The Appellate Strategist

Insights on appellate issues, trial consultations, and evaluating appeals

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

By on March 25, 2011 Posted in Automotive, Florida

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.

Thursday Will Be Busy at the Illinois Supreme Court

By Kirk Jenkins on March 22, 2011 Posted in Illinois

The Illinois Supreme Court has announced that on the morning of Thursday, March 24^th, it will file opinions in five civil cases (pdf):

Williams v. Board of Review, No. 109469—Was terminated employee entitled to a good cause extension of the statutory deadline requiring that an eligible worker must enroll in an approved training program within a certain time in order to be eligible for federally funded trade adjustment assistance benefits? See Employment Law.
Goodman v. Ward, No. 109796 — Is a candidate for a judgeship in a particular judicial subcircuit required to be a resident of that subcircuit on the date the candidate petitions to have his or her name placed on the primary ballot? See Election Law.
Barber v. American Airlines, Inc., No. 110092 — Did airline’s unilateral refund of passenger’s baggage fee, after passenger filed putative class action complaint, constitute an attempted “pick off” which did not moot passenger’s complaint? See Civil Procedure.
Howell v. Dunaway – Nos. 110199, 110200 — Is a hospital’s statutory lien for services, filed pursuant to the Health Care Services Lien Act, 770 ILCS 23/1, subject to a reduction under the common fund doctrine for attorney fees incurred by the injured plaintiff? See Tort Law.
Vincent v. Alden Park Strathmoor, Inc., No. 110406 — Does a claim for common law punitive damages pursuant to the Nursing Home Care Act survive the death of the nursing home patient? See Punitive Damages.

Civil Justice Reform in the Texas Legislature

By on March 16, 2011 Posted in Texas

The Texas Legislature is currently considering House Bill 274, containing several measures that could alter the landscape of civil litigation. HB274 would, if enacted:

Require the Texas Supreme Court to adopt rules creating a motion-to-dismiss practice patterned on Rules 9 and 12 of the Federal Rules of Civil Procedure (Texas currently does not have a procedure that permits a dispositive motion for failure to state a claim)

Permit a prevailing defendant to recover attorneys’ fees and costs when the trier of fact finds that the plaintiff has engaged in an “abusive civil action,” defined as an action that “a reasonable person would conclude is an abuse of the civil justice process.” The provision allows for recovery from a claimant’s attorney if the attorney has a financial interest in the case

Provide for permissive interlocutory appeal of an order that involves a controlling question of law when an immediate appeal would materially advance the termination of litigation

Permit claimants in cases with between $10,000 and 100,000 to elect to proceed under expedited trial and discovery procedures

Forbid courts from construing statutes as creating a cause of action in the absence of clear and unambiguous language

It remains to be seen whether these reforms will make progress in a legislative session that will necessarily focus on the state’s budgetary woes.

California Supreme Court Schedules Oral Argument for April

By on March 11, 2011 Posted in California

Oasis West Realty v. Goldman (S181781) – Does an attorney’s duty of loyalty owed to a former client apply when the attorney actively takes a position against the former client on the same issue for which the lawyer previously had been retained, but does so while acting on his or her own behalf, without a subsequent representation or employment? For more details about Oasis West Realty, see the Attorney-Related update page.

Diaz v. Carcamo (S181627) – In an attempt to extend the holding in Armenta v. Churchill (1954) 42 Cal.2d 448, which held that a claim of negligence entrustment is no longer viable against an employer who admits to being vicariously liable for the employee, the employer in Diaz argues that the same result should apply to a claim of negligent hiring against the employer, thus precluding evidence of the employee’s poor driving record. The Court of Appeal declined to make such an extension, in part because Armenta pre-dates Proposition 51. This case has attracted significant amicus interest, and multiple requests to depublish the Court of Appeal opinion. For more details about Diaz, see the Torts and Products update page.

Sullivan v. Oracle Corporation (S170577) – This case addresses the application of California Labor Code overtime requirements to out-of-state employees hired by a California employer, including: (1) Does the Labor Code apply to overtime work performed in California for a California-based employer by out-of-state plaintiffs, such that overtime pay is required for work in excess of eight hours per day or in excess of forty hours per week? (2) Does Bus. & Prof. Code § 17200, et seq., apply to such overtime work? (3) Does § 17200, et seq. apply to overtime work performed outside of California for a California-based employer by out-of-state plaintiffs if the employer failed to comply with the overtime provisions of the federal Fair Labor Standards Act, 29 U.S.C. § 207 et seq.? This case has also attracted significant amicus interest. For more details about Sullivan, see the Employment – Compensation & Benefits update page.

Franchise Tax Board v. Superior Court (Gonzales) (S176943) – Here, the Court will address the question of whether article I, section 16, of the California Constitution provides a taxpayer the constitutional right to a jury trial in an action for a refund of taxes under Revenue and Taxation Code § 19382. For more details about Franchise Tax Board, see the Taxation and Assessments update page.

Florida Supreme Court Update re Pending Cases

By on March 11, 2011 Posted in Supreme Court Updates

The Appellate Strategist has gathered all civil cases pending on the merits before the Florida Supreme Court, and has organized those cases by area of the law, providing identifying information for each case and the issue presented. In addition, for cases where the Court has heard argument, we provide a link to the oral argument video on the web. We will update this information periodically, as new reviews are granted, opinions are issued or the status of the pending cases changes. Once an opinion is issued we will retain the posting for a period of time before removing it from the blog. Decided cases are denoted by an asterisk.

[Updated Through March 30, 2017]

Appellate Procedure & Jurisdiction

Illinois Supreme Court Sets Civil Argument Schedule for March

By Kirk Jenkins on March 2, 2011 Posted in Constitutional Law, Illinois

This afternoon, the Illinois Supreme Court published its Call of the Docket [pdf] for the March term, and the Court will hear oral argument in six civil cases. The cases, with the issue or issues presented in each, are:

March 16:

Sheffler v. Commonwealth Edison Co.,No. 110166 – Does a complaint seeking both injunctive relief and damages in connection with defendant’s alleged failure to timely restore power after storms, and to give priority in restoring power to customers dependent on electric life support system, fall within the exclusive jurisdiction of the Illinois Commerce Commission? See Tort Law.

Italia Foods, Inc. v. Sun Tours, Inc.,No. 110350 – (1) Does the federal Telephone Consumer Protection Act require that the Illinois legislature enact enabling legislation before private claims under the TCPA can be heard in state courts? (2) Are TCPA claims "statutory penalties" within the meaning of state law, and if so, are the claims assignable, and what is the applicable statute of limitations? (3) If the claim is not assignable, were absent class members’ claims tolled when, for a twenty-seven month period, no class representative with proper standing was present before the court? See Civil Procedure.

The Board of Education of Auburn Community Unit School Dist. No. 10 v. The Illinois Dept. of Revenue, No. 110395/110422 – Does the Property Tax Extension Limitation Law ("PTELL") apply to all portions of a community unit school district following annexation of territory in a separate county which had not opted into PTELL? See Taxation.

March 22:

ABATE of Illinois, Inc. v. Giannoulias, No. 110611 – Does a state statute permitting the transfer of funds from the Cycle Rider Safety Training Fund to the General Revenue Fund violate the Takings Clause of either the federal or state constitutions? See Constitutional Law.

Bell v. Hutsell, No. 110724 – (1) Where defendants did not personally furnish alcoholic beverages, is liability for breach of a voluntary undertaking to monitor and inspect barred by the bar on civil social host liability? (2) Is there a private right of action under the Liquor Control Act for permitting one’s minor child or his or her invitees to possess, distribute or consume alcoholic beverages? See Tort Law.

Snyder v. Heidelberger, No. 111052 – Does a quitclaim deed intended to create a joint tenancy between a husband and wife cause an injury within the meaning of the statute of repose for legal malpractice actions, 735 ILCS 5/13-214.3, when the deed is executed and recorded, when the husband dies and the alleged error can no longer be rectified, or both? See Tort Law.

Eleventh Circuit Concludes Significant Litigation Involving Surplus Lines Carrier

By on February 25, 2011 Posted in Florida, Insurance

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.

Supreme Court Holds Seatbelt Suits Not Pre-empted

By on February 24, 2011 Posted in Products Liability

The Supreme Court recently decided that Federal Motor Vehicle Safety Standard 208 (FMVSS 208), which requires auto manufacturers to install lap-and-shoulder seatbelts on seats next to a vehicle’s door frames, but allows manufacturers to choose between simple lap belts or lap-and-shoulder belts for rear inner seats (such as middle seats or those next to a minivan’s aisle), did not pre-empt a state tort suit that would deny manufacturers a choice of belts for rear inner seats by imposing tort liability on those who choose to install a simple lap belt. Williamson v. Mazda Motor of America, Inc., No. 08-1314 (Feb. 23, 2011) .pdf.

In 2002 the Williamson family’s Mazda minivan was struck head-on by another vehicle. One family member sitting in a rear aisle seat, wearing a lap belt, died in the accident. Two other family members wearing lap-and-shoulder belts survived. They sued Mazda saying it should have installed lap-and-shoulder belts on rear aisle seats. The California trial court dismissed the claim and the California Court of Appeal affirmed, relying on an earlier Supreme Court case, Geier v. American Honda Motor Co., 529 U.S. 861 (2000), where the court held that a different portion of FMVSS 208 requiring installation of passive restraint devices (airbags) pre-empted a state tort suit that sought to hold an auto manufacturer liable for failure to install a particular kind of passive restraint. The Williamsons sought certiorari, and the Supreme Court granted review because other courts have interpreted Geier as indicating that FMVSS 208 pre-empts state tort suits similar to the Williamsons’. Holding that FMVSS 208 does not pre-empt these suits, the Supreme Court reversed the California Court of Appeal’s decision.

The court explained that a state law that “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of a federal law” is preempted, and in Geier it determined – based on the airbag regulation’s history, the promulgating agency’s explanation of its objectives, and the agency’s views of the regulation’s pre-emptive effect – that giving auto manufacturers a choice among different kinds of passive restraint devices was a significant objective of the airbag regulation, and the tort suit stood as an obstacle to the accomplishment of that objective. But the court determined, based likewise on history and agency interpretation – that choice was not a significant regulatory objective of the seatbelt regulation in Williamson, so even though the state tort suit might restrict the manufacturer’s choice, it did not stand as an obstacle to the regulation’s full purposes and objectives, and was therefore not pre-empted.

Supreme Court Sides with Vaccine Manufacturers in Bruesewitz v. Wyeth LLC

By on February 23, 2011 Posted in Products Liability

The Supreme Court, voting 6-2, ruled on Tuesday that the National Childhood Vaccine Act of 1986 (NCVIA or Act) bars state-law product liability claims against vaccine manufacturers. [See Bruesewitz v. Wyeth LLC, FKA Wyeth, Inc. .pdf]. The Act, designed to ensure a stable vaccine supply by limiting vaccine manufacturers’ potential tort liability, created a special, company-financed, no-fault system that offers guaranteed payments to patients for injuries shown to be caused by a vaccine. The federal program has awarded more than $1.8 billion for vaccine injury claims in nearly 2,500 cases since 1989.

Design Defect Claims are Preempted under the Act

Writing for the majority, Justice Scalia noted that Congress intended to bar lawsuits against vaccine manufacturers based on so-called design defects. “Vaccine manufacturers fund from their sales an informal, efficient compensation program for vaccine injuries; in exchange they avoid costly tort litigation and the occasional disproportionate jury verdict. Congress enacted this deal to coax manufacturers back into the vaccine market.”

The case involved a lawsuit over the injection of a diphtheria, tetanus, and pertussis (DPT) vaccine to six-month old Hannah Bruesewitz. After her parents’ claims were rejected under the federal compensation system, Hannah’s parents filed suit against the vaccine manufacturer in state court claiming their daughter developed a seizure disorder and experienced serious developmental delays from toxins in the vaccine. The parents argued that a safer alternative had been available but was not used.

The vaccine manufacturer removed the case to federal court and subsequently sought dismissal under the express preemption provision of the Act, which protects manufacturers from most state-law claims where there was an unavoidable injury and where the vaccine was both properly prepared and administered with the proper directions and warnings:

No vaccine manufacturer shall be liable in a civil action for damages arising from a vaccine-related injury or death associated with the administration of a vaccine after October 1, 1988, if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings.

Plaintiffs opposed dismissal, arguing that the DPT manufacturer knew there was a safer version of the vaccine that could have been used. They maintained that the vaccine maker should be liable despite the Act’s express preemption provision because it chose not to produce the available safer vaccine, thereby rending the injury avoidable. The federal district court and later the Third Circuit Court of Appeals both ruled that the Act barred such claims.

In rejecting plaintiffs’ claims and affirming the Third Circuit’s decision, Justice Scalia wrote: “If a manufacturer could be held liable for failure to use a different design, the word ‘unavoidable’ would do no work. A side effect of a vaccine could always have been avoidable by use of a differently designed vaccine not containing the harmful element.”

Justices Sotomayor and Ginsburg dissented. They maintain that the ruling “leaves a regulatory vacuum in which no one ensures that vaccine manufacturers adequately take account of scientific and technological advancements when designing or distributing their products.” Justice Kagan took no part in the consideration or decision of the case.

Future Implications

The decision has broad ramifications for the vaccine manufacturers as well as the public. The Court’s opinion effectively ends pending vaccine-related autism litigation. The decision also ensures the continuing viability of a stable vaccine market in the United States.

The Court’s position may also bode well for generic drug manufacturers later this term in Mensing, since the Court acknowledged the economic realities of increasing tort liability on vaccine manufacturers when deciding these claims were preempted. These same economic realities apply equally to generic drug manufacturers.

The California Supreme Court Issues Unanimous Opinions Addressing Insurance, Consumer Protection and ADR

By on February 22, 2011 Posted in California, Insurance

Insurance – In Century-National Ins. Co. v. Jesus Garcia, the court held that a fire insurance policy could not exclude coverage for innocent insureds because of the intentional acts of another insured; in this case the intentional act of the son setting fire to his parents house. The policy excluded coverage based on the intentional act or criminal conduct of “any insured,” and on this basis the carrier excluded coverage for the parents based on the acts of the son. While similar language was previously held as effective to exclude coverage as to all insureds in Minkler; the Court held that Insurance Code §§ 2070 and 533 limit the scope of such an exclusion in fire insurance policies to the specific insured who committed the intentional act. In doing so, the Court warned that this holding may have limited application in other contexts. For more details about Century-National Ins. Co. see the Insurance update page.

Consumer Protection – The Song-Beverly Credit Card Act of 1971 is a consumer protection act which bars businesses from requesting that cardholders provide “personal identification information” during credit card transactions, and then recording that information. In Pineda v. Williams-Sonoma Stores, Inc. the Supreme Court found that zip codes constituted “personal identification information,” making it a violation of the act for a business to request and record zip codes as a part of credit card transactions. For more details about Pineda see the B & P 17200/Class Actions/Commercial update page.

ADR – Several of the plaintiffs in Tarrant Bell Property, LLC v. Superior Court (Abaya) signed lease agreements requiring that any arbitrable issues, including those involving conditions at the subject mobilehome park, which were made subject to judicial proceedings would be decided by a referee upon the motion of any party pursuant to CCP § 638. After the residents collectively brought suit, the trial court refused to enforce this provision and the Supreme Court affirmed, finding that the trial court had discretion to deny the motion. Moreover, given the redundancy that would result from referring only some of the residents to a referee over the same legal issues, the trial court did not abuse its discretion. In so ruling, the Court disapproved of both Greenbriar Homes Communities, Inc. v. Superior Court (2004) 117 Cal.App.4th 337, and Trend Homes, Inc. v. Superior Court (2005) 131 Cal.App.4th 950, to the extent they are inconsistent. For more details about Tarrant Bell Property, LLC see the ADR update page.