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

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.
 

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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)

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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.

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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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UPDATED THROUGH MAY 13, 2013

Negligence – Bailment. Can a valet service, a bailee, be liable for negligently entrusting a car to its rightful owner who was obviously intoxicated at the time and allegedly caused the death of his passenger in a subsequent automobile accident? Weber v. Marino Parking Systems, Inc., No. SC12-2507 (review granted Apr. 23, 2013). DCA decision: 100 So. 3d 729 (Fla. 2d DCA 2012). Status: briefing; oral argument will be set by separate order.

Negligence – Duty of Care.  Does a person in an altercation with another person owe 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?  Dorsey v. Reider, No. SC12-2197  (review granted Apr. 23, 2013).  DCA decision:  98 So. 3d 1223 (Fla. 3d DCA 2012).  Status:  briefing; oral argument to be set by separate order.

Dangerous Instrumentality Doctrine – Vicarious Liability. Question Certified: May a person who intentionally directs that title be issued in his name as co-owner, by completing a sworn application for title in conjunction with the purchase of a vehicle, avoid liability under the dangerous instrumentality doctrine by claiming that he never intended to be the owner of the vehicle and further claiming that he relinquished control to a co-owner of the vehicle?? Taylor-Christensen v. Bowen, No.  SC12-2078 (review granted Dec. 11, 2012). DCA Decision: 98 So.3d 136 (Fla. 5th DCA 2012). Status: briefing complete (Apr. 29, 2013; oral argument to be set by separate order.

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:  briefing; oral argument will be set by separate order.

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: briefing complete (Dec. 19, 2012); Oral Argument Video (Apr. 3, 2013). 

Premises Liability - Failure to Warn.  Was it error to deny a defendant's motion for directed verdict where evidence established that the defendant had no prior knowledge that the chair--which caused plaintiff's injury--was defective or that the chair had been repaired? Frieidrich v. Fetterman & Assocs., No. SC11-2188  (review granted July 24, 2012). DCA Decision: 69 So. 3d 965 (Fla. 4th DCA 2011). Status: briefing complete (Dec. 4, 2012); no oral argument.

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: decision pending; Oral Argument Video (Oct. 3, 2012).

Personal Injury Claim – Amendment. Can a personal injury complaint be amended to add a wrongful death claim when the plaintiff dies or must any surviving claim be brought as a new and separate wrongful death action? Ruble v. Rinker Material Corp., No. SC11-1173 (review granted Apr. 12, 2012). DCA decision: 59 So. 3d 137 (Fla. 3d DCA 2011). Status: decision pending; Oral Argument Video (June 5, 2012).

Medical Malpractice – Statutory Cap on Noneconomic Damages.  Questions Certified by the Eleventh Circuit Court of Appeals:  (1) Does the statutory cap on noneconomic damages, Fla. Stat. § 766.118, violate the right to equal protection under Article I, Section 2 of the Florida Constitution?  (2) Does the statutory cap on noneconomic damages, Fla. Stat. § 766.118, violate the right of access to the courts under Article I, Section 21 of the Florida Constitution?  (3) Does the statutory cap on noneconomic damages, Fla. Stat. § 766.118, violate the right to trial by jury under Article I, Section 22 of the Florida Constitution?  (4) Does the statutory cap on noneconomic damages, Fla. Stat. § 766.118, violate the separation of powers guaranteed by Article II, Section 3 and Article V, Section 1 of the Florida Constitution?   Estate of McCall v. United States, No. SC11-1148 (review granted June 14, 2011).  11th Cir. decision:  642 F.3d 944 (2011).  Status:  decision pending; Oral Argument Video (Feb. 9, 2012).

Statute of Limitation.  Is a wrongful death action barred by the statute of limitation 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 limitation for that cause of action?  Capone v. Philip Morris USA, Inc., No. SC11-849 (review granted Oct. 17, 2011).  DCA decision: 56 So. 3d 34 (Fla. 3d DCA 2010).  Status:  decision pending; Oral Argument Video (June 5, 2012).

Birth Related Neurological Injury – Parental Com.pensation 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. Fla. 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; Oral Argument Video (May 5, 2011).

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UPDATED THROUGH MAY 13, 2013

Homestead Exemption. Whether a condominium that is subject to a long-term leasehold may qualify as a homestead to be protected from forced sale to pay the creditors of the deceased owner. Sunstar EMS v. Geraci, No. SC12-2073 (review granted Apr. 23, 2013). DCA decision: 93 So. 3d 384 (Fla. 2d DCA 2012). Status: briefing; oral argument to be set by separate order.

Mortgage Foreclosure. Question Certified: Does the test set forth in Arlt v. Buchanan, 190 So. 2d 575 (Fla. 1966), for vacating a foreclosure sale apply when adequacy of the bid price is not at issue? Arsali v. Chase Home Finance LLC, No. SC12-600 (review granted May 11, 2012). DCA decision: 79 So. 3d 845 (Fla. 4th DCA 2012). Status: Oral Argument Video  (Feb. 4, 2013).

Condominium Association - Receivership.  Whether a court's inherent power to appoint a receiver for a non-profit condominium association is restricted by statute. The Second District reversed and remanded the lower court's decision, holding that statutes did not limit a trial court's authority to appoint a receiver. Granada Lakes Villas Condo.  Ass'n v. Metro-Dade Investments Co., No. SC11-2590 ( review granted July 24, 2012). DCA Decision: 74 So. 3d 593 (Fla. 2d DCA 2011). Status: briefing complete(November 28, 2012); no oral argument.

Taxation – Ad Valorem. Whether trial court properly determined that leaseholders were equitable owners and subject to ad valorem taxes on their leasehold improvements. 1108 Ariola, LLC v. Jones, No. SC11-2231 (review granted Feb. 29, 2012). DCA decision: 71 So. 3d 892 (Fla. 1st DCA 2011). Status: decision pending; Oral Argument Video (Nov. 6, 2012).

Estates – Wills. Question Certified: Whether section 732.6005, Florida Statutes (2004), requires construing a will as disposing of property not named or in any way described in the will, despite the absence of any residuary clause, or any other clause disposing of the property, where the decedent acquired the property in question after the will was executed. Aldrich v. Basile, No. SC11-2147. (review granted June 28, 2012). DCA decision: 70 So. 3d 682 (Fla. 1stDCA 2011). Status: briefing complete;  Oral Argument Video(Feb. 7, 2013).

Taxation – Ad Valorem. Question Certified: Whether section 196.199(2)(b), Florida Statutes, is inapplicable to the real property at issue because appellants are the equitable owners of that property? Accardo v.  Brown, No. SC11-1445 (review granted Feb. 29, 2012). DCA decision 63 So. 3d 798. Status: decision pending; Oral Argument Video (Nov. 6, 2012).

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 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: decision pending;  Oral Argument Video(Apr. 11, 2012).

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UPDATED THROUGH MAY 13, 2013

Property – Examinations Under Oath. Is an insurer required to prove prejudice by an insured’s failure to submit to an examination under oath in order to deny the insured benefits under the policy? FIGA v. Whistler’s Park, Inc., No. SC12-1661 (review granted Apr. 23, 2013). DCA decision: 90 So. 3d 841 (Fla. 5th DCA 2012). Status: briefing; oral argument will be set by separate order.

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,  SC12-1257 (review granted Jan. 28, 2013). DCA decision: 86 So. 3d 1274 (Fla. 1 st DCA 2012). Status: briefing; oral argument to be set by separate order.

Insurance - Personal Injury Protection. Question Certified: With respect to PIP policies issued after January 1, 2008, may the insurer compute provider reimbursements based on the fee schedules identified in section 627.736(5)(a), Florida Statutes, even if  the policy does not contain a provision specifically electing those schedules rather than "reasonable medical expenses" coverage based on section 627.736(1)(1)? Geico Gen. Ins. Co. v. Virtual Imaging Servs., Inc., No. SC12-905 (review granted July 20, 2012). DCA decision: 90 So. 3d 321 (Fla. 3d DCA 2012). Status: decision pending; Oral Argument Video (Mar. 6, 2013)

Compulsory Medical Examination. Whether an insured’s refusal to comply with policy’s requirement that she submit to a compulsory medical exam constitutes her failure to satisfy a condition precedent to recovery pursuant to the underinsured/uninsured benefits in the insurance policy. The Fifth District reversed her award, reasoning that “[h]er refusal constitutes a breach of the policy that prohibits her recovery.” State Farm Mut. Auto. Ins. Co. v. Curran, No. SC12-157 (review granted Feb. 29, 2012). DCA decision: 83 So. 3d 793, (Fla. 5th DCA 2011. Status: decision pending;Oral Argument Video  (Oct. 2, 2012).

Homeowners. Whether an insurer’s refusal to pay for overhead and profit under the terms of a replacement cost policy was appropriate when the insured had not hired a contractor to repair the damage to his home. The Third District upheld summary judgment in favor of the insurer, reasoning that based on the policy language the insurer did not owe the insured overhead and profit. Trinidad v. Fla. Peninsula Ins. Co., No.  SC11-1643 (review granted June 8, 2012). DCA decision: 99 So. 3d 502 (Fla. 3d DCA 2011). Status: briefing complete (Sept. 4, 2012); no oral argument.

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UPDATED THROUGH MAY 13, 2013

Administrative Law – Environmental Protection. Question Certified: Under the holding of Department of Banking & Finance v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996), is a state governmental agency which brings a civil action in circuit court required to prove the alleged regulatory violation by clear and convincing evidence before the court may assess monetary penalties? South Fla. Water Mgmt. Dist. v. RLI Live Oak, LLC, No. SC12-2336 (review granted Mar. 7, 2013). DCA decision: 99 So. 3d 560 (Fla. 5th DCA 2012). Status: briefing; no oral argument.

City Ordinance – Constitutionality. Is a city ordinance allowing the use of image capture technologies for monitoring and enforcing laws relating to traffic-control signals valid and enforceable? Masone v. City of Aventura, No. SC12-644(review granted Nov. 6, 2012). DCA decision: 89 So. 3d 233 (Fla. 3d DCA 2011). Status: briefing; oral argument to be set by separate order.

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 (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: decision pending; Oral Argument Video(Sept. 6, 2012).

Taxation – Ad Valorem. Question Certified: Whether section 196.199(2)(b), Florida Statutes, is inapplicable to the real property at issue because appellants are the equitable owners of that property? Accardo v. Brown, No. SC11-1445 (review granted Feb. 29, 2012). DCA decision: 63 So. 3d 798 (Fla. 1st DCA 2011). Status:  decision pending;  Oral Argument Video Nov. 6, 2012.

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: decision pending;  Oral Argument Video (Apr. 11, 2012).

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UPDATED THROUGH MAY 13, 2013

Homestead Exemption. Whether a condominium that is subject to a long-term leasehold may qualify as a homestead to be protected from forced sale to pay the creditors of the deceased owner. Sunstar EMS v. Geraci, No. SC12-2073 (review granted Apr. 23, 2013). DCA decision: 93 So. 3d 384 (Fla. 2d DCA 2012). Status: briefing; oral argument to be set by separate order.

Estates – Wills. Question Certified: Whether section 732.6005, Florida Statutes (2004), requires construing a will as disposing of property not named or in any way described in the will, despite the absence of any residuary clause, or any other clause disposing of the property, where the decedent acquired the property in question after the will was executed. Aldrich v. Basile, No. SC11-2147 (review granted June 28, 2012). DCA decision: 70 So. 3d 682 (Fla. 1st DCA 2011). Status: briefing complete; Oral Argument Video (Feb. 7, 2013).

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UPDATED THROUGH MAY 13, 2013

Medical Malpractice – Statutory Cap on Noneconomic Damages.  Questions Certified by the Eleventh Circuit Court of Appeals:  (1) Does the statutory cap on noneconomic damages, Fla. Stat. § 766.118, violate the right to equal protection under Article I, Section 2 of the Florida Constitution?  (2) Does the statutory cap on noneconomic damages, Fla. Stat. § 766.118, violate the right of access to the courts under Article I, Section 21 of the Florida Constitution?  (3) Does the statutory cap on noneconomic damages, Fla. Stat. § 766.118, violate the right to trial by jury under Article I, Section 22 of the Florida Constitution?  (4) Does the statutory cap on noneconomic damages, Fla. Stat. § 766.118, violate the separation of powers guaranteed by Article II, Section 3 and Article V, Section 1 of the Florida Constitution?   Estate of McCall v. United States, No. SC11-1148 (review granted June 14, 2011).  11th Cir. decision:  642 F.3d 944 (2011).  Status:  decision pending; Oral Argument Video (Feb. 9, 2012).

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UPDATED THROUGH MAY 13, 2013

Legality of Contract. Where the issue of a contract’s illegality is raised, must the trial court determine that issue before deciding whether to enforce an arbitral award based on the contract? Visting Nurse 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: briefing complete (Apr. 22, 2013); oral argument to be set by separate order.

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.  Moranda Homes, Inc. v. Lakeview Reserve Homeowners Ass'n, Inc., Nos. SC10-2292; T.D. Thomson Constr. Co. v. Lakeview Reserve Homeowners Assn'n, SC10-2336 (review granted Apr. 20, 2011).  DCA decision: 48 So. 3d 902 (Fla. 5th DCA 2010).  Status:  decision pending; supplemental briefing completed; Oral Argument Video (Dec. 6, 2011).

Contracts – Arbitration. Is an arbitration clause in a car sales contract unconscionable where it is written in English, explained inaccurately in Spanish to customers and contained a waiver of right to seek punitive damages?; and is an arbitration clause enforceable as to claims for declaratory and injunctive relief because the arbitration clause states that the arbitration award shall be issued without a written opinion? Basulto v. Hialeah Automotive, LLC, No. SC09-2358 (review granted January 9, 2013). DCA decision: 22 So. 3d 586 (Fla. 3d DCA 2009). Status: briefing complete (Mar. 12, 2013); oral argument scheduled for June 4, 2013..

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UPDATED THROUGH MAY 13, 2013

Class Action – Attorney Disqualification. Should counsel have been disqualified for conflict of interest where liability stage of class action was settled in part by creating foundation that consisted of two class members and counsel for class filed petition against foundation? Young v. Achenbach, SC12-988 (review granted Jan. 28, 2013). DCA decision sub nom. Broin v. Phillip Morris Co., Inc., 84 So. 3d 1107 (Fla. 3d DCA 2012). Status: briefing; oral argument to be set by separate order.

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Discrimination – Pregnancy.  Conflict Certified:  Whether the Florida Civil Rights Act, section 760.10, Florida Statutes, prohibits employment discrimination based on pregnancy. Delva v. The Continental Grp., Inc., No. SC12-2315 (review granted May 2, 2013). DCA decision: 96 So. 3d 956 (Fla. 3d DCA 2012). Status: briefing; oral argument will be set by separate order.

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UPDATED THROUGH MAY 13, 2013

Statute of Limitation - Relation - Back  Conflict Certified:  Does a plaintiff’s direct action complaint against a third-party defendant relate back to the date of filing of the original complaint?  Caduceus Properties, LLC v. Graney, No. SC12-1474  (review granted Nov. 6, 2012).  DCA decision: 91 So. 3d 220 (Fla. 1st DCA 2012).  Status:  briefing complete (Apr. 22, 2013); oral argument will be set by separate order.

Preemption.  Conflict Certified:  Is a city’s red light camera ordinance preempted by state law which mandates that drivers stop at red light signals and has provided a mechanism to enforce that mandate?  City of Orlando v. Udowychenko, No. SC12-1471 (review granted Nov. 6, 2012).  DCA decision: 37 Fla. L. Weekly D1608a (Fla. 5th DCA 2012).  Status: briefing; oral argument will be set by separate order.

Personal Jurisdiction.  Conflict Certified:  Does a Florida court have personal jurisdiction over a defendant who recorded phone calls with plaintiff without plaintiff’s consent while defendant was in North Carolina and plaintiff was in Florida?  France v. France, No. SC12-1370 (review granted Nov. 6, 2012).  DCA decision: 90 So. 3d 860 (Fla. 5th DCA 2012).  Status: briefing complete (April 1, 2013);oral argument will be set by separate order.

Statute of Limitation – Relation-Back. Does a fourth amended complaint in which plaintiff was identified as the guardian of person and property of the injured party relate back to the original complaint which was filed by the workers’ compensation carrier which had paid benefits to the injured party and which was styled in the name of the injured party? Cosme v. Lopez-Loarca, No. SC12-257 (review granted Mar. 7, 2013). DCA decision: 76 So. 3d 5 (Fla. 4th DCA 2011). Status: briefing; no oral argument.

Witnesses – Subpoenas.  Conflict Certified:  Does the Uniform Law to Secure the Attendance of Witnesses from Within or Without the State in Criminal Proceedings apply to out-of-state witnesses, as well as out-of-state corporations which possess documents material to a criminal case?  Ulloa v. CMI, Inc., No. SC11-2291 (review granted Nov. 27, 2012).  DCA decision: 73 So. 3d 787 (Fla. 5th DCA 2011).  Status: briefing complete (Sept. 28, 2012); Oral Argument Video (Feb. 5, 2013).

Discovery – Adverse Medical Incidents. Did the trial court depart from the essential requirements of the law by granting a request to produce 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 patient requesting access? Ampuero-Martinez v. Cedars Healthcare Grp., No. SC11-2208, SC11-2336 (review granted May 15, 2012). DCA Decision: 88 So. 3d 190 (Fla. 3d DCA 2011). Status: briefing complete (Jan. 28, 2013); case has settled but court, upon motion, has decided to retain jurisdiction; no oral argument..                                                  

Forum Non Conveniens.  Is a plaintiff’s choice of Florida as the forum entitled to any deference when the plaintiff is a citizen of a state other than Florida?  Cortez v. Palace Resorts, Inc., No. SC11-1908 (review granted June 21, 2012).  DCA decision: 66 So. 3d 959 (Fla. 3d DCA 2011).  Status: decision pending; Oral Argument Video(Sept. 5, 2012).

Personal Injury Claim – Amendment.  Can a personal injury complaint be amended to add a wrongful death claim when the plaintiff dies or must any surviving claim be brought as a new and separate wrongful death action?  Ruble v. Rinker Material Corp., No. SC11-1173 (review granted Apr. 12, 2012).  DCA decision: 59 So. 3d 137 (Fla. 3d DCA 2011).  Status:  decision pending; Oral Argument Video (June 5, 2012).

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UPDATED AS OF MAY 13, 2013

There are no cases to report on at this time.

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UPDATED THROUGH MAY 13, 2013

Attorney Disqualification. Should counsel should have been disqualified for conflict of interest where liability stage of class action was settled in part by creating foundation that consisted of two class members and counsel for class filed petition against foundation? Young v. Achenbach,  SC12-988 (review granted Jan. 28, 2013). DCA decision sub nom. Broin v. Phillip Morris Co., Inc., 84 So. 3d 1107 (Fla. 3d DCA 2012). Status: briefing; oral argument to be set by separate order.

Attorney’s Fees – Appellate.  Does section 57.105, Florida Statutes, support an award of appellate attorney’s fees for the filing of an administrative appeal without citing material facts to support standing of then existing law to support appeal based on material facts as found below? Though originally granting jurisdiction to review the decision of the First DCA, after further consideration the Supreme Court determined that jurisdiction was improvidently granted and dismissed the review.  Martin County Conservation Alliance v. Martin County, No. SC11-2455 (review granted May 11, 2012).  DCA decision: 73 So. 3d 856 (Fla. 1st DCA 2011).  Status: review dismissed because jurisdiction was improvidently granted (May 9, 2013).

Attorney’s Fees – Multipler. Certified Conflict:  Is the award of attorney's fees to a party in an amount higher than actually charged inconsistent with the prevailing law in Florida on the amount of attorney fee awards? First Baptist Church of Cape Coral, Fla., Inc. v. Compass Constr., Inc., Nos. SC11-1278, SC11-1280 (review granted Nov. 29, 2011).  DCA decisions: 61 So. 3d 1273, 61 So. 3d 497 (Fla. 2d DCA 2011).  Status: briefing complete (Apr. 16, 2012); no oral argument.

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UPDATED THROUGH MAY 13, 2013

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: decision pending; Oral Argument Video (Oct. 2, 2012).

Legality of Contract. Where the issue of a contract’s illegality is raised, must the trial court determine that issue before deciding whether to enforce an arbitral award based on the contract? Visiting Nurse 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: briefing complete (May 10, 2013); 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 to 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: decision pending; Oral Argument Video (Oct. 3, 2012).

Contracts – Arbitration. Is an arbitration clause in a car sales contract unconscionable where it was written in English, explained inaccurately in Spanish to customers and contained a waiver of right to seek punitive damages?; and is an arbitration clause enforceable as to claims for declaratory and injunctive relief because the arbitration clause states that the arbitration award shall be issued without a written opinion? Basulto v. Hialeah Automotive, LLC, No. SC09-2358 review granted January 9, 2013). DCA decision: 22 So.3d 586 (Fla. 3d DCA 2009). Status: briefing complete (Mar. 12, 2013); oral argument scheduled for June 4, 2013. 

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UPDATED THROUGH May 13, 2013

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: briefing complete (December 19, 2012); Oral Argument Video (Apr. 3, 2013).

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 (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: decision pending; Oral Argument Video( Sept. 6, 2012).

Standard of Review – New Trial.   Is an appellate court required to affirm an order granting a new trial under the abuse of discretion standard when the jury disregarded all of the expert medical testimony establishing causation and entered a verdict finding that a the plaintiff’s injuries were not caused by the defendant’s negligence?  Van v. Schmidt, No. SC11-1467 (review granted Aug. 9, 2012).  DCA decision: 65 So. 3d 1105 (Fla. 1st DCA 2011).  Status: decision pending;  Oral Argument Video(Nov. 7, 2012).

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