July 1996


Assumption of Risk

Donaldson v. Cenac
21 Fla. L. Wkly. D1444 (Fla. 1st DCA 1996)

Where the plaintiff allowed the defendant, who was not a chiropractor, to perform a chiropractic maneuver on her back, her claim was not barred by assumption of risk and it was error to submit that defense to the jury. The incident must be analyzed under comparative negligence.


Civil Rights

Garcia v. Reyes
21 Fla. L. Wkly. D1424 (Fla. 4th DCA 1996)

The defendants did not deprive the plaintiff’s children of their constitutional right to family association where the plaintiff was wrongfully incarcerated and separated from his children for thirty months. The court recognizes a cause of action only when the plaintiffs have been permanently deprived of their right to familial association. Judge Pariente dissents, noting a substantial number of federal cases recognizing such a cause of action, and the substantial deprivation the children suffered as a result of the nearly three-year separation from their father.


Discovery

Udkoff v. Hiett
21 Fla. L. Wkly. D1616 (Fla. 2d DCA 1996)

The court may not compel a plaintiff to draw a diagram requested by the defendant’s lawyer at the plaintiff’s deposition.


Economic Loss Rule

Williams v. Peak Resorts International
21 Fla. L. Wkly. D1622 (Fla. 5th DCA 1996)

The economic loss rule did not bar a claim for fraud in the inducement where the claimants demonstrated that the economic losses they were seeking under the fraud claim were different from their breach of contract damages.


Fabre

Nash v. Wells Fargo Guard Services
21 Fla. L. Wkly. S292 (Fla. 1996)

This case contains several important rulings on Fabre, and no hint about whether the court has any intention of overruling Fabre -- although I doubt they would be doing so much fine tuning if they seriously were going to overrule it.

First, the court holds that when a new trial is required based on a Fabre error, the new trial should be limited to liability, and not damages.

Second, the court holds that the defendant has the burden of pleading the negligence of a nonparty and specifically identifying the nonparty. While amendment may be allowed pursuant to Rule 1.190, “notice prior to trial is necessary...”

Third, “the defendant has the burden of presenting at trial [evidence] that the nonparty’s fault contributed to the accident in order to include the nonparty’s name on the verdict.” The court cites with approval W.R. Grace & Co. Conn v. Dougherty, 636 So.2d 746 (Fla. 2d DCA), rev. denied, 645 So.2d 457 (Fla. 1994). In a footnote, the court cites with approval several out of state cases which hold that the burden of proving the negligence of a nonparty is the same as the burden of proving the comparative negligence of the plaintiff -- a preponderance of the evidence. Fourth, the court also holds that “the named defendant cannot rely on the vicarious liability of a nonparty to establish the nonparty’s fault.” I think the court means here that, for example, the jury should not apportion fault between the negligent defendant and someone who is vicariously liable for the negligence of the defendant.

Wal-mart Stores, Inc. v. McDonald
21 Fla. L. Wkly. D1369 (Fla. 1st DCA 1996)

Aligning itself with the Fourth District in Slawson v. Fast Food Enterprises, 21 Fla. L. Wkly. D846 (Fla. 4th DCA 1996) -- and with Judge Jorgenson’s excellent dissent in the Third District in Stellas v. Alamo, 21 Fla. L. Wkly. D1202 (Fla. 3d DCA 1996) -- the court holds that, in a negligent security premises liability case, where the plaintiff contends the defendant negligently failed to protect him from a foreseeable criminal attack, the jury should not be instructed to apportion the fault of the intentional tortfeasor on the verdict form.

(See additional issues discussed below under Premises Liability).


Forum Non Conveniens

Pearl Cruises v. Bestor
21 Fla. L. Wkly. D1429 (Fla. 3d DCA 1996)

An action against an Italian shipowner and agents of an Italian cruise line by California citizens who, through their travel agent in Massachusetts, booked passage on an Italian cruise liner and were injured in an automobile accident on a side trip to Vietnam should have been dismissed based on the doctrine of forum non conveniens. The court finds Italy an appropriate alternative forum. Judge Cope dissents, arguing that the defendant should have the burden of demonstrating an appropriate alternative forum in the United States.


Impact Rule

Tanner v. Hartog
21 Fla. L. Wkly. D1515 (Fla. 2d DCA 1996)

The court holds that the impact rule precludes a husband’s recovery for his mental pain and anguish because of negligence resulting in the stillbirth of a child. (His consortium claim was dismissed under the statue of limitations). The court certifies to the Supreme Court the question:

Does the law of this state support a cause of action for emotional damages of an expectant father and mother resulting from a stillbirth caused by the negligent act of another?


Insurance -- Appraisal

Atencio v. U. S. Security Ins. Co.
21 Fla. L. Wkly. D1472 (Fla. 3d DCA 1996)

It was error to require appraisal of an insurance claim where the only disputed issue was whether the insurer was required to pay for loss of use of the vehicle or only the $10 per day rental fee, and the appraisal provision referred to appraisal of the “amount of loss.” Parties should only be compelled to arbitrate issues which they have specifically agreed to arbitrate; questions of legal interpretation are for the court.


Insurance -- Bad Faith

North American Van Lines v. Lexington Ins. Co.
21 Fla. L. Wkly. D1564 (Fla. 4th DCA 1996)

In a thorough and well-reasoned decision by Judge Warner, the court holds that a judgment in excess of policy limits was not a prerequisite here to the insured’s action for bad faith and breach of contract against its two insurance companies.

The insured had two layers of coverage. The first layer was an indemnity policy under which the insured defended the claim and the insurer would pay the judgment up to its policy limits, as well as defense expenses. The second layer was an excess policy which left the responsibility to defend to the insured or the primary carrier; the excess carrier was not obligated to pay until the underlying carrier or the insured paid the underlying limits. During the course of the litigation, several offers of settlement were made which were less than the total coverage of the two policies, but the insurers refused to tender. (The underlying carrier refused to tender its limits, and the excess carrier contended it had no obligation until the underlying carrier tendered its limits).

Reasoning that an action for bad faith is an action for breach of the contractual duty of good faith -- which is present in all contracts, including indemnity and excess policies -- the court holds that where, as here, the insured has paid the entire judgment, “no excess judgment is required, because the insured has paid an obligation for which the insurers should have been liable had they not breached the contract by refusing in good faith to settle.

The practical reason for requiring an excess judgment in cases involving liability policies is not applicable here, because the insured here is already personally exposed to liability.


Insurance -- Cancellation

Fidelity & Deposit Co. of Maryland v. First State Ins. Co.
21 Fla. L. Wkly. S265 (Fla. 1996)

Section 627.848, Florida Statutes requires written notification to a mortgagee before cancellation of insurance on the mortgaged property by a premium finance company. The court holds that actual telephone notice is not sufficient.


Insurance -- Exclusions

Yampierre v. Seminole Cas. Ins. Co.
21 Fla. L. Wkly. D1505 (fla. 5th DCA 1996)

An automobile liability policy which provided coverage for damages for which any covered person becomes legally responsible because of an auto accident, and which excluded liability coverage for damages sustained by “any insured,” was ambiguous. It could not be construed to exclude coverage for the insured’s daughter, who was injured while a passenger in a car driven by the insured, where the daughter was not a member of the insured’s household but was listed as a designated driver of one of the insured’s vehicles on the insurance application. At the time of the accident, the daughter was not using the insured’s vehicle, she was merely a passenger in it.


Insurance -- UM

Allianz Ins. Co. v. Halpenny
21 Fla. L. Wkly. D1382 (Fla. 3d DCA 1996)

Section 627.727(1) requires the insurer to notify the insured at least annually of his options for uninsured motorist coverage. The notice must be part of, and attached to, the notice of premium, provide for a means to allow the insured to requests such coverage, and be given in a manner approved by the Dept. of Insurance. Because the insurer failed to comply with the requirements, the insured was entitled to UM coverage equal to the liability limits set forth in the policy.

The Travelers Ins. Co. v. Warren
21 Fla. L. Wkly. S315 (Fla. 1996)

A passenger in an insured vehicle who was injured in a one-car accident and was paid the liability policy limits, whose damages exceeded the policy limits, may not also recover under the same policy for UM benefits where the policy excludes the insured vehicle from the definition of uninsured vehicle. The law does not require stacking of liability and UM coverage.


Jurisdiction -- Longarm

Avnet, Inc. v. Nicolucci
21 Fla. L. Wkly. D1393 (Fla. 2d DCA 1996)

In a civil action for conspiracy, the court holds that to obtain jurisdiction, it is sufficient to meet the requirements of the Long Arm Statute, 48.193, and that minimum contacts requirements need not be met. I think this decision may be incorrect, because the minimum contacts requirements are constitutional due process requirements. See International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154 (1945).


Med Mal -- Limitations

Wood v. Fraser
21 Fla. L. Wkly. D1387 (Fla. 2d DCA 1996)

The court reaffirms its holding in Moore v. Winter Haven Hospital, 579 So.2d 188 (Fla. 2d DCA), rev. denied, 589 So.2d 294 (Fla. 1991) that the four year statute of repose for medical malpractice actions in 95.11(4)(b) is tolled by the service of a notice of intent. To the best of my knowledge, this is the only DCA that has considered this question. While trial courts throughout the state are bound by this decision, it’s best not to rely on it if you don’t have to until definitive word from the Supreme Court.

The court also castigates the trial judge for, in effect, overruling Moore, which it had no authority to do. The trial judge had apparently issued an elaborate ruling explaining why he thought Moore was no longer good law in light of subsequent cases. The DCA points out here -- correctly, in my opinion -- that the later cases could not have the effect of overruling an earlier case when thy did not involve the same questions and the same facts.

Robinson v. West Florida Regional Medical Center
21 Fla. L. Wkly. D1439 (Fla. 1st DCA 1996)

The plaintiff, a patient in a psychiatric facility, was attacked by another patient in her room at the facility. The plaintiff sued the facility for failure to provide adequate security and protection. The court held that this was a premises liability case, not a malpractice case, and therefore the medical malpractice statute of limitations did not apply. The court notes that when there is doubt about the applicability of a short statute of limitations, it generally should be resolved in favor of the claimant. See also Hicks v. Baptist Hospital, 21 Fla. L. Wkly. D1499 (Fla. 1st DCA 1996), discussed below under Med Mal Presuit.


Med Mal -- Presuit

Hicks v. Baptist Hospital, Inc.
21 Fla. L. Wkly. D1499 (Fla. 1st DCA 1996)

Where the plaintiff alleged that the decedent died in the defendant’s hospital of smoke inhalation when another patient set fire to his bed, the action was for premises liability, not malpractice, and it was error to dismiss the complaint for failure to comply with presuit requirements.

Melanson v. Agravat
21 Fla. L. Wkly. D1542 (Fla. 1st DCa 1996)

The complaint was properly dismissed for failure to comply with presuit discovery where the plaintiff was out of town and unavailable to meet with her attorney until after the expiration of the ninety days and the defendant refused to agree to an extension of the presuit period. The plaintiff’s failure to respond at all was unreasonable where the plaintiff could have supplied at least some of the requested information without meeting with her attorney.

The plaintiff could not cure the failure to comply by serving a second notice of intent and restarting the entire process. The court acknowledges the holding in Patry v. Capps, 633 So.2d 9 (Fla. 1994) that restrictions on access to courts must be construed in a manner that favors access, but holds that, since the statute of limitations is tolled during the presuit period and there is no evidence of legislative intent to toll it twice, a party is entitled only to one presuit period.

I’m not sure if the court is correct, but this decision is binding in the trial courts statewide because there is no other decision addressing it, as far as I can find. Therefore, beware of this problem and make at least your best efforts to comply with presuit discovery.


Negligence -- Duty

Johnson v. Walgreen Co.
21 Fla. L. Wkly. D1543 (Fla. 1st DCA 1996)

A pharmacist who accurately filled the decedent’s lawful prescriptions from different doctors had no duty to warn the plaintiff or his doctors of the potential deadly interactions of the combination of drugs.


Offer of Judgment

Knealing v. Puleo
21 Fla. L. Wkly. S263 (Fla. 1996)

Section 44.102(6), Florida Statutes, enlarges the time to serve an offer of judgment when a court ordered mediation has taken place. The Supreme Court holds the statute unconstitutional. Only the Supreme Court, not the legislature, can make procedural rules. Therefore, an offer of judgment which is made after a mediation still has to comply with the time requirements of Rule 1.442.

The court also reiterates its holding in TGI Friday’s, Inc. v. Dvorak, 663 So.2d 606 (Fla. 1995) that the reasonableness of the rejection of the offer may not be considered in determining whether the offering party is entitled to fees.

Dynasty Express Corp. v. Weiss
21 Fla. L. Wkly. D1425 (Fla. 4th DCA 1996)

Any withdrawal of an offer of judgment must be in writing; a verbal withdrawal is ineffective. Where the offer was accepted before it was withdrawn in writing, the earlier verbal withdrawal was not effective. However, the defendant contended that it made its offer based on false testimony given by the plaintiff. The court holds that the defendant is entitled to a rule 1.540 hearing on this allegation.


Premises liability

Wal-mart Stores, Inc. v. McDonald
21 Fla. L. Wkly. D1369 (Fla. 1st DCA 1996)

In addition to holding that the intentional tortfeasor does not go on the verdict form, the court also holds that the lessor could be held responsible where the evidence showed that the lessor maintained some control over the parking lot and public access to it. “[A] landlord and a tenant can have concurrent duties to provide reasonably safe premises.” The court distinguishes Publix v. Jeffery, 650 So.2d 122 (Fla. 3d DCA 1995) because here neither landlord nor tenant exercised exclusive control over the parking area.


Product Liability

King v. Cutter Laboratories
21 Fla. L. Wkly. D1519 (Fla. 2d DCA 1996)

The court declines to apply the market share theory of liability to a case involving the transmission of HIV to a hemophiliac through Factor VIII concentrate procured from multiple sources, but certifies the question to the Supreme Court.


Recusal

Hatcher v. Clark
21 Fl. L. Wkly. D1364 (Fla. 1st DCA 1996)

When a party moves for the first time in a case to recuse a judge, the judge may not address the truth of the allegations, and may only rule on their legal sufficiency. However, where a party has once recused a judge, the next judge may consider the truth of the allegations in any successive motion. This rule applies separately to each party.


Products Liability

Mosher v. Speedstar
21 Fla. L. Wkly. S270 (Fla. 1996)

The products liability statute of repose, repealed in 1986, rears its ugly head again. In Firestone v. Acosta, 612 So.2d 1361 (Fla. 1992), the Supreme Court held that manufacturers had a vested right in the statute of repose that could not be taken away after the statute had expired, even though it was subsequently repealed. The plaintiff was injured before repeal, but during a time period in which the court had held the statute unconstitutional in Battilla v. Allis Chalmers Mfg. Co. 392 So.2d 874 (Fla. 1980). The court later receded from Battilla in Pullum v. Cincinnati, Inc., 476 So.2d 657 (Fla. 1985).

Did you follow all that? Good. Here, the Supreme Court holds that the plaintiff was entitled to rely on the unconstitutionality of the statute of repose because he was injured between the time of the decision in Battilla and the time of the decision in Pullum. See Frazier v. Baker Material Handling, Inc., 559 So.2d 1091 (Fla. 1990). The court holds that Acosta did not vitiate the reliance exception.

Agency for Health Care Admin. v. Associated Industries of Florida
21 Fla. L. Wkly. S277 (Fla. 1996)

The Medicaid Third Party Liability Act which allows the state to pursue third party tortfeasors (i.e. tobacco companies) to recoup Medicaid expenditures is constitutional. This is the statute as to which there was such a big brouhaha in Tallahassee.

The act is intended to create an independent cause of action to which traditional defenses do not apply; thus the legislature does not have to allow a comparative negligence or assumption of risk defense. It does not violate due process to allow the state to proceed without identifying individual recipients.

The act properly allows both market share liability and joint and several liability, but both can’t be used in the same case at the same time.

However, the portion of the statute that abolishes the statute of repose defense is unconstitutional as applied to claims that were barred by the statute of repose before its enactment.

The Act is applicable to causes of action accruing after its enactment.


Punitive Damages

Strasser v. Yalamanchi
21 Fla. L. Wkly. D1421 (Fla. 4th DCA 1996)

The trial court allowed the plaintiff to amend his complaint to add punitive damages, holding that it would decide at trial whether the plaintiff had a reasonable basis for the punitive damages claim. This was error. See Simeon, Inc. v. Cox, 671 So.2d 158 (Fla. 1996), Globe Newspaper Co. v. King, 658 So.2d 518 (Fla. 1995).

However, the court rejects the defendants’ contention that the plaintiff must demonstrate grounds for punitive damages at an evidentiary hearing. The plaintiff may instead make a proffer of the evidence supporting the basis for punitive damages. It’s not entirely clear whether the Third District is in accord, although it probably is. See Walt Disney World Co. v. Noordhoek, 21 Fla. L. Wkly. D980 (Fla. 3d DCA 1996), where the plaintiff made a proffer but the court granted leave to amend without determining whether it was sufficient, and the Third DCA reversed.


Rule 1.540

Lee & Sakahara Assoc. v. Boykin Management Co.
21 Fla. L. Wkly. D1584 (Fla. 4th DCA 1996)

A court could use Rule 1.540 to correct plaintiff’s mistaken, accidental dismissal of a non-settling defendant in the course of dismissing settling defendants.


Sovereign Immunity

McGhee v. Volusia County
21 Fla. L. Wkly. S293 (Fla. 1996)

The government is not necessarily immune for the intentional torts of its employees. This case involved a sheriff’s deputy who beat a handcuffed suspect while he was in custody. The court held that the fact that the deputy may have intentionally abused his office does not in itself shield the sheriff (or any employing government agency) from liability. The government agency is immune as a matter of law only if the employee’s acts are so extreme as to constitute a clearly unlawful usurpation of authority or if there is not even a pretense of lawful right in the performance of the acts. The fact finder must determine whether the deputy acted in bad faith, with malicious purpose, or in a manner exhibiting a wanton or willful disregard of human rights, safety or property. Either the agency or the employee can be held liable, but not both.

I was proud to participate in this case, with Roy Wasson, as cocounsel for the Academy of Florida Trial Lawyers as Amicus. I was also amused to see, in the county’s motion for rehearing, the attorney for the county complaining that the principal case on which the Court relied was cited only by the Amicus. (I guess sometimes we do make a difference).

Dept. of Education v. Roe
21 Fla. L. Wkly. S311 (Fla. 1996)

A nonfinal order denying a defense of sovereign immunity in a state law action is not an appealable order. The court declines to extend Tucker v. Resha, 648 So.2d 1187 (Fla. 1994), which allows appeals from nonfinal orders denying a defense of qualified immunity in a federal civil rights action.