April 1999


Argument — Improper

Leyva v. Samess
24 Fla. L. Wkly. D533 (Fla. 4th DCA 1999)

The Fourth DCA continues its reduction in the trial court’s power over improper arguments. Here, the trial court granted plaintiff’s motion in limine to prevent the defendant from using the defendant’s status as a doctor in his argument to the jury. After the defense violated it, the trial court ordered a new trial. The DCA reversed, holding that, even an egregious violation of an order in limine does not justify a new trial unless the argument was “highly prejudicial and inflammatory.”


Bifurcation

Meyers v. Metropolitan Dade County
24 Fla. L. Wkly. S135 (Fla. 1999)

With more and more judges bifurcating trials routinely, counsel are faced with the problem of when to appeal a decision in a bifurcated trial. Here the court holds that a jury’s verdict as to liability in a bifurcated trial is equivalent to an order determining the issue of liability under Fla. R. App. P. 9.130, which allows appeals from orders determining liability in favor of the party seeking affirmative relief. Although generally a motion for rehearing does not toll the time for filing an appeal from a nonfinal order, here the court holds that the timely filing of a motion for judgment notwithstanding the verdict or a motion for new trial tolls the time for filing the interlocutory appeal until the order disposing of the motion is filed.

As I read this case, the failure to file this interlocutory appeal should not prevent the filing of an appeal from the filing of a final judgment at the end of the case. I believe that practice should be encouraged, to prevent piecemeal appeals and delays in the final determination of the case.

The court refers the issue to the appellate rules committee to draft an appropriate revision to the rules.


Civil Rights

Joshua v. City of Gainesville
24 Fla. L. Wkly. D550 (Fla. 1st DCA 1999)

Section 760.11, Florida Statutes, requires the filing of an administrative complaint before a civil rights action may be filed. The Commission on Human Relations is supposed to make a determination of reasonable cause. If the Commission does not make a finding within 180 days, the claimant may either request an administrative hearing or file a civil action. The court holds that, if the Commission does not act within 180 days, the claimant must file suit within 1 year after the 180 day period, and certifies the following question:

Does the section 760.11(5), Florida Statutes (1995) one-year statute of limitations for filing civil actions “after the date of determination of reasonable cause by the commission” apply also upon the commission’s failure to make any determination as to “reasonable cause” within 180 days as contemplated in section 760.11(8), Florida Statutes (1995), so that an action filed beyond the one-year period is time-barred? The Fourth DCA has certified the same question in Adams v. Wellington Regional Medical Center, 24 Fla. L. Wkly. D715 (Fla. 4th DCA 1999).

Green v. Burger King Corp.
24 Fla. L. Wkly., D778 (Fla. 3d DCA 1999)

This Court rejects a different statute of limitations argument in this case, construing the statute liberally, as intended, and allowing the case to proceed on the merits. Section 760.11(1) requires a complaint brought under the statute to be verified. The court holds that, where plaintiff timely filed an unverified complaint, the subsequent filing of an amended, verified complaint related back to the filing of the first complaint.


Class Actions

Ramos v. Philip Morris Companies
24 Fla. L. Wkly. D769 (Fla. 3d DCA 1999)

The court has approved the settlement in the flight attendants’ second-hand smoke litigation. The settlement resulted in the following benefits for members of the class who choose to litigate against the tobacco industry on an individual basis: the waiver of the statute of limitations defense; the shifting of the burden of proof; resolution of venue and choice of law issues in their favor; a cost-free video of the trial, including expert testimony, for use in individual lawsuits; waiver of numerous defenses; and endowment of a foundation to sponsor scientific research.

The court notes the tremendous risk and difficulty of the case, the millions of dollars and tens of thousands of hours expended by the plaintiffs’ attorneys, and approves the fee to the attorneys in an amount equivalent to an hourly rate with a multiplier of five. The court notes that a multiplier of five is appropriate due to the enormous risk, the lack of success of prior cases, and the unwillingness of any other lawyer to take the case. The trial court did err in denying the motions to intervene of several objecting class members. Leave to intervene should be freely granted so long as the objector is a class member and objected to the settlement in the trial court.


Collateral Estoppel

E.C. v. Katz
24 Fla. L. Wkly. S152 (Fla. 1999)

The Court stands firmly against the defensive use of collateral estoppel unless there is mutuality of parties. In Zeidwig v. Ward, 548 So.2d 909 (Fla. 1989), the court created a narrow exception where a criminal defendant had unsuccessfully brought an ineffective assistance of counsel claim for postconviction relief, and then attempted to sue the attorney for malpractice. The court now holds that Zeidwig should be narrowly construed — “as narrowly as possible.” Where the wife in a dissolution case contended that the husband had sexually abused the child, and the dissolution court found that he had not, the wife was not estopped from bringing an action against the doctors who examined the child for malpractice in failing to diagnose the abuse committed against the child. See Stogniew v. McQueen, 656 So.2d 917 (Fla. 1995).


Dangerous Instrumentality

Rodriguez-Cespedes v. Creative Leasing, Inc.
24 Fla. L. Wkly. D647 (Fla. 3d DCA 1999)

The long-term lessor was not relieved of liability under the dangerous instrumentality doctrine where the lessee maintained the amount of insurance specified in 324.021(9)(b), (100/300/50), but the lease did not specifically require that amount.


Evidence — Frye Test

Florida Power & Light v. Tursi
24 Fla. L. Wkly. D853 (Fla. 4th DCA 1999)

The testimony of the plaintiff’s treating ophthalmologist that chemical agents can cause cataracts, that he had ruled out other causes and that, in light of the plaintiff’s age, exposure to PCB’s was more likely than not the cause of the plaintiff’s cataracts, was not subject to the Frye test because it was “pure opinion”, which relies on the witness’s personal experience and training, and not on some kind of scientific principle or test.


Fabre

Florida Power & Light Co. v. Tursi
24 Fla. L. Wkly. D853 (Fla. 4th DCA 1999)

The trial court erred in not allowing the jury to determine the fault of a nonparty who was not named in the answer. The answer referred to the fault of the nonparty, but the defendant identified the nonparty later in answers to interrogatories “long before trial.” This decision can make it very difficult for plaintiffs to know exactly who or what they have to deal with at trial.


Forum Non Conveniens

Bacardi v. Lindzon
24 Fla. L. Wkly. D512 (Fla. 3d DCA 1999)

In this multi-count case, the appellate court approved dismissal of part of the case on the grounds of forum non conveniens, even though some of the case would go to Liechtenstein and some to the Caymans, but reversed dismissal of the case against two defendants. The court certified the question:

Does the trial court abuse its discretion if it dismisses an action on forum non conveniens grounds under Kinney Sys., Inc. v. Continental Ins. Co., 674 So.2d 86 (Fla. 1996), when dismissal requires the plaintiff to refile the claims in more than one alternative jurisdiction?


Insurance — Agents

Straw v. Associated Doctors Health & Life
24 Fla. L. Wkly. D744 (Fla. 5th DCA 1999)

Where the insurance company trained the agent for “a couple of days” and provided her with an instruction manual; accompanied her on a sales call; required her to report to its office once a week to review policies she had sold the prior week; paid her a commission; provided her with application forms; and the agent sold policies from the insurance company and other companies, the insurance company “made [the agent] its agent by providing her with blank applications and then accepting the business generated therefrom.”


Insurance — Bad Faith

United Services Automobile Ass’n v. Jennings
24 Fla. L. Wkly. S141 (Fla. 1999)

In Cunningham v. Standard Guaranty Ins. Co., 630 So.2d 179 (Fla. 1994), the court approved stipulations by insureds, insurance companies and bad faith claimants to allow a stipulation to serve as the functional equivalent of an excess judgment so that the bad faith claim can be tried first. The agreement results in a full release of the insured if no bad faith is found by the jury, thereby avoiding a time consuming and expensive trial on negligence and damages. Here, the Court holds that the stipulation is to be given the same effect in the bad faith litigation as a final judgment would have, including the right to discovery of the claims file for the underlying claim. However, the court notes that the parties could agree otherwise. As in cases where a final judgment is actually entered, the discovery of the claims file is limited to materials related to the insurer’s handling of the claim through the conclusion of the underlying negligence claim. “The required discovery does not include any attorney-client communication or work-product material which pertains to the insurer’s defense of itself in the bad-faith action and which was generated subsequent to the stipulation and agreement, even though such privileged materials are physically included in what is referred to as the claims file.

Doan v. John Hancock Mut. Life Ins. Co.
24 Fla. L. Wkly. D642 (Fla. 3d DCA 1999) (en banc)

The court en banc recedes from Rubio v. State Farm, 662 So.2d 956 (Fla. 3d DCA 1995) and holds that, under Blanchard v. State Farm, 575 So.2d 1289 (Fla. 1991), the insured’s bad faith action was properly abated, pending resolution of her breach of contract action seeking enforcement of her long-term disability policy.


Insurance — Estoppel

Cummins v. Allstate
24 Fla. L. Wkly. D660 (Fla. 4th DCA 1999)

The insured claimed that she had received a notice of renewal that stated she would receive a separate bill, but never received the bill. The insurance company claimed that the policy was no longer in effect at the time of the accident. The court held that the insurance company was not entitled to summary judgment because promissory estoppel can create insurance coverage where to refuse to do so would sanction fraud or other injustice, and where the insurer’s conduct “has been such as to induce actions [or forbearance] [sic] in reliance upon it. Whether the insured could prove detrimental reliance was for a jury.


Insurance — PIP

Vaquero v. Security National Ins. Co.
24 Fla. L. Wkly. D592 (Fla. 3d DCA 1999)

Another erosion of the insured’s rights in PIP cases. Apparently the insurer is not obligated to make sure the insured actually receives the payments within the time required by the statute. The court accepted jurisdiction to answer the certified question: Are payments for PIP benefits under section 627.736(4)(b) overdue when timely mailed by the insurer, but not received by the insured.

The court answers in the negative, holding that payment made by the insurer within 30 days of receipt of the PIP claim was not overdue.


Insurance — Reformation

USAA Cas. Ins. Co. v. Threadgill
24 Fla. L. Wkly. D788 (Fla. 4th DCA 1999)

The insurance company issued a policy with a declaration page showing coverage limits of $100,000 for each person, and $300,000 for each accident. The policy stated that the limit for bodily injury for each “covered person” for one accident was the limit in the declarations for “each person.” The plaintiffs’ child, injured by the insured, did not fall within the definition of “covered person” in the policy. The insureds therefore contended that they were entitled to $300,000 coverage for the child’s injuries. The insurance company filed an action for reformation, contending that the use of the word “covered” in that provision was a “scrivener’s error”. The court rejected that argument and denied reformation because there was no mutual mistake. In order for a policy to be reformed, there must be a mutual mistake. A mistake on one side may be a ground for rescinding, but not for reforming, the contract. There are some cases, however, that do allow reformation where there is a unilateral mistake coupled with inequitable conduct by the other party, or where there is fraud. See, e.g., Puig v. Citicorp Life Ins. Co., 687 So.2d 852 (Fla. 3d DCA 1997) (insured who spoke no English was led to believe he was buying term life insurance but accidental death policy with limited coverage was delivered; summary judgment for insurer on reformation count reversed).


Insurance — UM

New Hampshire Ins. Co. v. Oliver
24 Fla. L. Wkly. D587 (Fla. 4th DCA 1999)

The plaintiff, a law enforcement officer, was injured in an attempt to rescue the occupants of the uninsured vehicle he was chasing, after the uninsured vehicle went into a canal. The court held that the plaintiff was not entitled to UM coverage, because he was not “occupying” the insured vehicle when he was injured, and his injuries did not result from the ownership, maintenance or use of the uninsured vehicle. There is no entitlement to UM coverage on the basis of the rescue doctrine.

State Farm v. Dixon
24 Fla. L. Wkly. D633 (Fla. 3d DCA 1999)

Based on the specific language of the insurance policy in this case, the court held that an insured seeking non-economic damages from a UM carrier must first meet the threshold requirements of 627.737(2)(a)-(d). Section 627.727(7) provides that “the legal liability of an uninsured motorist coverage insurer does not include damages in tort for pain, suffering, mental anguish and inconvenience unless the injury or disease is described in one or more of paragraphs (a) through (d) of 627.737(2).” The policy in this case provided benefits as described in the statute.

The court distinguished Dauksis v. State Farm, 623 So.2d 455 (Fla. 1993) because in Dauksis, the policy did not contain this limiting language. In a classic understatement, the court noted that, “Since Dauksis, and likely as a result of Dauksis, State Farm altered its policy language.

GEICO General Ins. Co. v. Arnold
24 Fla. L. Wkly. D772 (Fla. 3d DCA 1999)

The plaintiffs’ child was injured in two separate accidents, resulting in his death. An insurance policy provided a $100,000 limit for each person and $300,000 for each accident. It went on to state under the UM coverage that “the most we will pay for such damages, sustained by one person as the result of one accident, is the sum of the ‘each person’ limits for Uninsured Motorists coverage.” The court construed this provision, with other provisions in the policy, as unambiguously limiting coverage to $100,000 per accident for the death of the child. The fact that there is more than one claimant under the wrongful death statute does not, the court holds, increase the amount of coverage because the survivor’s right of recovery under the wrongful death statute is derivative. The same policy language was construed the same way in Biondino v. Southern Farm Bureau Cas. Ins. Co., 319 So.2d 152 (Fla. 2d DCA 1975).


Limitations

Morsani v. Major League Baseball
24 Fla. L. Wkly. D847 (Fla. 2d DCA 1999)

In Fulton County Administrator v. Sullivan, (Fla. 1997), the Supreme Court held that, except in med mal cases where it is specifically provided by statute, fraudulent concealment does not toll the statute of limitations. This Court holds that, nevertheless, equitable estoppel and waiver are still viable ways to avoid the statute of limitations, and certifies to the Supreme Court the following questions:

Does Section 90.051, Florida Statutes (1993) prohibit the application of the doctrine of equitable estoppel to an action filed outside of the applicable statute of limitations. I agree with the court’s reasoning. I can’t imagine that statute of limitations would be a defense that can’t be waived, when it is not jurisdictional.


Med Mal — Presuit

Medina v. Public Health Trust
24 Fla. L. Wkly. D634 (Fla. 3d DCA 1999)

By failing to provide medical records within 10 days of plaintiff’s written request, the defendant waived the requirement of written medical corroboration under 766.204(2). Therefore, it was error to dismiss the action for failure to comply with presuit.

Godbold v. Cox-Novoa
24 Fla. L. Wkly. D753 (Fla. 5th DCA 1999)

The absence of any evidence of injury reflected in the medical records does not necessarily preclude the plaintiff from obtaining a corroborating expert opinion as required by the med mal statute. Therefore, the trial court should have dismissed plaintiff’s case for failure to comply with presuit.

This poses a problem for plaintiffs where records are falsified or concealed. I guess what this means is that a corroborating expert opinion may be based on information that is not contained in the record, such as statements of the client and family about what really happened. Otherwise, a health care provider who happens to be dishonest may immunize itself from suit by falsifying records, a result surely not intended by this court.


Med Mal — Statute of Repose

Musculoskeletal Institute Chartered v. Parham
24 Fla. L. Wkly. S120 (Fla. 1999)

This case involves the interplay of three statutes: section 95.11(4)(b), which prohibits bringing an action for medical malpractice later than 4 years from the date of the incident or occurrence out of which the cause of action accrued; section 766.104(2), which allows the filing of an automatic 90-day extension of the statute of limitations; and section 766.106(4), which tolls the statute of limitations for 90 days after service of a notice of intent. The latter two statutes do not mention the statute of repose. The court holds that the statutes must be brought into symmetry so that the presuit requirements do not impede a claimant’s access to courts during the four year period allowed by the statute of repose. To allow the presuit requirements to impede access to courts would violate Article I, section 21, of the Florida Constitution, which provides a constitutional right of access to courts.

Therefore, the court holds that, “solely for the purpose of the statute of repose, an action for medical malpractice is commenced with the service of a notice of intent to initiate litigation pursuant to section 766.106, or on filing a petition for extension with the clerk pursuant to section 766.104(2). Moreover, the tolling provisions of these statutes and Fla. R. Civ. P. 1.650(d) applicable to the statute of limitations are equally applicable to the statute of repose.

The Court also amends Fla. R. Civ. P. 1.650(d)(3) , effective immediately to refer to filing “a complaint in the Circuit Court” instead of filing “an action”. I’m a little confused about what this change accomplishes, and the court has asked the Civil Procedure Rules Committee to review the rule for comment. Perhaps the word “complaint” is meant to encompass a petition for automatic extension.

This decision is in accord with decisions such as Kukral v. Mekras, 679 So.2d 278 (Fla. 1996) and Patry v. Capps, 633 So.2d 9 (Fla. 1994), which require the med mal statutes to be construed liberally so as not to impede the right of access to courts.


Offer of Judgment

MGR Equipment Corp. v. Wilson Ice Enterprises, Inc.
24 Fla. L. Wkly. S142 (Fla. 1999)

An offer of judgment which does not specifically provide for resolution of a counterclaim is not void, because it must be read as encompassing “all damages which may have been awarded in the final judgment. The offer was not qualified, and therefore would have disposed of all pending claims in the litigation, including the counterclaim.


Public Records

Smithwick v. Television 12 of Jacksonville, Inc.
24 Fla. L. Wkly. D826 (Fla. 1st DCA 1999)

This is another in the seemingly unending stream of cases in which there is an effort to limit public access to public records via a settlement containing a confidentiality order. The court relies on Florida Rule of Judicial Administration 2.051, which requires public access to judicial records except under very limited circumstances, when no less restrictive alternative is available, when confidentiality is required to (i) prevent serious and imminent threat to the fair, impartial and orderly administration of justice; (ii) protect trade secrets; (iii) protect a compelling governmental interest; (iv) obtain evidence to determine legal issues in a case; (v) avoid substantial injury to innocent third parties; (vi) avoid substantial injury to a party by disclosure of matters protected by a common law or privacy right not generally inherent in the specific type of proceeding sought to be disclosed; (viii) comply with established constitutional policy.

Here, the parties settled and entered into a stipulation permitting the defendant’s attorney to remove all discovery documents from the court file. The judge signed an agreed order, and defense counsel was permitted to remove part of the file to his office, where he removed the discovery documents. The press then sought access to the removed document, and the trial court ordered the documents returned. The appellate court affirmed. Although Fla. R. Jud. Adm. 2.075 allows return of documents that are the property of a person who placed them into the court records, this Court holds that such documents cannot be returned unless Rule 2.051 is complied with.

For a good discussion of the requirement of public access to public court records, see, e.g., Ex Parte Uppercu, 239 U.S. 435, 36 S.Ct. 140 (1915), in which Justice Oliver Wendell Holmes stated: “the mere unwillingness of an unprivileged person to have the evidence used cannot be strengthened by such a judicial fiat ...”. See also, e.g., Baker v. General Motors Corp., 118 S.Ct. 657 (1998): “Exceptions to the demand for every man’s evidence are not lightly created nor expansively construed, for they are in derogation of the search for the truth;” Wilson v. American Motors Corp., 759 F.2d 1568 (11th Cir. 1985) (requiring extraordinary showing of exceptional circumstances); Brown v. Advantage Engineering, Inc., 960 F.2d 1013 (11th Cir. 1992) (rejecting defendant’s claim of reliance on confidentiality provision in settlement agreement: “once a matter is brought before a court for resolution, it is no longer solely the parties’ case, but also the public’s case.”)

Additionally, the Florida Sunshine in Litigation Act, 69.081, Florida Statutes, prohibits the concealment of information in a case that is relevant to a “public hazard”.


Recusal

Anderson v. Glass
24 Fla. L. Wkly. D743 (Fla. 5th DCA 1999)

Florida Rule of Judicial Administration 2.160(f) requires that motions to disqualify a trial judge must be ruled on “immediately.” In this action, the trial judge took the matter under advisement for more than 30 days before denying the motion. This court granted a writ of prohibition because of the delay.


Service of Process

Fla. R. Civ. P. 1.070(j)

Florida Rule of Civil Procedure 1.070(j) has been amended. If service has not been accomplished within 120 days, the court may direct that service be effected within a specified time, or drop that defendant, or dismiss the case; however, if the plaintiff shows good cause or excusable neglect for failure to serve on time, the court “shall” extend the time for an appropriate period.

The addition of “excusable neglect” is a welcome change that encourages adjudication on the merits. The amendment applies to all civil cases filed after the amendment, and “so far as practicable,” to all pending cases.


Setoff

Mendez v. Simon
24 Fla. L. Wkly. D514 (Fla. 3d DCA 1999)

The plaintiffs settled with one defendant. The settlement agreement did not specify how the proceeds would be apportioned among the plaintiffs. Because one of the plaintiffs was a minor, the settlement had to be approved by the court. The court apportioned a specific amount of the settlement proceeds to the minor. The plaintiffs then went to trial against the remaining defendant, and obtained a substantial verdict that was less than the settlement with the first defendant. The defendant argued that he was entitled to a setoff of the full amount of the settlement against the total verdict, citing Dionese v. City of West Palm Beach, 500 So.2d 1347 (Fla. 1987). Dionese holds that a defendant is not bound by the plaintiffs’ unilateral apportionment of a settlement.

The court distinguishes Dionese here because the settlement was apportioned by the court, not by the parties. Even if the parties had apportioned it, it would not have been binding without court approval. Consequently, the defendant here is entitled to a setoff only of the amount of the settlement attributable to the child’s claim under the trial court’s apportionment order.


Slip and Fall

Owens v. Publix Supermarkets, Inc.
24 Fla. L. wkly. D681 (Fla. 5th DCA 1999) (en banc)

A store was entitled for a directed verdict where the plaintiff showed only that the banana peel she fell on was discolored. The court points out that to allow the case to go to the jury would require an assumption that the aging of the banana fragment occurred on the floor and not in the fruit bin. This is another of many cases making it harder and harder to win a slip and fall case.


Summary Judgment

Lich v. N.C. J. Investment Co.
24 Fla. L. Wkly. D593 (Fla. 2d DCA 1999)

On a sparse record, the court affirms a summary judgment in favor of the defendant in a premises liability case. In his dissenting opinion, Judge Altenbernd says that the summary judgment is premature. Citing Holl v. Talcott, 191 So.2d 40 (Fla. 1966) and Snyder v. Cheezem Dev. Corp., 373 So.2d 719 (Fla. 2d DCA 1979), Judge Altenbernd reminds us that summary judgment must be denied when there is even the slightest doubt that an issue might exist, contrary to the federal rule in Celotex Corp. v. Catrett, 477 U.S. 316 (1986), which places the burden on the non-moving party to prove the existence of an issue. But he warns that:

[Plaintiff’s] counsel trusted the rhetoric of Holl and Snyder. Trust in the law is good. However, in an era when there is increasing pressure upon the judiciary to control frivolous lawsuits, real and imagined, our legal rhetoric and our legal process do not always align. In the current climate, plaintiffs’ counsel would do well to file Celotex-style affidavits and other evidence in opposition to motions for summary judgment.


Videotapes

Cirillo v. Davis
24 Fla. L. Wkly. D709 (Fla. 4th DCA 1999)

The defendant’s investigator’s employee took surveillance videos of the plaintiff for two days, then edited them down to twenty to twenty-five minutes. The defendant attempted to introduce the tapes through the employer, not the employee who made the tapes. The court held that the video should not have been admitted because it was not self-authenticating and did not have sufficient “indicia of reliability.” The court notes the incentive of the person who makes a living with surveillance videotapes to edit selectively, and that advancing technology will make alterations harder to detect. Therefore, the person making the videotape should be subject to cross examination under oath.