January/February 1998


Additur

Beyer v. Leonard
23 Fla. L. Wkly. D118 (Fla. 2d DCA 1997)

The trial court granted the plaintiff’s motion for additur or new trial, and the defendant accepted the additur. The plaintiff then moved for new trial on the grounds that the additur was inadequate, and the trial court granted the new trial. This court holds that the trial court had no authority under 768.043 to order a new trial after additur. Only the defendant may obtain a new trial by objecting to the additur.


Appeals -- Jurisdiction

Tyler v. State
22 Fla. L. Wkly. D2659 (Fla. 2d DCA 1997)

Be careful what you call your post-trial motions. This appeal was dismissed because the appellant waited until the trial court ruled on his “Motion for Clarification.” A “Motion for Clarification” is not “authorized” under Fla. R. Civ. P. 1.530. Therefore, unlike an “authorized” motion (such as a motion for new trial), it did not toll the time for filing the notice of appeal.


Arbitration

Health Care Associates v. Brevard Physicians Group P.A.
22 Fla. L Wkly. D2636 (Fla. 5th DCA 1997)

An order confirming, modifying or vacating the award is a non-appealable non-final order. According to this court, the portion of 682.20(c)-(e) which provides for appeal of such orders is invalid because only the Supreme Court, not the legislature, has the power to determine the jurisdiction of the appellate courts. Art. V, 4(b)(1), Fla. Const. In order to appeal, the party must first obtain a final judgment from the trial court. Here, the appellate court properly did not dismiss the appeal, but properly relinquished jurisdiction to the trial court for 30 days to enter a final judgment.

Great Western Financial Securities Corp. v. Grandison
22 Fla. L. Wkly. D2637 (Fla. 5th DCA 1997)

Where a party claims fraud in the inducement with respect to a particular arbitration clause in an agreement, the party may litigate, rather than arbitrate the fraud. However, where a party alleges fraud in the inducement as to the entire agreement, if the agreement contains an arbitration clause, the only remedy is arbitration.

American Reliance Ins. Co. V. Kiet Investments, Inc.
23 Fla. L. Wkly. D69 (Fla. 3d DCA 1998)

An insurer which requested arbitration under the policy did not waive its coverage defenses that the coverage was void because of fraud by the insured in the claims process.

Prudential Securities, Inc. v. Ruskin
23 Fla. L. Wkly. D215 (Fla. 4th DCA 1998)

A defendant which did not raise a claim for attorney’s fees in its initial pleadings or during the arbitration could not raise them for the first time in an action to enforce the arbitration agreement.


Attorneys fees

Careers USA, Inc. v. Sanctuary of Boca, Inc.
23 Fla. L. Wkly. S31 (Fla. 1998)

A contract provided for an award of attorneys fees to the prevailing party “in any action brought by Lessor or Lessee to enforce any of the provisions of this Lease.” The prevailing party was entitled to fees in a dec action regarding the interpretation of a provision in the lease concerning the abatement of rental payments.


Class Actions

Concerned Class Members v. Sailfish Point, Inc.
23 Fla. L. Wkly. D145 (Fla. 4th DCA 1998)

This court dismissed an appeal by a number of class members who were not named as class representatives and who were appealing an order approving a settlement agreement. The non-named class members lacked standing to appeal because they must intervene formally at the trial court level in order to gain standing to appeal. This follows the rule in the 11th circuit and the majority of federal courts. Guthrie v. Evans, 815 F.2d 626 (11th Cir. 1987).


Damages — Sufficiency

Allstate Ins. Co. v. Manasse
23 Fla. L. Wkly. S30 (Fla. 1998)

Over the dissent of Justice Anstead, joined by Justice Kogan, the majority of the court holds that a jury’s finding of permanency and award of future medical expenses but no noneconomic damages (pain & suffering, etc.) is not inadequate as a matter of law. The court does not hold that such a verdict is always adequate as a matter of law, however; the issue of adequacy is still for the trial court’s discretion. The court approve’s Judge Klein’s observation in his dissent below that “our standard jury instructions do not require consistency in these verdicts” because future damages are by their very nature less certain than past damages.


Dangerous Instrumentality

Amba-An v. Arias-Turecious
22 Fla. L. Wkly. D90 (Fla. 4th DCA 1997)

A long term lessor of a vehicle remains liable under the dangerous instrumentality doctrine unless the lessee has maintained the insurance required by section 324.021(9)(b), Fla. Stat. The fact that the lease contained an option to purchase did not convert the lease into an financing agreement or a conditional sales agreement.


Deposition

Ross v. Hobbs
23 Fla. L. Wkly. D255 (Fla. 2d DCA 1998)

The court granted certiorari to quash a protective order that prohibited the plaintiffs from videotaping the defendant’s expert’s deposition. Rule 1.310(b)(4) allows any party to videotape any deposition.


Economic Loss Rule

Moransis v. Heathman
22 Fla. L. Wkly. D2726 (Fla. 2d DCA 1997)

The court affirmed dismissal of the plaintiff’s negligence actions against engineers employed by the engineering firm with which he had a contract, but certified to the Supreme Court the following question:

When the alleged damages are purely economic, can the purchaser of a residence, who contracts with an engineering corporation for a pre-purchase inspection, maintain a professional negligence action against the licensed engineer who performed the inspection as an employee of the engineering corporation?


Evidence -- Frye Test

Berry v. CSX Transp., Inc.
22 Fla. L. Wkly. D2650 (Fla. 1st DCA 1997)

This lengthy, scholarly opinion by Judge Van Nortwick contains a detailed discussion of the Frye test for admissibility of scientific evidence. See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The Frye test requires that the scientific principles underlying scientific testimony must be found by the trial court to be “generally accepted by the relevant members of its particular field.” The Frye test is still the law in Florida, although it has been modified in federal court. Compare Daubert v. Merrell Dow, 509 U.S. 579, 113 S.Ct. 2786 (1993) with Flanagan v. State, 625 So.2d 827 (Fla. 1993). Here, the court discusses its application to toxic tort situations.

The Frye test involves four steps. First, the trial judge must determine whether the evidence will assist the jury in understanding the evidence or in determining a fact in issue. Second, the court must decide whether the testimony is based on a scientific principal sufficiently established to have gained general acceptance in the particular field. Third, the court must determine whether the witness is qualified as an expert on the subject in issue. Fourth, the judge may then allow the expert to render an opinion on the subject of his or her expertise, and it is then up to the jury to accept or reject it.

In this case, the court holds that it was error to reject the testimony of epidemiologists regarding whether long-term exposure to organic solvents could cause the plaintiffs’ toxic encephalopathy. The opinions were based on well-established scientific principles and methods; the experts were well qualified; the weight to be given the evidence is for the jury. It was wrong for the trial court to reject the expert testimony merely because there was substantial disagreement in the scientific community about the experts’ conclusions.

It is the underlying principles and methodology, not the experts’ conclusions, that must meet the Frye test. Thus, for example, one expert’s use of the accepted methodology of differential diagnosis met the Frye test, even if his ultimate conclusion was controversial. Another expert’s opinions, which were based upon peer reviewed published epidemiological studies undertaken independently of the litigation, also met the Frye test.

Thus, conflicting expert opinions may be admissible under the Frye test if the principles and methodology used to arrive at both opinions are generally accepted. If there are weaknesses or technical difficulties with the opinions, they can be brought out on cross examination of the experts.

The opinion also contains an enlightening discussion of epidemiology. Congratulations to Joel Eaton for obtaining an opinion that will help us tremendously in the battle against accusations of “junk science.” Logic and reason overcame epithets in this case.


Exculpatory Clause

Greater Orlando Aviation Authority
23 Fla. L. Wkly. D298 (Fla. 5th DCA 1998)

This court rejects the plaintiff’s contention that the only way a party can prospectively relieve itself of liability for its future negligence is to use the word “negligence” in the release. The court does acknowledge that exculpatory clauses are disfavored and strictly construed.


Experts

Myron v. South Broward Hospital Dist.
23 Fla. L. Wkly. D103 (Fla. 4th DCA 1997)

This is a horrendous medical malpractice case. Among other things, the court holds that under the facts of this case, the plaintiff’s expert, a pediatrician, was qualified to give standard of care testimony against a neurosurgeon, concerning the necessity of performing a spinal tap. In addition, it was error to exclude the testimony of the plaintiff’s expert against the hospital under Binger v. King Pest Control, 401 So.2d 1310 (Fla. 1981), where the plaintiff offered at a deposition not to use the expert against any defendant who decided not to cross examine him, but the hospital chose to cross examine him and the plaintiff withdrew the offer as to the hospital.

Myron v. Doctors General Hospital, Ltd.,
23 Fla. L. Wkly. D105 (Fla. 4th DCA 1997)

In this companion case, the court holds it was error to allow the defense to cross examine the plaintiff’s expert with literature that the expert did not recognize as authoritative. And see below regarding privilege.

Kirkpatrick v. Wolford
23 Fla. L. Wkly. D166 (Fla. 5th DCA 1997)

In determining whether materials used for cross examination of an expert are authoritative, the court is not bound by the answer of the expert being cross examined. The court may base its determination on sworn statements of other experts that the materials are authoritative. The court need not find that the materials are authoritative by a preponderance of the evidence. Instead, the court may find the materials authoritative if there is some credible evidence to support that conclusion.


Experts — Discovery

Allstate Ins. Co. V. Boecher
23 Fla. L. Wkly. D268 (Fla. 4th DCA 1998)

Certifying conflict with the Third DCA, the Fourth holds that the plaintiff may obtain from a party discovery about an expert witness and his relationship with the defendant beyond the discovery permitted by Elkins v. Syken, 672 So.2d 517 (Fla. 1996). The purpose of the rules set out in Elkins, codified in Rule 1.280(b)(4)(A)(iii) was to prevent hardship on the witness. The conflicting Third District opinion is Carrera v. Casas, 695 So.2d 763 (Fla. 3d DCA 1997).


Fabre

Merrill Crossings Associates v. McDonald
22 Fla. L. Wkly. S739 (Fla. 1997)
Stellas v. Alamo Rent-A-Car, Inc.
22 Fla. L. Wkly. S749 (Fla. 1997)

The Florida Supreme Court has decided that the intentional tortfeasor does not go on the verdict form. Fault cannot be apportioned between a negligent tortfeasor who was supposed to protect the plaintiff and the intentional tortfeasor from whom the negligent tortfeasor was supposed to protect the plaintiff.

For example, the criminal cannot be a Fabre defendant in a negligent security case. The Court approves the First District’s decision holding that 768.81 must be strictly construed. Section 768.81(4)(b) specifically states that “this section does not apply ... to any action based upon an intentional tort.” The court looks at “the substance of the action” and concludes that it is based upon an intentional tort.

The Court specifically declined to address other issues that were raised. Although it is not stated in the opinion, one of those issues was whether Fabre should be overruled.

Congratulations to Scott Feder, who did an outstanding job for the plaintiff in Stellas, and to Joel Perwin, who always does an outstanding job for the Academy as an Amicus.

Gonzalez v. Veloso
23 Fla. L. Wkly. D72 (Fla. 3d DCA 1997)

Where the defendant did not adequately prove the fault of the non-party, a former defendant who had settled, the nonparty’s name should not go on the verdict form. Because a percentage of fault was erroneously apportioned to the nonparty, the plaintiff was entitled to entry of judgment in the full amount of the verdict.

This opinion on rehearing replaces a previous opinion which had held that the defendant has the burden of pleading the negligence of a settling co-defendant. To the best of my knowledge, no court has addressed the issue of whether Nash v. Wells Fargo Guard Services, 678 So.2d 1262 (Fla. 1996) requires a defendant to plead the fault of a co-defendant who settles. I think that requirement is implicit, if not explicit in Nash. I have fully briefed that issue and will be happy to share my thoughts with anyone facing it.

Congratulations to Gus Perez, who did an excellent job at the trial level that enabled me to win this appeal.


Foreign Judgments

Volksbank Regensburg v. Burger
23 Fla. L. Wkly. D84 (Fla. 4th DCA 1997) (en banc)

Section 55.604(1), Florida Statutes, requires a party seeking to enforce a foreign judgment to record the judgment. It requires the clerk to mail notice to the judgment debtor by certified mail, giving 30 days to file an objection. The court en banc recedes from a prior opinion and now holds that in addition to the thirty days, the clerk must allow an additional five days for mailing under Rule 1.090.


Forum Non Conveniens

Resorts International, Inc. v. Spinola
23 Fla. L. Wkly. D207 (Fla. 3d DCA 1998)

Where the plaintiff, a resident of Portugal, was injured in the Bahamas and the only connection of the case to Florida was that some of the corporations had offices in Florida and the plaintiff was hospitalized in Florida, the trial court should have dismissed for forum non conveniens. The inability to obtain a jury trial or representation on a contingency fee basis did not make the Bahamas an inadequate alternative forum.


IME

Brown v. State Farm
23 Fla. L. Wkly. D278 (Fla. 2d DCA 1998)

It was error to prohibit plaintiff’s attorney from attending an examination scheduled by her insurer (inaccurately called an IME because it is not really an “independent” medical examination) where the defense did not introduce any evidence or even an affidavit of the doctor that the presence of counsel would be disruptive. Plaintiff’s attorney had gone to the IME with her, but the doctor had prohibited him from coming into the examination and the plaintiff and her lawyer walked out. The lawyer had also helped the plaintiff fill out the doctor’s questionnaire. There was no showing this was disruptive.

Brompton v. Poy-Wing
23 Fla. L. Wkly. D269 (Fla. 4th DCA 1998)

It was error to enter an order precluding the plaintiff’s attorney from attending a court-ordered neuropsychological examination of the minor plaintiff where the defense doctor’s affidavit did not contain any case-specific justification, just generalities. The general rule is that the presence of an attorney or other representative should be allowed absent a showing of a valid reason to prohibit it.


Insurance -- Agents

Forgione v. Dennis Pirtle Agency
22 Fla. L. Wkly. S204 (Fla. 1997)

An insured may assign a cause of action against an insurance agent for negligently failing to procure adequate insurance.


Insurance — Application

Green v. Life & Health of America
23 Fla. L. Wkly. S42 (Fla. 1998)

Section 627.409, Fla. Stat., provides that recovery under an insurance policy may be denied where the insured has made a material misrepresentation in the application. That section has been construed to allow denial of coverage even when the insured did not know that his representation was false. The Supreme Court now holds that, where an application states that the representations by the insured are true “to the best of my knowledge and belief”, the insurer is required to provide coverage if the insured did not know his answers were false.


Insurance -- Appraisal

Gray Mart, Inc. v. Fireman’s fund Ins. Co.
23 Fla. L. Wkly. D1 (Fla. 3d DCA 1998)

An insurance company may waive its right to an appraisal under the insurance contract by conduct inconsistent with the appraisal remedy. This court requires a showing of prejudice to the insured. That showing was made in this case where the insurer actively litigated the case without raising the issue, until after its motion for summary judgment was denied on the eve of trial. The court again acknowledges that its ruling requiring a showing of prejudice conflicts with Donald & Co. Sec., Inc. v. Mid-Florida Community Servs., Inc., 620 So.2d 192 (Fla. 2d DCA 1993) and Finn v. Prudential Bache Sec., Inc., 523 So.2d 617 (Fla. 4th DCA), rev. denied, 531 So.2d 1354 (Fla), cert. denied, 488 U.S. 917 (1988).


Insurance — Assignment

Lexington Ins. Co. v. Simkins Industries, Inc.
23 Fla. L. Wkly. S41 (Fla. 1998)

An insurance policy provision that prohibited the insured from assigning the policy without the express written agreement of the insurer was enforceable against a mortgagee to which the insured attempted to assign the policy as part of the security for the mortgage. The purpose of the provision is to protect the insurer against risks it has not bargained for.


Insurance -- Bad Faith

State Farm v. Zebrowski
22 Fla. L. Wkly. S726 (Fla. 1997)

In Auto-Owners Ins. Co. v. Conquest, 658 So.2d 928 (Fla. 1995), the Supreme Court held that because of the “any person” language in 624.155(1)(a), Florida Statutes, the insurer’s duties under that section run not only to the insured but to a third party claimant. That section of the insurance bad faith statute applies to numerous statutory violations, including, among others, failing to adopt and implement standards for the proper investigation of claims, failing to acknowledge and act promptly upon communications with respect to claims; and denying claims without conducting reasonable investigations. The case contains dicta about failure to settle in good faith, but you can no longer rely on that dicta because of this new decision.

Here, the Court holds that under 624.155(1)(b), which applies to failure to attempt to settle in good faith, the insurer’s duties run only to the insureds and beneficiaries. Therefore, a third party claimant cannot bring a claim under this subsection. However, as to subsection (1)(a), Conquest is still good law.

The statute requires completion of a form which must be filed with the Insurance Commissioner; it allows the insured 60 days to cure the violation before suit may be filed. Under this case, it is more important than ever to carefully fill out the form to make sure that you have not damaged your cause of action by selecting the wrong subsection on the form.


Insurance -- Duty to Defend

American Empire Surplus Lines Ins. Co. v. Gold Coast Elevator, Inc.
22 Fla. L. Wkly. D2690 (Fla. 4th DCA 1997)

Under the claims administration statute, 627.426(2), the insurer cannot deny coverage based on a particular defense unless, among other things, it either gives written notice to the insured by certified mail that it refuses to defend; obtains a nonwaiver agreement from the insured after full disclosure; or “retains independent counsel which is mutually agreeable to the parties.” If the insurer chooses to retain counsel, it cannot just unilaterally select an attorney. The insured’s failure to object to the attorney retained by the insurer is not enough. Therefore, the insured was entitled to independently enter into a settlement without the insurer’s consent. The insurer’s attempt to defend under a reservation of rights without complying with the statute’s requirement is no better than a wrongful refusal to defend.


Insurance — Exclusions

Deni Assoc. v. State Farm
23 Fla. L. Wkly. S59 (Fla. 1998)

The supreme court rejects the “doctrine of reasonable expectations”, adopted by the Fourth DCA below and by many jurisdictions, in interpreting insurance policies. The court also holds that a pollution exclusion is clear and unambiguous and applies to all kinds of pollution, not just industrial or environmental pollution. It excludes coverage for fumes resulting from a spill of ammonia from a blueprint machine that was being moved. (I suppose now we can refer to this exclusion as the spill exclusion). Justice Wells, dissenting argues that this interpretation allows the exclusion to swallow the policy, so that it would no longer be a comprehensive general liability policy that it was represented to be when it was sold.


Insurance -- PIP

Pizzarelli v. Rollins
22 Fla. L. Wkly. D2632 (Fla. 4th DCA 1997)

Under 627.736(3), a PIP insured may not recover damages for which PIP benefits are “paid or payable”. This court construes this provision to mean only benefits that have actually been paid or that have accrued but have not yet been paid because the carrier has not yet processed them. Therefore, an insured may recover from the tortfeasor future expenses that have not yet been incurred, even if there theoretically might be PIP available to pay them. The Court notes conflict with Kokotis v. DeMarco, 679 So.2d 296 (Fla. 5th DCA 1996), and certifies the following question to the Supreme Court:

Whether the term “paid or payable in 627.736, Florida Statutes (Supp. 1996) should be defined as “that which has been paid or presently earned and currently owing” so that the statutory language of 627.736 will not be interpreted to permit any remaining personal injury protection benefits to be used for set-offs for future collateral sources.


Jurisdiction -- Long Arm

Pafco Gen. Ins. Co. v. Wah-Wai Furniture Co.
22 Fla. L. Wkly. D2636 (Fla. 3d DCA 1997)

A defendant who is engaged in continuous and systematic activity in Florida may be sued in Florida whether or not the claim arises from their Florida activity. It does not matter where the claims accrued or whether there was any “connexity” between the claims and this case. See 48.193(2), Florida Statutes.


Jury Selection — Challenge for Cause

Millstone v. Mutual Security Life Ins. Co.
23 Fla. L. Wkly. D268 (Fla. 3d DCA 1998)

Where the trial court denied plaintiff’s challenge for cause and the plaintiff used a peremptory challenge on the juror, exhausted his peremptoriness and requested an additional peremptory, the issue was not preserved for appellate review because the plaintiff did not renew his objection immediately before the jury was sworn, even though he made no statement affirmatively accepting the jury. Judge Sorondo, dissenting, calls this an “exercise in futility”.

Wallace v. Holiday Isle Resort and Marina, Inc.
23 Fla. L. Wkly. D269 (Fla. 3d DCA 1998)

This plaintiff also lost the right to review of the denial of a challenge for cause by failing to renew the objection right before the jury was sworn.


Legal Malpractice

Norris v. Silver
22 Fla. L. Wkly. D278 (Fla. 3d DCA 1997)

A referring attorney could be held responsible for the negligence of the attorney to whom he referred the case even where there was no written fee agreement, where there was an express or implied agreement for payment of a referral fee. The court certifies the question to the Supreme Court.

Sure Snap Corp. v. Batna
23 Fla. L. Wkly. D72 (Fla. 3d DCA 1998)

A client suing an attorney for malpractice in failing to preserve the client’s claim against the third party must prove that the client would have won the claim against the third party.

Crosby v. Jones
23 Fla. L. Wkly. S26 (Fla. 1997)

In a legal malpractice action, an attorney’s good faith judgment calls based on honest and informed discretion in providing professional advice in an unsettled area of law is immune from liability. In this case, there were conflicting DCA decisions and the attorney chose to follow the one that was later rejected by his DCA in his case. The court holds he did not have a duty to advise his client of the conflict in DCA decisions, and that the attorney was entitled to summary judgment on the legal malpractice claim.


Limitations

Mezroub v. Capella
22 Fla. L. Wkly. D2665 (Fla. 2d DCA 1997)

Section 95.10, Florida Statutes, the “borrowing statute”, provides that when a cause of action arose in another jurisdiction, and that jurisdiction’s statute of limitations has expired, the action cannot be maintained in Florida even if Florida has a longer statute of limitations. This case holds that determining where the cause of action arose depends not on where the accident happened, but on which state has the most significant relationship to the cause of action with respect to the particular issue.


Mediation

Nunes v. Ferguson Enterprises, Inc.
22 Fla. L. Wkly. D2687 (Fla. 4th DCA 1997)

Where a mediation was scheduled and an attorney did not attend and told his clients that they did not have to attend, the trial court had inherent power to assess attorneys fees and costs against the attorney as a sanction.


Motion Calendar

BMS of Broward, Inc. v. Carter
22 Fla. L. Wkly. D2671 (Fla. 3d DCA 1997)

Motion calendars are designed mainly for matters that can be resolved simply on the basis of argument of counsel, although a trial court may hear testimony in uncontested matters or on the agreement of all involved. However, testimony on disputed matters comes as a surprise at motion calendar. Because the motion to transfer venue in this case was scheduled on the motion calendar, the opponent reasonably assumed testimony would not be taken. Therefore, it was error to deny a motion for continuance at the hearing and to grant a transfer of venue, without allowing the appellant an opportunity to present his witnesses at a properly set hearing.


Negligence — Duty

Florida Power & Light Co. V. Pereira
23 Fla. L. Wkly. S29 (Fla. 1998)

The plaintiff’s violation of a statute by operating a motorcycle on a bike path did not relieve the defendant of its duty to safely maintain the bike path, although it is prima facie evidence of comparative negligence.

O’Keefe v. Orea
23 Fla. L. Wkly. D242 (Fla. 1st DCA 1998)

Expressly disagreeing with the 3d DCA’s decision in Boynton v. Burglass, 590 So.2d 446 (Fla. 3d DCA 1998), this court holds that a psychiatrist who knew that the patient was dangerously psychotic and violent, had attacked three people before his hospitalization, required constant supervision and was hostile to his parents, had a duty to warn the parents of a possible attack. The case is distinguishable from Boynton because the patient’s mother was also a patient of the defendant, and because the patient was a minor. The court reasons that the parents, who had the right to consent to medical treatment for their child, had a right to an accurate diagnosis. The duty stems from the doctor’s fiduciary relationship with the parents of a minor, as well as his fiduciary relationship with the mother who was his patient.


Offer of Judgment

Matheos v. Friar
22 Fla. L. Wkly. D2717 (Fla. 5th DCA 1997)

Under an earlier version of the statute, an offer of judgment, sent by mail, was subject to the five day mailing provision of Fla. R. Civ. P. 1.090(e), so that the offeree had 35 days from the date of the mailing in which to respond. Therefore, because the offer was not mailed 35 days before trial, the offeror was not entitled to attorneys fees. Caveat: The amended rule now makes the five day extension inapplicable, but requires the offer to be served at least 45 days before trial.

Bodek v. Gulliver Academy
22 Fla. L. Wkly. D2743 (Fla. 3d DCA 1997)

An offer of judgment made to “the plaintiffs” complies with the requirement that the offer name the party to whom it is being made. The offer need only state the total amount, and need not specify the amount being offered to each plaintiff, where there are multiple plaintiffs. Even though the plaintiffs could not settle the minor plaintiff’s claim without court approval, the offer was valid, subject to the court’s approval.


Pleading

McWhirter v. Weiss
23 Fla. L. Wkly. D250 (Fla. 2d DCA 1998)

It was error for the trial court to review the pleadings of another case and dismiss the complaint based on judicial estoppel. This issue is properly raised by summary judgment. Moreover, the court erred in striking relevant portions of the complain that were not “palpably or inherently false”.


Premises Liability

Siegel v. Deerwood Place Corp.
22 Fla. L. Wkly. D2527 (Fla. 3d DCA 1997)

In Mansur v. Eubanks, 401 So.2d 1328 (Fla. 1981), the Supreme Court held that, in a residential tenancy, after the tenant takes possession, the landlord has a continuing duty to exercise reasonable care to repair dangerous defective conditions upon notice of their existence by the tenant, unless waived by the tenant. The court holds that Mansur overruled by implication Colon v. Lara, 389 So.2d 1070 (Fla. 3d DCA 1980), which had required a showing of fraud or concealment.

Lotto v. Point East Two Condominium Corp.
23 Fla. L. Wkly. D73 (Fla. 3d DCA 1997)

Reversing a summary judgment for the defense, the court holds that even though the plaintiff had walked over the cracked sidewalk many times and knew of its condition, so that the premises owner did not have a duty to warn, the premises owner still had a duty to properly maintain and repair the sidewalk.


Privilege

Myron v. Doctors General Hospital Ltd.
23 Fla. L. Wkly. D105 (Fla. 4th DCA 1997)

Under Section 415.51(10), Fla. Stat, reports in a child abuse investigation by HRS are not admissible in a private negligence action. See Cebrian v. Kleig, 614 So.2d 1209 (Fla. 4th DCA 1993). The plaintiff did not waive this privilege or open the door to this evidence by preemptively introducing a letter from HRS to the plaintiff reporting the file had been closed as “unfounded”, because the defendant’s whole theory of the case was that the plaintiffs had caused the child’s brain damage by child abuse, and the plaintiff preemptively introduced this evidence to negate the defense theory.

See also discussion above under Experts.


Service of Process

Thomas v. Silvers
22 Fla. L. Wkly. D2532 (Fla. 3d DCA 1997)

The Third District holds that an order denying a motion to dismiss for failure to serve a complaint on defendants within 120 days of filing is not appealable. The court certifies conflict with the decisions of the Fourth and Fifth Districts.


Sovereign Immunity

Brown v. State
22 Fla. L. Wkly. D2684 (Fla. 1st DCA 1997)

A government agency may be estopped to assert the lack of notice under the sovereign immunity statute where the agency has not only investigated the claim but has taken action that would lead a reasonable person to conclude that further notice is unnecessary, or that causes such person to act or fail to act to his injury. Here, the plaintiff might be able to meet this standard based on letters sent by the Department of Insurance acknowledging receipt of “notice”, stating that the Department was conducting a review and evaluation of the incident, and asking for further information regarding the “claim.”

City of Live Oak v. Harris
22 Fla. L. Wkly. D2772 (Fla. 1st DCA 1997)

The sovereign immunity statute, 768.28(8), limits attorneys fees in a tort action against the sovereign to 25%. Here the court holds that the sovereign immunity statute controls over the offer of judgment statute, so that even under the offer of judgment statute, the prevailing plaintiff can recover no more than 25% against the sovereign. The court notes the unfairness (because an award against the plaintiff is not limited) and suggests that the remedy lies with the legislature, not the courts.


Survival of Actions

ACandS, Inc. v. Redd
22 Fla. L. Wkly. D2741 (Fla. 3d DCA 1997)

Where the injured plaintiff died during trial as a result of his injuries, his cause of action abated and his wife’s cause of action for loss of consortium also abated. It was error to allow the trial to continue on the wife’s claim, and also to allow the wife to give detailed testimony about the husband’s suffering, which resulted in a verdict the court calls “excessive”. On the survival issue, the court certifies conflict with Taylor v. Orlando Clinic, 555 So.2d 876 (Fla. 5th DCA 1989), rev. denied, 567 So.2d 435 and 436 (Fla. 1990).