August/September 1995


Attorneys Fees

The Green Companies, Inc. v. Kendall Racquetball Investment, Ltd.,
20 Fla. L. Wkly. D1706 (Fla. 3d DCA 1995)

Where the jury found that the defendant breached the contract, but awarded zero damages, the plaintiff was the prevailing party for the purpose of court-awarded attorney's fees under the contract.


Collateral Estoppel

Starr Tyme, Inc. v. Cohen
20 Fl. L. Wkly. S447 (Fla. 1995)

Section 772.14, Florida Statutes provides that a final judgment rendered in favor of the state in a criminal proceedings estops the defendant in any action under chapter 772 (civil remedies for criminal practices) from contesting all matters as to which the judgment would be an estoppel if the plaintiff in the civil action had been a party in the criminal action. The court holds that this section applies even if the defendant was adjudicated guilty pursuant to a plea of nolo contendere.

The defendant is estopped only as to matters that necessarily were decided in favor of the state in the criminal proceedings. There is no requirement of mutuality of estoppel under the statute. A similar statute, 775.089(9) provides that a conviction of an offense giving rise to restitution estops the defendant from denying the essential allegations of the offense in any subsequent civil proceeding. I have used this statute in an auto case to obtain a summary judgment of liability against a defendant who pled guilty to a vehicular manslaughter charge.

The amount of the restitution order serves as a setoff against the amount recovered in the civil case.


Costs

Southeast Florida Cable, Inc. v. Islandia I Condo Assoc.
20 Fla. L. Wkly. D1962 (Fla. 4th DCA 1995)

It was error to refuse to award the prevailing party the costs of deposition transcripts on the grounds that the depositions served no useful purpose at trial. The standard is not whether the depositions served a useful purpose at trial, but whether they served a useful purpose at all.


Default

Santucci Armando, S.C.L. v. Plazza
20 Fla. L. Wkly. D1743 (Fla. 2d DCA 1995)

It was error to vacate a default judgment where the defendant failed to establish excusable neglect. Factual representations or argument by counsel made during a hearing are not sufficient. See also, e.g., Blimpie Capital Venture, Inc. v. Palms Plaza Partners, Ltd., 636 So.2d 838, 840 (Fla. 2d DCA 1994).

Whenever a motion requires factual findings by the court, you must present the facts to the court, either by stipulation or by evidence. It is not sufficient to present facts to the court by telling the court yourself. See also, e.g., Surat v. Nu-Med Pembroke, 632 So.2d 1136 (Fla. 4th DCA 1994); but cf. Centennial Ins. Co. v. Fulton, 532 So.2d 1329 (Fla. 3d DCA 1988) (court could accept uncontradicted representation of counsel as officer of the court; but remanding for evidentiary hearing).


Economic Loss Rule

Florida Building Inspection Services, Inc. v. The Arnold Corp.,
20 Fla. L. Wkly. D1703 (Fla. 3d DCA 1995) (En Banc)

The court en banc holds that an inspection company, hired by a lessee to inspect the roof of a warehouse building, does not owe a duty of care to a third party sublessee, not in privity, who has incurred economic loss due to a leaking roof. The court states that the contract between the lessee and the inspection company was not intended to benefit or be relied upon by the sublessee. Section 552 of the Restatement (Second) of Torts does not apply to those whose reliance is foreseeable, but only to those whose reliance is specifically intended and for whose benefit the report is specifically prepared.

See also Rubio v. State Farm, discussed below under Insurance -- Bad Faith


Fabre

Haas v. Zaccaria
20 Fla. L. Wkly. D1773 (Fla. 4th DCA 1995)

Plaintiff sued two orthopedic surgeons for severing major blood vessels in plaintiff's leg during surgery. A third surgeon attempted corrective surgery, which failed, and the plaintiff's leg had to be amputated. The court held that it was reversible error to refuse to allow the defendants to plead and attempt to prove the negligence of the third surgeon or to allow the jury to consider the third surgeon in apportioning negligence.

The court pointed out that this was a single injury of disputed causation, and that the plaintiff had not proved that the negligence of the initial tortfeasor was the proximate cause of the injury as a matter of law. Therefore, the plaintiff was entitled to an instruction under Stuart v. Hertz Corp., 351 So.2d 703 (Fla. 1977, but was not entitled to exclude the evidence. The court cited Barrios v. Darrach, 629 So.2d 211 (Fla. 3d DCA 1994), rev. denied, 637 So.2d 234 (Fla. 1994).

This case is troubling because it seems to substantially weaken Stuart v. Hertz Corp., which held that a plaintiff cannot be forced by a tortfeasor to litigate the negligence of a subsequent doctor. The court also held that the third surgeon belonged on the verdict form.

In addition, the court held that a defendant doctor in a medical malpractice case is not required to bring in an expert, but can defeat a directed verdict merely by denying negligence. He may also present expert testimony that the injury was possible in the absence of negligence; he need not prove that it was probable.


Family Law

In re: Family Law Rules of Procedure
20 Fla. L. Wkly. S365 (Fla. 1995)

The Supreme Court has adopted revised family law rules of procedure. The rules of civil procedure apply to family law cases except as set forth in the family law rules.


Foreign Judgments

Archbold Health Services, Inc. v. Future Tech Business Systems
20 Fla. L. Wkly. D1884 (Fla. 3d DCA 1995)

If the defendant has had a fair opportunity to litigate the jurisdiction of a foreign court when that court enters judgment against it, the defendant may not later challenge the jurisdiction of the foreign court in an action to domesticate the judgment.


Insurance -- Bad Faith

Rubio v. State Farm
20 Fla. L. Wkly. D1848 (Fla. 3d DCA 1995)

This case was first reported in the July, 1995 issue. It involves an action on a UM policy along with a first party bad faith claim for failure to investigate or resolve the insureds' claim within a several month period. The court grants rehearing and holds that a first party bad faith claim need not be dismissed or stayed until the breach of contract count is resolved.

In a footnote, almost as an afterthought, the court makes the extremely important ruling that the economic loss rule does not preclude the bad faith claim.


Insurance --- Duty to Cooperate

Goldman v. State Farm Fire Ins. Co.
20 Fla. L. Wkly. D1844 (Fla. 4th DCA 1995)

The plaintiffs' homeowner's policy expressly provided that the insureds must submit to examination under oath outside the presence of the other insured, and that no action could be brought against the insurer unless the insured had complied with all policy provisions. Sworn statements were scheduled, but were then rescheduled at plaintiffs' request. The plaintiffs filed suit without providing the sworn statements, and their counsel wrote to the insurer suggesting that the sworn statements be renoticed as depositions. The court held that this constituted a willful and material breach of the insurance contract, that depositions with both sides present would not constitute substantial compliance, and that the insureds could not recover under the policy.

This is a harsh result. The court reaches it by construing the clause as a condition precedent, and not as a cooperation clause. Construing the clause as a cooperation clause would have required the insurer to show prejudice.


Insurance -- Duty to Defend

Nationwide Mut. Fire Ins. Co. v. Keen
20 Fla. L. Wkly. D1667 (Fla. 4th DCA 1995)

The insurer's duty to defend is determined by the allegations of the complaint against the insured. The court here holds that the insurer has no duty to defend the insured where the complaint does not allege a claim covered by the policy and the insured has unequivocally disclosed facts to the insurer that negate any possible coverage. In this case, the policy apparently had some kind of exclusion for water craft with a 40 horsepower engine, and the insured admitted that he was operating a watercraft with a 40 horsepower engine. The court notes that the complaint did not allege anything about the horsepower of the craft and the plaintiff never asserted that there was any evidence tending to show that the horsepower was within the policy coverage.

The court is careful to distinguish cases where coverage depends on an ultimate, "usually nonobjective" fact which the parties dispute and which is not resolved until a trier of fact decides it. For example, if the plaintiff alleges negligence but the jury finds the act intentional, the insurer has a duty to defend, but ultimately there is no coverage.


Insurance -- Exclusions

Frontier Ins. Co. v. Pinecrest Prep. School, Inc.
20 Fla. L. Wkly. D1664 (Fla. 4th DCA 1995)

The insured ran a school. It had a trailer which it used as a playground ride, pulling it through a field of sprinklers with a pickup truck. (Do you know where your children are?) A child fell off. The general liability policy excluded automobiles. Under the policy definitions, the definition of "automobile" excluded "mobile equipment". "Mobile equipment" was defined as vehicles maintained for use solely on the premises. The court properly construed this in favor of the insured and held that the trailer was "mobile equipment" and therefore did not come under the automobile exclusion.


Insurance -- Group Health

United of Omaha Life Ins. Co. v. Peloquin
20 Fla. L. Wkly. D1777 (Fla. 4th DCA 1995)

Where the policy excluded any pre-existing condition for which treatment was previously sought, the plaintiff's condition was excluded where she had sought treatment for abdominal pain, even though it was not diagnosed until after the insurance was effective. The plaintiff failed to show that the abdominal pain was related to any other condition that was not preexisting.


Insurance -- Life

Life Ins. Co. of North America v. Cichowlas
20 Fla. L. Wkly. D2032 (Fla. 4th DCA 1995)

The insured had a duty to notify the insurer of a hospitalization that occurred between the time he filled out the application and the time the policy was delivered. Since the diagnosis resulting from the hospitalization rendered him uninsurable on the effective date of the policy, there was no coverage because the policy required him to be "still insurable" on the effective date of the policy. Judge Alvarez dissented, arguing that the policy provision, read with other policy provisions, was confusing and vague, and that it was unfair to the insured to add a duty after his death that did not appear in the application.


Insurance -- PIP

Crooks v. State Farm Mut. Auto. Ins. Co.
20 Fla. L. Wkly. D1984 (Fla. 3d DCA 1995)

The insurance company clearly violated the express requirements of the PIP statute by refusing to pay the insured's medical bills within 30 days of being notified of them in writing. The insurer's insistence that it would not recognize the claims until they were submitted on the insurance company's forms was not justified and did not create an exception to the statute. The only statutory exception to the 30 day payment requirement is when the insurance company has reasonable proof to establish that it is not responsible for the payment. The purpose of the PIP statute is to provide prompt payment.

Consequently, it was error for the trial court to deny plaintiff's counsel attorneys fees as the prevailing party under 627.428.

Congratulations to Bob Robbins, counsel for the plaintiff.

When the PIP statute was enacted, the prompt payment provision was the quid pro quo for denying access to court on some claims. Without prompt payment, there is nothing given to the plaintiff in exchange for giving up the right of access to courts, and the statute could then be unconstitutional. See Lasky v. State Farm, 296 So.2d 9 (Fla. 1974). I recently used this argument successfully to fend off a PIP carrier's efforts to complicate and prolong a case by bringing in the treating doctor and laboratory as third party defendants.


Insurance -- UM

Beebe v. American Ambassador Casualty Co.
20 Fla. L. Wkly. D1877 (Fla. 5th DCA 1995)

An automobile liability policy provided that any amount paid to an injured person under its UM coverage would be set off against the amount due under its liability coverage. The court held that this provision, and a similar provision with respect to PIP benefits, were misleading and in violation of public policy by making the UM coverage, in effect, the primary coverage. Even though the insurer had paid the UM limits, it still has a duty to defend an indemnify the insured up to the amount of the policy limits.

The court noted that, even if this was supposed to be a cheap policy, "at least it should be open and forthright about its cheapness". Moreover, the Florida UM statute is designed to be excess coverage, "over and above" other coverage, and therefore the setoff scheme is invalid.

Congratulations to Roy Wasson for winning this excellent decision.

Lewis v. Allstate Ins. Co.
20 Fla. L. Wkly. D1996 (Fla. 1st DCA 1995)

The plaintiff may recover from his UM carrier even when a procedural defense, such as the statute of limitations, would bar recovery from the uninsured motorist. The court distinguishes substantive defenses, such as worker's comp immunity. The court certifies the question to the supreme court.


Interest

In the last Case Law Update, I discussed Miller v. Transflorida Bank, 20 Fla. L. Wkly. D1505 (Fla. 4th DCA 1995), in which the court held that prejudgment interest was not available for an award of attorneys fees. I should have pointed out that other courts have disagreed. In Moreno v. State Farm, 20 Fla. L. Wkly. D346 (Fla. 3d DCA 1995), the Third District ordered an award of prejudgment interest on attorneys fees.

The cases are a bit confusing as to when the interest begins to run. For example, in Mason v. Reiter, 564 So.2d 142 (Fla. 3d DCA 1990), the court held that the date the court determines that a party is entitled to attorneys fees fixes the date for awarding prejudgment interest, even though the actual amount of the award has not yet been determined. There, the court held that the mother in a paternity case had the right to prejudgment interest on attorneys fees, from the date of the judgment of paternity. I should also have pointed out Judge Pariente's extensive dissent in the Miller case, which discussed the conflicting cases at length.

My thanks to Bernard Goldfarb for calling this to my attention. It's nice to know I've got such attentive readers.

Jersey Palm-Gross, Inc. v. Paper
20 Fla. L. Wkly. S389 (Fla. 1995)

Many lenders have been including "usury savings clauses" in their loan documents which purport to reduce the interest rate if it turns out to exceed the amount permitted by law. The Supreme Court holds that such clauses cannot provide absolute immunity from liability for charging usurious interest, but are admissible as evidence of intent.

Vining v. Martyn
20 Fla. L. Wkly. D1843 (Fla. 4th DCA 1995)

In a civil theft action, in which treble damages may be awarded under 772.11:(1) prejudgment interest should be awarded from the date the theft occurred; (2) interest may be awarded only on the value of the property stolen, and not on the amount of treble damages; (3) if there is a setoff for a settlement with another party, it should be deducted only after the damages are trebled.

Central Bank of the South v. Seppala & Aho Constr. Co.
20 Fla. L. Wkly. D1906 (Fla. 4th DCA 1995)

The court holds that it is error to award post judgment interest on the portion of a judgment representing prejudgment interest, and certifies conflict with the 5th DCA decision in Peavy v. Dyer, 605 So.2d 1330 (Fla. 5th DCA 1992).


Interspousal Tort Immunity

Hogan v. Tavzel
20 Fla. L. Wkly. D2053 (Fla. 5th DCA 1995)

Giving retroactive effect to the Supreme Court's decision in Waite v. Waite, 618 So.2d 1360 (Fla. 1993), which abrogated interspousal tort immunity, this court allows a former wife to sue her former husband for infecting her with a venereal disease through consensual sex, where he knew he had the disease and failed to warn her.


Jury Instructions

Standard Jury Instructions -- Civil Case
20 Fla. L. Wkly. S 393 (Fla. 1995)

The Supreme Court has adopted a new standard instruction for apportioning fault with nonparties. It reads:

whether (identify additional person(s) or entit(y) (ies)) [was] [were] also [negligent] [(specify other type of conduct)]; and, if so whether such [negligence] [fault] was a contributing legal cause of the [loss] [injury] [or] [damage] complained of.

The court has also approved a model verdict form for apportionment of fault among tortfeasors under 768.81. It does not seem to limit the apportionment to tortfeasors who are negligent. It includes a provision for "other types of conduct" by other tortfeasors. The committee notes do not decide whether intentional tortfeasors should be included. The notes to the instruction say that the committee reserves the question of intentional acts pending further developments of the law, citing 768.81(4).

The Supreme Court has also adopted new standard jury instructions and verdict forms regarding negligence in emergency medical treatment. Section 768.13(2)(b) provides a limited immunity for negligence in providing emergency medical services to a patient who entered the hospital through an emergency room or trauma center. The statute sets the standard for liability as "reckless disregard". The immunity does not apply to damages resulting from negligence which occurs after the patient is stabilized or which is unrelated to the original emergency.

The new instruction defines reckless disregard as occurring when the health care provider "knew or should have known at the time [it] [he] [she] rendered emergency services that [its] [his] [her] conduct would likely result in injury or death, considering [the seriousness of the situation] [the lack of a prior patient- physician relationship] [time constraints due to other emergencies requiring [care] [treatment] at the same time] [the lack of time or ability to obtain appropriate medical consultation] [and] [the inability to obtain an appropriate medical history of the patient]".

The committee notes state that negligence of a patient which contributes to or causes the condition for which treatment is sought is not a defense. The committee reserves the issue of whether comparative negligence is a defense at all. The committee also notes that the "reckless disregard" standard does not appear to be as high as the standard for punitive damages.

The court, in adopting the instructions, reminds all interested parties that the approval of the model forms "forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the new instructions."

Ryeka v. Halifax Hospital Dist.
20 Fla. L. Wkly. D1699 (Fla. 5th DCA 1995)

This court held that it was not reversible error in a wrongful death case to refuse to instruct on aggravation of a preexisting condition where the court gave instructions on concurring and intervening cause. The case involved medical malpractice in the treatment of an accident victim. The jury found no negligence. The court held that there was no prejudice in failing to give the aggravation instruction because the jury found no liability.


Limitations

In re: Emergency Petition to Extend Time Periods under all Florida
Rules of Procedure for Metropolitan Dade County

20 Fla. L. Wkly. S431 (Fla. 1995)

Apparently due to the hurricane warning for hurricane Erin, the Supreme Court has entered an order stating, in part: In Dade County, all time limits authorized by rule and statute ... applicable to civil (inclusive of circuit and county), family, domestic violence, probate, traffic and small claims proceedings are tolled for two days, to wit: Monday, July 31, 1995 and Tuesday, August 1, 1995.

I have no clue as to why this was limited to Dade County, when counties farther north were hit harder. I wouldn't rely on this to extend your statutes of limitations. I would still file things on time. But it's something to keep in your back pocket should you ever need it after the fact.

A similar order was entered after Andrew, extending time periods for two weeks. See In re Emergency Petition to Extend Time Periods under all Florida Rules of Procedure, 17 Fla. L. Wkly. S578 (Fla. 1992), discussed in the September, 1992 Case Law Update.


Med Mal

Pate v. Threlkel
20 Fla. L. Wkly. S356 (Fla. 1995)

The defendants failed to notify their patient that her cancer was genetically transferrable. The patient's daughter inherited the disease and was diagnosed late. The daughter sued the mother's doctors, arguing that they had a duty to the daughter to warn the mother that her children should be tested. Had they done so, the daughter would have been tested and diagnosed early, when the condition was curable. The Supreme Court holds that the daughter does have a cause of action against the mother's doctors if the prevailing standard of care requires such notification. The absence of privity between the daughter and the mother's doctors does not foreclose liability.

The doctor does not have a duty to directly warn the patient's children, and must maintain confidentiality. However, the doctor does have a duty to warn the patient so that the patient may warn her children.

Werner v. Varner, Stafford & Seaman, P.A.
20 Fla. L. Wkly. D2031 (Fla. 4th DCA 1995)

The plaintiff alleged that he was injured by a car driven by the defendant doctor's patient because the doctor failed to warn the patient not to drive while under the influence of the medication he prescribed. The trial court dismissed the complaint against the doctor, and the court affirmed, holding that the doctor owed no duty to the plaintiff.


Med Mal -- Birth Related Neurological Injuries

Central Florida Regional Hospital v. Wager
20 Fla. L. Wkly. D1638 (Fla. 5th DCA 1995)

In this case, first discussed in the March, 1995 Case Law Update, the court certifies to the Supreme Court the following question:

Does an administrative hearing officer have the exclusive jurisdiction to determine whether ah injury suffered by a newborn infant does or does not constitute a "birth related neurological injury" within the meaning of the Florida Birth-Related Neurological Injury Compensation Plan, Sections 766.301-316, Florida Statutes (1993), so that a circuit court in a medical malpractice action specifically alleging an injury outside the coverage of the plan must automatically abate that action when the plan's immunity is raised as an affirmative defense pending a determination by the hearing officer as to the exact nature of the infant's injury?


Med Mal -- Limitations

Hernandez v. Amisub, Inc.
20 Fla. L. Wkly. D2047 (Fla. 3d DCA 1995)

In an action against a doctor for failing to properly diagnose plaintiff's condition, which was caused by a surgical towel left in his abdomen, the statute of limitations and repose began to run from the date of the incorrect diagnoses, and not from the date of the surgery. Furthermore, a jury issue was presented on the issue of fraudulent concealment where the plaintiff alleged that the defendant hospital intentionally misrepresented the count of surgical materials removed from plaintiff's body, preventing plaintiff from discovering his injury within the repose period.


Med Mal -- Presuit

Mieles v. South Miami Hospital
20 Fla. L. Wkly. D1986 (Fla. 3d DCA 1995)

In an eminently sensible decision, the court holds that a presuit expert's affidavit need not be notarized if it contains a declaration pursuant to 92.525, "Under penalty of perjury I declare that I have read the foregoing verified written medical expert opinion pursuant to section 766.203 and that the facts stated are true to the best of my knowledge and belief." It was error to dismiss the case just because the affidavit wasn't notarized.

Congratulations to Roy Wasson and Roberto Villasante for winning another one for the good guys.

Faber v. Wrobel
20 Fla. L. Wkly. D1730 (Fla. 2d DCA 1995)

The court reversed the dismissal of the plaintiff's complaint for failure to comply with presuit requirements. The defendant had contended that the plaintiff's presuit expert was not qualified. The court pointed out that a medical expert for presuit purposes is defined in 766.202(5), and the standard is much less stringent than the standard for admission at trial. The presuit expert need only be duly and regularly engaged in the practice of his profession, hold a health care professional degree from a university or college, and have special training and experience, or possess special health care knowledge or skill about the subject. "The less stringent standard of section 766.202(5) is in keeping with the legislative aim of preventing frivolous lawsuits without denying a claimant's access to court." Maldonado v. EMSA Limited Partnerships, 645 So.2d 86 (Fla. 3d DCA 1994).

Winson v. Norman
20 Fla. L. Wkly. D1654 (Fla. 3d DCA 1995)

While the requirements for qualifications of a presuit expert are not as stringent as those for a trial expert, they are not without limits. In this case, plaintiff's presuit expert had not practiced for more than a decade. His recent professional activities were limited to serving as an expert for plaintiffs in breast implant cases. The court held that he was not qualified and upheld the dismissal of the plaintiffs case because it was not supported by the affidavit of a qualified presuit expert. Because the statute of limitations had run, the dismissal was with prejudice. Look for more litigation on this issue.

Estevez v. Montero
20 Fla. L. Wkly. D2051 (Fla. 3d DCA 1995)

The trial court properly struck the defendant doctor's pleadings for failure to comply with the presuit reasonable investigation requirements when all the defendant did was to discuss the case with other doctors involved in the plaintiff's care and with an expert hired by one of the other doctors. The defendant did not offer any of them an opportunity to review his charts, and did not request any written expert medical opinion to corroborate his own opinion that he was not negligent.


Nursing Home

Reynoso v. Greynolds Park Manor, Inc.
20 Fla. L. Wkly. D1852 (Fla. 3d DCA 1995)

This important ruling makes it a little bit less difficult to investigate cases involving nursing home patients, who often are helpless and can't speak for themselves. The court wisely holds that the attorney for the nursing home patient may have ex parte contact with former employees of the defendant nursing home who have cared for the patient, without scheduling them all for deposition. The court holds that Rule 4-4.2 of the Florida Rules of Professional Conduct, which prohibits a lawyer to contact a person the lawyer knows to be represented by another lawyer in the matter, does not apply to former corporate employees.

The court certifies direct conflict with Barfuss v. Diversicare Corp. of America, 20 Fla. L. Wkly. D241 (Fla. 2d DCA 1995). That case was discussed in the February, 1995 Case Law Update. This decision makes much more sense. The lawyer for the corporation does not represent former employees of the corporation, and often does not have their interests at heart. And, especially in cases involving nursing homes, but also in most cases, it can be impossible to investigate a case without interviewing the former employees involved.


Offer of Judgment

TGI Friday's Inc. v. Dvorak
20 Fla. L. Wkly. S436 (Fla. 1995)

The Supreme Court attempts to clear up some of the confusion caused by the two offer of judgment statutes, 45.061 and 768.79, and Fla. R. Civ. P. 1.442. Before we begin, I must point out that 45.061 has been repealed, and rule 1.442 has been amended to expressly adopt the language of 768.79.

The court first holds that the statutes are constitutional, which it already held in Leapai v. Milton, 595 So.2d 12 (Fla. 1992).

The court holds that the reasonableness of the rejection of the offer should not be considered in determining whether to award fees if the 25 percent rule has been met. The award of fees is mandatory. However, if the offer was made in bad faith, with no intent to settle for the amount offered, the court may deny fees.

However, even when the court is required to award fees, it may reduce the amount by considering the factors listed in 768.79(b):

(1) the then apparent merit or lack of merit in the claim

(2) the number and nature of offers made by the parties

(3) The closeness of questions of fact and law at issue

(4) Whether the person making the offer had unreasonably refused to furnish information necessary to evaluate the reasonableness of such offer

(5) Whether the suit was in the nature of a test case presenting questions of far-reaching importance affecting non-parties

(6) The amount of the additional delay, cost and expense that the person making the offer reasonably would be expected to incur if the litigation should be prolonged.

The court gives two important examples where a trial court might reduce the amount of the fee: when a severely injured plaintiff suffers an adverse verdict after rejecting a small settlement offer; or when a defendant with a small liability potential rejects a large settlement offer.

The court does not say how much the court can reduce the fee, how the factors listed in Florida Patients Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985), affect this, or what guidelines the court should follow in determining how much to reduce the fee. Nor does it answer whether the court can reduce the fee to zero. Look for lots more litigation on this.


Premises Liability

Indian River Foods, Inc. v. Braswell
20 Fla. L. Wkly. D1899 (Fla. 4th DCA 1995)

An owner is not liable for the injuries to an employee of an independent contractor who is injured by a dangerous condition on the premises where the owner has notified the management of the independent contractor about the dangerous condition. Notice to the top level of management satisfies the owner's duty to warn.


Privacy

Bassette v. Health Management Resources Corp.
20 Fla. L. Wkly. D1938 (Fla. 2d DCA 1995)

This is an action for damages, including psychiatric damages, resulting from participation in a diet program. The defendant attempted to obtain discovery of the medical records of the plaintiff's father, alleging it had reason to believe there was a history of depression in the plaintiff's family. The defendant provided no evidentiary support for these allegations. The trial court granted the discovery. The Second District reversed.

The court held that relevance must be established by evidence, not by the attorney's unsworn statements. Further, if relevance is established, the court must provide notice to the nonparty as required by section 455.241(2) and fashion a discovery order that balances his privacy interests with the interests of the party seeking the discovery. See Amente v. Newman, 653 So.2d 1020 (Fla. 1995) (allowing discovery of redacted records of other patients of defendant doctor in malpractice case).


Products Liability

Brantley v. Snapper Power Equipment
20 Fla. L. Wkly. D2046 (Fla. 3d DCA 1995)

In an excellent decision, the court holds that section 90.407, which excludes evidence of "subsequent remedial measures" does not apply to remedial measures undertaken after the sale of the product but before the accident involved in the lawsuit. The court followed the Fourth DCA's well reasoned decision in Keller Industries v. Volk, 20 Fla. L. Wkly. D1460 (Fla. 4th DCA 1995), discussed in the July, 1995 Case Law Update.


Seat Belt

Safety Kleen Corp. v. Ridley
20 Fla. L. Wkly. D1710 (Fla. 1st DCA 1995)

This case was first discussed in the May, 1995 Case Law Update. The court has now granted a motion for clarification. The court again holds that, since 316.614(10) states that violation of the seat belt law is not to be considered in mitigation of damages, but may be considered as evidence of comparative negligence, it is reversible error to refuse to instruct on comparative negligence. The court again rejects the plaintiff's argument that failure to use a seat belt may be considered as comparative negligence only when the failure to use the seat belt contributed to causing the initial accident. The court certified to the Supreme Court the following question:

If evidence is presented concerning a violation of section 316.614, Florida Statutes, "The Florida Safety Belt Law," and there is evidence that the violation contributed to the injuries suffered by the plaintiff, should Florida Standard Jury instruction 4.11 (Violation of Traffic Regulation as Evidence of Negligence) be given?

The dissent points out that the defendant failed to plead comparative negligence, and only pleaded that the plaintiff failed to mitigate damages by failing to use a seat belt.


Service of Process

Platt v. Fla. Dept. of Health & Rehab. Serv.
20 Fla. L. Wkly. D1991 (Fla. 1st DCA 1995)

The First District, en banc, holds that it is error to dismiss an action against a government entity for failure to serve the Department of Insurance within 120 days. The 120 day rule applies only to a defendant. The court overrules its prior decision in Austin v. Gaylord, 603 So.2d 66 (Fla. 1st DCA 1992), and agrees with the decision of the Fifth District in Turner v. Gallagher, 640 So.2d 120 (Fla. 5th DCA 1994). Until the Supreme Court rules, the safest thing is to serve the Department of Insurance within 120 days.


Settlement

Bateski v. Ransom
20 Fla. L. Wkly. D1685 (Fla. 2d DCA 1995)

The plaintiffs offered to settle for the policy limits conditioned on the defendants accepting a specific, apparently limited, release which was enclosed with the offer. The defendant's insurer responded that it would pay the policy limits in exchange for a "full release." The court held that it was error for the trial court to enforce a "settlement agreement" where the parties had never reached an agreement concerning the terms of the release.


Sovereign Immunity

Dept. of Transp. v. Wallis
20 Fla. L. Wkly. D1823 (5th DCA 1995)

This court holds that it was error to deny a motion to dismiss a complaint against DOT which alleged that the lack of a stoplight, combined with the lack of a sidewalk, in a "high tourist" area, created a dangerous condition which DOT had a duty to correct. The court held that this is a planning level decision which is immune.

What is startling about this case is that it holds that the appellate court has jurisdiction to review an order denying a motion to dismiss based on sovereign immunity. Judge Sharp, in a strongly worded dissent, points out that the court has no jurisdiction to review an interlocutory order denying a motion to dismiss. he points out that the Supreme Court in Tucker v. Resha, 648 So.2d 1187 (Fla. 1984), allowed interlocutory appeals from orders denying qualified immunity in civil rights actions under 42 U.S.C. 1983.

Qualified immunity is a doctrine which prevents government employees from being sued if they acted in good faith based on a reasonable belief that their actions were lawful at the time. It is an extraordinary doctrine that protects them not just from liability, but from even being sued. The U.S. Supreme Court has held that it does not apply to government entities, only to individuals. Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398 (Fla. 1980). Moreover, according to Judge Sharp, the U.S. Supreme Court recently limited the appealability of denials of qualified immunity to cases where there is no factual issue. Johnson v. Jones, 115 S.Ct. 2151 (1995). She says that an order denying a motion to dismiss is just too early in the case.


Summary Judgment

Fernandes v. Boisvert
20 Fla. L. Wkly. D1735 (Fla. 2d DCA 1995)

The plaintiff was beaten by her former boyfriend while an invitee on the defendant's property. The defendants moved for summary judgment with an affidavit that they had no knowledge of the boyfriend's emotional state and were not aware of the incident until after it occurred. The plaintiff filed a written statement of the plaintiff, taped to a piece of paper, that the court characterized as bearing no resemblance to an affidavit, as well as an expert affidavit. The plaintiff did not serve an affidavit pursuant to Rule 1.510 seeking additional time to obtain an affidavit about the liability theory, and the trial court granted summary judgment. The plaintiff then moved for rehearing, and for the first time filed a supporting affidavit controverting the defendant's affidavit. The court of appeal, questioning the competence of the plaintiff's lawyer, held that in the unique circumstances of this case, it was reversible error for the trial court to refuse to consider the plaintiff's affidavit on rehearing.


Whistle-Blower

Baiton v. Carnival Cruise Lines
20 Fla. L. Wkly D1892 (Fla. 3d DCA 1995)

Applying both maritime law and the Florida Whistle-Blower statute, 448.101-105, the Third District holds that a seaman has a cause of action against an employer who fires him for refusing to give false testimony against a fellow employee in a Jones Act case.

The court also holds that the written notification requirement of the Florida Whistle-Blower statute applies only to an action brought under 448.102(1), alleging that the employee was fired for disclosing or threatening to disclose wrongdoing. It does not apply to a claim under 448.102(3) alleging that the employee was fired for objecting to or refusing to participate in a violation of law.


Work Product

National Car Rental System v. Kosakowski
20 Fla. L. Wkly. D1843 (Fla. 4th DCA 1995)

Plaintiff does not adequately establish an "undue hardship" exception to the work product privilege by showing that the defendant's employee has given several inconsistent versions of her testimony. Plaintiff may not obtain the contents of the defendant's investigative file in the unsubstantiated hope that it will show which of the employee's inconsistent versions is true.


Workers Comp Immunity

Austin v. Duval County School Board
20 Fla. L. Wkly. D1615 (Fla. 1st DCA 1995)

The plaintiff was employed by the city for a summer lunch program. She was assigned to help school board employees at a school cafeteria. She was injured in a car accident involving a school van. The program in which she worked was a city-sponsored program to provide school lunches for poor children. It was funded by the federal government, which contracted with the city. The city had final financial and administrative responsibility for the program. The city contracted with the school board to prepare, package and deliver lunches, and hired temporary personnel to assist in the program. The temporary workers were low income trainees. The city set their hours, determined their pay and had the right to fire them. The school board had power to supervise the workers on its premises on a daily basis. The court held there was no joint venture between the school board and the city, the plaintiff was not a special or borrowed employee of the school board, and therefore the school board was not entitled to worker's compensation immunity for the plaintiff's claim.

Thompson v. Coker Fuel, Inc.
20 Fla. L. Wkly D1727 (Fla. 1st DCA 1995)

The plaintiff's action for the wrongful death of her husband was barred by worker's comp immunity where the husband was asphyxiated by propane gas while cutting a line carrying propane gas. The plaintiff alleged that the employer and managerial co-employees should have provided and required the deceased to use existing safety methods. The court held that, absent efforts to deceive the employee or cover up the danger involved, so that the employee had no way to apprise himself of the dangers and thereby make a reasoned judgment, immunity applies. See also Emergency One, Inc. v. Keffer, 652 So.2d 1233 (Fla. 1st DCA 1995).

The language in this case sounds to me an awful lot like the old assumption of risk doctrine, which I thought had been abolished.

Keith v. News & Sun Sentinel Co.
20 Fla. L. Wkly. S454 (Fla. 1995)

Reviewing a long line of cases involving newspaper sellers and delivery personnel, the Supreme Court held that whether the person is an employee or independent contrator is still a question of fact to be determined in each case. There is no conclusive presumption that a he is an independent contractor. The analysis is the same whether the case is a tort case or a worker's comp case. "Courts should initially look to the agreement between the parties, if there is one, and honor that agreement, unless other provisions of the agreement, or the parties' actual practice, demonstrate that it is not a valid indicator of status. In the event there is no express agreement and the intent of the parties cannot otherwise be determined, courts must resort to a fact- specific analysis under the Restatement based on the actual practice of the parties".

The court puts a great deal of emphasis on the parties' agreement, as it did in analyzing the gas station franchise situation in Mobil Oil v. Bransford, 20 Fla. L. Wkly. S11 (Fla. 1995). However, unlike Bransford, the court gives the parties more leeway to prove that the actual practice of the parties is different from the contract.