Sept. 17, 2013). DCA decision: 96 So. 3d 472 (Fla. 3d DCA 2012). Status: motion to relinquish jurisdiction pending (Jan. 21, 2014); briefing; oral argument to be set by separate order.   

Medical Malpractice - Causation.  The Court quashed the below decision, disapproved of the decision in Ewing, and approved the decisions in Goolsby and Muñoz. The Court held that the plaintiff’s burden with regard to causation is only to establish that adequate care by the physician more likely than not would have avoided the plaintiff’s injury. Testimony that a subsequent treating physician would not have treated the patient plaintiff differently had the defendant physician acted within the applicable standard of care is irrelevant and inadmissible and will not insulate a defendant physician from liability for his or her own negligence. Saunders v. Dickens, No. SC12-2314 (review granted June 3, 2013).  DCA decision: 103 So. 3d 871 (Fla.4th DCA 2012).  Status: decided; motion for clarification pending (July 25, 2014); Slip Opinion (July 10, 2014); Oral Argument Video (Feb. 4, 2014). 

For further treatment of the above case, please click here.

Wrongful Death - Tobacco. Did the trial court misapply findings of Engle v. Liggett Group, Inc. by denying the defendant’s motion for judgment as matter of law on the fraudulent concealment claim, upon which punitive damages award was based, where the jury found that decedent had relied on defendant’s fraudulent statements before May 5, 1982?  Philip Morris USA, Inc. v. Hess, No. SC12-2153 (review granted June 3, 2013).  DCA decision: 95 So. 3d 254 (Fla. 4th DCA 2012). Status: decision pending; Oral Argument Video (April 30, 2014); briefing complete (Jan. 3, 2014).

Product Liability – Asbestos. Did the trial court err by applying the Third Restatement of Torts, which recognizes the component part doctrine, rather than the Second Restatement of Torts?  Aubin v. Union Carbide Corp., No. SC12-2075 (review granted Apr. 18, 2013).  DCA decision:  97 So. 3d 886 (Fla. 3d DCA 2012). Status:  decision pending; Oral Argument Video (Apr. 8, 2014); briefing complete (Dec. 20, 2013).

For further treatment of this case, please click here.

Wrongful Death - Tobacco. Did the trial court err in allowing tobacco company’s statute of limitations defense to go to the jury where there was no competent substantial evidence that the accumulated effects of the substance had manifested in a way that supplied the plaintiff some evidence of the causal relationship to the manufactured product before the limitations bar?  Philip Morris USA, Inc. v. Russo, No. SC12-1401 (review granted Sept. 3, 2013). DCA decision: sub nom. Frazier v. Philip Morris USA, Inc., 89 So. 3d 937 (Fla. 3d DCA 2012).  Status: decision pending; Oral Argument Video (Apr. 30, 2014); briefing complete (Dec. 17, 2013).

Medical Malpractice – Harmless Error. Question Certified: To avoid a new trial in a civil case, does the beneficiary of the error in the trial court have to show on appeal that it is more likely than not that the error did not influence the trier of fact and thereby contribute to the verdict? Special v. West Boca West Med. Ctr., No. SC11-2511 (review granted June 20, 2012). DCA decision: 79 So. 3d 755 (Fla. 4th DCA 2011). Status: decision pending; Oral Argument Video (Apr. 3, 2013); briefing complete (Dec. 19, 2012).

For further treatment of this case, please click here.

 

 

 

Tags:

Property

UPDATED THROUGH October 14, 2014

Insurance Coverage - Causation.  Does efficient proximate cause or concurrent cause theory apply in the context of a first party insurance claim involving a multiple-peril loss?   Sebo v. Am. Home Assur. Co., SC14-897 (review granted Oct. 7, 2014).  DCA decision: 141 So. 3d 195 (Fla. 2d DCA 2013).  Status: briefing; oral argument to be set by separate order.

Foreclosure -Statute of Limitations. Question Certified:  Does acceleration of  payments due under a note and mortgage in a foreclosure action that was dismissed pursuant to rule 1.420(b), Florida Rules of Civil Procedure, trigger application of the statute of limitations to prevent a subsequent foreclosure action by the mortgagee based on all payment defaults occurring subsequent to dismissal of the first foreclosure suit?  Bartram v. U.S. Bank. Nat’l Ass’n, No. SC14-1265; The Plantation at Ponte Vedra v. U.S. Bank Nat’l Ass’n, No. SC14-1266; Bartram v. U.S. Bank Nat’l Ass’n, No. SC14-1305 (review granted and cases consolidated Sept. 11, 2014).  DCA decision:  140 So. 3d 1007 (Fla. 5th DCA 2014). Status:  briefing; oral argument to be set by separate order.

Real Property- Quiet Title. Does the exception contained in section 712.03(5), Florida Statutes (2008), which preserves easements and rights-of-way, preclude Clipper Bay from extinguishing any portion of FDOT’s interest in its land?  FDOT v. Clipper Bay Investments, LLC., No. SC13-775 (review granted Jul. 16, 2013).  DCA decision:  117 So. 3d 7 (Fla. 1st DCA 2013).  Status:  supplemental briefing complete (June 24, 2014); Oral Argument Video (Apr. 8, 2014); briefing complete (Oct. 18, 2013). 

Tags:

Insurance

 UPDATED THROUGH October 14, 2014

 

Insurance Coverage - Causation Does efficient proximate cause or concurrent cause theory apply in the context of a first party insurance claim involving a multiple-peril loss?   Sebo v. Am. Home Assur. Co., SC14-897 (review granted Oct. 7, 2014).  DCA decision: 141 So. 3d 195 (Fla. 2d DCA 2013).  Status: briefing; oral argument to be set by separate order.

Workers’ Compensation – Attorneys’ Fees. Question Certified:  Whether the award of attorney’s fees in this case [$164.54 for 107.2 hours of legal work] is adequate, and consistent with the access to courts, due process, equal protection, and other requirements of the Florida and Federal Constitutions?  Castellanos v. Next Door Co., No. SC13-2082 (review granted Mar. 14, 2014).  DCA decision:  124 So. 3d 392 (Fla. 1st DCA 2013).  Status:  oral argument scheduled for Nov. 5, 2014; briefing complete (July 11, 2014).

Statutory Immunity - Government Insurer- Question Certified:  Whether the immunity of Citizens Property Insurance Corporation, as provided in section 627.351(6)(S), Florida Statutes, shields the corporation from suit under the cause of action created by section 624.155(1)(B), Florida Statutes for not attempting in good faith to settle claims?  Citizens Prop. Ins. Corp. v. Perdido Sun Condo. Ass’n, No. SC14-185 (review granted Mar. 26, 2014).  DCA decision: 129 So. 3d 1210 (Fla. 1st DCA 2014).  Status: decision pending; Oral Argument Video (October 7, 2014); briefing complete (June 24, 2014).

Uninsured/Underinsured Motorist Benefits - Saving Language. Does the “saving” language in Florida’s uninsured/underinsured motor vehicle insurance statute, § 627.727(1), Fla. Stat., which obviates the need for a new rejection of UM coverage in any policy that “renews, extends, changes, supersedes, or replaces an existing policy with the same bodily injury liability limits,” apply to a policy that completely changes the named insured? Chase v. Horace Mann Ins. Co., No. SC13-2013 (review granted June 18, 2014). DCA decision: 121 So. 3d 1191 (Fla. 1st DCA 2013). Status: decision pending; briefing complete (Aug. 14, 2014); no oral argument.

Workers’ Compensation-Maximum Medical Improvement. Question Certified:  Is a worker who is totally disabled as a result of workplace accident, but still improving from a medical standpoint at the time temporary total disability benefits expire, deemed to be at maximum medical improvement by operation of law and therefore eligible to assert a claim for permanent and total disability benefits?  Westphal v. City of St. Petersburg, No. SC13-1930; City of St. Petersburg v. Westphal, SC13-1976 (review granted Dec. 9, 2013).  DCA decision: 122 So. 3d 440 (Fla. 1st DCA 2013).  Status:  decision pending; Oral Argument Video (Jun. 5, 2014); briefing complete (Mar. 26, 2014).

Medicare - Collateral Source.  Are Medicare benefits a collateral source that the jury may not consider in determining future damages? Joerg v. State Farm Mut. Auto. Ins. Co.,  No. SC13-1768 (review granted July 11, 2014). DCA decision: 2013 WL 3107207, 38 Fla. L. Weekly D1378 (Fla. 2d DCA June 21, 2013). Status: briefing; oral argument to be set by separate order.

Uninsured/Underinsured Motorist Benefits- Bad Faith Is a jury in a UM case entitled to determine the full extent of the injured victim’s damages prior to the filing of a bad faith action?  Fridman v. Safeco Ins. Co. of Ill., No. SC13-1607 (review granted Apr. 14, 2014).  DCA decision:  117 So. 3d 16 (Fla. 5th DCA 2013).  Status:  briefing complete (Sept. 25, 2014);oral argument to be set by separate order.

Workers’ Compensation-Coverage. Questions Certified by the 11th Circuit Court of Appeals: (1) Whether estate had standing to bring breach of contract claim against employer's insurer; (2) Whether policy's workers' compensation exclusion operated to exclude coverage of estate's claim against insurer for tort judgment against employer; and (3) Whether release in workers' compensation settlement agreement prohibited estate's collection of tort judgment. Morales. v. Zenith Ins. Co., No. SC13-696 (review granted Oct. 7, 2013). 11th Cir. Decision: 714 F.3d 1220 (11th Cir. 2013). Status: decision pending; Oral Argument Video (Apr. 10, 2014); briefing complete (Aug. 12, 2013).

Uninsured Motorist Coverage. Question Certified:  Whether uninsured motorist benefits are stackable under section 627.727(9), Florida Statutes, where such benefits are claimed by an insured policyholder, and where a non-stacking election was made by the purchaser of the policy, but where the insured claimant did not elect non-stacking benefits?  Travelers Commercial Ins. Co. v. Harrington, No. SC12-1257 (review granted Jan. 28, 2013).  DCA decision: 86 So. 3d 1274 (Fla. 1st DCA 2012).  Status: decision pending; Oral Argument Video (Apr. 10, 2014); briefing complete (June 19, 2013).

 

 

 

 

 

 

 

Tags:

Government

UPDATED THROUGH October 14, 2014

Statutory Immunity - Government Insurer. Question Certified:  Whether the immunity of Citizens Property Insurance Corporation, as provided in section 627.351(6)(S), Florida Statutes, shields the corporation from suit under the cause of action created by section 624.155(1)(B), Florida Statutes for not attempting in good faith to settle claims?  Citizens Prop. Ins. Corp. v. Perdido Sun Condo. Ass’n, No. SC14-185 (review granted Mar. 26, 2014).  DCA decision: 129 So. 3d 1210 (Fla. 1st DCA 2014).  Status:  decision pending; Oral Argument Video (Oct. 7, 2014); briefing complete (June 24, 2014).

Sovereign Immunity – State University Athletic Department. Is a statutorily authorized direct-support organization responsible for administering a state university’s athletic department primarily acting as an instrumentality of the state university under section 768.72(2), Florida Statutes so as to be entitled to limited sovereign immunity?  Plancher v. UCF Athletics Ass’n, Nos. SC13-1872, SC13-1874 (review granted Aug. 13, 2014 and designated “high profile”).  DCA decision: 121 So. 3d 1097 (Fla. 5th DCA 2013).  Status:  briefing; no oral argument.

Constitutionality – Statute re Pari-Mutuel Permit Class Change. Is section 550.054, Florida Statutes, which allows the holder of a pari-mutuel permit to change the class of the permit from jai-alai to greyhound if three criteria are met, a special law or general law? License Acquisitions, LLC v. Debary Real Estate Holdings, LLC, No. SC13-968; Fla. Dep’t of Bus. & Prof. Reg. v. Debary Real Estate Holdings, LLC, No. SC13-1028 (notices of appeal filed on June 6, 2013 and June 10, 2013, respectively). DCA decision: 112 So. 3d 157 (Fla. 1st DCA 2013). Status: decision pending; Oral Argument Video (Dec. 3, 2013); briefing complete (Sept. 4, 2013).

Taxation – Tourist Development Act. Question Certified:  Does the “Local Option Tourist Development Act,” codified at section 125.0104, Florida Statutes, impose a tax on the total amount of consideration received by an on–line travel company from tourists who reserve accommodations using the on–line travel company's website, or only on the amount the property owner receives for the rental of the accommodations?  Alachua County v. Expedia, Inc., No. SC13-838 (review granted Sept. 10, 2013).  DCA decision:  110 So. 3d 941 (Fla. 1st DCA 2013).  Status: decision pending; Oral Argument Video (Apr. 30, 2014); briefing complete (Dec. 16, 2013). 

 

 

 

Tags:

Family Law/Probate

UPDATED THROUGH October 14, 2014

Dissolution of Marriage – Prenuptial Agreement. Question Certified:  Where a prenuptial agreement provides that neither spouse will ever claim any interest in the other's property, states that each spouse shall be the sole owner of property purchased or acquired in his or her name, and contains language purporting to waive and release all rights and claims that a spouse may be entitled to as a result of the marriage, do such provisions serve to waive a spouse's right to any share of assets titled in the other spouse's name, even if those assets were acquired during the marriage due to the parties' marital efforts or appreciated in value during the marriage due to the parties' marital efforts?  Hahamovitch v. Hahamovitch, No. SC14-277 (review granted Apr. 22, 2014).  DCA decision: 133 So. 3d 1008 (Fla. 4th DCA 2014). Status: briefing; oral argument to be set by separate order.

Probate - Creditors. Conflict-Certified:  Is a claimant who alleges to be a known or reasonably ascertainable creditor required to comply with the time periods set forth in Fla. Stat. § 733.702(1), or to otherwise seek an extension of time under Fla. Stat. § 733.702(3)? Golden v. Jones, No. SC13-2536 (review granted July 1, 2014). DCA decision: 126 So. 3d 390 (Fla. 4th DCA). Status: briefing; oral argument to be set by separate order.

Involuntary Admission – Disabled Persons.Questions Certified by the Eleventh Circuit Court of Appeals:  (1) Does “support plan” review under Fla. Stat. § 393.0651 require the Agency for Persons with Disabilities to consider the propriety of a continued involuntary admission to residential services order entered under Fla. Stat. § 393.11? (2) Is the Agency for Persons with Disabilities required, pursuant to Fla. Stat. § 393.0651 and/or Fla. Stat. § 393.11, to petition the circuit court for a release from an involuntary admission order in cases where the APD determines that the circumstances that led to the initial admission order have changed? (3) Does Fla. Stat. § 393.062 et seq. provide a statutory mandate to meaningfully periodically review involuntary admissions to non-secure residential services consistent with the commitment schemes discussed in Parham v. J.R., 442 U.S. 584, 99 S. Ct. 2492, 61 L. Ed. 2d 101 (1979) and Williams v. Wallis, 734 F.2d 1434 (11th Cir. 1984)?  J.R. v. Palmer, No. SC13-1549 (review granted Aug. 27, 2013).  11th Cir. decision: 736 F.3d 959 (2013).  Status: decision pending; Oral Argument Video (Apr. 9, 2014); briefing complete (Dec. 13, 2013).

Tags:

Damages

UPDATED THROUGH October 14, 2014

Punitive Damages – Strict Liability/Negligence. Question Certified: Are members of the class in Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006), entitled to pursue an award of punitive damages under theories of negligence or strict liability? Soffer v. R.J. Reynolds Tobacco Co., No. SC13-139 (review granted Feb. 28, 2014). DCA decision: 106 So. 3d 456 (Fla. 1st DCA 2012). Status: oral argument rescheduled to Dec. 4, 2014; briefing complete (May 5, 2014).

Medical Malpractice – Statutory Cap on Noneconomic Damages. Was the retroactive application of the statutory cap on noneconomic damages, see Fla. Stat. § 766.118,  constitutionally permissible as applied to the facts of the case?  Miles v. Weingrad, No. SC13-54 (review granted Oct. 15, 2013).  DCA decision:  29 So. 3d 406 (Fla. 3d DCA 2010).  Status: decision pending; Oral Argument Video (Jun. 4, 2014); briefing complete (Mar. 17, 2014).

 For further treatment of this case, please click here.

Tags:

Contracts

UPDATED THROUGH October 14, 2014

Carriers - Federal Preemption. Are Florida statutory and common law claims against an interstate carrier preempted by the Carmack Amendment if the claims are not based on conduct separate and distinct from the delivery, loss of, or damage to goods?  Mlinar v. UPS,  No. SC14-54 (review granted Apr. 30, 2014). DCA decision:  129 So. 3d 406 (Fla. 4th DCA 2013). Status: oral argument scheduled for Nov. 5, 2014; briefing complete (July 29, 2014).

Oral Agreement - Statute of Frauds. Question Certified: Is an oral agreement to play the lottery and split the proceeds in the event a winning ticket is purchased unenforceable under the statute of frauds when: there is no time agreed for completion of performance of the agreement; the parties intended the agreement to extend for a period longer than one year, and it did extend for a period of fourteen years; and it clearly appears from the surrounding circumstances that the oral agreement would last longer than one year. Browning v. Poirier, No. SC13-2416 (review granted June 20, 2014). DCA decision: 128 So. 3d 144 (Fla. 5th DCA 2013). Status: oral argument scheduled for Dec. 4, 2014; briefing complete (Sept. 12, 2014).

For further treatment of this case, please click here.

Breach of Contract - Release. Questions Certified by the Eleventh Circuit Court of Appeals:  (1) Whether estate had standing to bring breach of contract claim against employer's insurer; (2) whether policy's workers' compensation exclusion operated to exclude coverage of estate's claim against insurer for tort judgment against employer; and (3) whether release in workers' compensation settlement agreement prohibited estate's collection of tort judgment. Morales v. Zenith Ins. Co., No. SC13-696 (review granted Oct. 7, 2013). 11th Cir. Decision: 714 F.3d 1220 ( 2013). Status: decision pending; Oral Argument Video (Apr. 10, 2014); briefing complete (Aug. 12, 2013).

Exculpatory Clauses. Conflict Certified: Does a release clearly and unambiguously release defendant from liability for the physical injuries sustained during plaintiffs’ stay at defendant’s resort when the release does not expressly reference negligence? Sanislo v. Give Kids The World, Inc., No. SC12-2409 (review granted June 3, 2013). DCA decision: 98 So. 3d 759 (Fla. 5th DCA 2012). Status: decision pending; Oral Argument Video (Nov. 5, 2013); briefing complete (Aug. 27, 2013).

For further treatment of the above case, please click here.

Legality of Contract.The Court quashed the Fourth District’s decision and held that a court is not required to determine whether a contract is legal before enforcing an arbitral award based on the contract. The Court also held that “the claim that an arbitration panel construed a contract containing an arbitration provision to be an unlawful agreement is an insufficient basis to vacate an arbitrator’s decision pursuant to the FAA [Federal Arbitration Act] or the FAC [Florida Arbitration Code].  Visiting Nurses Ass’n of Fla., Inc. v. Jupiter Med. Ctr., Inc., No. SC11-2468 (review granted Mar. 7, 2013).  DCA Decision: 72 So. 3d 184 (Fla. 4th DCA 2011).  Status:  decided; motion for rehearing pending (July 25, 2014); Slip Opinion (July 10, 2014); Oral Argument Video (Oct. 11, 2013).

Tags:

Class Actions

UPDATED THROUGH October 14, 2014

Tobacco - Manifestation. To determine class membership in an Engle-progeny case, does manifestation of an injury occur when the smoker experiences any symptoms of the disease or must the symptoms put a reasonable person on notice that smoking may have been the cause.  R.J. Reynolds Tobacco Co. v. Ciccone, No. SC13-2415 (review granted June 13, 2014).  DCA decision: 123 So. 3d 604 (Fla. 4th DCA 2013).  Status:  briefing; oral argument scheduled for Dec. 4, 2014.

Class Action – Punitive Damages. Question Certified: Are members of the class in Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006), entitled to pursue an award of punitive damages under theories of negligence or strict liability? Soffer v. R.J. Reynolds Tobacco Co., No. SC13-139 (review granted Feb. 28, 2014). DCA decision: 106 So. 3d 456 (Fla. 1st DCA 2012). Status: oral argument rescheduled to Dec. 4, 2014; briefing complete (May 5, 2014).

 

Tags:

Labor/Employment

UPDATED THROUGH October 14, 2014

Union – Collective Bargaining.  Whether the Public Employees Relations Commission (PERC) erred in determining that the City was facing a “financial urgency” that required modification of the parties’ collective bargaining agreement (CBA) pursuant to section 447.4095, Florida Statutes (2010), and whether PERC erred in construing section 447.4095 to allow the City to implement changes to the CBA prior to completion of the impasse resolution process set forth in section 447.403. Headley v. City of Miami, Fla., No. SC13-1882 (review granted Aug. 28, 2014). DCA decision: 118 So. 3d 885 (Fla. 1st DCA 2013). Status: briefing; oral argument to be set by separate order. 

 

 

 

 

 

 

Tags:

Civil Procedure

UPDATED THROUGH October 14, 2014

Default Judgment – Void/Voidable. Certified Conflict: Is a default judgment entered on a complaint that fails to state a cause of action void or voidable? The Bank of N.Y. Mellon Corp. v. Condo. Ass’n of La Mer Estates, No. SC14-1049 (review granted Aug. 7, 2014).  DCA decision: 137 So. 3d 396 (Fla. 4th DCA 2014). Status: briefing; no oral argument.

Default Judgment – Motion to Set Aside. Does a motion to set aside a default judgment need to show excusable neglect when the complaint wholly fails to state a cause of action against the defaulted defendant? Santiago v. Mauna Loa Investments, LLC, No. SC13-2194 (review granted May 22, 2014). DCA decision: 122 So. 3d 520 (Fla. 3d DCA 2013). Status: briefing; oral argument to be set by separate order.

State Agency – Authority to Sue. The Court answered the rephrased certified question from the Eleventh Circuit Court of Appeals in the affirmative by holding that Florida Virtual School’s statutory authority to “acquire, enjoy, use, and dispose of . . . trademarks and any licenses and other rights or interests thereunder or therein” and the designation of its board of trustees as a “body corporate with all the powers of a body corporate and such authority as is needed for the proper operation and improvement of the Florida Virtual School,” necessarily includes the authority to file an action to protect those trademarks.  Florida VirtualSchool v. K12, Inc., No. SC13-1934 (review granted Oct. 15, 2013 and designated as a high-profile case).  11th Cir. decision: 735 F.3d 1271 (2013).  Status:  Slip Opinion (Sept. 18, 2014); Oral Argument Video (Apr. 28, 2014); briefing complete (Jan. 10, 2014).

Relation Back Doctrine. Does a party’s amended claim which alleges a new cause of action relate back to the original pleading when it is not based on different facts? Palm Bch. Cnty. Sch. Bd. v. Doe, No. SC13-1834 (review granted June 11, 2014). DCA decision: 117 So. 3d 786 (Fla. 4th DCA). Status: briefing; no oral argument.

Relation Back Doctrine. Does an amendment setting forth a new claim or legal theory relate back to an earlier complaint, when the new claim is based on the same conduct, transaction, or occurrence alleged in an earlier pleading? Kopel v. Kopel, No. SC13-992(review granted June 11, 2014). DCA decision: 117 So. 3d 1147 (Fla. 3d DCA 2013). Status: briefing; no oral argument.

Default – Service of Process. Conflict certified: To be entitled to the presumption of valid service, does a return of service have to expressly list the factors defining the “manner of service” identified in the statutes defining service, but not included in the facial language of section 48.21, Florida Statutes defining invalid service? Koster v. Sullivan, No. SC13-159 (review granted Oct. 31, 2013). DCA decision: 103 So. 3d 882 (Fla. 2d DCA 2013). Status: decision pending; Oral Argument Video (June 3, 2014); briefing complete (Feb. 11, 2014). 

For further treatment of this case, please click here

 

Tags:

Bankruptcy

UPDATED AS OF October 14, 2014

There are no cases to report on at this time.

Tags:

Attorney-Related

UPDATED THROUGH October 14, 2014

Attorney’s Fees - Eminent Domain. Was an expressway authority’s offer to landowners to purchase property so indefinite that it could not be used to determine the attorney’s fee award under section 73.092, Florida Statutes? Joseph B. Doerr Trust v. Central Fla. Expressway Auth., No. SC14-1007 (review granted July 8, 2014). DCA decision:  84 So. 3d 410 (Fla. 4th DCA 2012). Status: briefing; oral argument to be set by separate order.

Attorney’s Fees - Municipal Corporations. Question Certified:  Are the prevailing party attorney’s fees provisions of section 175.061(5) and 185.05(5), Florida Statutes, applicable to judicial proceedings to enforce claims under local laws, plans or special acts?  Parker v. Bd. of Trustees of City Pension Fund for Firefighters & Police Officers in the City of Tampa, No. SC13-890 (review granted June 3, 2013). DCA decision: 113 So. 3d 64 (Fla. 2d DCA 2013). Status: decision pending; Oral Argument Video (Feb. 5, 2014); briefing complete (Oct. 4, 2013).

Attorney’s Fees - Public Records Request.  Is an award of attorneys’ fees proper under section 119.12, Florida Statutes, when a state agency’s refusal to disclose certain public records was neither knowing, willful, nor done with malicious intent? Bd. of Trustees, Jacksonville Police & Fire Pension Fund v. Lee, No. SC13-1315 (review granted Jun. 18, 2014). DCA decision: 113 So. 3d 1010 (Fla. 1st DCA 2013). Status: oral argument to be set by separate order; briefing complete (Sept. 2, 2014). 

Proposals for Settlement - Apportionment  Was a proposal for settlement served by plaintiff invalid because it was a joint proposal that failed to apportion the proposed amount between two plaintiffs?  Arnold v. Audiffred, No. SC12-2377 (review granted May 3, 2013).  DCA decision:  98 So. 3d 746 (Fla. 1st DCA 2012).  Status: briefing complete (July 25, 2013); no oral argument.

For further treatment of the above case, please click here.

Proposals for Settlement - Apportionment.  Was a proposal for settlement that failed to apportion the offer between two separately named defendants ambiguous and was its required release of future unknown claims valid pursuant to section 768.79, Florida Statutes, and Florida Rule of Civil Procedure 1.442? Pratt v. Weiss, No. SC12-1783 (review granted July 18, 2013, [initial order granting review dated May 3, 2013  vacated]).  DCA decision: 92 So. 3d 851 (Fla. 4th DCA 2012). Status:  decision pending; briefing complete (Feb. 7, 2014); no oral argument.

For further treatment of the above case, please click here.

 

 

 

 

 

 

 

Tags:

Arbitration

UPDATED THROUGH October 14, 2014

Legality of Contract. The Court quashed the Fourth District’s decision and held that a court is not required to determine whether a contract is legal before enforcing an arbitral award based on the contract. The Court also held that “the claim that an arbitration panel construed a contract containing an arbitration provision to be an unlawful agreement is an insufficient basis to vacate an arbitrator’s decision pursuant to the FAA [Federal Arbitration Act] or the FAC [Florida Arbitration Code].”  Visiting Nurses Ass’n of Fla., Inc. v. Jupiter Med. Ctr., Inc., No. SC11-2468 (review granted Mar. 7, 2013).  DCA Decision: 72 So. 3d 184 (Fla. 4th DCA 2011).  Status: decided; motion for rehearing pending (July 25, 2014); Slip Opinion (July 10, 2014); Oral Argument Video (Oct. 11, 2013).

Durable Power of Attorney – Consent to Arbitrate. Is a daughter acting under a durable power of attorney authorized to consent to arbitrate claims arising from the mother’s nursing home care?  Smith v. Southland Suites of Ormond Beach, LLC., No. SC10-631 (review granted Jan. 16, 2014).  DCA Decision: 28 So. 3d 103 (Fla. 5th DCA 2010).  Status: dismissed; the supreme court determined that jurisdiction was improvidently granted and discharged its jurisdiction; Oral Argument Video (Sept. 18, 2014); briefing complete (Apr. 29, 2014).

Tags:

Appellate Procedure & Jurisdiction

UPDATED THROUGH October 14, 2014

Harmless Error – Medical Malpractice. Question Certified: To avoid a new trial in a civil case, does the beneficiary of the error in the trial court have to show on appeal that it is more likely than not that the error did not influence the trier of fact and thereby contribute to the verdict? Special v. West Boca West Med. Ctr., No. SC11-2511 (review granted June 20, 2012). DCA decision: 79 So. 3d 755 (Fla. 4th DCA 2011). Status: decision pending; Oral Argument Video (Apr. 3, 2013); briefing complete (Dec. 19, 2012)

For further treatment of this case, please click here.

Inconsistent Verdict – Preservation of Error. Does a defendant have to object to an inconsistent verdict when the inconsistency is fundamental in nature?  Coba v. Tricam Industries, Inc., No. SC12-2624 (review granted Nov. 4, 2013).  DCA decision:  100 So. 3d 105 (Fla. 3d DCA 2012).  Status:  decision pending; Oral Argument Video (Sept. 17, 2014); briefing complete (May 5, 2014).

For further treatment of this case, please click here.

 

Tags: