February 2003


Admiralty Jurisdiction

Benson v. Norwegian Cruise Line, Ltd.
28 Fla. L. Weekly D213 (Fla. 3d DCA 2003)

The defendant, a doctor on a cruise ship and a South African national, allegedly committed malpractice 11.7 nautical miles off the Florida coastline, within the edge of the Gulf Stream which was 14 miles offshore. The court held that the Florida court had jurisdiction over the defendant. Article II, 6, Fla. Const. provides that the Florida boundary proceeds “due east to the edge of the Gulf Stream or a distance of three geographic miles whichever is the greater distance.” In a footnote, one judge suggests that the court should recede from Elmlund v. Mottershead, 750 So.2d 736 (Fla. 3d DCA 2000), in which the court held that, where a death occurred outside of Florida’s territorial waters, the ship’s doctor could not be deemed to be doing business in Florida. The judge notes that, where a Florida-based company is in the business of selling cruises which depart from Florida, sail into international waters, and return to Florida, the company and its employee-doctor are doing business in Florida.


Arbitration

Chapman v. King Motor Co.
27 Fla. L. Weekly D2594 (Fla. 4th DCA 2002)

The plaintiffs sued defendant under the Motor vehicle Retail Sales Finance Act, the Florida Deceptive and Unfair Trade Practices Act, and for fraud and deceit in connection with the purchase of an automobile from the defendant. They alleged that the arbitration agreement contained in the documents they signed was unconscionable. The trial court erred in ordering arbitration without holding an evidentiary hearing to determine if the arbitration provision was substantively and procedurally unconscionable. The court noted that the contract, on its face, raised concerns because it required the plaintiffs to waive certain legal remedies including their rights under the Deceptive and Unfair Trade Practices Act. See Powertel, Inc. v. Bexley, 743 So.2d 570 (Fla. 1st DCA 1999). An evidentiary hearing is required todetermine whether the provision is both substantively and procedurally unconscionable.


Attorneys Fees

Caufield v. Cantele
27 Fla. L. Weekly S1046 (Fla. 2002)

Receding from Chatlos v. City of Hallandale, 220 So.2d 353 (Fla. 1968), the Court holds that an order denying attorneys’ fees after a voluntary dismissal is a final, appealable order. Further, clarifying Stockman v. Downs, 573 So.2d 835 (Fla. 1991), the court holds that, while a claim for fees must be pled, the pleading is not required to specify the contractual or statutory basis for fees. In addition, claims for fraudulent misrepresentation concerning the subject matter of the contract arise out of the contract and may result in an award of fees under a contractual provision.

Diaz v. Bowen
27 Fla. L. Weekly D2576 (Fla. 2d DCA 2002)

Another reminder that rule 1.525 requires a party seeking attorneys fees to file a timely motion within 30 days of filing of the judgment. Merely pleading it in your complaint is not enough. You must either file the motion or obtain an extension.

Cooke v. Custom Crete of Southwest Florida
28 Fla. L. Weekly D151 (Fla. 2d DCA 2002)

The trial court should not have awarded attorneys fees under 57.105 to a subcontractor who was not on the job until after the time the plaintiff was injured. The general contractor told the plaintiff’s attorney that the subcontractor possibly was responsible for the exposed reinforcing rod on which the plaintiff fell, and the statute of limitations was approaching when the suit was filed. The subcontractor provided the plaintiff with an invoice to show that it could not have been at fault, but the attorney informed the subcontractor that he would need sworn testimony before deciding not to sue the subcontractor, because the statute of limitations was running. After taking the subcontractor’s representative’s deposition, the plaintiff’s attorney voluntarily dismissed the suit against the subcontractor. The court found theplaintiff’s attorney acted reasonably in filing suit and refusing to dismiss it until he had definitive evidence, under oath, that the subcontractor was not at fault.


Bifurcation

St. Paul Mercury Ins. Co. v. Coucher
28 Fla. L. Weekly D131 (Fla. 5th DCA 2002)

The trial court properly followed the procedure for bifurcation of punitive damages trials set out in W.R. Grace & Co. v. Waters, 638 So.2d 502 (Fla. 1994), in which the jury hears negligence, liability for punitive damages, and compensatory damages in the first phase of the trial, and amount of punitive damages in the second phase. Here, the defendant admitted liability and requested that compensatory damages be tried separately from all punitive damages issues. The trial court properly rejected the defendant’s request that all punitive damages issues, liability and amount, be tried separately.


Employment Discrimination

McGhee v. Sterling Casino Lines
28 Fla. L. Weekly D127 (Fla. 5th DCA 2002)

The Equal Employment Opportunity Commission and the Florida Commission on Human Relations have a “work sharing agreement.” As a result, the date the plaintiff filed a discrimination charge with the EEOC was deemed the date of filing with the FCHR; consequently the plaintiff’s complaint was not premature for failure to wait the statutory 180 days before filing in circuit court.


Ethics

Amendment to Rules Regulating the Florida Bar Re Rules of Professional Conduct
28 Fla. L. Weekly S84 (Fla. 2003)

The court adopts new conflict of interest rules affection representation of insureds.

Rule 4-1.7(e) requires a lawyer to ascertain whether he will be representing only theinsured or the insurer as well, and to inform both about the scope of the representation. All other rules regarding conflict of interest apply. In a comment, the Court states it is only explaining a specific application of the general duty of every lawyer undertaking representation of a client.

Rule 4-7.10 allows representation by staff attorneys employed by the insurer, but disclosure must be made to ensure that the lawyer’s role is not misunderstood by the client; therefore, the firm name must include the name of a lawyer with supervisory responsibility for all lawyers in the unit; letterhead, signs, cards, websites etc. must disclose that the lawyers are employees of the insurer; the name of the insurer and the employment relationship must be disclosed to all clients and prospective clients, and in the official file at the lawyers’ first appearance at the tribunal; the office must be physically separate from other operations of the insurer, and additional disclosures must be made whenever the lawyer reasonably should know that his role is misunderstood by the client or prospective client.


Fabre

Jackson County Hospital Corp v. Aldrich
28 Fla. L. Weekly D28 (Fla. 1st DCA 2002)

Where the trial court should have directed a verdict for the defendant hospital, and the jury apportioned some fault to the hospital and some fault to an independent contractor nurse anesthetist, the nurse anesthetist would be responsible for the full amount of the damages. See also Gonzalez v. Veloso, 702 So.2d 1366 (Fla. 3d DCA 1997) (where trial court should have directed verdict on negligence of Fabre defendant, judgment should be entered against other defendant in the “aggregate full amount.”)

General Motors v. McGee
28 Fla. L. Weekly D34 (Fla. 4th DCA 2002)

This is a horribly tragic case in which a trailer came loose from a pickup truck and pierced the gas tank of the plaintiffs’ car, starting an explosion and fire that severely burned three members of a family and killed one of them. The trial court should not have lowered the plaintiffs’ award against GM by the comparative fault of the driver of the pickup truck. Principles of comparative fault concerning apportionment offault for the underlying crash ordinarily do not apply in crashworthiness cases. D’Amario v. Ford Motor Co., 806 So.2d 424 (Fla. 2001). Here, the plaintiffs did not seek recovery for the initial, minor impact from the trailer, but for the damages from the explosion and fire that followed, caused by the defective design of the gas tank.


Impact Rule

Gracey v. Eaker
27 Fla. L. Weekly S105 (Fla. Dec. 19, 2002)

A licensed psychotherapist providing marriage counseling may be held liable to his patients for disclosing confidential information, breaching his fiduciary duty, causing them mental anguish. The impact rule does not apply in these circumstances.

Section 491.0147, Florida Statutes, provides, in pertinent part, “Any communication between any person licensed or certified under this chapter and her or his patient or client shall be confidential.” The statute recognizes the very delicate nature of the disclosures necessary in receiving treatment from mental health professionals. In addition, the Court has recognized “the fiduciary duty generally arising in counseling relationships” in Doe v. Evans, 814 So.2d 370, 373-75 (Fla.2002). The common law long has recognized a cause of action for breach of fiduciary duty.

The relationship between patients and their mental health counselor is protected by the statute and by common law. That protection, the court recognizes, would be meaningless if the artificial limitations of the impact rule were imposed upon it.

The “impact rule” requires a plaintiff seeking emotional distress damages in a negligence action prove that “the emotional distress ... flow[s] from physical injuries the plaintiff sustained in an impact [upon his person].” R.J. v. Humana of Florida, Inc., 652 So.2d 360, 362 (Fla.1995). Florida’s version of the impact rule has requires either impact upon one’s person or, in some situations, the manifestation of emotional distress in the form of a discernible physical injury or illness. See Kush v. Lloyd, 616 So.2d 415, 422 (Fla.1992). The underlying rationale is to prevent speculative or fictitious claims. R.J., 652 So.2d at 362. However, the court has recognized that the rule is inapplicable in many situations, such as defamation and invasions of privacy. The Court reasons here that the emotional damages caused by the wrongful disclosure of intimate secrets is likely to cause far more emotional distress than defamation.


Insurance – Appraisal

Allstate v. Suarez
27 Fla. L. Weekly S1028 (Fla. 2002)

Where an insurance policy specifically provides for appraisal, it does not mean formal arbitration under the arbitration code. The homeowners who invoked the appraisal clause of their insurance policy were entitled to appraisal, and the insurance company was not entitled to arbitrate the dispute.


Insurance – Insolvent Insurer

Frontier Ins. Co. v. American Title Services
28 Fla. L. Weekly D287 (Fla. 5th DCA 2003)

After the insured sued its insurer in Florida for failure to honor a claim, a New York court found the insurer insolvent and issued an order stating “all persons are enjoined and restrained from commencing or prosecuting any action, lawsuits or proceedings against Frontier ...”. The order also provided a 6 month stay in all cases in which Frontier was obligated to defend a party, and for an indefinite stay in all proceedings in which Frontier was a defendant. It was error for the trial court to lift the stay after 6 months, even though the Florida statute regarding insurer insolvency provides only a six month stay. 631.67, Florida Statutes. Both New York and Florida have adopted the Uniform Insurers Liquidation Act. See 631.011, Florida Statutes. Therefore, the Florida court should have honored the stay entered by the New York under principles of comity.


Insurance – UM

Hughes v. Enterprise Leasing Co.
27 Fla. L. Weekly D2656 (Fla. 1st DCA 2002)

There is no setoff for a settlement with an uninsured motorist carrier. International Sales-Rentals Leasing Co. v. Nearhoof, 263 So.2d 569 (Fla. 1972).


Juror Misconduct

State Farm Fire & Cas. Co. v. Levine
27 Fla. L. Weekly S1043 (Fla. 2002)

When asked if she had ever been involved in a serious car accident, a juror failed to disclose during voir dire that she had been involved in an accident in which she was driving while intoxicated and a passenger in the car she struck died. The attorneys discovered this after the trial. The trial court erred in denying a new trial on the grounds that the parties should have discovered this during trial. Diligence is required, but not discovery during trial. De La Rosa v. Zequeira, 659 So.2d 239 (Fla. 1995). The court rejected the argument that the error was harmless as a matter of law where there was insufficient evidence in the record to show that the information would not have resulted in a peremptory challenge by the losing party. On remand, the trial court is to conduct further consideration of this issue.


Med Mal – Arbitration

Chester v. Doig
28 Fla. L. Weekly S126 (Fla. 2003)

Section 766.207(7), Florida Statutes provides that the only setoff available in a medical malpractice arbitration is for collateral sources as defined in 766.202(2). A settlement reached during presuit with one doctor is not a collateral source and cannot be set off against the arbitration award against another doctor.


Med Mal – Emergency Room

Jackson County Hospital Corp. v. Aldrich
28 Fla. L. Weekly D28 (Fla. 1st DCA 2002)

The good samaritan immunity of 768.13(2)(b)1., Florida Statutes, which provides immunity in the emergency room setting to hospitals and their employees unless they act with reckless disregard, does not apply to a nurse anesthetist who worked for an independent contractor. Reckless disregard is defined in the statute as conduct which a health care provider knew or should have known would be likely to result in injury so as to affect the life or health of another, taking into account a number of factorslisted in the statute. Here, the. plaintiffs did not meet their burden of proof because, although the plaintiff’s expert testified that it was reckless disregard for the hospital’s physician-employee not to look at the patient’s vocal cords himself, there was no evidence that, if he had looked at them, he would have been able to see them, because of the plaintiff’s burns and swelling.


NICA

Schur v. Florida Birth-Related Neurological Injury Compensation Fund
27 Fla. L. Weekly D. 2547 (Fla. 1st DCA 2002)

Strictly construing the notice requirements of NICA, the court held that notice given by one obstetrical group that shared coverage and patient care with a second obstetrical group that employed the doctor who actually delivered the baby, did not satisfy the requirement of notice by the doctor who delivered the baby, even though she shared office space with other doctors who were employed by the group that gave notice.


Nursing Homes

Integrated Healthcare Services, Inc. v. Lang-Redway
27 Fla. L. Weekly S1030 (Fla. 2002)

In a wrongful death action for violation of a nursing home patient’s rights under 400.022, including failure to provide adequate health care, failure to protect the patient from falling, and failure to prevent and treat pressure sores, the plaintiff does not have to comply with the medical malpractice presuit requirements in addition to the nursing home statute’s presuit requirements. However, the plaintiff must follow the requirements of 400.023(4), which requires investigation and review by a licensed physician, and an affidavit from the reviewer that there is reason to believe that a violation of the resident’s rights occurred during the resident’s stay in the nursing home, based on the records or other information available at the time suit is filed. This holding is limited to cases where the plaintiff has limited his or her cause of action to violations of 400.022.

Florida Convalescent Centers v. Somberg
28 Fla. L. Weekly S122 (Fla. 2003)

A personal representative for a deceased nursing home patient who brings a cause of action for violation of the patient’s statutory rights under 400.023, Florida Statutes (1997) is not limited to the damages provided for in the Wrongful Death Act when it is claimed that the patient’s death resulted from a deprivation or infringement of the patient’s statutory rights under Chapter 400. The plain language of the statute allows actual and punitive damages, and states that they are “in addition to and cumulative with other legal and administrative remedies.” The Court approves the Third DCA’s decision below and the 5th DCA’s decision in Beverly Enterprises-Florida v. Spilman, 661 So.2d 867 (Fla. 5th DCA 1995). The Court disapproves First Healthcare Corp. v. Hamilton, 740 So.2d 1189 (Fla. 4th DCA 1999), to the extent it limited the damages available under the statute.

(Hamilton contains good law on the issues of punitive damages and sanctions for discovery abuse that are not affected by this decision. It states that a defendant may be sanctioned for asserting privileges in response to a request for production and then, when the objection is overruled, responding that the documents do not exist. )
Note that the legislature substantially revised the nursing home statute in 2001.


Offer of Judgment

Commonwealth Property Assoc. v. Suntrust Bank
28 Fla. L. Weekly D56 (Fla. 2d DCA 2002)

Where the plaintiff voluntarily dismissed its complaint without prejudice after the defendant made an offer under the offer of judgment statute, and the dismissal was the plaintiff’s first dismissal, the defendant was not entitled to fees under the offer of judgment statute. See MX Investments Inc. v. Crawford, 700 So.2d 640 (Fla. 1997).

Doyle-Vallery v. Aranibar
28 Fla. L. Weekly D336 (Fla. 2d DCA 2003)

Certifying conflict with Allstate Ins. Co. v. Sarkis, 809 So.2d 6 (Fla. 5th DCA 2001), the Second DCA holds that a court can award a multiplier when awarding fees under the offer of judgment statute. Sarkis was argued before the Supreme Court in early February. I watched some of the argument, and it appears to me it is going to be very close.


Privilege – Attorney-Client

General Motors v. McGee
28 Fla. L. Weekly D34 (Fla. 4th DCA 2002)

See above for a discussion of the Fabre issue in this case. Documents showed that GM had done a cost-benefit analysis in deciding not to make its fuel tanks safer. GM played fast and loose with discovery, gave false answers as to whether certain documents existed, and asserted attorney-client privilege as to documents that were in the control and possession of its in-house counsel. GM first said some of the documents did not exist, then that they were not relevant. Plaintiffs learned of the documents from the privilege log in another case and subpoenaed GM’s in-house counsel to produce the documents. He came to court and testified that the documents were not in his office and GM had possession of them and refused to give them to him. The court ordered GM to produce them for in camera inspection. When in camera inspection of the documents revealed that a key GM witness had lied, the judge ordered some of them produced to the plaintiffs. and allowed their use at trial. There were other efforts by GM to obstruct discovery and mislead the plaintiffs.

The court held that GM waived the privilege by not producing a privilege log in compliance with Rule 1.280(b)(5). Further, GM could not protect the documents from discovery by denying it had possession and control of them by moving them around from attorney to attorney.

However, attorneys’ notes reflecting that an attorney for GM was aware of false testimony given by a GM witness in the past were properly protected by the privilege, because there was no evidence the witness sought the attorney’s advice for the purpose of furthering a fraud.

Further, evidence of GM’s pretrial discovery misconduct was properly admitted on the issue of punitive damages, to show that GM lied to cover up its negligence. However, the jury awarded no punitive damages.
In addition, the damage awards were not excessive, where the injuries and suffering were among the worst the appellate judges had ever encountered.


Privilege – Waiver

Viveiros v. Cooper
27 Fla. L. Weekly D2562 (Fla. 4th DCA 2002)

The failure to assert the psychotherapist-patient privilege until the hearing on the motion to compel did not waive the privilege. However, on remand from certiorari review, the court may require disclosure if the petitioner fails to provide a privilege log, or if an in camera inspection reveals that the privilege does not apply. If the privilege applies to any of the records, they may be disclosed only if the court finds good cause.

Allstate Ins. Co. v. McClusky
28 Fla. L. Weekly D359 (Fla. 5th DCA 2003)

Here is another case holding that failure to file a privilege log does not waive the right to assert the attorney-client and work product privileges, here because the defendant was relying on two prior orders, albeit erroneously entered, that granted the defendant’s motion for protective order. The court does note, however, that the failure to provide a privilege log generally does waive a privilege, citing Mutual Fire Ins. Co. v. Hess, 814 So.2d 1240 (Fla.5th DCA 2002) and TIG Ins. Corp. v. Johnson, 799 So.2d 339 (Fla. 4th DCA 2001).


Spoliation of Evidence

Martino v. Wal-Mart Stores, Inc.
28 Fla. L. Weekly D321 (Fla. 4th DCA 2003)

Certifying conflict with the Third DCA’s decision in Bondu v. Gurvich, 473 So.2d 1307 (Fla. 3d DCA 1984), the Fourth DCA holds that an independent cause of actionfor spoliation of evidence is unnecessary and will not lie where the alleged spoliator is the defendant in the underlying case allegedly impaired by the loss or destruction of evidence. The court holds that adverse inferences and other available sanctions provide adequate remedies. However, the court also states that while plaintiff’s lawyer is free to make arguments concerning the adverse inference created by the defendant’s failure to produce the evidence, a jury instruction in this particular matter is not appropriate, citing Jordan ex rel. Shealey v. Masters, 821 So.2d 342 (Fla. 4th DCA 2002). The citation to Jordan is puzzling because in that case, it was doubtful that the allegedly missing evidence ever existed. Cf. Public Health Trust v. Valcin, 507 So.2d 596 (Fla. 1987)(rebuttable presumption of negligence where defendant has lost or destroyed evidence it had a duty to preserve).


Summary Judgment

Lobrillo v. Brokken
28 Fla. L. Weekly D86 (Fla. 3d DCA 2002)

The court erroneously granted the defendant’s motion for summary judgment based on the statute of limitations where the defendant did not plead the statute of limitations as an affirmative defense.


Tort Reform

Enterprise Leasing Co. v. Hughes
27 Fla. L. Weekly D2656 (Fla. 1st DCA 2002)

In a decision you will certainly hear more about, the First District has held that the 1999 Tort Reform Act, Chapter 99-225, Laws of Florida, does not unconstitutionally violate the single subject rule of Article III, 6, Fla. Const. The Act contains thirty-six sections, and each of them makes a substantive or procedural change in a civil action. The Act raised the burden of proof in some circumstances, provided new defenses, provide immunity from suit in some circumstances, established presumptions, limited recovery of damages, and required alternative dispute resolution in certain instances. The court also holds that 324.041, Florida Statutes, limiting the liability of rental car companies under the dangerous instrumentality doctrine, does not violate the right of access to courts, the right to trial by jury, equalprotection or due process.


Workers Comp Immunity

Kite v. Escambia County
27 Fla. L. Weekly D2547 (Fla. 1st DCA 2002)

Section 440.11(1) provides an exception to workers comp immunity when an employee is injured by the negligence of a fellow employee who is “assigned primarily to unrelated works within private or public employment.” In this case, there was a question of fact as to whether the employer was immune from suit by a correctional officer who, while supervising prisoners, visited the County’s landfill to dispose of trash and fell when he stepped on a loose tool that was left lying around near the unloading ramp. Further, it was not fatal to the plaintiff’s claim that he did not name the specific employee who was negligent.

Fleetwood Homes of Florida, Inc. v. Miller
28 Fla. L. Weekly D61 (Fla. 2d DCA 2002)

Florida Rule of Appellate Procedure 9.130(a)(3)(C)(v) gives an appellate court jurisdiction to review a nonfinal order that “determines that, as a matter of law, a party is not entitled to workers’ compensation immunity.” In Hastings v. Demming, 694 So.2d 718 (Fla. 1997) the Supreme Court held that an order is not appealable unless it “specifically states that, as a matter of law, such a defense is not available to a party”, so that the party is precluded from having a jury decide whether a plaintiff’s remedy is limited to worker’s compensation. Here, the court held that it had jurisdiction where, although the trial court denied summary judgment and indicated it would submit the issue to the jury, it also included the language “as a matter of law” in the order, and decided the issue on a “well-developed” record. The court certified two questions to the supreme court:

I. May a district court review a nonfinal order denying, “as a matter of law,” a motion for summary judgment on the issue of workers’ compensation immunity if it is clear that the trial court intends to submit the issue of grossnegligence or intentional tort to the jury as a question of fact?

II. If an employer allows its employees to perform a negligent procedure repeatedly and for a long period, may the first incident in which the procedure results in injury or death be treated as an intentional tort under Turner v. PCR, Inc., 754 So.2d 683 (Fla. 2000).

Inservices, Inc. v. Aguilera
28 Fla. L. Weekly D76 (Fla. 3d DCA 2002)

On rehearing, the court holds that a worker’s comp carrier and case manager are immune from suit for intentional torts arising out of the way the defendants handled the plaintiff’s workers comp claim. The court says the actions do not constitute an independent tort separate and apart from the workers’ compensation contract. Judge Shevin dissents, pointing out that the defendants repeatedly denied care to the plaintiff and canceled medical appointments without explanation or notice, showing up at the plaintiff’s medical appointments in violation of agreements with the plaintiff’s lawyer (and telling the plaintiff to lie to his attorney about it), and insisting on the administration of tests that were painful and were contraindicated by plaintiff’s medical condition. The defendant then used the plaintiff’s refusal to submit to these tests as an excuse to deny plaintiff the surgery he desperately needed. The dissent distinguishes Old Republic Ins. Co. v. Whitworth, 442 So.2d 1078 (Fla. 3d DCA 1983) because the actions went beyond the mere willful delays in payment or assertions that the injuries were exacerbated because of payment or service delays. The dissent cites Turner v. PCR, Inc., 754 So.2d 683 (Fla. 2000), and argues that criminal prosecution, suspension of the carrier’s license, penalties for late fees and dispute resolution procedures may punish the carrier, but do not compensate the plaintiff.

Integrated Health Services, Inc. v. Jones
28 Fla. L. Weekly D242 (Fla. 2d DCA 2003)

A defendant which denied the plaintiff’s claim for worker’s compensation is estopped to assert worker’s compensation immunity in the plaintiff’s lawsuit against it.