The Appellate Strategist : Appellate Lawyers & Attorneys for Updates on Trial Consultations, Amicus Briefs & Punitive Damage Awards

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.]

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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.

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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.

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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.

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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.

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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.

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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.”

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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. 

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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. 

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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.

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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.

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Nursing Homes – Arbitration Clause.  Question certified: Does the execution of a nursing home arbitration agreement by a party with the capacity to contract, bind the patient’s estate and statutory heirs in a subsequent wrongful death action arising from an alleged tort within the scope of an otherwise valid arbitration agreement?  Laizure v. Avante at Leesburg, Inc., No. SC10-2132 (review granted Dec. 14, 2010).  DCA decision: 44 So. 3d 1254 (Fla. 5th DCA 2010).  Status: briefing complete; no Oral Argument.

Statute of Limitations.  Is a wrongful death action barred by the statute of limitations because any personal injury action abated upon death of the decedent, and a separate wrongful death action was not filed prior to the expiration of the two-year statute of limitations for that cause of action?  Capone v. Philip Morris USA, Inc., No. SC11-849 (review granted October 17, 2011).  DCA decision: 56 So. 3d 34 (Fla. 3d DCA 2010).  Status: briefing; Oral Argument to be set by separate order.

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Bus Stops – Liability For Student Hit By Car. Whether the school board is liable for damages sustained by a student that was hit by a vehicle while waiting at a bus stop, where the school board lacked control of the student at the time of the accident. Winslow v. Sch. Bd. of Alachua Cnty., No. SC10-2459 (review granted Dec. 16, 2010). DCA decision: 48 So. 3d 81 (Fla. 1st DCA 2010). Status: briefing complete; oral argument scheduled for February 8, 2012.

Public Employees – Unfair Labor Practices: Does conduct, which included granting the employee sick leave and then accusing him of abandoning his job; unfairly charging employee with violating a regulation regarding his computer password; failing to enthusiastically endorse employee’s “Rookie Teacher-of-the-Year” award; failing to place employee’s “Rookie Teacher-of-the-Year” announcement on the forward face of the school marquee over spring break; and failing to personally announce employee’s award on the school intercom, sufficiently evidence animus to sustain allegations of unfair labor practices? Koren v. Sch. Bd. of Miami Dade Cnty., No. SC10-2366 (review granted April 18, 2011). DCA decision: 46 So. 3d 1090 (Fla. 3d DCA 2010). Status: decision pending; Oral Argument Video.

Negligence – Rear-End Collision. Whether presumption of negligence in rear-end collision applies where a passenger in the following vehicle sues the lead driver for negligence? Birge v. Charron, No. SC10-1755 (review granted May 13, 2011). DCA decision: 37 So. 3d 292 (Fla. 5th DCA 2010). Status: briefing complete; no Oral Argument.

Economic Loss Rule – Professional Service:  Question Certified from the Eleventh Circuit Court of Appeals:  Does an insurance broker provide a “professional service” such that the insurance broker is unable to successfully assert the economic loss rule as a bar to tort claims seeking economic damages that arise from the contractual relationship between the insurance broker and the insured?  Tiara Condo. Ass’n v. Marsh & McLennan Cos., No. SC10-1022 (review granted June 4, 2010).  11th Cir. decision:  607 F.3d 742 (11th Cir. 2010).  Status:  decision pending; Oral Argument Video.

Negligence – Rear-End Collision.  In the case of a rear-end collision, does the rebuttable presumption that the negligence of the rear driver was the sole proximate cause of the accident, which requires the driver to overcome the presumption by proving that the lead driver stopped abruptly or arbitrarily, apply where the rear driver is the plaintiff? Cevallos v. Rideout, No. SC09-2238 (review granted Apr. 20, 2010).  DCA decision: 18 So. 3d 661 (Fla. 4th DCA 2009).  Status:  decision pending; Oral Argument Video

Dental Malpractice – Physician’s Right to Confer with Attorney.  Does allowing a treating physician to consult with his or her own attorney prior to being deposed violate the patient confidentiality statute?  Hasan v. Garvar, No. SC10-1361 (review granted Jan. 21, 2011).  DCA decision: 34 So. 3d 785 (Fla. 4th DCA 2010).  Status:  decision pending; Oral Argument Video.

Birth Related Neurological Injury – Parental Compensation Statute.  Question certified:  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?  Samples v. Florida Birth Related Neurological Injury Comp. Ass’n, No. SC10-1295 (review granted Sept. 17, 2010).  DCA decision: 40 So. 3d 18 (Fla. 5th DCA 2010).  Status:  decision pending.

Medical Malpractice – Presuit Requirements – Affidavit.  Is a corroborating affidavit of a physician who is board-certified in emergency and family medicine, but has no special training in cardiology, sufficient to satisfy statutory presuit requirements for a medical malpractice action against a cardiologist? Williams v. Oken, No. SC10-92 (review granted June 15, 2010).  DCA decision: 23 So. 3d 140 (Fla. 1st DCA 2010).  Status: Decided on May 5, 2011.

*Medical Malpractice – Discovery – Amendment 7.  The supreme court held that the First District correctly upheld the trial courts order calling for the disclosure of a blank application for medical staff privileges. Section 381.0287(b)1 impermissibly attempts to limit the disclosure requirements of Amendment 7, and the HCQIA does not preempt Amendment 7. In accordance with this decision, the supreme court disapproved the decision of the Fourth District in Tenet Healthsystem Hospitals, Inc. v. Taitel, 855 So. 2d 1257 (Fla. 4th DCA 2003) and its contrary holding that a blank form used by a hospital for nurse credentialing is confidential and protected from disclosure.. W. Fla. Reg’l Med. Ctr., Inc. v. See, No. SC09-1997 (review granted Mar. 29, 2010). DCA decision: 18 So. 3d 676 (Fla. 1st DCA 2009). Status: Decision below affirmed; Slip Opinion.

Dangerous Instrumentality. The supreme court held that a farm tractor is a dangerous instrumentality, quashing the decision below and remanding for further proceedings consistent with this opinion. Rippy v. Shepard, No. SC09-1677 (review granted June 2, 2010). DCA decision: 15 So. 3d 921 (Fla. 1st DCA 2009). Status: Decision below quashed, remanded for further proceedings; Slip Opinion

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Property Taxes – Homestead Exemption for Non-U.S. Citizens: Whether two Honduran citizens who lawfully own and reside in a Miami condo with their three U.S. citizen minor children may claim the ad valorem homestead exemption on their condo because their children are U.S. citizens, reside in the condo and are dependent on their parents. De La Mora v. Andonie, No. SC11-554 (review granted June 30, 2011). DCA decision: 51 So. 3d 517 (Fla. 3d DCA 2010). Status: briefing complete: Oral Argument scheduled for April 12, 2012.

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First Party Insurance Liability - Claims Handling: Questions certified by Eleventh Circuit Court of Appeals: (1) "Does Florida law recognize a claim for breach of the implied warranty of good faith and fair dealing by an insured based on the insurer's failure to investigate and assess the insured's claim within a reasonable period of time?" (2) "If Florida law recognizes a claim for breach of the implied warranty of good faith and fair dealing based on an insurer's failure to investigate and assess its insured's claim within a reasonable period of time, is the good faith and fair dealing claim subject to the same bifurcation requirement applicable to a bad faith claim under Fla. Stat. Sec. 624.155?" (3) "May an insured bring a claim against an insurer for failure to comply with the language and type-size requirements established by Fla. Stat. Sec. 627.701(4)(a)?" (4) Does an insurer's failure to comply with the language and type-size requirements established by Fla. Stat. Sec. 627.701(4)(a) render a noncompliant hurricane deductible provision in an insurance policy void and unenforceable?" and (5) "Does language in an insurance policy mandating payment of benefits upon 'entry of a final judgment' require an insurer to pay its insured upon entry of judgment at the trial level?"  Chalfonte Condo Apt. Ass'n v. QBE Ins. Corp., No. SC09-441 (review granted Mar. 11, 2009).  11th Cir. decision: 561 F.3d 1267 (11th Cir. 2009).  Status: Decision pending.

Insurance – Public Adjusters. Is section 626.854(6), Florida Statutes, which bans solicitation by public adjusters for a period of 48 hours, narrowly tailored to meet its objectives, or is it a ban on all solicitation for 48 hours which is a restriction on commercial speech in violation of Article I, section 4 of the Florida Constitution? Atwater v. Kortum, No. SC11-133 (review granted May 13, 2011). DCA decision: 54 So. 3d 1012 (Fla. 1st DCA 2010). Status: decision pending: Oral Argument Video

*Automobile Insurance – Rental Vehicles. The Supreme Court held that a rental vehicle driven by an unauthorized driver qualifiedy as a “temporary substitute vehicle” under the renter’s automobile policy, and the automobile insurer was required to indemnify and defend the insured under the terms of the policy where the insured gave consent to another to drive the vehicle, despite the fact that the rental agreement specified that no additional operators were permitted to drive the vehicle.  Chandler v. Geico Indemnity Co., No. SC10-1068 (review granted Nov. 17, 2010); Steele v. Geico Indem. Co., No. SC10-1070 (review granted Nov. 17, 2010).  DCA decision: 34 So. 3d 42 (Fla. 1st DCA 2010).  Status: Decision below quashed.  Slip Opinion; Motion for rehearing dined on January 23, 2012.

Homeowner’s Insurance – Sinkhole Loss Statute:  The supreme court held that the language of section 627.7073(1)(c) does not create a presumption affecting the burden of proof under section 90.304, affirming the decision of the lower court. Universal Ins. Co. of N. Am. v. Warfel, No. SC10-948 (review granted July 7, 2010). DCA decision: 36 So. 3d 136 (Fla. 2d DCA 2010). Status: Decision below affirmed, case remanded. Slip Opinion.

Automobile Insurance – Household Exclusion:  Where the named insured permits another to use his or her vehicle, is the language of the household exclusion clause ambiguous when it refers to household members of the insured, but where the insurer attempts to apply the exclusion to household members of the permissive driver?  State Farm Mut. Auto. Ins. Co. v. Menendez, No. SC10-116 (review granted June 23, 2010).  DCA decision: 24 So. 3d 809 (Fla. 3d DCA 2010).   Holding: The Court quashed the Third District’s decision in the case below and approved Linehan v. Alkhabbaz, 398 So. 2d 989 (Fla. 4th DCA 1981), in which the Fourth District Court of Appeal concluded that a similar household exclusion provision did bar coverage for the injury claims of a member of the permissive driver’s household. Status: decided; Slip Opinion. 

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Breathalyzer Test - Software Reliability: Whether the software used to operate an approved breathalyzer machine must be officially approved or whether an evaluation of the software is sufficient to comply with the Florida Administrative Code. Dep’t of Highway Safety & Motor Vehicles v. Berne, No. SC10-2460 (review granted June 30, 2011). DCA decision: 49 So. 3d 779 (Fla. 5th DCA 2010). Status:  decision pending; Oral Argument Video.

Municipal Corporations – Code Enforcement Liens. Question Certified: Whether, under Article VIII, section 2(b) of the Florida Constitution, section 166.021, Florida Statutes and Chapter 162, Florida Statutes, a municipality has the authority to enact an ordinance stating that its code enforcement liens, created pursuant to a code enforcement board order and recorded in the public records of the applicable county, shall be superior in dignity to prior recorded mortgages? City of Palm Bay v. Wells Fargo Bank, N.A., No. SC11-830 (review granted May 18, 2011). DCA decision:  67 So. 3d 271 (Fla. 5th DCA 2011). Status: briefing complete; briefing complete; oral argument to be set by separate order.Oral Argument scheduled for April 11, 2012.

Dismissal – Sovereign Immunity.  Conflict and Question certified:  Whether, in light of the supreme court’s ruling in State Department of Education v. Roe, 679 So. 2d 756 (Fla. 1996), review of the denial of a motion to dismiss based on a claim of sovereign immunity should await the entry of a final judgment in the trial court?  Citizens Prop. Ins. Corp. v. San Perdido Ass’n, No. SC10-2433 (review granted Feb. 17, 2011).  DCA decision: 46 So. 3d 1051 (Fla. 1st DCA 2010).  Status: Decision pending: Oral Argument Video

*Municipal Corporations – Special Districts:  The supreme court affirmed the decision below and answered the following certified question in the negative: May a municipal dependent special district, pursuant to municipal home rule power, impose a non-ad-valorem special assessment upon real property owned by a state governmental entity, in the absence of express or necessarily implied legislative authority? N. Port Road & Drainage Dist. v. W. Vill’s Improvement Dist, No. SC10-1220 (review granted Oct. 21, 2010). DCA decision: 36 So. 3d 837 (Fla. 2d DCA 2010). Status: Decision below affirmed. Slip Opinion.

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There are no cases to report on at this time.

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Contracts - Implied Warranty of Habitability: Can a homeowners' association bring a claim for breach of common law implied warranties of fitness and merchantability - also referred to as a warranty of habitability - against a builder/developer for defects in roadways, drainage systems, retention ponds, and underground pipes in a residential subdivision or are such claims required to be brought by individual homeowners.  Lakeview Reserve Homeowners Ass'n, Inc. v. Moranda Homes, Inc., Nos. SC10-2292 & SC10-2336 (review granted Apr. 20, 2011).  DCA decision: 48 So. 3d 902 (Fla. 5th DCA 2010).  Status:  decision pending; Oral Argument Video.

Statute of Frauds – Estoppel.  Where a seller orally promises to extend a contractual due diligence period, despite the fact that the initial contract mandates that all binding modifications be in writing, can the court apply equitable estoppel to prevent the seller from relying on the statute of frauds?  DK Arena, Inc. v. EB Acquisitions I, LLC, No. SC10-897 (review granted Nov. 5, 2010).  DCA decision: 31 So. 3d 313 (Fla. 4th DCA 2010).  Status: decision pending; Oral Argument Video.

Enforcement of Contract - Unlicensed Contractor: Does Florida Statutes Section 489.128, which prevents an unlicensed contractor from enforcing a contract preclude other parties to the contract from enforcing the contract against the unlicensed contractor?  Earth Trades Inc. v. T&G Corp., No. SC10-1892 (review granted October 21, 2011).  DCA decision: 42 So. 3d 929 (Fla. 5th DCA 2010).  Status: briefing complete; Oral Argument scheduled for April 11, 2012.

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Statute of Frauds – Arbitration. Question Certified: Does section 95.011, Florida Statutes apply to arbitration when the parties have not expressly included a provision in their arbitration agreement stating that it is applicable? Raymond James Fin. Servs., Inc. v. Phillips, No. SC11-2513 (review granted January 27, 2012). DCA decision: _2011 WL 5555691, 36 Fla. L. Weekly D2479a (Fla. 2d DCA Nov. 16, 2011). Status: briefing, Oral Argument to be set by separate order.

Discovery of Corporate Financial Documents: Whether a corporation seeking damages relating to the purchase of state-owned real estate and suing for negligent misrepresentation, fraud in the inducement, unjust enrichment and reformation of a purchase contract can be compelled to produce corporate financial records dating several years after the purchase date in question.  Am. Educ. Enters., LLC v. Bd. of Trs. of the Int’l Improvement Trust Fund, No. SC10-2251 (review granted June 28, 2011). DCA decision: 45 So. 3d 941 (Fla. 3d DCA 2010). Status:  briefing.

*Offers of Judgment: Questions Certified:  The supreme court answered the following certified question in the negative: “whether the Florida offer of judgment statute applies to actions filed in Florida, in which there exists a contractually agreed upon choice-of-law clause providing for the application of the substantive law of another state.” The court held that Florida’s offer of judgment statute, F.S. 768.79, creates a substantive right to costs and attorney’s fees upon the satisfaction of certain conditions. The court held where the parties have agreed to be bound by the substantive law of another jurisdiction, section 768.79 does not apply. This ruling rendered the other certified questions moot, and the case was remanded to the Eleventh Circuit. Auto-Owners Ins. Co. v. Se. Floating Docks, Inc., SC11-285 (review granted Feb. 10, 2011). 11th Cir. decision: 22 Fla. L. Weekly Fed. C1761 (11th Cir. Feb. 8, 2011). Status: Remanded. Slip Opinion.

Personal Jurisdiction – Corporate Shield Doctrine.  Question Certified:  Where an individual, non-resident defendant commits negligent acts in Florida on behalf of his corporate employer, does the corporate shield doctrine operate as a bar to personal jurisdiction in Florida over the individual defendant?  Kitroser v. Hurt, No. SC11-25 (review granted Jan. 25, 2011).  DCA decision: 50 So. 3d 62 (Fla. 4th DCA 2010). Status: decision pending; Oral Argument Video.

Venue – Debtor-Creditor Rule. Where there are unliquidated damages stemming from an alleged breach of a service contract, does the debtor-creditor rule apply to allow venue in the county in which the payments for services rendered under the alleged breach were to be made, or does venue lie in the county in which the services were to be performed? MIA Consulting Group, Inc. v. Hacienda Villas, Inc., No. SC10-2408 (review granted Feb. 24, 2011). DCA decision: 47 So. 3d 848 (Fla. 3d DCA 2010). Status: lower court proceedings stayed;  decision pending; Oral Argument Video 

Venue – Joint Residency Rule.  Where all defendants do not reside in the same county, does the joint residency rule apply to mandate venue in the county in which at least one defendant and another corporate defendant reside, and where such county is also where the cause of action arose?  Brown v. Nagelhout, No. SC10-868 (review granted Oct. 20, 2010).  DCA decision: 33 So. 3d 83 (Fla. 4th DCA 2010).  Status: decision pending; no Oral Argument.

*Medical Malpractice – Discovery – Amendment 7.  The supreme court held that the First District correctly upheld the trial court’s order calling for the disclosure of a blank application for medical staff privileges. Section 381.0287(b)(1) impermissibly attempts to limit the disclosure requirements of Amendment 7, and the HCQIA does not preempt Amendment 7. In accordance with this decision, the supreme court disapproved the decision of the Fourth District in Tenet Healthsystem Hospitals, Inc. v. Taitel, 855 So. 2d 1257 (Fla. 4th DCA 2003), and its contrary holding that a blank form used by a hospital for nurse credentialing is confidential and protected from disclosure.. W. Fla. Reg’l Med. Ctr., Inc. v. See, No. SC09-1997 (review granted Mar. 29, 2010). DCA decision: 18 So. 3d 676 (Fla. 1st DCA 2009). Status: Decision below affirmed; Slip Opinion.

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There are no cases to report on at this time.

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*Attorney’s Fees – Obligation Under Florida Insurance Guaranty Association Act (FIGA).  The supreme court held that where FIGA replaces an insolvent insurance company as a party to an action, and where the underlying policy does not expressly provide coverage for a section 627.428(1) fee award, it is not a covered claim under section 631.54(3) which FIGA must pay. Petty v. FIGA, No. SC10-2097 (review granted Jan. 4, 2011). DCA decision: 44 So. 3d 1191 (Fla. 2d DCA 2010). Status: Decision below affirmed. Slip Opinion.

Litigation Privilege.  Is an attorney 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 that the party utilized prostitutes to entice business clients and that the party was being prosecuted for prostitution? Del Monico v. Traynor, No. SC10-1397 (review granted Nov. 12, 2010). DCA decision: 47 So. 3d 1287 (Fla. 4th DCA 2010). Status: review declined on October 27, 2011.  Proceedings dismissed.

Dental Malpractice – Physician’s Right to Confer with Attorney. Does allowing a treating physician to consult with his or her own attorney prior to being deposed violate the patient confidentiality statute? Hasan v. Garvar, No. SC10-1361 (review granted Jan. 21, 2011). DCA decision: 34 So. 3d 785 (Fla. 4th DCA 2010). Status: decision pending; Oral Argument Video

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Statute of Frauds – Arbitration. Question Certified: Does section 95.011, Florida Statutes apply to arbitration when the parties have not expressly included a provision in their arbitration agreement stating that it is applicable? Raymond James Fin. Servs., Inc. v. Phillips, No. SC11-2513 (review granted January 27, 2012). DCA decision:  2011 WL 5555691, 36 Fla. L. Weekly D2479a (Fla. 2d DCA Nov. 16, 2011). Status: briefing, Oral Argument to be set by separate order.

Medical Malpractice – Wrongful Death. Is an arbitration clause in a doctor-patient financial agreement which required all disputes relating to diagnosis, treatment, or care of patient be resolved by arbitration, limited non-economic damages and required compliance with the presuit notice requirements contrary to the public policy embodied in Chapter 766? Franks v. Bowers, No. SC11-1258 (review granted Nov. 8, 2011). DCA decision: 62 So. 3d 16 (Fla. 1st DCA 2011). Status: briefing, Oral Argument to be set by separate order.

Fraud – Arbitration. Conflict certified: Was an arbitration clause in a real estate contract applicable to plaintiff's action alleging that plaintiff's decision to purchase property was based on defendant's fraudulent misrepresentation in an advertisement that a "wetlands study verifies no wetlands" where the fraud claim was not significantly related to the contract.  Jackson v. Shakespear Foundation, Inc., No. SC11-1196 (review granted Nov. 8, 2011). DCA decision: 61 So. 3d 1194 (Fla. 1st DCA 2011). Status: briefing, Oral Argument to be set by separate order.

Nursing Homes – Arbitration Clause. Question certified: Does the execution of a nursing home arbitration agreement by a party with the capacity to contract, bind the patient’s estate and statutory heirs in a subsequent wrongful death action arising from an alleged tort within the scope of an otherwise valid arbitration agreement? Laizure v. Avante at Leesburg, Inc., No. SC10-2132 (review granted Dec. 14, 2010). DCA decision: 44 So. 3d 1254 (Fla. 5th DCA 2010). Status: briefing complete; no Oral Argument.

Limitation of Liability – Severability. The Supreme Court held that a limitation of liability clause in a nursing home agreement which placed a cap on noneconomic damages and waived punitive damages was not severable and was in violation of public policy. The Court further held that whether an arbitration agreement violates public policy is an issue for the court, not the arbitrator. Gessa v. Manor Care of Fla., Inc., No. SC09-768 (review granted Oct. 21, 2009).  DCA decision:  4 So. 3d 679 (Fla. 2d DCA 2009).  Status:  Decision below quashed.  Slip Opinion; Motion for rehearing filed on December 8, 2011.

Unconscionability of Arbitration Agreement.  The Supreme Court held that a limitation of liability clause in a nursing home agreement which waived punitive damages was not severable and violated public policy. The Court further held that whether an arbitration agreement violates public policy is an issue for the court, not the arbitrator. Shotts v. OP Winter Haven, Inc., No. SC08-1774 (review granted Apr. 5, 2010).  DCA decision: 988 So. 2d 639 (Fla. 2d DCA 2008).  Status:  Decision below quashed; Slip Opinion; Motion for rehearing filed on December 8, 2011.

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Certiorari – Sovereign Immunity.  Conflict Certified:  The Third DCA accepted jurisdiction over a governmental entity's claim that it is immune from suit, rather than it is not liable for lack of duty, and in so doing certified conflict with the decisions in Florida A & M University Board of Trustees v. Thomas, 19 So. 3d 445, 446 (Fla. 5th DCA 2009), and Pinellas Suncoast Transit Authority v. Wrye, 750 So. 2d 30 (Fla. 2d DCA 1996).  Rodriguez v. Miami-Dade County, No. SC11-1913 (review granted Dec. 1, 2011).  DCA decision 67 So. 3d 1213 (Fla. 3d DCA 2011).  Status: briefing, Oral Argument to be set by separate order.

Dismissal – Sovereign Immunity.  Conflict and Question certified:  Whether, in light of the supreme court’s ruling in Dep't of Educ. v. Roe, 679 So. 2d 756 (Fla. 1996), review of the denial of a motion to dismiss based on a claim of sovereign immunity should await the entry of a final judgment in the trial court?  Citizens Prop. Ins. Corp. v. San Perdido Ass’n, No. SC10-2433 (review granted Feb. 17, 2011).  DCA decision: 46 So. 3d 1051 (Fla. 1st DCA 2010).  Status: Decision pending; Oral Argument Video

Certiorari – Interlocutory Review on Issue of Immunity.  Is a city bus driver sued for negligence in striking a pedestrian entitled to interlocutory review by certiorari of the denial of his summary judgment on grounds of immunity?  Keck v. Eminisor, No. SC10-2306 (review granted Dec. 30, 2010).  DCA decision: 46 So. 3d 1065 (Fla. 1st DCA 2010).  Status: Decision pending; Oral Argument Video.

*Unemployment Appeals Commission – Appellate Jurisdiction. Conflict certified:  Does a district court of appeal have jurisdiction to review an order of the Unemployment Appeals Commission upholding a referee’s decision when the referee decides the case outside the geographical boundaries of the district court?  Croxall v. Fla. Unemploy. Appeals Comm'n, No. SC10-959 (review granted Feb. 17, 2011).  DCA decision: 33 So. 3d 837 (Fla. 2d DCA 2010).  Status: Voluntarily Dismissed on January 30, 2012.

Certiorari – Administrative Order.  Question Certified: May a district court grant common law certiorari relief from a circuit court’s opinion reviewing an administrative order when the circuit court applied precedent from another district court but the reviewing district court concludes that the precedent misinterprets clearly established statutory law?  Dep't of Highway Safety & Motor Vehicles v. Nader, No. SC09-1533 (review granted May 7, 2010).  DCA decision: 4 So. 3d 705 (Fla. 2d DCA 2009).  Status:  decision pending; no Oral Argument.

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