June 1999


Corporate Veil

Ocala Breeders’ Sales Co. v. Hialeah, Inc.
24 Fla. L. Wkly. D1243 (Fla. 3d DCA 1999)

The trial court erred in refusing to pierce the corporate veil where the parent corporation and the subsidiary were controlled by the same person and operated out of the same facilities; the subsidiary’s contracts were performed by employees of the parent; the parent owned all of the subsidiary’s stock; the subsidiary has never been capitalized and all funds earned by the subsidiary were deposited directly into the parent’s bank account, the subsidiary’s financial obligations were paid by check’s drawn on the parent’s bank account; and the subsidiary had no bank account. The subsidiary was used by the parent to mislead creditors or to perpetrate a fraud on them because, although the subsidiary never was or will be capitalized, the subsidiary entered into an agreement with the plaintiff to make $1.5 million in improvements, even though it did not have the ability to fulfill the agreement. See Dania Jai-Alai Palace, Inc. v. Sykes, 450 So.2d 1114 (Fla. 1984).


Discovery — Expert

Allstate Ins. Co. v. Boecher
24 Fla. L. Wkly. S187 (Fla. 1999)

The Supreme Court, in a well-reasoned opinion by Justice Pariente, limits the reach of Elkins v. Syken, 672 So.2d 517 (Fla. 1996) and Fla. R. Civ. P. 1.280(b)(4)(a). In Elkins, the court placed specific limits on financial information obtainable from the opposing party’s expert. The court holds that neither Elkins nor the rule of civil procedure prevents a party from obtaining discovery from an opposing party regarding the extent of that party’s relationship with an expert witness. In this uninsured motorist case, the plaintiff was entitled to discovery from the insurance company, Allstate, about its relationship with Biodynamics (a company which purports to be able to tell from the nature of the impact how badly the plaintiff could have been hurt as a result of the accident). The court held that the information would be “undisputably relevant and meaningful,” and that there were “no compelling policy concerns to prevent discovery from the party who possesses the information.”

This decision should be particularly helpful in cases against insurance companies and manufacturers of defective products which use the same experts over and over. Also very helpful is footnote 4, which reminds us:

Although still referred to as an IME, which stands for “independent medical examination”, the rules of civil procedure recognize that the expert is no longer considered “independent”, but rather an expert hired by the party requesting the compulsory court-ordered examination pursuant to Florida Rule of Civil Procedure 1.360(a). Thus, rule 1.360(c) specifically provides that the witness “shall not be identified as appointed by the court.”


Insurance — PIP

Blish v. Atlanta Cas. Co.
24 Fla. L. Wkly. S204 (Fla. 1999)

The insured’s car’s tire blew out, and he was attacked by unknown assailants while changing a tire. The court held that his injuries arose out of the ownership, maintenance or use of a motor vehicle for purposes of PIP coverage, because they were the reasonably foreseeable consequence of the use of the car.

The PIP statute, 627.736(1), requires coverage for injuries or death “arising out of the ownership, maintenance or use” of a motor vehicle. “Arising out of” does not mean “proximately caused by,” but simply requires “some nexus.” This interpretation reflects a legislative intention to effect “broad coverage,” and the statute must be liberally construed to effectuate that intent. When construing the phrase, “courts should ask: Is the injury a reasonably foreseeable consequence of the use (or the ownership, or the maintenance) of the vehicle?” “The actual source of the injury-causing blow is not dispositive.”

The court recognizes that “acts of violence are ageless and foreseeable hazard associated with the use of a vehicle — for once a person sets out in a vehicle, he or she is vulnerable.” The court compares carjacking to the highwaymen of long ago. The court catalogs a number of the risks that, sadly, are foreseeable when we get into our car — from robbery to road rage.


Insurance — UM

Perry v. Munger
24 Fla. L. Wkly. D925 (Fla. 2d DCA 1999)

This is an example of the games UM carriers sometimes play with their insureds. Plaintiff settled with the tortfeasor after trying several times to get the permission of her Underinsured Motorist insurer, without success. Although the insurance company several times stated that it believed the plaintiff’s damages were within the tortfeasor’s policy limits, the insurance company never came out with a straight yes or no, until a final letter that stated “we are not willing to waive our subrogation rights.” Plaintiff then settled with thetortfeasor and sought UM benefits. The court held that the insurer was not entitled to summary judgment. Although an insured’s failure to obtain the UM insurer’s consent before settling with the tortfeasor raises a presumption that the insurer has been prejudiced, that presumption is rebuttable. The probable insolvency of the tortfeasor can be sufficient to overcome the presumption. Moreover, the UM carrier’s equivocal responses to the plaintiff’s request for authorization to settle raise a factual issue as to whether it withheld authorization.

Gray v. State Farm
24 Fla. L. Wkly. D1128 (Fla. 2d DCA 1999)

The plaintiffs’ failure to provide 30 days written notice of settlement with the tortfeasor, and to obtain the insurer’s written consent, did not entitle the UM carrier to summary judgment where the UM carrier was present at the mediation and had actual notice of the settlement. This presented a genuine issue of material fact as to whether the UM carrier waived the notice and consent requirements by failing to object. See 627.727(6)(a). Even if the plaintiffs did violate the requirement, there is an issue of fact as to whether the UM carrier was prejudiced. The notification requirement creates only a rebuttable presumption of prejudice.

Auto-Owners Ins. Co. v. Potter
24 Fla. L. Wkly. D952 (Fla. 4th DCA 1999)

A nonfinal order that determines that a party had UM coverage is not an appealable order because the trial court has only determined whether there is coverage. The issue of liability — the negligence of the uninsured motorist — remains to be tried. The order is not reviewable by certiorari because the insurer has an adequate remedy by appeal.


Jury — Challenge for Cause

Nash v. General Motors Corp.
24 Fla. L. Wkly. D1031 (Fla. 3d DCA 1999)

In these days of “tort reform” propaganda, this decision is a useful tool in helping plaintiff’s obtain a fair jury. This sensible decision authored by Judge Jorgenson holds that the trial court erred in refusing to excuse a juror for cause who stated that she harbored prejudices against personal injury lawsuits, and once, when she had been injured by someone else’s fault, had felt compelled not to bring suit. She also stated she would not be able to follow Florida law’s provision for money damages to compensate for someone’s wrongful death. She disapproved of money damages to compensate someone for the loss of a loved one. The court held that the juror’s statement, “I think I could be fair” and that she thought she,was a “fair person” did not destroy the reasonable doubt about her ability to render an impartial verdict.


Jury Interview

Rooney v. Hannon
24 Fla. L. Wkly. D944 (Fla. 4th DCA 1999)

An attorney who, before the verdict, learns of an incident that potentially could compromise the jury, requiring a jury interview, must raise it before the verdict is announced, not in a motion for new trial. In this case, after the jury retired, the court engaged in a discussion which about some missing exhibits and some improper argument by plaintiff’s counsel. The jury buzzed in and said they could hear the discussion. The plaintiff did not object or move for mistrial at that time, or ask for the jury to be interviewed to determine what they had heard. The court held that the plaintiff waived the issue.

Duchainey v. State
24 Fla. L. Wkly. D1256 (Fla. 4th DCA 1999)

After the verdict, the bailiff found photocopied pages from a dictionary and thesaurus in the jury room, with highlighted words that had been important in the trial. The court held that the defendant was entitled to a jury interview, even though he had not filed an affidavit, because the trial court had held that misconduct could be presumed without juror interviews, so no supporting affidavit was necessary, particularly where the dictionary provisions were relevant to the case and could have seriously prejudiced the defendant.


Med Mal — Expert

Meyer v. Caruso
24 Fla. L. Wkly. D990 (Fla. 4th DCA 1999)

A new trial was required because the trial court erroneously struck the plaintiff’s only expert witness. The DCA rejected two grounds:

First, under 766.102(2)(b), if the defendant is board certified, a “similar health care provider” is one who is trained in the same specialty and board certified int he same specialty. Here, the witness who was board certified in internal medicine, hematology and oncology, was qualified to testify against the defendant, who appears to be board certified in surgery and gynecology, with respect to the defendant’s diagnosis. In this case, it was the diagnosis, not the surgical technique, that was in issue. The defendant was qualified as an expert on cancer diagnosis.

Second, the witness was not disqualified for forming a preliminary opinion before he had reviewed all the records, where he reviewed the records before finally rendering his opinion.

Importantly, the court construes sections 90.702 and 90.704, not as rules that allow the court broad discretion to exclude evidence, but as tools for allowing the introduction of the evidence before a jury, and giving the jury tools to evaluate it. The Court states: section 90.702 does not enlarge judicial discretion to exclude evidence so much as it affords a party in litigation the right to present expert opinions if they meet the statutory standard of ‘asssist[ing] the trier of fact in understanding the evidence or in determining a fact in issue’ by testimony from a person ‘qualified as an expert by knowledge, skill, experience, training or education.’ Section 90.704, too, is not actually an exclusionary rule at all but instead merely provides that the facts or data on which that expert bases an opinion ‘may be ... made known to the expert at or before trial.’ (court’s emphasis). The rules does not require the facts to be made known to the expert before he initially forms his opinion. Such matters go to the weight of the evidence, not its admissibility. It is for the judge, not the jury.


Med Mal — Limitations

Cascio v. St. Joseph Hospital
24 Fla. L. Wkly. D1125 (Fla. 2d DCA 1999)

The plaintiff brought a timely med mal action against a doctor. The doctor filed one of those vague answers asserting as an affirmative defense that the plaintiff’s damages were caused in whole or in part by third parties. During the litigation, plaintiff discovered for the first time that the hospital and nurses could have been negligent, when he took the deposition of his doctor and discovered for the first time that the doctor had noticed that the nurse may not have followed his post operative instructions about what position he should lie in. There was nothing about this in the hospital records or in anything the plaintiff had been told. He was told that his injury was one of the possible complications of the procedure he had undergone

Plaintiff then added the nurse and hospital as defendants, but the trial court granted them summary judgment based on the statute of limitations. The Second District reversed. “One’s access to the courts should not turn on the ‘fiction that a normal, but unfortunate, incident of proper medical care and treatment in the eyes of a lay person is in fact legal notice of possible malpractice.” Here, the plaintiff began an immediate investigation, and filed suit within a few months after taking the doctors deposition. The court holds that suit was brought within two years of the time the plaintiff learned of the possible negligence of the hospital and the nurse, and within four years of the incident.


Med Mal — Peer Review

Joseph L. Riley Anesthesia Associates, P.A. v. Karstetter
24 Fla. L. Wkly. D908 (Fla. 5th DCA 1999)

A doctor who participated in the peer review committee that reviewed the incident that was the subject of the litigation could not testify for the plaintiff as an expert on the standard of care, even if he maintained he could do so without considering any material he learned in peer review. The provision in section 766.101(5) that allows committee members to testify about matters within their knowledge does not allow the member to offer an expert opinion, but only facts that he or she knows independently. It is unrealistic to think the expert could disregard information learned in the peer review process.

Holmes Regional Medical Center v. Neal
24 Fla. L. Wkly. D1015 (Fla. 5th DCA 1999)

The trial court properly required the defendant to answer interrogatories asking whether the defendant hospital had obtained, from an outside source, or made inquiry concerning, certain information concerning the doctor who allegedly caused the plaintiff’s injuries. The interrogatories did not call for privileged information. They asked whether there had been an inquiry, the date, name of the contact, and the type of communication.


Med Mal — Presuit

Cohen v. Dauphinee
24 Fla. L. Wkly. S179 (Fla. 1999)

An expert’s presuit corroborating affidavit created pursuant to sections 766.203(2) and 766.203(3) may not be used to impeach the expert at trial. Section 766.205(4) provides that “no statement, discussion, written document, report or other work product generated solely by the presuit investigation process is discoverable or admissible in any civil action for any purpose by the opposing party.” Preventing use of the affidavit for impeachment encourages the free exchange of information presuit, and thus facilitates settlement.


Negligence — Foreseeability

Sipes v. Albertson’s, Inc.
24 Fla. L. Wkly. D911 (Fla. 5th DCA 1999)

The defendant sold alcohol to a minor, who became intoxicated and got into an altercationwith his stepfather, who shot and killed the minor. The court held that it was error to dismiss the complaint and to find that the shooting was unforeseeable as a matter of law. It is not “freakish” for a minor to who becomes intoxicated to become overly aggressive and to injure another or be injured by someone responding to his aggression.


Negligence Per Se

Eckelbarger v. Frank
24 Fla. L. Wkly. D1089 (Fla. 2d DCA 1999)

A Polk County Ordinance mandated safety barriers around swimming pools and set minimum requirements for them. Its stated intent was, in recognition of the “threat to the safety of the citizens of Polk County, Florida, especially, young children ... to provide a minimum standard of protection against the hazards of unprotected and easily accessible swimming pools.” The court held that violation of the statute constituted negligence per se, not just evidence of negligence, and not strict liability. Cf. Tamiami Gun Shop v. Klein, 116 So.2d 421 (Fla. 1959) (strict liability statutes are designed to protect a particular class of persons from their inability to protect themselves, such as statutes limiting sales of guns to minors). This statute was not strictly limited to protecting minors, but it was negligence per se because it was designed to protect a particular class of people from a particular type of injury.


Offer of Judgment

Alexandre v. Meyer
24 Fla. L. Wkly. D1118 (Fla. 4th DCA 1999)

The trial court did not abuse its discretion in finding that the plaintiff’s offer of judgment was not made in bad faith, even though the plaintiff knew the defendant’s policy limits were $10,000 and the plaintiff’s demand was $75,000. “Defendants could have agreed to the plaintiff’s demand for judgment even if they did not have the ability to pay. The court would then have had the authority, under 768.79(4), to ‘enforce the settlement agreement,’ presumably by entering a judgment.”


Release

Fana v. Orkin Exterminating Co.
24 Fla. L. Wkly. D1037 (Fla. 3d DCA 1999)

An exterminating company’s contract provided “Orkin is not responsible for vandalism, theft or breaking and entering during fumigation and aeration procedures”, and “encourage[d} the homeowner to “obtain some type of security.” The plaintiff was injured when the defendant left his home only partially tented, and plaintiff was attacked by intruders when he returned to the house. The court held that the pre-incident release was not effective to preclude an action based on the releasee’s subsequent negligence because it did not “clearly and specifically provide for a limitation or elimination of liability for such acts.” The release did not address negligently failing to complete the tenting process and leaving the plaintiff’s property exposed.


Seat Belt Defense

Malone v. Williams
24 Fla. L. Wkly D959 (Fla. 5th DCA 1999)

The trial court refused to allow testimony about the plaintiff’s failure to use a seat belt, or to give a seat belt instruction because the plaintiff, a passenger, was passed out drunk at the time of the accident. The court says that a plaintiff cannot use his own voluntary inebriation to avoid the standard of care established by 316.164, Florida Statutes.


Service of Process

Bacchi v. Manna of Hernando
24 Fla. L. Wkly. D962 (Fla. 5th DCA 1999)

The rule on dismissal for failure to serve a defendant within 120 days has been amended so that the trial court should not dismiss if the plaintiff shows either good cause or excusable neglect. The court has broad discretion to extend the time for service even when good cause has not been shown. Here, the court applies the amended rule to a case that was pending on appeal when the amended rule was adopted; however, the defendant must be given an opportunity in the trial court to convince the trial court that the standards of the amendment have not been met.


Sovereign Immunity

Otero v. City of Hialeah
24 Fla. L. Wkly. D986 (Fla. 3d DCA 1999)

The plaintiff’s notice to the city was not deficient under 768.28 merely because the location of the accident stated in the notice was not the precise location of the accident. The notice said the accident occurred in front of Immaculate Conception Church; in fact it occurred in front of Immaculate Conception School. The notice was sufficient to allow the City to investigate, request more information and make informed decisions regarding the claim. This is consistent with a long line of Third District cases; however, you should try to be as accurate as possible in your notice.


Workers Comp Immunity

Lopez v. Vilchez
24 Fla. L. Wkly. D969 (Fla. 2d DCA 1999)

Section 440.11(1) provides that workers comp immunity does not apply to “employees of the same employer when each is operating in furtherance of the employer’s business but they are assigned primarily to unrelated works.” Reversing a summary judgment in favor of the defendant, the court holds that the facts of this case would justify a finding that the unrelated works exception to workers comp immunity applies. The plaintiff, employed by a funeral home, was injured by the negligent maintenance of one of the funeral home’s vehicles. The maintenance was performed by another employee of the funeral home at a site different from the location where the plaintiff worked. The court finds that the unrelated works exception must be decided on a case by case basis, and suggests that courts must look at the physical location of the employees’ work (here, separate locations), and the specific duties (general funeral home duties vs. vehicle maintenance).