June 1997


Arbitration

Boyhan v. MaGuire
22 Fla. L. Wkly. D1134 (Fla. 4th DCA 1997)

Section 682.13(b), Florida Statutes, allows a court to vacate an arbitration decision when “there was evident partiality by an arbitrator appointed as a neutral...”. The parties’ agreement to arbitrate pursuant to the American Arbitration Association rules does not deprive the court of jurisdiction to determine whether there was “evident partiality.” On the merits, the court finds that there was not evident partiality merely because the arbitrator stated that one party’s position made more sense than the other’s.

GCA Inc. v. 90 S.W. 8th Street Enterprises
22 Fla. L. Wkly. D1367 (Fla. 3d DCA 1997)

Where attorneys fees are awardable by statute or contract, the circuit court, not the arbitrator, has the jurisdiction to determine entitlement and amount of attorneys fees. The court interprets 682.11, Florida Statutes. The parties may expressly waive their statutory right to have the court determine attorneys fees by submitting the issue to the arbitrator. See Turnberry Associates v. Service Station Aid, Inc., 651 So.2d 1173 (Fla. 1995), approving 629 So.2d 204 (Fla. 3d DCA 1993). Caution: this rule may not apply to med mal arbitration, because 766.207 (7)(f) specifically provides for determination of attorneys fees by the arbitration panel.


Argument

American Chambers Life Ins. Co. v. Hall
22 Fla. L. Wkly. D1381 (Fla. 4th DCA 1997)

In a bad faith action against an insurance company for failure to pay first party benefits, it was improper to argue to the jury that they were the conscience of the community and that they should send a message to the community but the error was not reversible where the trial court gave a curative instruction.

Grushoff v. Denny’s, Inc.
22 Fla. L. Wkly. D1215 (Fla. 4th DCA 1997)

Applying Judge Farmer’s concurring opinion in Cleveland Clinic Florida v. Wilson, 685 So.2d 14 (Fla. 4th DCA 1996), the court holds that a golden rule argument is not always per se reversible error. The court reverses a new trial order that had been granted by the trial court based on the plaintiff’s counsel’s argument: “How much is it worth to you when you go to the dentist, and he’s going to do some work ...” The defense objection was sustained and the defendant moved for mistrial; this is not a “fundamental error” case. However, it may not really be a golden rule case, because the court notes that plaintiff’s counsel asked the jurors to call on their personal experience, but did not ask them to put themselves in the plaintiff’s place.

Parker v. Hoppock
22 Fla. L. Wkly. D1317 (Fla. 4th DCA 1997)

The court condemns the following defense closing argument, which we hear all too often these days:

Our society is such that, for whatever reason, it seems that we’ve gotten to the point that every time something happens, it has to be somebody else’s fault. Even criminals in courtrooms now, blaming the system, their parents, their upbringing, their schooling; it’s somebody else’s fault.

The court points out that what other lawyers have done, what has occurred in other lawsuits, and what other parties have done, is not the proper subject for argument. Such argument are harmful to the image of the legal system and the legal profession. This case involved a smear campaign against the plaintiff as well. See discussion below under “Collateral Source”.


Collateral Source

Parker v. Hoppock
22 Fla. L. Wkly. D1317 (Fla. 4th DCA 1997)

The court reverses a verdict which awarded substantial noneconomic damages but only minimal economic damages because of the improper admission of testimony that the plaintiff was receiving food stamps and AFDC (welfare) for his children and social security benefits for himself. The error was compounded by bogus “expert” testimony by defendant’s rehab expert that the receipt of such benefits adversely affects a person’s motivation to work. The expert’s opinion was not backed up by any research or studies, and the expert had never met the plaintiff.

The court relied an Cooke v. Eney, 277 So.2d 848 (Fla. 3d DCA), cert. denied, 285 So.2d 414 (Fla. 1973) and Williams v. Pincombe, 309 So.2d 10 (Fla. 4th DCA 1975). The court rejected the defendants’ argument that those cases were overruled by Florida Physician’s Ins. Reciprocal v. Stanley, 452 So.2d 514 (Fla. 1984). Stanley only allows admission of testimony about governmental programs that are available “regardless of wealth or status.” Welfare benefits do not fit the Stanley criteria.

Moreover, the prejudicial effect of the testimony outweighs the probative value under 90.403. Unfortunately, “in the current political climate, there is no doubt that substantial social stigma may attach to one labeled as a welfare recipient.”

The court upheld the verdict in favor of one defendant because the only issue as to that defendant was vicarious liability under an agency theory. Under Gormley v. GTE Products Corp., 587 So.2d 455 (Fla. 1991), improper admission of collateral source evidence may mislead the jury on liability, as well as damages. However, here the court finds the error harmless as to that defendant, because the jury returned verdicts against the other defendants. If the jury had returned verdicts in favor of all defendants, the result likely would have been different.


Evidence -- Computer Animation

Pierce v. State
22 Fla. L. Wkly D1146 (Fla. 4th DCA 1997)

A computer-generated animation of a detective’s reconstruction of the accident was admissible as a demonstrative exhibit. The Frye test was not applicable because the animation was offered only as a demonstrative aid and not as substantive evidence. The court did not abuse its discretion in allowing the use of the animation as a demonstrative exhibit illustrating an expert’s opinion, after weighing the following:

(1) helpfulness to the trier of fact;

(2) qualification of the witness as an expert;

(3) applicability of the opinion to the evidence offered at trial;

(4) weighing prejudice against probative value under 90.403;

(5) whether the facts or data on which the expert relied in forming the opinion illustrated are of a type reasonably relied upon by experts in the subject area;

(6) whether the animation is a fair and accurate depiction of what it purports to be.

This decision is quite properly committed to the discretion of the trial judge. I hope that, in making these determinations, they will consider the tremendous impact such an animation may have on the jury, and that they will guard against unfair prejudice when one side has the ability to present such a demonstration and the other side, for financial or other reasons, does not.


Fabre

Schindler Elevator Corp. v. Viera
22 Fla. L. Wkly. D1263 (Fla. 3d DCA 1997)

Another sensible decision by the Third DCA on Fabre -- to the extent it is at all possible to have anything in connection with Fabre make sense. This is the second appeal in this case. In the first appeal, the court reversed a judgment for the plaintiff because of the failure to list a nonparty on the verdict form. The appellate court ordered a retrial on liability. The court had rejected the plaintiff’s argument that on retrial the negligence of the parties should be taken as established and that the jury should determine only whether the nonparty was at fault and if so, apportion fault among all three; and that if the jury determined the nonparty was not at fault, the original judgment should be reinstated.

The plaintiff’s argument was subsequently established as the law under Shufflebarger v. Galloway, 668 So.2d 996 (Fla. 3d DCA 1996) (en banc) and Ashraf v. Smith, 647 So.2d 892 (Fla. 3d DCA 1994), rev. denied, 658 So.2d 989 (Fla. 1995). However, before Shufflebarger was decided, the trial court in this case felt compelled to hold a new trial on all aspects of liability because of the instructions of the appellate court in the first appeal of this case. In that trial, the jury found the defendant not liable. Then, the Shufflebarger en banc decision came out, and the trial court ordered a new trial. The Third District affirmed the trial court’s order granting a new trial, and held that the law of the case doctrine should not apply because of the intervening decision in Shufflebarger.

Implicit in the decision is that the new trial should be limited to the issue of apportionment of fault, not all aspects of liability.


Fireman’s Rule

Worth v. Eugene Gentile Builders
22 Fla. L. Wkly. D1149 (Fla. 4th DCA 1997)

Section 112.182, Florida Statutes, which allows firefighters and properly identified law enforcement officers to be treated as ordinary invitees for purposes of premises liability, applies not only to the obligations of the owner of the property, but to those in lawful possession of the property.


Insurance -- PIP

Colonial Penn Ins. Co. v. Magnetic Imaging Systems, Inc.
22 Fla. L. Wkly. D1370 (Fla. 3d DCA 1997)

The court upheld the trial court’s certification of a class action on behalf of medical service providers who received PIP payments from an insurer beyond the thirty-day period provided in 627.736(4)(b) without the required statutory interest.

Jones v. State Farm
22 Fla. L. Wkly. D1394 (Fla. 5th DCA 1997)

The insurer must pay PIP within thirty days of notice of the claim unless it has reasonable proof to establish that it is not responsible for payment. Proof of a reasonable basis to “question” the claim is not enough. In a footnote, the court states that the insured’s unreasonable failure to attend an IME would relieve the insurer of liability to pay only benefits incurred after the date of the examination. Benefits incurred before the date of the IME would have to be paid. This court’s interpretation of this provision seems to conflict with the Third District’s interpretation in U.S. Security v. Silva, 22 Fla. L. Wkly. D507 (Fla. 3d DCA 1997).


Insurance -- UM

Mosca v. Globe Indemnity
22 Fla. L. Wkly. D1150 (Fla. 4th DCA 1997)

Where the underlying auto liability policy covered insured persons in “any” auto, it was a violation of the statute to limit UM coverage to only “owned” vehicles. Therefore, UM coverage was extended to insured persons in “any” auto. UM coverage “may not be limited by providing a narrower definition of covered autos in the UM policy than in the liability policy.

Galante v. USAA Cas. Ins. Co.
22 Fla. L. Wkly. D1372 (Fla. 4th DCA 1997)

The insured settled with the tortfeasor’s liability carrier for the policy limits and paid $100,000 of it to his comp carrier. He then sued his UM carrier only for noneconomic damages. The court held that the UM carrier was not entitled to a setoff for the settlement because the UM carrier was not able to prove that there was any duplication of the UM award in the benefits already recovered.

Massa v. Southern Heritage Ins. Co.
22 Fla. L. Wkly. D1389 (Fla. 4th DCA 1997)

The insured was involved in an accident in which the car in front of him stopped abruptly, causing him to slam on his brakes. He did not realize he was injured until later. The court held that the absence of contact with the other vehicle did not preclude recovery because such a requirement is contrary to the law of Florida as expressed in Brown v. Progressive Mut. Ins. Co., 249 So.2d 429 (Fla. 1971), and to the express terms of the policy. In addition, the court voids, as against public policy, the insurance policy requirement that, in the absence of physical contact with a vehicle, the facts of the accident must be proved by evidence other than the testimony of the claimant


Jury Selection -- Challenge for Cause

Martinez v. Hertz Corp.
22 Fla. L. Wkly. D1336 (Fla. 3d DCA 1997)

Even though the prospective juror said that he did not think a rental car company should be responsible for the negligence of a driver, and that he “really didn’t think he could” be fair to the plaintiffs, the court held that the denial of a challenge for cause was not reversible error. The court held that the juror was sufficiently rehabilitated because he said that he would be able to award money if entitlement to damages was proven to his satisfaction, that he would follow the law explained by the judge, and that there were no set limits above which he would not award a recovery.

This case seems to conflict with a long line of cases on jurors who stated that they did not think they could be fair to a party, or who equivocated. These cases hold that a juror should be excused if there is any reasonable doubt about the juror’s ability to be fair. See, e.g., Tizon v. Royal Caribbean Cruise Line, 645 So.2d 504 (Fla. 3d DCA 1994), rev. denied, 659 So.2d 272 (Fla. 1995); Club West v. Tropigas, 514 So.2d 426 (Fla. 1987).


Med Mal -- Causation

Cuervo v. Mercy Hospital, Inc.
22 Fla. L. Wkly. D1273 (Fla. 3d DCA 1997)

The plaintiff went into the hospital for routine diagnostic cardiac tests and came out with both legs amputated due to a mind-boggling combination of errors. The errors included the nurses’ failure to contact the treating doctor or the backup doctor for six hours when the plaintiff lost circulation in his legs, as well as errors by two different doctors, who both accessed incorrect arteries in different procedures they performed on the plaintiff. The court held that the question of proximate cause is for the jury.


Med Mal -- Limitations

Lynn v. Mount Sinai Medical Center
22 Fla. L. Wkly. D1119 (Fla. 3d DCA 1997)

The defendant hospital mislabeled the plaintiff’s urine sample, taken for drug screening during her regular mandatory physical required by her employment as a Dade County Corrections officer. As a result, the plaintiff lost her job because the specimen mislabelled as hers tested positive for cocaine. The court held that the medical malpractice statute of limitations did not apply because the hospital did not use any medical skill or judgment by collecting and shipping out urine specimens to an independent lab, following strict county guidelines. Further, the hospital was not engaged in “diagnosis, treatment or care” under 95.11(4)(b) because the purpose of the test was not to diagnose illness or to determine necessary treatment, but only to screen for drugs.

“The court cannot allow hospitals to use medical malpractice as a convenient shield for all the torts which medical personnel may commit. The regimented collection of urine samples is not a ‘medical service.’” This case is a shining example of judicial common sense.


Med Mal -- Presuit

Watson v. Beckman
22 Fla. L. Wkly. D1281 (Fla. 3d DCA 1997)

Here are two solutions to the problem of how to get into court when the prospective defendant won’t give you the records for your presuit expert to review. The court holds it was error to dismiss the plaintiff’s dental malpractice claim for failure to provide a presuit affidavit because the defendant’s failure to provide the plaintiff with the copies of her records when she requested them waived the right to assert that requirement. The court also holds that the plaintiff adequately complied with the presuit requirement by providing the defendant with an affidavit based on the expert’s review of the plaintiff’s records from other treating dentists and on the expert’s own examination of the plaintiff. The court points out that the med mal statute must be construed liberally to protect the constitutional right of access to courts, while carrying out the legislature’s policy of screening out “frivolous lawsuits and defenses.” See Kukral v. Mekras, 679 So.2d 278 (Fla. 1996).

Dauphinee v. Wilstrup
22 Fla. L. Wkly. D1291 (Fla. 5th DCA 1997)

It was error to allow the use of plaintiff’s expert’s presuit affidavit to impeach the expert at trial. The affidavit is inadmissible “for any purpose” under 766.106(5).


New Trial

E.I.DuPont de Nemours & Co. v. Native Hammock Nursery, Inc.
22 Fla. L. Wkly. D1128 (Fla. 3d DCA 1997)

Reversing an order that granted a new trial based on newly discovered evidence, the court lists factors that must be considered, including: Would the new evidence probably change the result if a new trial is granted? Has it been discovered since the trial? Could it have been discovered before the trial by the exercise of due diligence? Is it material? Is it merely cumulative or impeaching?

Here, the court reverses the order because the newly discovered evidence either was not newly discovered; could have been discovered with due diligence; or was not sufficiently material.

It was also error to grant the new trial based on a threatening gesture made by the defendant’s expert to the plaintiff’s expert during a break in the plaintiff’s expert’s testimony, where the plaintiff did not move for a mistrial at the time.

The reversal is a bit troubling in light of the nature of the conduct, and the fact that the plaintiff’s expert said that he “did not know” if the threat affected his testimony. On the other hand, if it really was so threatening, the plaintiff should have moved for mistrial at the time.

The moral of the story is to move for a mistrial at the time the objectionable conduct occurs. You can always ask the court to reserve ruling on the motion. See Ed Ricke & Sons v. Greene, 468 So.2d 908 (Fla. 1985).


Offer of Judgment

Moran v. City of Lakeland
22 Fla. L. Wkly. D1171 (Fla. 2d DCA 1997)

In a civil rights case under 42 U.S.C. 1983, the offer of judgment rule, Fla. R. Civ. P. 1.442, and statute, 768.79, are preempted by the Civil Rights Attorneys Fees Awards Act, 42 U.S.C. 1988. Since the federal statute provides that a prevailing defendant may recover fees only when the suit was frivolous, a prevailing defendant is not entitled to fees under the offer of judgment statute and rule.

Kaufman v. Smith
22 Fla. L. Wkly. D1205 (Fla. 4th DCA 1997)

The defendant’s second offer of judgment did not revoke the defendant’s first offer; consequently, attorneys fees could be awarded to the defendant when the plaintiff failed to beat the first offer, even though the plaintiff beat the second offer. In a concurring opinion, Judge Hazouri, sitting as an associate judge, expresses concern that a defendant may make progressively lower offers, and use the statute as a “tool of intimidation”, instead of a method of encouraging settlement as the legislature intended.

Mendez v. Bankers Insurance Co.
22 Fla. L. Wkly. D1321 (Fla. 4th DCA 1997)

Here’s a new way to lose your client’s right to recover attorneys fees under the insurance statute even when you make the insurance company pay benefits. Here, the insurance company made an offer of judgment and the plaintiff rejected it. The plaintiff then recovered a verdict that was less than the offer of judgment. The court held that the plaintiffs were not the prevailing parties because they did not beat the offer of judgment. Therefore, the plaintiffs were not entitled to prevailing party attorneys fees under the insurance statute.

I believe that this is not a correct decision. It is contrary to the legislature’s intent to enable plaintiffs to pursue legitimate claims against their insurers by awarding them attorneys fees if they prevail. It gives insurance companies a weapon to use unfairly to force plaintiffs to accept less than they are entitled to under the policy, even after the insurer has wrongly refused to pay benefits, forcing the plaintiff to file suit. In this case, the plaintiff not only lost the right to recover fees against the insurer, but had to pay the insurer’s fees under the offer of judgment statute. I can’t believe that this is any way to encourage insurers to pay claims they’re supposed to pay.


Product Liability

Raskin v. Community Blood Centers
22 Fla. L. Wkly. D1136 (Fla. 4th DCA 1997)

The plaintiff contracted Hepatitis B from a blood transfusion. The defendant supplied the blood used in the transfusion. The plaintiff sued for breach of implied warranty under 672.316(5) which provides that the provision of blood for transfusion is “the rendering of a service” and “does not constitute a sale”, but that “the implied warranties of merchantability and fitness for a particular purpose are not applicable as to a defect that cannot be detected or removed by a reasonable use of scientific procedures or techniques.” The court construes the statute to mean that, if the defect can be detected or removed by reasonable use of scientific procedures or techniques, then the implied warranties are applicable. The plaintiff need not prove that the defendant was negligent. The court reverses a summary judgment for the defendant and remands with instructions to allow the plaintiff to amend to meet the standard of the court’s interpretation of the statute.


Punitive Damages

Langmead v. Admiral Cruises
22 Fla. L. Wkly. D1199 (3d DCA 1997)

In an action by a seaman against a cruise line for maintenance and cure, the cruise line could not be liable for punitive damages for failing to pay medical expenses and lost wages totalling less than $1000 because, although the jury found that the cruise line owed the money, the cruise line acted in good faith in failing to pay. The plaintiff went to a doctor recommended by her lawyer, instead of asking the cruise line to send her to someone; and when she did ask, the cruise line referred her to a “highly recognized and respected” eye doctor. In the purest of dicta, (since it had already decided no punitive damages could be awarded) the court also stated that the amount of the punitive damages award was excessive when compared to the actual harm inflicted on the plaintiff and to the civil or criminal penalties that could be imposed for comparable misconduct.


Release

Zin v. Concordia Properties, Inc.
22 Fla. L. Wkly. D1339 (Fla. 4th DCA 1997)

Contracts which purport to release or indemnify a party for its own negligence are looked on with disfavor and will not be enforced unless the intent is clearly and unequivocally stated. See University Plaza Shopping Center v. Stewart, 272 So.2d 507 (Fla. 1973). Consequently, where the plaintiffs signed a release before entering the premises which did not specifically release the premises owner for its own negligence, the release should have been excluded from evidence. In order to be admissible or enforceable, any pre-accident release must specifically state that defendants would not be liable for their own negligence.


Sanctions

K & K World Enterprise, Inc. v. Union SPOL S.R.O.
22 Fla. L. Wkly. D1118 (Fla. 3d DCA 1997)

It was error to strike the defendant’s pleadings and enter a default judgment against it where the defendant failed to obtain new counsel within the time ordered by the court. Despite the trial court’s finding of willfulness, there was no evidence that the noncompliance was willful; the record did not show the reason for the noncompliance.

Therefore, imposing the most severe sanction was an abuse of discretion. Cf., e.g., Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1993) (trial court must weigh factors including willfulness and whether disobedience is by the party or by counsel in determining what sanction to impose); Mercer v. Raine, 443 So.2d 944 (Fla. 1983) (no abuse of discretion to impose ultimate sanction where record supported finding of willfulness and no attempt to obey court order or to explain failure to comply).


Summary Judgment

Bifulco v. State Farm Mut. Auto. Ins. Co.
22 Fla. L. Wkly. D1325 (Fla. 4th DCA 1997)

It was error to enter summary judgment in favor of the insurer where the insurer filed documents in support of its motion that were not sworn to or certified in any manner or accompanied by any authenticating affidavit.

This case is also interesting because the issue was whether the insurer was entitled to issue non-stacked UM coverage. An insurer can only issue non-stacked coverage if it has filed revised decreased premium rates with the department of insurance under 627.727(9).


Truth in Lending

Key Savings Bank v. Dean
22 Fla. L. Wkly. D1312 (Fla. 4th DCA 1997)

Even though a claim for rescission of a mortgage under the Truth in Lending Act was barred by the three year statute of limitations, and could not be claimed as a defense to a foreclosure action, the mortgagor could still claim damages for violation of the Truth in lending Act in a counterclaim.


Workers Comp Immunity

Rabon v. Inn of Lake City
22 Fla. L. Wkly. D1304 (Fla. 1st DCA 1997)

It was error to enter summary judgment for the defendant on worker’s comp immunity. The plaintiff was a security guard who worked for an independent contractor. Plaintiff slipped and fell on the defendant’s premises. The subcontracting of the innkeeper’s common law duty to keep its premises safe for its guest does not automatically make the innkeeper the statutory employer of the security guard. In order to be a statutory employer, the defendant must have sublet an obligation that is part of a contract; it is not sufficient that the duty is imposed by statute or by common law or quasi-contract.