January 1996


Admissions

Brown v. Colonial Penn Ins. Co.
21 Fla. L. Wkly. D107 (Fla. 2d DCA 1996)

A party is not bound by an admission in a pleading which has been successfully attacked by the opposing party (e.g., dismissed or stricken).


Attorneys Fees

Chandris, S.A. v. Yanakakis
20 Fla. L. Wkly. S603 (Fla. 1995)

Contingency fee agreements must comply with all ethical rules or they are void and unenforceable. This case overrules several Third District cases to the contrary. This case arose because one of the attorneys, even though an expert in the area, was not admitted to practice in Florida. The court holds that neither he nor the Florida attorney can recover for tortious interference with a business relationship because the retainer agreement did not comply with all of the requirements of the code of professional responsibility.

The court lists some of the requirements as follows: (1) the contract must be in writing; (2) each participating attorney or law firm shall sign the contract or agree in writing to be bound by the terms of the contract; (3) each attorney shall agree to assume the same legal responsibility to the client for the performance of the services; (4) the client must be furnished with a copy of the signed contract. For the additional requirements, see Rules Regulating the Florida Bar, Rule 4-1.5.

The court notes in a footnote that an attorney who has performed services but does not have a valid contract may recover under quantum meruit.

Go back and check all of your contracts and make sure they comply. If they don't, revise them and get the client to sign the corrected contract.


Damages

Aircraft Service International Inc. v. Jackson
20 Fla. L. Wkly. D2661 (Fla. 3d DCA 1995)

Under the remittitur statutes, 768.04 and 768.043, the trial court abused his discretion in refusing to order a remittitur or new trial as to damages where the jury's award of past medical expenses exceeded the uncontradicted amount, and the amount awarded for future economic damages was not supported by the evidence, including expert testimony which placed it much lower. The court recommends itemization of future medical expenses and future lost earning capacity. The court orders a new trial on future economic damages only.


Economic Loss Rule

Raymond James & Associates, Inc. v. PK Ventures, Inc.
20 Fla. L. Wkly. D2699 (Fla. 2d DCA 1995)

Lin-Well Dev. Corp. v. Preston & Farley, Inc.
21 Fla. L. Wkly. D63 (Fla. 2d DCA 1996)

A cause of action for negligent misrepresentation in the sale of commercial property is barred by the economic loss rule. The court certifies the question to the supreme court, as it did a similar question in Woodson v. Martin, 20 Fla. L. Wkly. D2556 (Fla. 2d DCA 1995) (en banc).

TGI Dev., Inc. v. CV Reit, Inc.
21 Fla. L. Wkly. D79 (Fla. 4th DCA 1996)

An action for fraud in the inducement is not barred by the economic loss rule. The court specifically approves the dissents in Woodson, and certifies conflict with that case.


Fabre

Kidron, Inc., v. Carmona
20 Fla. L. Wkly. D2666 (Fla. 3d DCA 1995)

The principle of comparative fault applies in a strict liability case, even in a "secondary collision" case. Here, the plaintiff's husband's negligence may have caused the accident, but he would not have died if the car had been properly designed. The court holds that the jury must be allowed to consider his negligence, as well as "the manufacturer's liability in designing a vehicle which may have enhanced injury on impact as well as 'all of the other entities who contributed to the accident, regardless of whether they have been or could have been joined as defendants.'"

Robert Glazier, who prepared an excellent amicus brief on behalf of the Academy, says that there are substantial arguments to be made in support of the plaintiff's position and that this issue is not dead in the other DCA's. You can get a sample brief on this issue from the AFTL.

Southern Bell v. Fla. Dept. of Transp.
20 Fla. L. Wkly. D2710 (Fla. 3d DCA 1995)

A defendant may appeal a summary judgment exonerating a codefendant even if the appealing defendant has not asserted a cross claim against the defendant who got out on summary judgment. The rationale is to preserve contribution rights. See Holton v. H.J. Wilson Co., 482 So.2d 341 (Fla. 1986)


Hospital Bills

Connor v. Southwest Florida Regional Medical Center, Inc.
20 Fla. L. Wkly. S607 (Fla. 1995)

The supreme court has abolished the doctrine of necessaries, which made a husband automatically liable for his wife's hospital bills.


Insurance -- cooperation

Figueroa v. U.S. Security Ins. Co.
20 Fla. L. Wkly. D2703 (Fla. 3d DCA 1995)

The insurer was not entitled to a summary judgment based on the insured's refusal to give a sworn statement, where the insured demanded a copy of the policy, the insurer did not provide it, and the insured agreed to give the statement after receiving a copy of the policy, which required the statement.


Insurance -- UM

State Farm v. McCarthy
20 Fla. L. Wkly. D2683 (Fla. 1st DCA 1995)

The court certifies the following question to the supreme court:

This court says yes, but certifies conflict with Bulone v. USAA, 660 So.2d 399 (Fla. 2d DCA 1995)

Taylor v. USAA
21 Fla. L. Wkly. D28 (Fla. 5th DCA 1996)

Where the policy did not define "resident" or "residency", the insured's sister was covered as a resident relative while she was serving in the army where nothing in the record indicated that she ever abandoned her family residence as her permanent residence.


Med Mal -- Birth Related Neurological Injuries

Mills v. North Broward Hospital District
20 Fla. L. Wkly. D2714 (Fla. 4th DCA 1995)

Bradford v. Florida Birth Related Neurological Injury Comp. Assoc.
21 Fla. L. Wkly. D51 (Fla. 4th DCA 1996)

Behan v. Florida Birth Related Neurological Injury Comp. Assoc.
21 Fla. L. Wkly. D52 (Fla. 4th DCA 1996)

Joining the first district, this court says the burden is on the doctor participating in the NICA program to post a notice required by statute, and the failure to do so allows the patient to sue in circuit court. The court certifies the question to the supreme court. Accord, Turner v. Hubrich, 656 So.2d 970 (Fla. 5th DCA 1995)


Nursing Homes

Estate of Schwartz v. H.B.A. Management
20 Fla. L. Wkly. D2658 (Fla. 4th DCA 1995)

The trial court departed from the essential requirements of law when he prohibited the plaintiff's lawyer from having ex parte communications with defendant's former employees, and when he ordered the plaintiff's lawyer to disclose notes and statements taken in conjunction with the interviews of former employees in violation of the work product rule.

The court agrees with the Third District decision in Reynoso v. Greynolds Park Manor, Inc., 659 So.2d 1156 (Fla. 3d DCA 1995) that the prohibition against contacting parties who are represented by counsel does not apply to former employees. The court certifies conflict with Barfuss v. Diversicare Corp. of America, 656 So.2d 486 (Fla. 2d DCA 1995)


Seat Belt

State Farm v. Penland
20 Fla. L. Wkly. D2653 (Fla. 4th DCA 1995)

The trial court did not abuse its broad discretion in granting a new trial because it erred in admitting the expert testimony of Miles Moss, a Transportation Consulting Engineer, about the plaintiff's probable location in the car at the time of the accident based on where the steering wheel was located in the car, where the crack was located on the windshield, and the nature of the injuries of the occupants of the front seat, including facial lacerations and a hip injury from the steering wheel. The facts were within the common knowledge of jurors.

The court notes that "juries often give much credence to an expert's testimony".

The trial court should have applied the version of the seat belt statute in effect at the time of the accident.