March 2000


Amendments — Relation Back

Totura & Co. v. Williams
25 Fla. L. Weekly S141 (Fla. 2000)

An amended complaint adding new defendants is deemed filed when the motion for leave to amend is submitted to the court, provided either (1) the motion is "full and comprehensive as to the facts" or (2) the proposed amended complaint is attached The motion sufficiently identified the proposed new defendant and the relief that the plaintiff would seek against it, uninsured motorist benefits. The filing of the motion to amend stops the running of the statute of limitations.


Argument — Improper

Green v. USAA Cas. Ins. Co.
25 Fla. L. Weekly D681 (Fla. 1st DCA 2000)

The defense closing argument that, if the jury awarded the plaintiff the amount she was asking for, she could invest it and have an income stream of more than her annual income, was improper and it was error to overrule the plaintiff's objection. Such arguments are improper because it invites the jury to make additional reduction in sums already reduced to present value, or improper reduction in sums that should not be reduced to present value.


Continuance

Florida Fruit & Vegetable Assoc. v. Wells
25 Fla. L. Weekly D665 (Fla. 5th DCA 2000)

It was reversible error to deny a motion for continuance filed almost two months before trial in which the plaintiff's attorney stated that he was having memory problems, did not feel he could properly represent his client, and was in the process of obtaining another attorney to handle the case. The motion was accompanied by a neurologist's report. There was no evidence submitted that there would be severe prejudice to the opposing party if the continuance were granted. Where an attorney acknowledges a mental or physical condition which substantially interferes with his ability to represent his client, and provides the trial court with supporting medical evidence, the motion for continuance should be granted.


Economic Loss Rule

Invo Florida, Inc. v. Somerset Ventures, Inc.
25 Fla. L. Weekly D632 (Fla. 3d DCA 2000)

The economic loss rule does not bar claims for breach of fiduciary duty or fraudulent transfer, which are torts independent from breach of contract. An independent tort requires proof of facts that are distinct from the breach of the contract. Nor can the economic loss rule bar a statutory cause of action under the Uniform Fraudulent Transfer Act. See, e.g., Moransis v. Heathman, 744 So.2d 973 (Fla. 1999); Comptech Int'l, Inc. v. Milam Commerce Park, Ltd., 24 Fla. L. Weekly S507 (Fla. 1999).


Evidence — Frye Test

E.I. Du Pont De Nemours & Co. v. Castillo
25 Fla. L. Weekly D367 (Fla. 3d DCA 2000)

On rehearing, the court adheres to the gist of its original opinion that the plaintiff's expert testimony did not meet the Frye test for admissibility of scientific evidence. See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The proponent of the evidence has the burden to prove, by a preponderance of the evidence, the general acceptance of both the underlying scientific principle and the testing procedures used to apply the principle to the facts of the case at hand. I continue to find this case troubling because it relies so heavily on federal cases arising out of Daubert v. Merrell-Dow Pharmaceuticals, 113 S.Ct. 2786 (1993), which is not the law in Florida. See Murray v. State, 692 So.2d 157 (Fla. 1997).

Although Murray describes Daubert as more lenient than Frye, Daubert has, in my opinion, evolved to be much stricter than Frye. Federal courts in some cases are holding week-long hearings under Daubert, in which the parties have to hire additional experts to come in and vouch for the scientific methodology of the experts who will testify at trial.


Failure to Prosecute

Totura & Co. v. Williams
25 Fla. L. Weekly S141 (Fla. 2000)

Where a motion for leave to amend to add a new party is filed, the one year period for dismissal for failure to prosecute, as to those parties, begins to run when the motion is filed.


IME

U.S. Security Ins. Co. v. Cimino
25 Fla. L. Weekly S186 (Fla. 2000)

A PIP IME is "a potential step in the direction of litigation". Because of "the potential ... for an adversarial contest", the insured is entitled to be accompanied by counsel or by a videographer. "[W]here the insured wants an attorney or other third party present at the examination, the burden is on the party opposing the third party's presence to prove that the presence is unreasonable." The concerns of the examining doctor about distraction "cannot outweigh the insured's rights."


Insurance — Auto

Auto-Owners Ins. Co. v. Anderson
25 Fla. L. Weekly S211 (Fla. 2000)

The court interprets an insurance policy to provide separate coverage for a tractor and a trailer, finding that each is a covered automobile under the policy in question. Because each is a covered automobile, and because the policy does not address the situation in which the tractor and trailer are connected and are involved in a single accident, there is separate coverage for each up to the policy limits, so that the total coverage double the amount of coverage for a single automobile.

The court finds the following limitation of liability clause, in the context of the policy as a whole, ambiguous: "The limit of liability stated in the Declaration is the most we will pay for all damages, including damages for expenses, care and loss of services and loss of use as a result of any one occurrence. Charging premiums under this policy for more than one automobile does not increase the limit of our liability as stated for each occurrence." The provision is ambiguous because the policy lists the limits of coverage as $750,000 for each vehicle for each occurrence. "If Auto-Owners intended to then exclude or limit this liability coverage no matter how many of its insured vehicles were involved in an accident, it was incumbent upon Auto-Owners to do so unambiguously."

"[T]he ambiguity arises from the question of whether the limitation of liability clause, when read in conjunction with the entire policy, limits Auto-Owners' liability to $750,000 for the accident no matter how many separately insured vehicles were involved." It is reasonable to interpret the limitation of liability clause as an anti-stacking clause that prevents stacking coverages of insured vehicles that were not involved in the accident. The court also states that, in interpreting an insurance policy, the court may look to established custom of the insurance industry.


Insurance — Bad Faith

Talat Enterprises v. Aetna Cas. & Sur. Co.,
25 Fla. L. Weekly S172 (Fla. 2000)

Section 624.155, Florida Statutes, provides a civil remedy for bad faith, but requires certain conditions precedent. Section 624.155(2)(d) requires, as a condition precedent to court action, "no action shall lie if, within 60 days after filing notice, the damages are paid or the circumstances giving rise to the violation are corrected". The Eleventh Circuit certified the following question to the Florida Supreme Court:

If an insured suffered extra-contractual damages prior to giving an insurer written notice of a bad faith violation and the insurer paid all contractual damages, but none of the extra-contractual damages, within sixty days after the written notice was filed, has the insurer paid "the damages" or corrected "the circumstances giving rise to the violation" as those terms are contemplated by Florida Statute 624.155(2)(d), there by precluding the insured's first-party bad faith action to recover the extra-contractual damages?

The Supreme Court answered yes. Until the statute was enacted, there was no remedy for first party bad faith. The statute requires that there is no remedy until the notice is sent and the insurer has the opportunity to "cure" the violation. If the insurer pays the damages during the cure period, the statue provides that there is no remedy. Therefore, extracontractual damages that can be recovered solely by reason of the statute "cannot be recovered when the remedy itself does not ripen if the insurer pays what is owed on the insurance policy during the cure period. The statutory cause of action for extracontractual damages simply never comes into existence until expiration of the sixty-day window without the payment of the damages owed under the statute." The legislature created this provision as a last opportunity for insurers to comply with their good faith obligations.

Vest v. Travelers Ins. Co.,
25 Fla. L. Weekly S177 (Fla. 2000)

This is a UM bad faith case. The court clarifies its prior decisions in Blanchard v. State Farm, 575 So.2d 1289 (Fla. 1991) and Imhof v. Nationwide Mut. Ins. Co., 643 So.2d 617 (Fla. 1994). The failure to pursue a first party bad faith action in an action for breach of the underlying insurance contract for nonpayment of benefits is not an improper splitting of causes of action. The determination of the existence of liability on the part of the uninsured tortfeasor and the extent of the insured's damages are elements of a cause of action for bad faith. Once those elements exist, there is no impediment as a matter of law to a recovery of damages for violation of 624.155(1)(b)1 dating from the date of a proven violation. Therefore, it was error for the trial court to rule that there was no claim for bad faith for acts which occurred prior to the approval of the insured's settlement with the underinsured tortfeasor. Although an action prior to that settlement would have been premature, "the claim for bad-faith damages accrued from the date the violation of 624.155(1)(b)1 ripened because at that time the final element of the cause of action occurred."

The court explains that a claim for bad faith under 624.155(1)(b)1 is founded on the obligation of the insurer to pay when all conditions under the policy would require an insurer exercising good faith and fair dealing towards its insured to pay. This obligation requires the insurer to timely evaluate and pay benefits owed on the insurance policy.

The court adds that not every erroneous denial of payment is bad faith; good or bad faith depends on the circumstances and is usually an issue of fact.

To pursue a claim for bad faith under 624.155, an insured must send a notice; the insurer then has 60 days to cure. There is no statutory requirement which prevents the insured from sending the notice before there is a determination of liability or damages. "Nor is the insurer's appropriate response dependent on such a determination." Instead, it is based on the insurer's good faith evaluation of what is owed on the insurance contract. What is owed on the contract is governed by whether all of the policy's conditions precedent for payment have been met. An insurer must evaluate a claim based on proof of loss required by the policy and its expertise "in advance of a determination by a court or arbitration."

Bringing a claim under 624.155(1)(b)1 is premature until there is a determination of liability and the extent of damages. A claim brought prematurely is not subject to summary judgment but should be dismissed as premature.


Jury Misconduct

Tejada v. Roberts
25 Fla. L. Weekly D475 (Fla. 3d DCA 2000)

The court calls a halt to what it perceives as too many cases where, after a significant loss in a jury trial, the losing litigant "scours the public record to try to find evidence of a litigation nondisclosure" by one of the jurors, in an effort to gain a new trial. The court holds that prior case law has been misinterpreted. There is only a right to a new trial if the moving party "was not accorded a fair and impartial jury or ... his substantial rights were prejudiced." Noting that lay jurors may not understand questions posed by lawyers, the court holds that they cannot be assumed to understand questions about involvements in "lawsuits" because they may not have a clear understanding about when a lawsuit technically begins.

The court applies a three part test: (1) the information must be relevant and material to jury service in the case; (2) the juror concealed the information during questioning; and (3) the failure to disclose the information was not attributable to the complaining party's lack of diligence. See De La Rosa v. Zequeira, 659 So.2d 239 (Fla. 1995).

The court holds that there is no due diligence if the party does not check the clerk's index for lawsuits involving the juror until after the trial is over; counsel should check at the conclusion of jury selection. It is that party's burden to ask the judge for a recess to make the search. In my opinion, this is an unrealistic requirement in light of judges' calendars and the pressures on counsel in trial.


Legal Malpractice

Watkins v. Gilbride Heller & Brown, P.A.
25 Fla. L. Weekly D560 (Fla. 3d DCA 2000)

The court holds that the statue of limitations in a legal malpractice case begins to run when the supreme court denies review in the underlying case, and certifies to the Supreme Court the following question:

Where review of a district court decision in an action underlying a legal malpractice claim is sought in the Florida Supreme Court, does the two-year statute of limitations period of 95.11(4)(a), Florida Statutes, begin to run from the date the decision becomes final by the Supreme Court's resolution of that review, or does the period run from the date of the district court's mandate?


Med Mal — Limitations

Hankey v. Yarian
25 Fla. L. Weekly S203 (Fla. 2000)

Pursuant to 766.104(2), a party considering filing a medical malpractice action may obtain an automatic 90 day extension of the statute of limitations by paying a filing fee and filing a petition in the circuit court. The court holds that this ninety-day period suspends the running of the statute of limitations. The period is separate from, and in addition to the 90- day tolling provision provided for after the notice of intent, and any extensions agreed to by the parties. Under the tolling provision, the statute of limitations stops running temporarily after the notice of intent, and begins to run again at the expiration of the stated time period or when the defendant responds to the notice of intent -- the court calls this a "time out". The time granted under 766.104(2) is in addition to other extensions of the two year statute of limitations.

Here is how the court explains it:

[T]he two-year limitations period is suspended temporarily and begins to run again under 766.106(4) at the expiration of the stated time period or when the defendant responds to the notice of intent. The time of suspension provided under the tolling provision of 766.106(4) is merely a "time out" that the prospective claimant was allotted by the Legislature that is not to be counted against the two-year limitations period. On the other hand, any additional times added under 766.106(4) if the notice of intent is filed by the claimant with less than sixty days remaining in the original statue of limitations, or under the automatic ninety-day extension pursuant to section 766.104(2) are actually statutorily granted additions to the initial two years allotted; by the statute.

The court reiterates that the statute should be liberally construed to give the parties an opportunity to investigate claims, to promote presuit settlements, and to reduce the number of malpractice cases filed in court. The statute should be construed in favor of providing access to court.


Offer of Judgement

Liguori v. Daly
25 Fla. L. Weekly D655 (Fla. 4th DCA 2000)

This is an important case on the timeliness of an Offer of Judgment / Proposal for Settlement. Fla. R. Civ. P. 1.442 provides that "No proposal shall be served later than 45 days before the date set for trial or the first day of the docket on which the case is set for trial, whichever is earlier." Here, the court holds that the offer was timely, where the case was set for trial, but was not reached during the first week of the trial docket, and the parties were excused from the second week, so that they were no longer set for trial at the time of the offer. The next trial docket had not yet been rescheduled, but turned out to be two months away.

The court distinguishes Schussel v. Ladd Hairdressers, Inc., 736 So.2d 776 (Fla. 4th DCA 1999), where the court held the offer void ab initio because, at the time the offer was made, the case was actually set for trial, and the trial date was only 25 days away, even though the case was not reached on that docket. The distinction makes sense, because the court should look to the situation at the time the offer is made, because that is what the parties have to do.

Strahan v. Gauldin
25 Fla. L. Weekly D666 (Fla. 5th DCA 2000)

In a situation with one active tortfeasor, where all other defendants are involved merely because of vicarious liability, an offer of judgment is valid even if it does not apportion the amounts among co-defendants.

Pirelli Armstrong Tire Corp. v. Jensen
25 Fla. L. Weekly D673 (Fla. 2d DCA 2000)

On rehearing, the court certifies the following question:

Whether the application of a contingency risk multiplier to an award of attorney's fees under section 768.79, Florida Statutes (1993), the offer of judgment statute, violate the guarantee of equal protection afforded under the United Sates or Florida Constitution?

In my opinion, the answer to this question should be no. Defendants are arguing that they don't get the benefit of a multiplier, so they are denied equal protection. But (1) defense counsel don't risk nonpayment like plaintiffs' counsel; and (2) there is nothing that I am aware of in the ethical rules that prevents a defense attorney from agreeing to represent a defendant for a contingent, court-awarded fee, as plaintiffs' attorneys routinely do. The fact that they choose to get paid by the hour and not take risks does not translate into a denial of equal protection.


Presumptions

Epler v. Tarmac America, Inc.
25 Fla. L. Weekly S133 (Fla. 2000)

Where a chain accident occurred after a line of cars stopped at a stop light and then started up again, the defendant's testimony of a sudden unexplained stop by the car in front of it, immediately after the defendant's car started moving is sufficient evidence to overcome the presumption of negligence from a rear-end collision. The court distinguishes Tacher v. Asmus, 743 So.2d 157 (Fla. 3d DCA 1999), where the forward driver merely stopped abruptly, as opposed to the present case, where the forward driver slammed on her brakes "for no apparent reason." Apparently there is a difference between a sudden stop and a sudden unexpected stop for no reason.


Service of Process

Totura & Co. v. Williams
25 Fla. L. Weekly S141 (Fla. 2000)

Rule 1.070(j) requires service of process within 120 days of an order granting leave to amend a complaint to add a new party, not 120 days from the motion to amend. The court amends the rule to add language stating: "If a motion for leave to amend or proposed amended complaint sufficiently identifies the new party or parties and contains a short statement of facts for which relief will be demanded, the 120 day period for service of amended complaints shall begin upon entry of an order granting leave to amend."

The purpose of the amendment to the rule is to make sure that technical defenses do not become the centerpiece of the litigation and obscure the merits.


Workers Comp Immunity

Turner v. PCR, Inc.
25 Fla. L. Weekly S174 (Fla. 2000)

Section 440.09(1), Florida Statutes, makes worker's comp the exclusive remedy for accidental injury or death arising out of work performed in the course and scope of employment. Employers covered by the statute are immune from common-law negligence suits by their employees. The statute also explicitly allows liability of co-employees for intentional or reckless actions. For the first time, the Supreme Court explicitly holds what was implicit in Fisher v. Shenandoah Gen. Constr. Co., 498 So.2d 882 (Fla. 1986) and Lawton v. Alpine Engineering Products, Inc., 498 So.2d 879 (Fla. 1986): there is an intentional tort exception to employer immunity under the worker's comp statute. The standard is an objective standard "to measure whether the employer engaged in conduct which was substantially certain to result in injury."

"Substantial certainty" is more than "gross negligence" but less than "virtual certainty." No showing of malice is required. Intent is imputed where injury or death is objectively "substantially certain" to occur. The court acknowledges that to fail to adopt this standard would encourage "willful blindness" by employers who "could ignore conditions that under an objective test would be found to be dangerous, and later claim lack of subjective knowledge or intent to harm an employee." The court notes that the standard it adopts is consistent with the statute which recognizes the liability of managerial or policy-making co- employees for reckless indifference to the safety of other employees.

The court recedes from Fisher and Lawton "to the extent those cases can be read as rejecting the facts as stated therein as a sufficient basis to support an allegation of substantial certainty of injury."

This case arose out of an explosion at a chemical plant. The mixture of two dangerous substances in a "primitive propane tank" rather than a special container with pressure relief valves and cooling devices and other safety features was, according to the plaintiffs' expert, "substantially certain" to result in an explosion. The employer, under pressure to meet a deadline, failed to take the time to use the appropriate safety precautions, and failed to warn the employees of the danger. The court holds that the evidence presents a jury question, and reverses a summary judgment for the employer.