April 1997


Arbitration

Lane v. Sarfati
22 Fla. L. Wkly. D455 (Fla. 3d DCA 1997)

A party may waive arbitration by taking a position inconsistent with arbitration. The Third District holds that a showing of prejudice is also required before arbitration may be held to be waived. The court certifies conflict with the Second and Fourth DCAs. Remember this issue as you try to find your way through the med mal arbitration statute.


Argument -- Improper

Superior Industries International, Inc. v. Faulk
22 Fla. L. Wkly. D732 (Fla. 5th DCA 1997)

This court continues to restrict the parameters of appropriate argument, reversing even without objection by opposing counsel. The court reverses for comments, some of which included analogies to defective parts in an aircraft, compared to the automobile involved in this case, which the court construes as references to facts not in issue. The court also finds improper counsel's argument telling the jury that "You jurors have taken on the most important civic responsibility, the most powerful position within our government that there is." I'm really surprised that the court finds it improper to remind the jury of its responsibilities.


Attorneys Fees

U.S.B. Acquisition Co. v. Stamm
22 Fla. L. Wkly. D639 (Fla. 4th DCA 1997)

This court holds that you cannot get a contingency risk multiplier where the only authority for the fee is a contract, rather than a statute. The court certifies the question to the Supreme Court. It seems to me that the risk is the same whether the fee is pursuant to contract or statute -- if you lose, you don't get paid. Therefore, the multiplier which is supposed to compensate for the risk should be the same. The court certified this same question in Command Credit Corp. v. Mineo, 664 So.2d 1123 (Fla. 4th DCA 1995), but apparently the parties did not pursue the issue in that case.

Winselmann v. Reynolds
22 Fla. L. Wkly. D578 (Fla. 1997)

The court may award attorneys fees, even absent contract or statute, where the wrongful act of the defendant has involved the claimant in litigation with others or placed him or her in such relation with others as makes it necessary to incur expenses to protect his or her interest.

Boca Airport, Inc. v. Roll-N-Roaster of Boca, Inc.
22 Fla. L. Wkly. D602 (Fla. 4th DCA 1997)

Watch out! For purposes of a statute that provides for an award of fees to the prevailing party, the defendant is the prevailing party where the plaintiff takes a voluntary dismissal.

Garcell v. Holder
22 Fla. L. Wkly. D623 (Fla. 2d DCA 1997)

Not only is the defendant entitled to prevailing party fees where the plaintiff takes a voluntary dismissal, but the trial court has jurisdiction to award the fees following the voluntary dismissal.

Modder v. American National Life Ins. Co. of Texas
22 Fla. L. Wkly. S87 (Fla. 1997)

The plaintiffs were insured under a group health insurance policy issued to the National Business Association. Even though 627.6698 provides for an award of attorneys fees to a prevailing insured under a group health policy, 627.6515(2) excludes coverage under the statute for out of state groups if the group is formed primarily for purposes other than providing insurance.


Dismissal

Carnival Corp. v. Sargeant
22 Fla. L. Wkly. D715 (Fla. 3d DCA 1997)

If your complaint is dismissed and the order does not expressly grant leave to amend, watch out! This case holds that an order that states that a motion to dismiss is granted and that "Plaintiff's Complaint is hereby dismissed, without prejudice" is a final appealable order. You must timely file a motion for rehearing (serve it within ten days), appeal, or file a new lawsuit. If you don't move for leave to amend within ten days, the court has no jurisdiction to grant it, even though the order says that it is "without prejudice."


Economic Loss Rule

PK Ventures, Inc. v. Raymond James & Associates, Inc.
22 Fla. L. Wkly. S 175 (Fla. 1997)

The economic loss rule does not prevent the buyer of commercial property from bringing an action for negligent misrepresentation against the seller's broker. This is almost the same issue decided in Woodson v. Martin, 685 So.2d 1240 (Fla. 1996) which involved fraud in the inducement. Congratulations to Roy Wasson, who wrote a fine amicus brief on behalf of the AFTL in this and the other economic loss cases, along with my late friend Sheila Moylan.

Delgado v. J.W. Courtesy Pontiac GMC-Truck, Inc.
22 Fla. L. Wkly. D744 (Fla. 2d DCA 1997)

The court holds that the economic loss rule does not bar a cause of action under the Florida Deceptive and Unfair Trade Practices Act, sections 501.201-501.213, and certifies the question to the Supreme Court.


Evidence -- Impeachment

Morton v. State
22 Fla. L. Wkly. S100 (Fla. 1997)

The court explains the scope of impeachment by prior inconsistent statement. The prior statement must be truly inconsistent. "Nit picking" is not permitted. The primary purpose of using a prior inconsistent statement cannot be to put in front of the jury substantive evidence which otherwise would not be admissible.


Fabre

Y.H. Investments v. Godales
22 Fla. L. Wkly. S. 153 (Fla. 1997)

Overruling one of the best DCA decisions to come out since Fabre, the Supreme Court holds that in an action involving injuries to a minor child, the jury must be instructed to consider the negligence of the child's nonparty parent or guardian. The name of the non-party parent or guardian goes on the verdict form, if there is sufficient evidence of their negligence, despite parental immunity. The court says this does not constitute imputing the parent's fault to the child.

The decision was 4-3, with an excellent dissent by Justice Wells, joined by Justice Kogan, and a separate dissent by Justice Shaw. Justice Wells says Fabre was wrongly decided.

The dissent points out that the decision, combined with Fitzgibbon v. Government Employees Ins. Co., 583 So.2d 1020 (Fla. 1991) which upheld the family exclusion in auto and UM policies, "leaves an unemancipated minor to suffer the total consequences of a tort with no effective means to recover full damages for the child's injuries."

The court treats this as if it were an ordinary tort case, and ignores the policy reasons outlined in the dissent, including: the family exclusion included in most automobile and UM policies; the attractive nuisance doctrine; the fact that joint and several liability for a child's economic damages may not mean much because a child has no earnings history; and the likelihood that having the parent blamed on the verdict form will have a "chilling effect" on bringing actions on behalf of children, who are totally dependent on parents to pursue these actions.

There is still an argument to be made that this decision does not apply in wrongful death cases, because 768.81(1) provides that, where another statute conflicts with 768.81, the other statute controls. The wrongful death statute provides, in section 768.20, that "a defense that would bar or reduce a survivor's recovery if he were the plaintiff may be assessed against him but shall not affect or reduce the recovery of any other survivor." See Gurney v. Cain, 588 So.2d 244 (Fla. 4th DCA 1991), rev. denied, 599 So.2d 656 (Fla. 1992); Childers v. Schachner, 612 So.2d 699 (Fla. 3d DCA 1993).

Chediak v. Ethicon
(unreported) (S.D. Fla. 1997)

This is a case I am currently involved in. It is a products liability case against the manufacturer of a defective suture, which failed, causing the patient to bleed and suffer brain damage. The manufacturer tried to make the physician a Fabre defendant. We moved to strike the affirmative defense. The judge granted our motion, relying on the Supreme Court's decision in Stuart v. Hertz Corp., 351 So.2d 703 (Fla. 1977). The tortfeasor is responsible for all injuries flowing from its negligence, including injuries caused by the negligence of a physician treating the injury caused by the tortfeasor. I'll be happy to provide a copy of the decision to anyone who would like it. My cocounsel on this case are Nancy LaVista of Lytal & Reiter, and Roy Wasson.

Benchwarmers, Inc. v. Gorin
22 Fla. L. Wkly. D648 (Fla. 4th DCA 1997)

This is not really a Fabre case but involves a related issue. After the plaintiff has settled and is out of the case, a tortfeasor may seek equitable subrogation from the negligent physician without violating those principles. While the tortfeasor is responsible to the injured plaintiff for the entire amount, the tortfeasor may recover for the portion of what it has paid that was caused by the negligence of the doctor.

Loureiro v. Pools by Greg, Inc.
22 Fla. L. Wkly. D462 (Fla. 4th DCA 1997)

It was error to submit the issue of negligence of a nonparty to the jury where the defendant did not specifically name the nonparty in its affirmative defense. The court holds that the defendant is entitled to a new trial on all issues -- liability, apportionment of fault and damages.


Forum Non Conveniens

Ciba-Geigy, Ltd. v. The Fish Peddler, Inc.
22 Fla. L. Wkly. D 769 (Fla. 4th DCA 1997)

The aftershocks from Kinney System, Inc. v. Continental Ins. Co., 674 So.2d 86 (Fla. 1996) continue to be felt. Here, the court holds that because the plaintiff is a foreign corporation, based in Ecuador, the plaintiff's choice of forum is not to be considered in the weighing under the new forum non conveniens doctrine. Nor is the trial court to consider "procedural nuances" that do not entirely deprive the plaintiff of any remedy. The fact that the plaintiff will have to wait many years for trial does not make Ecuador an inadequate forum.

Aladdin Ins. Agency, Inc. v. Jones
22 Fla. L. Wkly. D406 (Fla. 3d DCA 1997)

Where there are three corporate defendants, and there is no common county of residence for all three, the plaintiff is allowed to make the venue selection.


HMO

Century Medical Health Plan Inc. v. North Shore Med. Center, Inc.
22 Fla. L. Wkly. D513 (Fla. 3d DCA 1997)

This decision has very dangerous implications. The court holds that, where a patient's HMO contract excludes coverage for elective cosmetic surgery and complications arising from it, there was no coverage for emergency treatment made necessary when the patient, during elective cosmetic surgery, suffered pulmonary edema and was transferred to a hospital's emergency room. The court makes this ruling despite explicit coverage in the contract for emergency care from nonparticipating physicians and hospital, because the hospital was a member of the HMO. I hope this doesn't mean that hospital emergency rooms will start turning away patients who are members of their HMO because the emergency arose out of an excluded cause!


Insurance -- Bad Faith

RLI Ins. Co. v. Scottsdale Ins. Co.
22 Fla. L. Wkly. D719 (Fla. 4th DCA 1997)

An excess insurer may sue the primary insurer for bad faith where the excess insurer has settled with the injured person. The excess insurer does not have to show that a judgment was entered exceeding policy limits. The court reminds us in a foot note that this does not mean that an insured can settle with the injured person over the objection of an insurer which is providing a defense and coverage, and then sue the insurer for bad faith.


Insurance -- Duty to Defend

MCO Environmental, Inc. v. Agricultural Excess & Surplus Ins. Co.
22 Fla. L. Wkly. D409 (Fla. 3d DCA 1997)

An insurance company that defends under a reservation of rights is required to provide an adequate defense.The duty to defend is broader than the duty to provide coverage. If the complaint alleges facts that could bring the insured partially within coverage of the policy, the insurer is obligated to defend the entire suit.


Insurance - PIP

U.S. Security Ins. Co. v. Silva
22 Fla. L. Wkly. S507 (Fla. 3d DCA 1997)

Answering a question certified from the county court, the court interprets the provision of 637.736 which provides that an insurer is no longer liable for "subsequent personal injury benefits" if the insured unreasonably fails to attend an examination scheduled by the insurer. The court holds that the term "subsequent personal injury benefits" refers to benefits subsequently payable upon the insurer's receipt of reasonable proof of loss and the amount of expenses and loss incurred. The court rejects the interpretation that seems to have been the practice in the industry, that "subsequent benefits" means benefits for treatment subsequently incurred. A motion for rehearing and rehearing en banc is pending.


Insurance -- UM

State Farm v. Sternberg
22 Fla. L. Wkly. D431 (Fla. 5th DCA 1997)

Where an insurance policy requires notification to the insurer within 24 hours for UM coverage, the provision is a condition precedent. Prejudice to the insurer is presumed, and the insurer has the burden of proving that the insurer was not prejudiced by any delay.


Jurisdiction -- Longarm

Plantation-Pioneer Industries Corp. v. Koehler
22 Fla. L. Wkly. D768 (Fla. 4th DCA 1997)

A defective power strip allegedly caused a fire in the plaintiff's house. The defendant was somehow involved in the distribution of the power strip but did not manufacture it. It sold the power strip to a Hong Kong company, which sold it to KMart, which sold it to plaintiff. It does not have offices or personnel in Florida, and no sales people travel in Florida. All demonstrations are made outside of Florida. The court held that Florida did not have jurisdiction over the company. Determining jurisdiction is a two step process. See Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla. 1989). First, the court must determine whether the defendant's conduct brings it within the long arm statute. Second, if so, the court must decide whether the defendant has sufficient minimum contacts with Florida. The court held that the defendant's activities did not come under the statute. The court also held that, instead of affidavits, depositions or a sworn pleading could be used to prove jurisdictional facts.

Fasco Controls Corp. v. Goble
22 Fla. L. Wkly. D609 (Fla. 5th DCA 1997)

Be careful how you plead jurisdictional facts when there is an issue of jurisdiction under the longarm statute. This case holds that merely alleges that the defendant is "doing business" in Florida is not sufficient to track the language of the longarm statute. You must plead either the supporting facts, or the language of the statute, 48.193.

Schnetzler v. Cross
22 Fla. L. Wkly. D563 (Fla. 1st DCA 1997)

The court certifies to the supreme court the question whether the "corporate shield" doctrine set out in Doe v. Thompson, 620 So.2d 1004 (Fla. 1993) applies to a non-resident employee acting on behalf of a corporation even where the employee's acts are of a professional nature, such as providing medical care. The corporate shield doctrine holds generally that the acts of a nonresident corporate employee performed in his corporate capacity do not form the basis of jurisdiction over the employee in an individual capacity under the longarm statute. Here, the plaintiff sought to sue a doctor who provided lab services out of state. The court held that there was no jurisdiction over the doctor because he was employed by a corporation and provided the services in that capacity. Judge Van Nortwick dissents, arguing that the professional should be held responsible for his professional acts.


Med Mal -- Presuit

Champion v. Cox
22 Fla. L. Wkly. D498 (Fla. 1st DCA 1997)

Where plaintiff sued her doctor for defamation for allegedly making false statements about her health in a phone conversation with plaintiff's supervisor at work, resulting in plaintiff's loss of her job, the plaintiff did not have to comply with med mal presuit requirements because the action was not for medical malpractice.


Offer of Judgment

Hartford Cas. Ins. Co. v. Silverman
22 Fla. L. Wkly. D407 (Fla. 3d DCA 1997)

The defendant insurance company was not entitled to an award of attorneys fees under the offer of judgment statute where the offer was ambiguous because it did not specifically provide for the resolution of the insurer's counterclaims against the insured or for disposition of $9000 that had been deposited into the court registry.

Hanzelik v. Grottoli
22 Fla. L. Wkly. D465 (Fla. 4th DCA 1997)

The trial court properly struck the plaintiff's acceptance of defendant's offer of judgment as untimely where the acceptance was made within thirty days of the offer, but after the trial. However, the offer itself was untimely, because it was made less than thirty days before commencement of trial. Therefore, the defendant was not entitled to an award of attorneys fees.


Offer of Judgment

Gulliver Academy v. Bodek
22 Fla. L. Wkly. S59 (Fla. 1997)

Even though 768.79 requires the motion for attorneys fees resulting from an offer of judgment to be filed within 30 days of the entry of judgment, the statute does not govern procedure. Procedure is governed by the Florida Rules of Civil Procedure. Therefore, where the trial court enters final judgment reserving jurisdiction to determine attorneys fees and costs, the court may award fees even if the motion for fees is filed more than 30 days after the entry of judgment. Absent a reservation of jurisdiction, a motion for attorneys fees based upon the statute must be filed within 30 days of the entry of judgment, unless there is a basis for relief under Rule 1.090(b)(2) (e.g., excusable neglect).


Premises Liability

Leonard v. Wakulla County
22 Fla. L. Wkly. D561 (Fla. 1st DCA 1997)

A county cannot be held liable for failure to upgrade the ramp leading up to the courthouse to comply with the Americans with Disability Act because the failure to upgrade an existing ramp is, according to the court, a discretionary function for which the county cannot be held liable. While the county could be held liable for failure to warn, there is no liability here because the plaintiff was aware of the condition of the ramp, and had even written to the county complaining about it. Judge Van Nortwick dissents, arguing that the danger was not readily apparent to the public, even if the plaintiff personally knew about it, which is an issue of comparative negligence.


Privilege -- Attorney-Client

Asplundh Tree Expert Co. v. Barnes
22 Fla. L. Wkly. D649 (Fla. 4th DCA 1997)

The defendant did not waive its attorney-client privilege by referring to "the advice of our attorneys" in a letter to the plaintiff. The plaintiff could not question the attorney about the communications leading to the advice.


Punitive Damages

Standard Jury Instructions -- Civil Cases
22 Fla. L. Wkly. S67 (Fla. 1997)

The Supreme Court has issued new standard jury instructions for use in bifurcated proceedings involving punitive damages, pursuant to W.R. Grace & Co. v. Waters, 638 So.2d 502 (Fla. 1994).


Seat Belt

Ridley v. Safety Kleen Corp.
22 Fla. L. Wkly. S167 (Fla. 1997)

In an earlier opinion in this case, the Supreme Court held that the defendant was entitled to an instruction that the plaintiff's failure to wear a seat belt in violation of a traffic statute was evidence of negligence, using Florida Standard Jury Instruction 4.11. The court also held that failure to use a seat belt is an affirmative defense that must be pled. On rehearing, the court held that, since the jury at trial had found the defendant 100 percent responsible for causing the accident, the new trial should be limited to comparative negligence for failing to wear the seat belt. The jury should be given a peremptory charge that the defendant was 100 percent responsible for causing the accident and that the plaintiff was not responsible for causing the accident.


Settlement -- Set Off

Mikes v. The City of Hollywood
22 Fla. L. Wkly. D528 (Fla. 4th DCA 1997)

Where there were two separate settlement agreements with the settling tortfeasor, one with the wife for her injuries and one with the husband for his consortium claim, it was error to allow the nonsettling defendant to set off from the economic damages awarded to the wife a portion of the settlement paid to the husband for his consortium claim. Cf. Dionese v. City of West Palm Beach, 500 So.2d 1347 (Fla. 1987). The court holds that the rule allowing for separate setoffs for separate causes of action was not changed by Wells v. Tallahassee Memorial Regional Medical Center, 659 So.2d 249 (Fla. 1995).


Sovereign Immunity

Brown v. Dept. of H.R.S.
22 Fla. L. Wkly. D660 (Fla. 1st DCA 1997)

A child who was molested in a day care center does not have a cause of action against HRS for negligently licensing the day care center knowing that the owner's wife was a child molester. See Trianon Park Condominium Assoc. v. City of Hialeah, 468 So.2d 912 (Fla. 1985) (government can't be sued for failing to enforce its laws). Judge Van Nortwick dissents, arguing that Dept. H.R.S. v. Yamuni, 529 So.2d 258 (Fla. 1988) held that H.R.S. has a specific statutory duty to protect children.

Porter v. State of Fla. Dept. of Agriculture
22 Fla. L. Wkly. D631 (Fla. 1st DCA 1997)

The state had no duty to plaintiffs who were injured by a criminal fleeing the police in a high speed chase where the plaintiffs were not within the "zone of risk" created by the chase, because the officers withdrew from the chase 35 miles before the crash.


Statute of Repose

Damiano v. McDaniel
22 Fla. L. Wkly. S121 (Fla. 1997)

It is not an unconstitutional violation of the right of access to courts under Article I, Section 21 of the Florida Constitution, to apply the medical malpractice statute of repose to a case where the plaintiff's injury, resulting in AIDS, did not manifest itself within the statutory four year term from the date of the incident that resulted in the infection. The court distinguishes Diamond v. E.R. Squibb & Sons, Inc., 397 So.2d 671 (Fla. 1981) because it "was a products liability action involving an entirely different statute of repose" and also because it was decided before more recent decisions on the statute of repose such as Kush v. Lloyd, 616 So.2d 415 (Fla. 1992) and University of Miami v. Bogorff, 583 So.2d 1000 (Fla. 1990). The court has not expressly overruled Diamond, questioning its viability while leaving a path to distinguish it based on the statute.


Truth in Lending

Beach v. Great Western Bank
22 Fla. L. Wkly. S71 (Fla. 1997)

A statutory claim for rescission pursuant to the Truth in Lending Act, 15 U.S.C. section 1635, may not be revived as a defense of recoupment in a mortgage foreclosure action beyond the three year limit on rescission set forth in section 1635(f). Unfortunately, this may allow mortgagees to wait to foreclose until after the three years has run, even when the mortgagor has a valid rescission claim.


Voir Dire

Sisto v. Aetna Cas. & Sur. Co.
22 Fla. L. Wkly. D720 (Fla. 4th DCA 1997)

Although the scope of voir dire is within the trial court's discretion, it is an abuse of discretion to refuse to allow plaintiff's counsel to ask prospective jurors about whether they had seen or heard anything about verdicts or lawsuits in general, and whether they had any pre-conceived attitudes about damage awards, and particularly noneconomic damages. The plaintiff established prejudice because the jury awarded only economic damages. The court notes that "a prospective juror's attitude about personal injury lawsuits is an appropriate subject for inquiry"


Workers Comp Immunity

Myrick v. Luhrs Corp.
22 Fla. L. Wkly. D675 (Fla. 5th DCA 1997)

Where an employer engages in intentional acts that are designed to, or substantially certain to, result in injury or death of an employee, the employer may not hide behind workers compensation immunity. The injury must be virtually certain, not just probable. That standard is hard to meet, but not impossible. Here, the court holds that where the complaint alleged that the employer deliberately removed or disabled five different safety devices from a power saw, knowing the "certain consequences" of doing so, the employer would not be entitled to immunity if the plaintiff was able to prove his case. The court relied on cases such as Connelly v. Arrow Air, Inc., 568 So.2d 448 (Fla. 3d DCA 1990), rev. denied, 581 So.2d 1307 (Fla. 1991) (employer allowed plane to fly overloaded and with mechanical deficiencies not known to flight crew); Belhomme v. Rigal Plastics, Inc., 625 So.2d 118 (Fla. 5th DCA 1993) (removal of safety device substantially certain to result in plaintiff's injury). The court also finds it significant that the employer concealed the danger from the employee.