July 1995


Attorneys Fees

Perez v. George, Hartz, Lundeen
20 Fla. L. Wkly. D1437 (Fla. 3d DCA 1995)

The parents of the deceased child were divorced and had separate counsel. The wrongful death case was settled without litigation and an attorneys fees dispute arose in probate court. Each parent had a contingency fee agreement only with the individual firm representing him or her. The father’s attorney did very little to investigate the case. The mother’s attorneys mediated the case and obtained a $500,000 settlement. The court held that, since the mother’s attorney had no written agreement with the father, it had no right to any fee from the father. The "common fund" rule did not entitle the firm to any fees from the father. Nor could the father’s attorney recover any fees from the father because he did nothing to procure the settlement. The court found his work "nominal and inconsequential." The court remanded for an award to the mother’s attorney of one-third of the mother’s recovery; a determination of a reasonable fee to the father’s attorney commensurate with the amount of work he performed; and placement of all remaining funds into the child’s estate.

This case suggests that in a wrongful death case, the firm representing the estate should try to get the retainer agreement signed by all of the survivors.

Miller v. Transflorida Bank
20 Fla. L. Wkly. D1505 (Fla. 4th DCA 1995)

Prejudgment interest cannot be awarded on an attorneys fees awards because attorneys fees do not constitute liquidated damages.


Contribution

Carpenter v. Bachman Enterprises
20 Fla. L. Wkly. D1517 (Fla. 3d DCA 1995)

A defendant could settle with the injured plaintiff and assign its contribution rights to the plaintiff. The statute of limitations applicable to the plaintiff’s claim on the assignment was the contribution statute of limitations, not the tort statute of limitations, and ran from the date of the settlement agreement. See also Robarts v. Diaco, 581 So.2d 911 (Fla. 2d DCA 1991), rev. denied 591 So.2d 183 (Fla. 1991) (recognizing that contribution rights are assignable).


Damages

Pascale v. Federal Express
20 Fla. L. Wkly. D1457 (Fla. 4th DCA 1995)

The trial court incorrectly directed a verdict in favor of one defendant in a three car accident. The jury returned a $6.8 million dollar verdict against the other defendant, Federal Express. The court held that the error was not harmless because, even though the amount of damages would have been the same, the error deprived the plaintiff of one solvent defendant against which to execute. The court refused to assume that Federal Express could satisfy the whole judgment. The court does not address any Fabre issue in this curious opinion.


Default

Byfield v. Coutts & Co.
20 Fla. L. Wkly D1547 (Fla. 4th DCA 1995)

Where the defendant has filed a responsive pleading before entry of a default, the default must be set aside. Fla. R. Civ. P. 1.500.

Brooks v. Ocean Village Condo. Assoc.
20 Fla. L. Wkly. D1441 (Fla. 3d DCA 1995)

It was error to enter a default ex parte where the defendant had sent a letter to the plaintiff and plaintiff’s counsel in response to the complaint. Rule 1.500 prohibits the ex parte entry of a default when the defendant has filed or served any paper in the action. The defendant’s letter was a "paper" which was "served".


Deposition

United Teachers Assoc. Insurance Co. v. Vankwinkle
20 Fla. L. Wkly. D1567 (Fla. 3d DCA 1995)

Absent extraordinary circumstances, the deposition of a non-resident officer of a non-resident corporate defendant not seeking affirmative relief must be taken at the deponent’s place of residence. The defendant should not be required to pay the plaintiff’s counsel’s travel costs.

Medero v. Fla. Power & Light
20 Fla. L. Wkly. D1442 (Fla. 3d DCA 1995)

Plaintiff deposed the C.E.O. of Florida Power & Light, who denied any knowledge of the facts in this wrongful death case, but repeatedly identified another executive as potentially having knowledge regarding allegations of negligence in placement of power lines. The trial court entered a protective order and denied leave for plaintiff to depose the executive identified by the C.E.O. The court granted certiorari and held that it was error to prevent the deposition of a material witness.


Discovery -- IME

Palank v. CSX Transp., Inc.
20 Fla. L. Wkly. D1513 (Fla. 4th DCA 1995)

The plaintiff children in an action for wrongful death of their father could be subjected to an independent psychiatric examination only if the plaintiffs’ mother, counsel for plaintiffs and either a court reporter or tape recorder were present.


Evidence -- Expert

Angrand v. Key
20 Fla. L. Wkly. S289 (Fla. 1995)

This decision leaves open the question of when and how the testimony of a grief expert may be admitted. The court holds that a trial court has broad discretion in determining the subject on which an expert may testify in a particular trial. Under some circumstances, a grief expert’s testimony may be admissible in a death case when it will assist the trier of fact. The court narrows the holding in Holiday Inns, Inc. v. Shelburne, 567 So.2d 322 (Fla. 4th DCA), rev. dismissed, 589 So.2d 291 (Fla. 1991) that grief and bereavement are not within the normal everyday comprehension of jurors.

It appears that what happened in this case was that the trial judge did not think the testimony would be helpful to the jury, but thought he was required by Shelburne to admit it. The supreme court holds that when the trial court does not believe the testimony would be helpful to the jury, the testimony should not be admitted. Consequently, the admission of the testimony here was reversed because it was admitted under a per se rule even though the trial court did not believe it would be helpful to the jury. However, if the judge feels it would be helpful, he may admit it.

State Farm v. Orr
20 Fla. L. Wkly. D1466 (Fla. 4th DCA 1995)

There is still room for directed verdicts in soft tissue cases. Here, the plaintiff presented evidence of subjective pain and expert medical testimony that, based on those subjective complaints, the plaintiff had sustained a permanent injury within a reasonable degree of medical probability. The defense presented no expert testimony and no other evidence which would give the jury a reasonable basis to disbelieve the plaintiff or to reject the expert’s testimony. This court holds that the trial court correctly directed a verdict for the plaintiff. Cf. Easkold v. Rhodes, 614 So.2d 495 (Fla. 1993), allowing the jury to reject the expert’s testimony, where there was some contradictory evidence.


Fabre

By now you’ve all had a chance to read the Supreme Court’s decision in Tallahassee Memorial v Wells, 20 Fla. L. Wkly. S278 (Fla. 1995). Once again I want to thank my co-counsel, Ray Miller and Jeffrey Dickstein, for getting me involved with this case and for working on the amicus brief with me.

I have prepared this hypothetical sample calculation, using round numbers to make it easier to follow. Assume the following:

Settlement with Defendant A $100,000 Verdict against Defendant B $100,000 economic damages $400,000 noneconomic damages $500,000 total verdict Jury finds Defendant B 90% at fault.

1. Economic damages constitute 20 percent of the total verdict. 100,000.00 divided by 500,000.00 = .20

2. Calculate 20 percent of the settlement to determine how much of the settlement is attributable to economic damages. $100,000 settlement X .20 = $ 20,000 of settlement is economic.

3. Subtract economic damages part of settlement from economic damages part of verdict. $100,000 economic damages verdict -20,000 economic damages settlement = $ 80,000 economic damages judgment.

4. To determine noneconomic damages, multiply the noneconomic damages in the verdict by the percent of fault attributed to that defendant by the jury. $400,000 noneconomic damages verdict X .90 percent of fault = $360,000 noneconomic damages judgment.

5. Total Judgment: $ 80,000 economic damages +$360,000 noneconomic damages = $440,000 total judgment.

6. Total Recovery $100,000 settlement +440,000 judgment = $540,000 total to plaintiff.

As you can see, the total that the plaintiff winds up with in this hypothetical, from the settlement plus the judgment, is more than the total amount of the damages found by the jury. Under Wells, the court held that this result is permissible. This will not always be the result. If the economic damages are high compared to the noneconomic damages, or if the jury assigns a nonsettling defendant only a small percentage of fault, the plaintiff could wind up with less.

Kronbach v. Balsys
20 Fla. L. Wkly. D1571 (Fla. 1st DCA 1995)

This is the first post-Wells decision. It deals with calculating the setoff when the nonsettling defendant’s liability is vicarious only. The court holds that as to the settlement by the actively liable tortfeasor, the vicariously liable tortfeasor gets a full setoff. This decision is probably correct, since a substantial body of case law holds that there is no apportionment when a tortfeasor is vicariously liable; they are jointly and severally liable for all damages.

Publix v. Austin
20 Fla. L. Wkly. D1531 (Fla. 5th DCA 1995)

This case confirms that a defendant who gets out on summary judgment does not belong on the verdict form. The vendor who sold alcohol to a minor was entitled to a summary judgment on the issue of willfulness where the only evidence affirmatively showed that the minor did not appear to be a minor at the time of the sale. Consequently, damages should not have been apportioned to the vendor in the verdict, and the intoxicated tortfeasor is responsible for the entire amount of damages.


Failure to Prosecute

Frohman v. Bar-or
20 Fla. L. Wkly. S305 (Fla. 1995)

Fla. R. Civ. P. 1.420(e), dismissal for failure to prosecute, applies to post-trial proceedings such as a motion for deficiency judgment in a mortgage foreclosure. The one year period of inactivity should be measured backward from the time of the motion to dismiss for lack of prosecution. The decision may or may not be limited to mortgage foreclosures.


Hospitals

If you have a client who was treated at a hospital and who belongs to an HMO, you should know that the hospital is prohibited from attempting to collect from the patient the remainder of its bill. Section 641.315, Florida Statutes, provides that no subscriber of an HMO shall be liable to any provider for any services covered by an HMO, and prohibits the provider from attempting to collect from an HMO subscriber any money owed to the provider by the HMO. Moreover, the Federal Unfair Debt Collections Practice Act, 15 U.S.C. 1692(f) prohibits the provider from attempting to collect from the HMO member if it is expressly prohibited by Florida law. Additionally, at least one federal appellate court has held if a hospital accepts partial payment from Medicaid with the understanding that it will be treated as payment in full, the hospital cannot assert a claim against the proceeds later received from a tort suit, even if it offers to give the Medicaid money back. Evanston Hospital v. Hauck, 1 F.3d 540 (7th Cir. 1993).

My thanks to Jay Weiss for calling this to my attention.

The issue of whether the hospital can still assert a lien on tort proceeds is currently pending before the Third District.

Payne v. Humana Hospital Orange Park
20 Fla. L. Wkly. D1575 (Fla. 1st DCA 1995)

A patient has a cause of action against a hospital for unreasonable, unconscionable and excessive charges.


Insurance -- Auto

Heritage Mut. Ins. Co. v. State Farm
20 Fla. L. Wkly. D1571 (Fla. 1st DCA 1995)

Primary coverage for liability for injury to a child who was hit in the head by another child while being transported in a van owned by the insured church was with the auto insurance carrier, not with the general liability carrier. The van was used primarily to transport church members, such as these children, to an from various church-sponsored events. It is foreseeable that children confined to a vehicle on an outing will often become rambunctious, setting off a chain of events such as the one in which this child was injured. Therefore, the injury arises out of the ownership, maintenance or use of the vehicle. Proximate cause is not required.


Insurance -- Bad Faith

Rubio v. State Farm
20 Fla. L. Wkly. D1391 (Fla. 3d DCA 1995)

It was error to dismiss the plaintiffs’ amended complaint with prejudice without giving the insureds the opportunity to allege statutory first party bad faith under 624.155, where the insurer failed to investigate or resolve their claim within months after being notified of the loss.

King v. National Security Fire & Cas. Co.
20 Fla. L. Wkly. D1402 (Fla. 4th DCA 1995)

This case involved bad faith in failing to deliver settlement checks on time. In this action by the insured against the insurer, it was error to instruct the jury on the presumption created by the destruction of evidence where the evidence, phone message slips, was destroyed by the attorney for the injured person, who was not a party and not in the insured’s control, and the insurer did not demonstrate that the message slips were essential to its defense. Therefore, it was error to instruct the jury, and to allow the defense to argue, that "when you destroy evidence it’s unfavorable to you." Cf. Sponco v. Alcover, discussed in the Product Liability section of this Update.

Auto-Owners v. Conquest
20 Fla. L. Wkly. S312 (Fla. 1955)

A third party may bring an action under 624.155, Florida Statutes, for statutory bad faith, against the liability insurer of the tortfeasor. The court overrules Cardenas v. Miami-Dade Yellow Cab Co., 538 So.2d 491 (Fla. 3d DCA 1989).


Insurance -- PIP

Laninfa v. Prudential
20 Fla. L. Wkly. D1534 (Fla. 5th DCA 1995)

An insured who was hit by a car while he was walking on the side of the road pushing his disabled motorcycle was not a "pedestrian" entitled to PIP coverage. The court holds he was "occupying" the motorcycle. Judge Harris dissents.


Insurance -- UM

Hernandez v. Gisonni
20 Fla. L. Wkly. D1458 (Fla. 4th DCA 1995)

The plaintiff settled with two underinsured motorist carriers, and then went to trial against the defendant tortfeasor. The court held that the defendant tortfeasor was not entitled to a setoff for the settlement with the underinsured motorist carriers.

Commercial Union Assurance Co. v. Wynn
20 Fla. L. Wkly. D1515 (Fla. 3d DCA 1995)

A Canadian insurer which had executed a power of attorney designating the Florida Attorney General as its agent for service of process was subject to jurisdiction in Florida, even thought he insurer had never transacted any business in Florida.


Med Mal

Doe v. Young
20 Fla. L. Wkly. D1420 (Fla. 5th DCA 1995)

The plaintiff was sexually assaulted by a hospital employee. She sued the employee for battery and sexual battery, and the hospital for negligent hiring, supervision and retention, and negligent security. The appellate court notes "Petitioners did not allege any medical malpractice claim against the hospital." The trial court granted the hospital’s motion to dismiss for failure to comply with presuit requirements, allowing leave to refile upon compliance with presuit requirements. The petitioners petitioned for certiorari. The court held that certiorari was not available because the order was not a final order and any error by the trial court can be remedied on direct appeal from a final judgment. The decision is puzzling, but the court says twice that this is not a medical malpractice case, so perhaps it will be corrected on remand. A concurring judge argues that compliance with the med mal presuit requirements was necessary.


Psychotherapist-Patient Privilege

Nelson v. Womble
20 Fla. L. Wkly. D1530 (Fla. 5th DCA 1995)

In a personal injury action, the defendant could obtain psychological records developed during post-injury counseling of the injured plaintiff and her joint counselling with her husband. The records are relevant to the plaintiff’s claim for mental anguish and to her husband’s claim for loss of consortium. Cf. Morowitz v. Vistaview Apts., 613 So.2d 493 (Fla. 3d DCA 1993) (no discovery of psychological records in routine personal injury case). There is no indication here whether the counselling related directly to the injuries.


Product Liability

Sponco Mfg. Inc. v. Alcover
20 Fla. L. Wkly. D1566 (Fla. 3d DCA 1995)

The defendant manufacturer had possession of the allegedly defective ladder on which plaintiff was injured. Before plaintiff could inspect it, the manufacturer negligently discarded the ladder. The trial court entered a default on liability against the manufacturer. The court affirmed the default, holding that the plaintiff had adequately demonstrated that he was unable to proceed against the manufacturer or any of the other defendants in the absence of the crucial piece of evidence. The court notes that the factors to be considered include wilfulness or bad faith, the extent of the prejudice to the other parties, and what is required to cure the prejudice. This was the only way to effectively cure the prejudice.

Keller Industries v. Volk
20 Fla. L. Wkly. D1460 (Fla. 4th DCA 1995)

Where the defendant’s expert did not have an opinion on causation of the accident when he was deposed, but formulated an opinion on causation after the trial began, the appropriate remedy was not to exclude all of the expert’s testimony, but to exclude his opinion on causation. See Binger v. King Pest Control, 401 So.2d 1310 (Fla. 1981). The defendant could have wound up winning this one, because on retrial the surprise and prejudice elements will be gone. However, the court wisely refuses to reward the defendant for withholding its expert’s opinion, and holds that he may not testify on causation on retrial.

In addition, the court holds that it was not error to admit evidence of design changes that were made after this ladder was manufactured, but before the accident occurred. Such design changes are not subsequent remedial measures excluded under 90.407. Only remedial measures which take place after the accident are excluded under the rule.


Punitive Damages

Globe Newspaper Co. v. King
20 Fla. L. Wkly. S317 (Fla. 1995)

Section 768.72 creates a substantive right not to be subject to a claim for punitive damages and discovery of financial worth until the trial court makes a determination that there is a reasonable evidentiary basis for punitive damages. The appellate court may review by certiorari whether the trial court has complied with procedural requirements in granting the plaintiff leave to amend, but may not review whether the evidence proffered was sufficient to support punitive damages.


Service of Process

Cannon v. Yager
20 Fla. L. Wkly. D1584 (Fla. 2d DCA 1995)

Section 768.28(7) requires a party suing a sheriff (and most other government entities) to also serve the department of insurance. There is a conflict in the DCA’s over whether this must be done within 120 days under Rule 1.070(i). The first district held that it is an essential requirement to obtain jurisdiction over the defendant. Austin v. Gaylord, 603 So.2d 66 (Fla. 1st DCA 1991). The fifth district held that it is not. Turner v. Gallagher, 640 So.2d 120 (Fla. 5th DCA 1994). The second district now joins the fifth district and holds that the department of insurance may be served beyond the 120 days.