January 2000


Additur

Jarvis v. Tenet Health Systems Hospital
24 Fla. L. Weekly D2569 (Fla. 4th DCA 1999)

The jury found the defendant 1% at fault, and the Fabre defendant 99% at fault, and assessed damages in excess of $10 million dollars. The trial court granted additur or a new trial. The plaintiff rejected the additur, and the trial court ordered a new trial on damages and liability. The court held that 768.74(4) requires the new trial to be limited to damages only, unless the court specifically finds that the verdict is a compromise. See Broward County School Board v. Dombrosky, 579 So.2d 748 (Fla. 4th DCA 1991) (only when liability is hotly contested and there is some indication that jury may have compromised on verdict may the court grant a new trial on both liability and damages under the additur statute).


Carriers

Angulo v. Szklaver
24 Fla. L. Weekly D2796 (Fla. 3d DCA 1999)

A hospital ran a transportation service for patients and their companions, providing curb to curb service and undertaking to require the drivers to drop the passengers at the safest location on the same side of the street as their residence, and to assist the passengers from the bus to the curb. This distinguished it from an ordinary bus service, and the bus service was properly found liable for failing to carry out the duties it undertook when it discharged a passenger in the middle of the street and she was hit by a car while attempting to cross the street.


Character Evidence

Smith v. Hooligan’s Pub & Oyster Bar, Ltd.,
24 Fla. L. Weekly D2665 (Fla. 3d DCA 1999)

The plaintiffs’ son was shot to death in a bar altercation. The trial court committed reversible error in allowing evidence regarding the son’s alleged bad character as circumstantial evidence of his conduct on the night of his death. Character evidence is not admissible to prove that a person acted in conformity with his or her character. See 90.404, Florida Statutes. The evidence was not admissible to rebut evidence of the victim’s good nature because that evidence was not submitted until after the trial court denied the pretrial motion in limine to exclude the evidence of bad character, and after the defendant’s counsel had portrayed the son, in opening argument, as a violent person; and after plaintiff’s counsel had explained that he was introducing the evidence because of the court’s ruling on the motion in limine. Plaintiffs’ counsel did not open the door by attempting to minimize the impact of the defendants’ improperly admitted evidence by offering contrary evidence.

The defendants’ expert’s opinion that the plaintiffs’ son was the aggressor, which was based in part on this character evidence, was also inadmissible.


Economic Loss Rule

24 Fla. L. Weekly D2735 (Fla. 2d DCA 1999)

Despite the Supreme Court’s recent decisions in Moransis v. Heathman, 24 Fla. L. Weekly S308 (Fla. 1999), revised, 24 Fla. L. Weekly S527 (Fla. 1999), and Comptech International v. Milam Commerce Park, 24 Fla. L. Weekly S507 (Fla. 1999), the economic loss rule continues to cause confusion. Here, the court holds that an essential element of a cause of action is either bodily injury or property damage; but the crux of this case appears to hinge on the issue of duty. The court holds that the school board owed the plaintiff no duty that was breached by negligently omitting the plaintiff’s name from a list of potential employees, resulting in the plaintiff’s loss of significant salary before he eventually was hired. The court acknowledges that the Supreme Court said in Moransis that “under Florida’s common law a person who is injured by another’s negligence may maintain an action against the other person based on the other person’s violation of a duty of due care to the injured person.” But it points out that “injury” and “duty of care” must still be defined. The court construes Moransis narrowly, as only allowing professionals to be sued on established theories of professional negligence. Note that Comptech and its companion case, Kennedy Electric, both involved damage to tangible property, not intangible economic interest.


Fabre

Flamingo Oil Co. v. Veloz
24 Fla. L. Weekly D2795 (Fla. 3d DCA 1999)

It was reversible error to instruct the jury, in response to a question, that all damages would be apportioned in accordance with the jury’s apportionment of fault, where in fact there would be joint & several liability for economic damages. The error was harmful to a defendant whose attorney had argued in closing that if the jury found the defendant at all liable, it would be responsible for all of the economic damages.

In fact, under 768.81, there is only joint & several liability for economic damages if the plaintiff’s fault does not exceed the fault of a particular defendant. The Fabre formula is so complicated, I wonder how a judge could really accurately explain it to a jury.

Under the 1999 Tort Reform Act, the formulas are even more complicated. A recent discussion among half a dozen very intelligent lawyers came up with half a dozen different ways to calculate damages in a hypothetical case. I worry that the law is too complicated for people to understand, and therefore too complicated for people to trust any more. A recent newspaper article discussed how puzzled a Fabre defendant was to learn that he had been found at fault in a case in which he was not even a party.


Impact Rule

Coca-Cola Bottling Co. v. Hagan
24 Fla. L. Weekly D2688 (Fla. 5th DCA 1999)

After taking a couple of sips, the plaintiffs found a foreign substance in their bottle of Coke, which they testified looked like a used condom, with stringy stuff coming out of it. (I am not making this up). The plaintiffs turned the bottle over to Coke for testing. Their chemist determined that the material, which he agreed looked like a condom, was actually mold. He did only a visual and microscopic inspection, and did not perform any chemical tests. There was some question about the chain of custody, and the plaintiffs testified that they saw a used condom in the bottle, and submitted photographs. There was no medical or scientific evidence at trial that HIV was present; however, the plaintiffs were afraid of contracting HIV.

The court held that, because there was no evidence of exposure to HIV and no evidence of physical damage or injury to the plaintiffs, their claim was barred by the impact rule. Two of the three judges concurred in certifying to the Supreme Court the very broad question: “SHOULD THE IMPACT RULE BE ABOLISHED OR AMENDED IN FLORIDA?”


Insurance — Bad Faith

Williams v. Infinity Ins. Co.
24 Fla. L. Weekly D2765 (Fla. 5th DCA 1999)

The deceased died leaving five survivors. Before the estate was opened, two of them demanded the policy limits, and the insurer refused to pay it, unless the claims of the entire estate and all survivors were satisfied. The court held that the insurance company was not guilty of bad faith in refusing to settle with some survivors to the exclusion and detriment of the others. The court notes that, although the insurer is not required to settle with the first beneficiary who claims insurance proceeds, it apparently may do so. Limitations

Fulton County Administrator v. Sullivan
24 Fla. L. Weekly S557 (Fla. 1999)

This case was reported in the November 1999 issue but I didn’t have the citation yet. To repeat what I said there:

Two years ago, the Supreme Court caused a lot of discussion when it decided in this case that the statute of limitations in this wrongful death case was not tolled by the fraudulent concealment of the identify of the defendant, and, indeed, was not tolled by any fraudulent concealment in any case (other than medical malpractice, where the statute specifically provides for such tolling). The court granted rehearing, and now has withdrawn that opinion, holding that Georgia law applies to this case and therefore the tolling provisions of Florida law are not relevant to this case.

In determining that Georgia law applies, the court applied the significant relationship test set out in Merkle v. Robinson, 737 So.2d 540 (Fla. 1999). The court declines to answer the question certified by the district court. The court reaffirms its prior holding that, where the issue was properly raised by motion for new trial, even though the defendant did not move for judgment in accordance with motion for directed verdict, the appellate court could order the trial court to enter a directed verdict.


Offer of Judgment

JJ’s Mae, Inc. v. Milliken & Co.
24 Fla. L. Weekly D2777 (Fla. 4th DCA 1999)

Under the version of Rule 1.442 in effect at the time of the offer in this case, an offer was invalid if conditions were attached. Therefore, the offer was invalid because it required the offeree to satisfy certain liens. The court notes, that the rule was subsequently amended; however, the offeree “was entitled to consider the offer under the law in effect at the time the offer was made”. See Metropolitan Dade County v. Jones Boatyard, 611 So.2d 512 (Fla. 1993).

Pirelli Armstrong Tire Co. v. Jensen
24 Fla. L. Weekly D2744 (Fla. 2d DCA 1999)

Agreeing with the Fourth and Fifth DCAs, the Second DCA holds that a contingency risk multiplier may be applied in awarding fees under the offer of judgment statute, because the statute allows the court to consider “all other relevant criteria” in determining the amountof the fee. See Collins v. Wilkins, 664 So.2d 14 (Fla. 4th DCA 1995); Garrett v. Mohammed, 686 So.2d 629 (Fla. 5th DCA 1996).

Judge Casanueva, dissenting in part, argues that to allow a multiplier violates equal protection because it is only available to a plaintiff. I believe that a defendant could theoretically seek a multiplier by including a contingency clause in the fee agreement with the defendant — e.g., agreeing to represent the defendant for a reasonable court awarded fee pursuant to the offer of judgment statute. Since defense lawyers are not usually willing to take the risks the plaintiffs’ lawyers routinely take, this is not likely to happen any time soon. I continue to believe strongly that the OJ statute works unfairly against plaintiffs, because a defendant can win fees by making a nominal offer, for example, in a case with big damages but tough liability or Fabre problems.

Dept. Of Highway Safety v. Weinstein
24 Fla. L. Weekly D2799 (Fla. 3d DCA 1999)

It was error to deny fees entirely to defendants who made a nominal offer of $100, where the jury returned a defense verdict. The offer was made in good faith because there was a logical explanation for it — the offeror’s exposure was nominal because the plaintiff’s notice was late and because of substantial evidence that the defendant’s officer was not negligent. For a thorough discussion of the possible denial of equal protection when courts allow defendants to prevail on nominal offers, see Judge Klein’s dissent in Fox v. McCaw Cellular Communications, Inc., 23 Fla. L. Weekly D2687 (Fla. 4th DCA 1998).

The real importance of this case is that the court holds that the plaintiff very likely was justified in refusing the offer, because of the seriousness of his injuries; on remand, this fact is “highly significant in determining the amount of fees to be awarded.” As long as courts persist in allowing nominal offers, use this case to argue that the amount of fees should be reduced, or even nominal. I have not yet seen a case on exactly how the reasonable ness of the rejection should be calculated into the amount of the fees, but arguably if the plaintiff reasonably rejected the nominal offer, then it was a case that should have been litigated, and the purpose of the OJ statute, to discourage litigation and encourage settlement, would not be served by punishing the plaintiff for litigating a case that should be litigated.


Premises Liability

Emerine v. Scaglione
24 Fla. L. Weekly D2727 (Fla. 2d DCA 1999)

The decedent was murdered while he was a guest of a tenant of the defendants in the defendants’ mobile home park. His estate alleged inadequate security and failure to warn. The court held that a tenant’s guest is an invitee of the owner to whom the owner owes a duty of reasonable care; therefore it was error to enter summary judgment for the defendants on the ground that the guest was an uninvited licensee. The duty to an uninvited licensee is only to refrain from wanton negligence or willful misconduct, to avoid intentionally exposing the licensee to danger, and to warn of known dangerous conditions that are not open to ordinary observation. The guest was entitled to the higher duty of care owed an invitee. See Wood v. Camp, 284 So.2d 691 (Fla. 1973).


Summary Judgment

Skilled Services Corp. v. Reliance Ins. Co.
24 Fla. L. Weekly D2716 (Fla. 4th DCA 1999)

It was error to deny leave to amend the complaint, after the court orally pronounced its intention to grant defendant’s motion for summary judgment, but before the entry of the final summary judgment, where the plaintiff’s motion had a proposed amended complaint attached which stated a cause of action, and timely noticed it for hearing.


Workers Comp Immunity

Mira Group, Inc. v. Duran
24 Fla. L. Weekly D2711 (Fla. 3d DCA 1999)

In order to establish that a defendant is the plaintiff’s statutory employer, entitled to workers comp immunity under 440.10(1)(b) and 440.11, the defendant must have incurred a contractual obligation to a third party and must have delegated or sublet a part of its contractual obligation to a subcontractor whose employee is injured. If there is no contract, there is no immunity. Where there is a factual issue as to whether there is a valid contract, the issue of comp immunity is for the jury. Here, the defendant corporation alleged an oral contract with its own president to build the president a house. There was a genuine issue of fact as to whether there was consideration for the contract.