July 2001


Civil Rights

Woodham v. Blue Cross and Blue Shield of Florida, Inc.
26 Fla. L. Weekly D1360 (Fla. 3d DCA 2001)

Plaintiff filed an employment discrimination charge with the EEOC, which operated as a dual filing with the Florida Commission on Human Relations. She did not receive a determination within the 180 days set out in 760.11(3). More than 300 days after filing the charge, she requested a right to sue letter. The EEOC issued a “no cause” determination, a Dismissal and Notice of Rights, which told her she could file suit in state or federal court. Plaintiff filed suit in circuit court. The trial court found the plaintiff’s claim was barred because she failed to request an administrative hearing. The DCA affirmed. The court interprets the statute to allow a suit in state court only if the plaintiff receives a determination of reasonable cause or if the agency fails to act within 180 days. A plaintiff who receives a “no cause” determination can only request an administrative hearing under 760.11(7).

The dissent points out that the plaintiff could have filed suit before she received the letter, and that the letter misled her, and argues that the statute is ambiguous. The majority decision holds that “the very step that is a condition precedent to filing a federal action will act as a complete bar to Woodham’s state suit.” But the purpose of the statute is to give the claimant a choice of whether to file a civil action or pursue an administrative hearing. There is no language in the statute requiring a claimant to request an administrative hearing before filing a lawsuit if a “no cause” determination is received after the 180 day period. “It is not necessary to sacrifice justice at the altar of statutory construction.” In my opinion, the dissent is correct and the majority opinion is contrary to the language and purpose of the statute. The legislature did not intend to set hidden procedural traps for victims of employment discrimination.


Collateral Source

Gonzalez v. Largen
26 Fla. L. Weekly D1562 (Fla. 5th DCA 2001)

The trial court properly denied plaintiff’s motion for mistrial based on the defense introduction of evidence of the plaintiff’s receipt of Medicaid benefits, where the trial court immediately gave a curative instruction and admonished the defense lawyer that if he did it again, the court would grant a mistrial.


Creditors’ Rights

Goldenberg v. Sawczak
26 Fla. L. Weekly S277 (Fla. 2001)

The cash surrender value of a judgment debtor’s single premium deferred annuity contract (which allowed him to surrender the contract before the specified maturity date and receive the cash surrender value) is exempt from execution under 222.14, Florida Statutes.


Evidence — Hearsay

Flores v. Miami-Dade County
26 Fla. L. Weekly D1471 (Fla. 3d DCA 2001)

The trial court properly allowed the defense expert to testify about the contents of the records kept by the plaintiff’s treating physician without introducing the records into evidence. Experts may rely upon hearsay in forming their opinions if that kind of hearsay is relied on during the practice of the experts themselves when not in court.


Fabre

Phillips v. Guarneri
26 Fla. L. Weekly D1354 (Fla. 4th DCA 2001)

This is a very convoluted case, but the essence of the holding is that, when a trial court grants partial summary judgment on the Fabre defenses of multiple defendants for failure to adequately specify the identity of the Fabre defendants, that summary judgment does not act as a determination that a co-defendant was not negligent and cannot support a directed verdict on the merits in favor of that codefendant. Note, however, that where the summary judgment is entered on the merits in favor of one defendant, the remaining defendant cannot assert use that former defendant as a Fabre defendant. See Southern Bell v. Dept. of Transportation, 668 So.2d 1039 (Fla. 3d DCA 1996).

Hyundai Motor Co. v. Ferayorni
26 Fla. L. Weekly D1110 (Fla. 4th DCA 2001)

The court holds that causing an accident because of drunk driving is not an intentional tort. Therefore, the drunk driver belongs on the verdict form in an action against the manufacturer of the plaintiff’s car for defective warning on the use of the seat belt. The court certifies conflict with Nash v. General Motors Corp., 734 so.2d 437 (Fla. 3d DCA), review granted, 749 So.2d 502 (Fla. 1999).


Failure to Prosecute

Metropolitan Dade County v. Hall
26 Fla. L. Weekly S267 (Fla. 2001)

Taking a deposition or making an offer of judgment are actions taken in good faith to move the case toward a conclusion, and constitute good cause for refusing to dismiss for failure to prosecute. Because these activities do not appear on the face of the record, the burden is on the plaintiff to bring them to the court’s attention in writing at least five days before a hearing on a motion to dismiss based on Rule 1.420(e).


Insurance — Appraisal

Allstate Insurance Co. v. Suarez
26 Fla. L. Weekly D1412 (Fla. 3d DCA 2001)

Although appraisals and arbitrations are similar in some respects, they are not identical. Unlike arbitrators, appraisers use their own skill and knowledge, and meet only to iron out differences in the conclusions they reach. Each appraiser visits and inspects the premises and evaluates it. There is no trial-type hearing. Therefore, the umpire did not improperly conduct an informal hearing. The insurer was not entitled to a formal hearing, to examine the plaintiffs or to call any witnesses to testify. The trial court properly confirmed the award.


Insurance — Attorneys Fees

Scottsdale Insurance Co. v. Haynes
26 Fla. L. Weekly D1568 (Fla. 5th DCA 2001)

The nursing home’s liability policy stated “The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of injury to which this insurance applies caused by a medical incident ....” The court held that the policy did not cover the insured’s obligation to pay attorneys fees or costs under the nursing home statute, reasoning that attorneys fees under 400.429 are not damages, but are ancillary to damages. The court acknowledges the apparently contrary opinion of the Third District in Scottsdale Insurance Co. v. Pinecrest Limited Partnership, 739 So.2d 733 (Fla. 3d DCA 1999), but refused to follow it because it was “brief” and therefore of doubtful precedential value.


Insurance — Auto

Siegle v. Progressive Consumers Insurance Co.
26 Fla. L. Weekly D1506 (Fla. 4th DCA 2001)

The court certifies the question to the Florida Supreme Court:

Does an automobile collision policy which provides that the insurer must repair or replace the damaged vehicle ‘with other of like kind and quality’ obligate the insurer to compensate the insured in money for any diminution in market value after the insurer completes a first-rate repairwhich returns the vehicle to its pre-accident level of performance, appearance and function?
The District Court’s answer to this question is “No.”

Allstate Indemnity Co. v. Wise
26 Fla. L. Weekly D1373 (Fla. 2d DCA 2001)

A liability insurance exclusion for “bodily injury or property damage which may reasonably be expected to result from the intentional or criminal acts of an insured person or which are in fact intended by an insured person” did not exclude coverage for the insured, who was intentionally fleeing the police at the time of the crash, but did not intentionally drive her vehicle into the other vehicles. The test for intent is subjective, and should not be determined by tort principles. See Prudential Property & Casualty Co. v. Swindal, 622 So.2d 467 (Fla. 1993). To allow broad interpretation of the exclusion would “contravene the public policy behind the financial responsibility laws.


Insurance — Cancellation

Aries Insurance Co. v. Cayre
26 Fla. L. Weekly D1413 (Fla. 3d DCA 2001)

Section 627.728(5) provides that United States postal proof of mailing, or certified or registered mailing of a notice of cancellation ... to the named insured at the address shown in the policy shall be sufficient proof of notice. When an insurer establishes that a notice of cancellation was mailed in accordance with this provision, the insured is not entitled to present evidence that it was not received. For purposes of this section, United States postal proof of mailing means a United States postal proof of mailing which conforms to the requirements of U.S. postal regulations. The post office has its own form; that form must be used, or the customer’s own form which contains all of the same information as the post office form. A postal employee placing a postmark on the insurer’s computer printout of names and addresses does not meet this requirement. However, if it does not, the question of whether the cancellation was actually mailed and received is a jury question.


Insurance — Dec Action

Ahern v. Odyssey Re (London) Ltd.
26 Fla. L. Weekly D1555 (Fla. 4th DCA 2001)

When the insured was sued, it asked the insurer to provide a defense. The insurer refused, so the insured entered into a Coblentz agreement, based on Coblentz v. Am. Sur. Co. of New York, 416 F.2d 1059 (5th Cir. 1969), involving a consent judgment against the insured and an assignment of the insured’s rights against the insurer, in exchange for an agreement by the plaintiff not to execute on the judgments against the insured. The plaintiffs then sued the insurer, but the court refused to enforce the consent judgment because it believed the plaintiff did not have a claim against the insured. The court held that, because the insurer wrongfully refused to defend its insured, the insurer was bound by the consent judgment against the insured. “An indemnitor will be bound by a settlement agreement in a suit against the indemnitee if the indemnitor had notice of the suit and an opportunity to defend, and the settlement was not the product of fraud or collusion.” In order to enforce the consent judgment, the plaintiff must prove (1) coverage, (2) wrongful refusal to defend, and (3) that the settlement was reasonable and made in good faith.


Insurance — Life

American Heritage Life Insurance Co. v. English
26 Fla. L. Weekly D1559 (Fla. 5th DCA 2001)

The insured died as a result of an a car crash in which he was driving while intoxicated. Coverage was excluded under a provision that stated: This contract does not provide benefits for ... a condition resulting from you being drunk or under the influence of any narcotic unless taken on the advice of a physician.” The court acknowledges that its decision probably conflicts with Blue Cross and Blue Shield of Fla., Inc. v. Steck, 778 So.2d 374 (Fla. 2d DCA 2001). Steck distinguished between direct injuries to the biological system of a person such as liver damage, and indirect injuries caused by the person’s behavior while intoxicated, and holds that only direct injuries fall under this kind of exclusion.


Insurance — PIP

Rader v. Allstate Ins. Co.
26 Fla. L. Weekly D1430 (Fla.4th DCA 2001)

Over Judge Gunther’s dissent, the court holds that the trial court properly dismissed the plaintiff’s complaint which alleged that the PIP insurer had notified her that it would not pay for any future medical treatment, because the plaintiff did not allege that she actually obtained any treatment or incurred any bills that were submitted to Allstate and denied after that time. The anticipatory breach did not relieve the plaintiff of the requirement of incurring and alleging damages in order to state a cause of action for breach of contract. The anticipatory breach only relieved the plaintiff of the requirement of submitting her claims to Allstate 30 days before filing suit. The dissent notes that the plaintiff alleged that she still needed medical treatment, and that she ought to be able to litigate her entitlement to PIP benefits in light of Allstate’s announcement it would not pay further benefits under the policy; she has stated a cause of action to the extent she seeks a judgment determining whether she has in fact reached MMI and whether she is entitled to benefits.

The majority’s decision leaves claimants in a very difficult position when they can’t get further treatment because their insurer refuses to be responsible for the bills. This is contrary to the intent of the PIP statute, in my opinion.

In addition, the court holds that appellate review of the County Court decision by a single Circuit Court judge, rather than by a three judge panel is not a denial of due process.

Maldonado v. Allstate Insurance Co.
26 Fla. L. Weekly D1619 (Fla.2d DCA 2001)

On a certified question of great public importance, the court holds that the residence requirement in 627.736(4)(d)(4) of the PIP statute means “pure residence” and not domicile, legal residence or citizenship. Therefore, a PIP claimant’s status as an illegal alien is “of marginal relevance” which was outweighed by its prejudicial effect where the trial court allowed extensive evidence about it at trial, even though the court instructed the jury that it was not conclusive. The only issue on residency under the statute is whether, at the time of the accident, the claimant was physically present in Florida with no intention of leaving.


Insurance — UM

Liberty Mutual Insurance Co. v. Weiss
26 Fla. L. Weekly D1411 (Fla.3d DCA 2001)

An insurance policy issued to a corporation did not provide UM coverage to an officer of the corporation who was not occupying a vehicle at the time he was injured, but was a pedestrian.


Judges — Recusal

Enterprise Leasing Co. v. Jones
26 Fla. L. Weekly S437 (Fla. 2001)

Oral or written communications made during mediation are confidential and inadmissible as evidence at trial. 44.102(3), Florida Statutes. However, disclosure to the judge of confidential information, including the amount of the plaintiff’s demand and the defendant’s highest offer, does not require recusal of the judge. A motion which merely alleges disclosure of such information to the judge is not legally sufficient because it would not place a reasonable person in fear of not receiving a fair trial.


Jurisdiction — Longarm

Dean v. Johns
26 Fla. L. Weekly D1523 (Fla. 1st DCA 2001)

An Alabama doctor was subject to the jurisdiction of Florida courts for alleged malpractice committed on a Florida resident, where the patient’s Florida doctor referred her to the Alabama doctor; the Alabama doctor’s incorrect diagnosis led to improper treatment and injury in Florida; his reports were used in Florida in the ordinary course of treatment of the Plaintiff in Florida; the doctor had treated over 3200 Florida patients; was licensed to practice in Florida; regularly consulted with Florida doctors by phone and rendered reports to Florida doctors, and owned rental property in Florida. The defendant’s activities satisfied both the longarm statute, 48.193, and the requirements of due process.

Additionally, Florida had a more significant relationship to the case than did Alabama. Therefore, it was error to find that the action was barred by the Alabama statute of limitations. The “borrowing statute”, 95.10, provides that “when the cause of action arose in another state ... and its laws forbid the maintenance of the action because of lapse of time, no action shall be maintained in this state.” This statute required application of Florida law in this case.


Jury Selection — Backstriking

Peacher v. Cohn
26 Fla. L. Weekly D1564 (Fla. 5th DCA 2001)

Refusal to allow a backstrike of a juror after the court began selection of the alternate juror, before the jury was sworn is per se reversible error. This doesn’t do away with the requirement of preserving the objection to the juror, but it does mean that harmless error analysis does not apply. “[T]he right to exercise peremptory challenges is a fundamental part of [the] right to a fair trial and ... the denial of that right should be treated as reversible error . . .”.


Med Mal — Notice

Moss v. Stadlan
26 Fla. L. Weekly D1494 (Fla. 4th DCA 2001)

Florida Rule of Civil Procedure 1.650 provides that a notice of intent sent to any prospective defendant operates as notice to “any other prospective defendant who bears a legal relationship to the prospective defendant receiving the notice.” Therefore, notice to the defendant doctor’s employer operated as notice to the doctor. My advice still is to send notice separately to each prospective defendant, no matter what their relationship, until the Supreme Court conclusively decides what a “legal relationship” is under this rule.


Med Mal — Presuit

St. Mary’s Hospital v. Bell
26 Fla. L. Weekly D1443 (Fla. 4th DCA 2001)

A trial court’s order denying the defendant’s motion to dismiss for failure to comply with presuit could be reviewed by certiorari only to determine whether the trial judge followed Chapter 766 and whether the plaintiff complied with presuit notice and investigation requirements, but not whether the evidence was sufficient to support the presuit investigation. In this case, the mother alleged she took her child to the emergency room and was turned away with only a cursory examination; the hospital argued it was entitled to dismissal because it had no record of the visit which indicated that they had never been to the hospital. The expert affidavit incorporated the mother’s report that she took the child to the hospital but his chest and lungs were not examined. The court noted that “whether the child was ever a patient at the emergency room may emerge as the central fact issue in the case.”


Negligence — Duty

Martinez v. Florida Power & Light Co.
26 Fla. L. Weekly D1414 (Fla. 3d DCA 2001)

The court holds that FP&L did not owe the deceased a duty to maintain or repair a streetlight which was not functioning on the evening the deceased was struck and killed while crossing the street. Judge Shevin dissented, arguing that the complaint adequately alleged FPL’s duty to maintain or repair streetlights, and adequately set out that FPL’s failure to meet its duty was the cause of death. In the view of the dissent, FPL’s denial of that allegation did not entitle it to judgment on the pleadings.

Whitt v. Silverman
26 Fla. L. Weekly S281 (Fla. 2001)

The foreseeability analysis of McCain v. Florida Power Corp., 593 So.2d 500 (Fla. 1992) applies to determine whether a landowner owes a duty of care to persons who may be injured as a result of natural conditions or landscaping on the landowner’s property, where the injury actually occurs off the property. Decisions applying a strict rule absolving a landowner of liability in such circumstances are disapproved. “An inquiry as to the liability of a landowner under the circumstances presented here of a commercial business in an urban area specifically relying on the frequent coming and going of motor vehicles should be guided by a foreseeability analysis, which, as we have frequently stated, is governed by our pronouncements in McCain.” The landowners here, who owned a commercial establishment which involved a continuous flow of traffic in and out of the premises, and who had exclusive control over the landscaping on the premises, created a foreseeable zone of risk posing a general threat of harm toward the patrons of the business as well as pedestrians and motorists using the abutting streets and sidewalks. A factual question remains as to whether the landowners breached their duty and whether the accident was a proximate result of the breach.


NICA

University of Miami v. M.A.
26 Fla. L. Weekly D1473 (Fla. 3d DCA 2001)

In 1998, the NICA statute was amended to provide that an administrative law judge, not the circuit judge, has exclusive jurisdiction to determine whether a claim filed under NICA is compensable. Agreeing with the 5th DCA in O’Leary v. Florida Birth-Related neurological Injury Compensation Association, 757 So.2d 624 (Fla. 5th DCA 2000), the court holds that the issue of whether the health care provider satisfied the NICA notice requirements is for the administrative law judge, not the court.


Nursing Home

Preston v. Health Care and Retirement Corp. of America
26 Fla. L. Weekly D919 (Fla. 4th DCA 2001)

A plaintiff suing a nursing home under Chapter 400 for violation of the resident’s rights to adequate medical care does not have to comply with the presuit requirements of the med mal statute. The courts in NME Properties, Inc. v. McCullough, 590 So.2d 439 (Fla. 2d DCA 1991) and Weinstock v. Groth, 629 So.2d 835 (Fla. 1993) held that compliance was required if the nursing home claim was based on deficient medical care (direct or vicarious liability for failure to meet the medical negligence standard of care).

However, subsequently, the legislature amended 400.023 to provide for a separate presuit requirement for nursing home cases, and restricted the scope of vicarious liability of the nursing home for actions of a health care provider. The court here holds that those changes were intended to provide a less comprehensive presuit requirement for claims under the nursing home statutes.


Offer Of Judgment

Allstate Ins. Co. v. Materiale
26 Fla. L. Weekly D1204 (Fla. 2d DCA 2001)

Rule 1.442(c)(3), as amended in 1997, requires a joint proposal for settlement to “state the amount and terms attributable to each party.” The court holds that an offer made on behalf of two plaintiffs to one defendant, which did not apportion their claims, was not valid and could not support an award of attorneys’ fees. The court certifies conflict with Spruce Creek Development Co. v. Drew, 746 So.2d 1109 (Fla. 5th DCA 1999) (single offer by two defendants to one plaintiff not void for failure to apportion the offer between defendants) and Flight Express, Inc. v. Robinson, 736 So.2d 796 (Fla. 3d DCA 1999) (failure to apportion offer between plaintiff offerors was harmless technical violation that did not affect rights of the parties).

RLS Business Ventures, Inc. v. Second Chance Wholesale, Inc.
26 Fla. L. Weekly D1003 (Fla. 2d DCA 2001)

Rule 1.442, as amended on 1/1/1997 governs an offer served after its effective date. It requires an offer to identify the claim or claims it is attempting to resolve. Fla. R. Civ. P. 1.442(c)(2)(B), and must “state with particularity all nonmonetary terms.” Fla. R. Civ. P. 1.442(c)(2)(D). The defendant’s offer did not comply with the rule, where the complaint contained two counts, one for damages and one for replevin of motor vehicle, and there were also third party claims and counter claims, and the offer did not specifically state which claims were covered by the proposal, and failed to state who would retain possession of the items under the replevin counts.


Sanctions

Forum v. Boca Burger, Inc.
26 Fla. L. Weekly D1250 (Fla. 4th DCA 2001)

Attorneys fees should be awarded against defense counsel personally, as well as the defendant, under 57.105, for arguing that the plaintiff was not entitled to amend the complaint without leave of court before the defendant filed an answer, and for arguing that the plaintiff’s new, additional attorneys needed leave of court in order to file pleadings and make argument, after filing their notice of appearance. See Fla. R. Civ. P. 1.190(a); Fla. R. Jud. Admin. 2.060(k).

In 1999, the Legislature substantially rewrote section 57.105 and significantly broadened the court’s power to award fees:

“(1) Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:

(a) Was not supported by the material facts necessary to establish the claim or defense; or (b) Would not be supported by the application of then-existing law to those material facts.

However, the losing party’s attorney is not personally responsible if he or she has acted in good faith, based on the representations of his or her client as to the existence of those material facts. If the court awards attorney’s fees to a claimant pursuant to this subsection, the court shall also award prejudgment interest.

“(2) Paragraph (1)(b) does not apply if the court determines that the claim or defense was initially presented to the court as a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, as it applied to the material facts, with a reasonable expectation of success.

“(3) At any time in any civil proceeding or action in which the moving party proves by a preponderance of the evidence that any action taken by the opposing party, including, but not limited to, the filing of any pleading or part thereof, the assertion of or response to any discovery demand, the assertion of any claim or defense, or the response to any request by any other party, was taken primarily for the purpose of unreasonable delay, the court shall award damages to the moving party for its reasonable expenses incurred in obtaining the order, which may include attorney’s fees, and other loss resulting from the improper delay.”

The Court points out that the statute no longer applies only to an entire action; it now applies to any claim or defense. The operative standard is now that the party and counsel “knew or should have known” that any claim or defense asserted was (a) not supported by the facts or (b) not supported by an application of “then-existing” law. Hence, the court says, most of the old interpretations of the statute as it was drafted before 1999 are no longer authoritative.


Sovereign Immunity

State Dept. of Environmental Protection v. Dieterle
26 Fla. L. Weekly D1479 (Fla. 3d DCA 2001)

The state has not waived sovereign immunity for prejudgment interest. Therefore, it was error for the trial court to award interest on costs running from a time before the costs judgment, even though the date was after the underlying tort judgment.


Spoliation of Evidence

Hagopian v. Publix Supermarkets, Inc.
26 Fla. L. Weekly D1543 (Fla. 3d DCA 2001)

The plaintiff was injured by a Coca-Cola bottle that either exploded or fell off the grocery store shelf. The store manager collected the pieces and kept them in a bag in the office. The manager also filled out an incident report, but refused to give the plaintiff a copy. The plaintiff’s attorney wrote to the store notifying it of plaintiff’sclaim, but did not specifically ask the store to keep the bottle. The store discarded the bottle. The plaintiff sued the store owner and Coca Cola. The plaintiff’s expert testified that, without the bottle, he could not determine whether the bottle was defective at the time of manufacture or was mishandled. The court apparently accepted the plaintiff’s argument that the store had a duty to preserve the evidence, even though it discarded it before suit was filed and was not subject to an order requiring it to preserve it. Moreover, the jury should have been allowed to consider whether the store’s destruction of the evidence affected the plaintiff’s claim against the manufacturer, not just the claim against the store. The plaintiff’s settlement with the manufacturer did not bar the spoliation claim, but merely should have constituted a setoff against the spoliation verdict.


Whistle-Blower

Irven v. Dept. of Health & Rehabilitative Services
26 Fla. L. Weekly S253 (Fla. 2001)

The court holds that the Whistle-Blower’s Act is remedial and should be liberally construed. “When a statute is both in derogation of the common law and remedial in nature, the rule of strict construction should not be applied so as to frustrate the legislative intent.” The plaintiff, a case worker who allegedly was fired for complaining to her superiors at HRS about the handling of a change of venue in a dependency proceeding, was engaged in behavior protected by the Act when she reported misfeasance by HRS in misinforming the court about the facts about the case.