The Stetson Law Review has published my article: Cracking the Code: Interpreting and Enforcing the Appellate Court’s Decision and Mandate, 32 Stetson L. Rev. 393 (2003). It discusses what to do after the appeal, when you’re back in the trial court and trying to figure out what the appellate court wants you to do next. The entire winter edition of the Stetson Law Review is a symposium on appellate practice, and there are a number of helpful articles.
Reversing a summary judgment and ordering the trial court to allow leave to amend, the court also reverses an award of attorneys’ fees under the 2001 version of §57.105 because the plaintiff’s claim was “not completely lacking in merit.”
The automatic stay resulting from the bankruptcy filed by one defendant did not stay proceedings against other defendants.
A settlement of a class action must be submitted to the court for approval. The trial court “has the authority to conduct whatever inquiry the court feels appropriate regarding the fairness of a proposed class action settlement.” However, the court cannot rewrite a portion of the settlement of which it disapproves. Therefore, if the court believes the attorneys fees provision of a settlement is improper, the court may inform the parties what modifications might make the agreement acceptable, but the court cannot order the parties to accept an agreement that is different from the one they negotiated.
In declining to revisit the issue of admissibility of expert testimony on handwriting comparison, the court points out that Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) is applicable only in federal courts, not Florida courts. Florida applies Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), which applies only in cases of new or novel scientific techniques.
The trial court did not abuse its discretion in denying the defendant’s motion for leave to amend to add a Fabre defendant. The motion was filed on the Friday before the scheduled trial. The defendant knew sufficient facts at the time he filed his answer to plead the particular Fabre defendant, but failed to do so. Moreover, the additional facts on which the defendant claimed to rely were disclosed at a deposition taken a month before trial, so the defendant should have raised the issue at least by that time.
A clause in a builder’s risk policy excluded “loss or damage caused by fault, defect, error or omission in design, plan or specification, but this exclusion shall not apply to physical loss or damage resulting from such fault, defect, error or omission in design, plan or specification.” The court held that this provision excluded coverage for structural defects resulting from a design deficiency.
Where an insurer pays a claim after suit is filed, but before a judgment is rendered, the payment operates as a confession of judgment, entitling the insured to an attorneys’ fees award under §627.428, Florida statutes. This rule applies to a health care provider to whom PIP benefits have been assigned by the insured.
The PIP policy contained a provision that the insurance company could refuse to pay medical expenses that it deemed “unreasonable or unnecessary” but would defend and indemnify the insured if he was sued by a medical provider because of it. The court held that this provision did not deprive the insured of standing to sue the insurer for failure to pay PIP benefits to the provider when due, even if the insured has incurred no out-of-pocket expenses and the provider has not sued the insured. To require the insured to wait until the doctor sued him would threaten irreparable injury to the doctor-patient relationship, could harm the insured’s credit, and is contrary to the PIP statute.
Interestingly, the court notes that “the doctrine of standing does not exist in Florida ‘in the rigid sense employed in the federal system.’”
The trial court erroneously directed a verdict against the plaintiff in a PIP suit for failure to prove that his medical providers were licensed. Lack of a license should be treated as an affirmative defense.
This is an extremely important case clarifying the legal responsibility of an H.M.O. for the care of one of its members. The deceased was a member of the defendant’s H.M.O. She died as the result of failure to diagnose and treat what turned out to be cancer. The plaintiff alleged that the H.M.O. was vicariously liable for the actions of the doctors and that the H.M.O. had a nondelegable duty to the patient, as a result of its agreement to provide the patient with comprehensive health care services, and because of state and federal statutes and regulations. The Court held:
ERISA does not preempt a state law claim for direct and vicarious liability for negligence in the rendering of medical services to member patients. The plaintiff’s claim that agents or apparent agents of the H.M.O. made negligent treatment decisions in caring for the patient are not preempted. Although it may be necessary to refer to the H.M.O. plan to determine issues of agency, as long as the claim is not for wrongful plan administration, it is not preempted.
The H.M.O. statute, §641.17 et seq., does not create a private cause of action or a nondelegable duty. This does not preclude the right to bring a common law negligence claim based on the same allegations. The existence of an agency relationship is generally for the trier of fact. If the H.M.O. had the right to control the actions of the doctor, under the totality of the circumstances test, the doctor could be the agent of the H.M.O. See Stoll v. Noel, 694 So.2d 701 (Fla. 1997) (finding doctors who worked as consultants for a state program were state agents under totality of circumstances). The conclusory statement in the doctors’ contracts that they were “independent contractors” does not conclusively preclude the existence of an agency relationship. Here, there was significant evidence of the H.M.O.’s “right to control the means bywhich medical services were rendered by member physicians to member patients.” The H.M.O. concept has “dramatically altered” the traditional pattern of physicians as “independent centers of occupation and profession.” Here, the plan documents, including the contract between the H.M.O. and the patient and the contracts between the H.M.O. and the doctors, and the “totality of the circumstances operating within the current reality of the interaction within the decision-making process” gave the H.M.O. the “right to control important aspects of patient care,” and created genuine issues of material fact as to actual agency.
The court also directed the trial court to reevaluate the issue of apparent agency.
The presuit screening provisions of chapter 766, Florida Statutes, including the tolling of the statute of limitation, apply to a contribution claim based on medical malpractice. However, the presuit provisions are not applicable where the liability of the joint tortfeasor already has been determined. See Baptist Hosp. of Miami, Inc. v. Abaunza, 563 So.2d 174 (Fla. 3d DCA 1990), which explains that the statutory proceedings are intended to be applied preliminarily to a determination of liability. “Where there has been a determination of liability ... an action for contribution is not properly deemed to be within” the requirements of the statute. In footnote 6, the Court states “However, this does not include those circumstances where a nonparty is determined to have responsibility on a verdict form and is included on the form because of Fabre requirements.” It is not clear whether the court is talking here about the rule or the exception to the rule. I think this ambiguous language could support an argument that a defendant who wishes to allege medical negligence as a Fabre defense must go through presuit of the Fabre defendant.
The sheriff breached a special duty of care to a man who was murdered by the husband of the woman the deceased was visiting. The husband had been jailed for domestic violence, and wrote several threatening letters to the wife, which the sheriff kept in his file without warning the wife. The sheriff released the husband despite a trial court order that no bond should be given. The husband went to the wife’s house and murdered the deceased. The court cites Restatement (Second) of Torts §319, which provides that “one who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.”
Even where the parties have agreed that the substantive law of another state applies to their dispute, the Florida offer of judgment statute still applies.
This is an extremely important punitive damages case from the United States Supreme Court. The Court holds that a punitive damages award of $145 million against State Farm in a bad faith case violated due process as “grossly excessive and arbitrary.” Due process requires that a person receive fair notice of the conduct that will subject him to punishment and of the penalty that a state may impose. “Exacting appellate review” is required. (This is a higher standard of review than the courtgives in post-conviction relief death penalty cases.) The jury should not have been permitted to consider conduct by State Farm that occurred out of state that had no connection to the plaintiffs’ injury, and may have been lawful where it occurred. Lawful out of state conduct may be considered only if it bears on an issue such as the defendant’s intent, and has some nexus with the harm suffered by the plaintiff. The opinion suggests that, where there are no personal injuries, a ratio of punitive to compensatory damages of one to one should be enough if the compensatory damages are substantial; but where the damages are small or hard to determine, a higher ratio might be appropriate.
The plaintiff enrolled in a training course required for certification as a police officer and signed a broad release. During the training she was injured, allegedly by the negligence of a trainer. She argued that the release was contrary to public policy, since the course was required in order to become a police officer. The court certifies the question to the Supreme Court: “May one who elects to participate in a training program required for certification as a police officer validly release from personal injury liability those responsible for the training?”
Where the plaintiff’s lawyer’s litigation assistant became ill and missed several weeks of work, and the plaintiff’s lawyer’s mother died and the lawyer missed two weeks of work, the plaintiff demonstrated good cause and excusable neglect for failure to serve process within 120 days of filing the complaint under Fla. R. Civ. P. 1.070(j).
Consistent with the policy of encouraging settlement and making it a easy as possible, the Supreme Court holds that a trial court has jurisdiction to enforce a settlement agreement where the court has either incorporated the settlement agreement into a final judgment or entered an order approving the settlement and retained jurisdiction to enforce its terms. The court overrules prior decisions of the 5th DCA which held that it is necessary to bring a separate action. The court approves Buckley Towers Condominium, Inc. v. Buchwald, 321 So.2d 628 (Fla. 3d DCA 1975).
Once a judgment has been rendered, “the court loses jurisdiction over the subject matter of the suit, other than to see that proper entry of judgment or decree is made and that the rights determined and fixed by it are properly enforced.” Davidson v. Stringer, 147 So. 228, 220 (Fla. 1933). A trial court “has the inherent power to do those things necessary to enforce its orders.” Levin, Middlebrooks v. United States Fire Ins. Co., 639 So.2d 606 (Fla. 1994).
However, where the parties settle and dismiss without an order of the court pursuant to Fla. R. Civ. P. 1.420, the settlement cannot be enforced by a motion filed in the dismissed case, but a new breach of contract action must be filed.
The defendant was estopped to assert that the plaintiff’s claim letter sent to the defendant on behalf of her daughter did not include the plaintiff’s individual claim, where the defendant waited until after the statute of limitations ran to assert the defense. The defendant’s original affirmative defense alleged only that the plaintiff did not wait 6 months after giving notice before filing the claim.
The court recognizes that spoliation is an independent tort, recognized in Florida, but holds that destruction of evidence is required; mere concealment of evidence is not actionable. Holding that there is no cause of action for spoliation if the spoliator is the original tortfeasor, the court aligns itself with the 4th DCA in Martino v. Wal-Mart Stores, 28 Fla. L. Weekly D321 (Fla. 4th DCA 2003), which certified conflict with Bondu v. Gurvich, 473 So.2d 1307 (Fla. 3d DCA 1984). The court also holds that the plaintiff’s spoliation claim against the tortfeasor’s insurer was premature, and should have been dismissed without prejudice, where the plaintiff’s underlying claim against the tortfeasor was still pending.
A contractor which is an injured worker’s “statutory employer” under
§440.10(1)(b), Florida Statutes, is entitled to workers comp immunity under §440.11.
However, in order to be a statutory employer, the contractor must “sublet any part or
part of his or her contract work to a subcontractor;” in that situation, the
subcontractor’s employees are deemed employees of the contractor; the contractor is
legally obligated to provide them with workers comp benefits, and is therefore entitled to
immunity. It is the obligation to secure workers compensation that gives the employer
immunity; the immunity is commensurate with the duty to secure compensation.
In order to be entitled to immunity, the contractor must have “contract work”
which it “sublets” to the subcontractor. Where the contractor was performing the
work as a commercial business venture for itself, not for someone else, the contractor was
not subletting “contract work” and was not the injured worker’s statutory
employer.
There is no worker’s comp immunity where an employee is injured by the negligent
acts of fellow employees “when each is operating in the furtherance of the
employer’s business but they are assigned primarily to unrelated works within private
or public employment.” §440.11(1), Florida Statutes. See Holmes County School
Board v. Duffel, 651 So.2d 1176 (Fla. 1995). The courts have not done a very good job
of explaining this provision. Some courts apply a “case-by-case” analysis
focusing on whether the employees are part of the same team or on the same project. The
other courts apply a bright line test, which defines “works” as a factory,
plant, or building or system of buildings where a specific type of business or industry is
carried out. Here, the court holds that, under either test, the claim a nurse who was
injured by the negligence maintenance of the building where she worked was barred by comp
immunity. The court also states that the unrelated works exception should be narrowly
construed.