March 1999


Amendment - Relation Back

Schwartz v. Wilt Chamberlain's of Boca Raton, Ltd.
24 Fla. L. Wkly. D403 (Fla. 4th DCA 1999)

Acknowledging that it is liberalizing the rule, the court holds that an amendment to add a new party relates back to the original filing of the complaint where the new party is sufficiently related to an original party such that the addition would not prejudice the new party. The identity of interest is manifested by factors such as: the two companies (1) operate out of a single office; (2) share a single telephone line; (3) have overlapping officers and directors; (4) share consolidated financial statements and registration statements; (5) share the same attorney; and (6) receive service of process through the same individual at the same location.


Argument - Improper

Fravel v. Haughey
24 Fla. L. Wkly. D492 (Fla. 5th DCA 1999) (en banc)

The court en banc holds that, although the plaintiff's counsel closing arguments were improper and inflammatory, including accusations that the defendant, his attorney and his witnesses committed perjury, the defense failure to object waived the error. In the absence of a timely objection, it is improper to grant a new trial. The court leaves some room to argue fundamental error, however, if the impact is "so extensive that its influence pervades the trial", preventing a fair trial. However, the court says that careful application of this standard will "almost always" result in a finding of no fundamental error. This issue is presently pending in the Florida Supreme Court. Murphy v. International Robotics Systems, Inc., 710 So.2d 587 (Fla. 4th DCA), rev. granted, 722 So.2d 193 (Fla. 1988).

If it's really bad, you should object. Ask for a curative instruction or move for a mistrial. If you want to, you may ask the trial court to reserve ruling on the motion for mistrial until the conclusion of the case. If you do that, don't forget to remind the trial court about it at the end of the case, in your motion for new trial. See Ed Ricke & Son v. Greene, 468 So.2d 908 (Fla. 1985).

Owens-Corning v. McKenna
24 Fla. L. Wkly. D327 (Fla. 3d DCA 1999)

Where the defendant's opening statement was a blistering personal attack on plaintiffs, their lawyers and their experts, and plaintiff's lawyer objected and stated that "this is the most unethical opening statement I have ever heard", the trial court properly denied the defense motion for new trial because the defense argument was unethical and the plaintiff's lawyers' comment was "an accurate description of defense counsel's tirade".


Birth Related Neurological Injury Compensation Plan (NICA)

Gilbert v. Florida Birth-Related Neurological Injury Assoc.,
24 Fla. L. Wkly. D249 (Fla. 2d DCA 1999)

This case involves parallel pursuit of tort and NICA remedies. After the Supreme Court decided in Florida Birth-Related Neurological Injury Compensation Assoc. v. McKaughan, 668 So.2d 974 (Fla. 1996) that an administrative hearing officer does not have exclusive jurisdiction to determine if an injury suffered by a newborn is covered by the plan, the plaintiff and the defendant doctors and hospital settled the tort suit. The court now holds that this settlement, without any judicial determination of the defendants' assertion that the administrative remedy was the appropriate exclusive remedy, did not constitute an election of remedies that would also preclude the plaintiffs from pursuing a NICA recovery. "The fact that the defendants in the civil action elected to 'buy their way out' of possible liability in no way adversely affects NICA. NICA has no more or no less liability now than it did absent the civil action. Thus, the doctrine of election of remedies does not apply."


Defamation

Smith v. Cuban American National Foundation
24 Fla. L. Wkly. D329 (Fla. 3d DCA 1999)

To determine whether a statement is defamatory, it must be considered in the context of the entire publication. Falsity is only established if the publication is substantially and materially false, not if it is just technically false. Where the broadcast in its entirety was substantially true, and the defendant's statement would not have created a different effect in the mind of the viewer than the broadcast without the statement, the defendant was entitled to a directed verdict. And, although the standard jury instructions do not include an instruction on "substantial truth", this Court holds that the doctrine should be explained explicitly to the jury.


Discovery - Sanctions

Belmont v. North Broward Hosp. Dist.
24 Fla. L. Wkly. D284 (Fla. 4th DCA 1998)

In their depositions in this med mal wrongful death case, the defendant doctors testified that they had punctured the decedent's aorta during surgery. During the trial, they examined the aorta, which had been preserved, and then changed their testimony 180 degrees and testified that the aorta had never been punctured. The court held that a new trial was required as to all defendants because the trial court should not have admitted this testimony, and it could have affected the jury's decision as to all defendants. The court held that the testimony was clearly opinion testimony, and does not permit the admission of new opinion testimony in the middle of trial. See Grau v. Branham, 626 So.2d 1059 (Fla. 4th DCA 1993). The testimony may be admitted in the new trial, but plaintiffs must be given an opportunity to fully examine them by deposition and to call additional experts on this issue. My concern is that, by allowing this testimony to be admitted at a new trial, the court is allowing the defendants the benefit of their wrongdoing, at additional expense to the plaintiff (who has to appeal, do more discovery, and hire an additional expert). See Keller Industries v. Volk, 657 So. 2d 1200, 1203 (Fla. 4th DCA 1995), rev. denied, 666 So.2d 146 (Fla. 1995), in which the court considered an appeal from an order sanctioning a party for discovery violations involving late disclosure of the testimony of two witnesses. The court stated:

While there are instances which permit some leeway on remand, such as amendments to pleadings, the dictates of justice demand that we "freeze frame" these proceedings to the extent possible in order to prevent appellant from circumventing the decision of this court and obtaining a second bite of the apple. ... Accordingly, the pleadings are to remain unchanged and upon retrial appellant may not use Dr. Hyde as a witness nor elicit from Mr. Ver Halen his affirmative opinion regarding causation.

Owens-Corning Fiberglass Corp. v. McKenna
24 Fla. L. Wkly. D327 (Fla. 3d DCA 1999)

The trial court properly excluded the defense expert medical witness who examined plaintiff and wrote a report shortly before trial, which was not produced to plaintiff by the first day of trial despite the court's order to do so. Citing Grau v. Branham, 626 So.2d 1059 (Fla. 4th DCA 1993), the court holds that lawyers have a right to expect that, once a trial commences, discovery and examination must cease. Had the trial court allowed the expert to testify without giving the plaintiff time before trial to read and analyze his report, the admission of the testimony would have been "inherently prejudicial".


Economic Loss Rule

Facchina v. Mutual Benefits Corp.
24 Fla. L. Wkly. D240 (Fla. 4th DCA 1999)

Plaintiff, a model, entered into an agreement for use of his photograph for specified advertising purposes relating to advertising of insurance policies. Plaintiff alleged that the defendant published his image in advertising implying that he was a homosexual suffering from AIDS. In a well reasoned opinion by Judge Farmer, the court holds that the plaintiff's claims for defamation and invasion of privacy, and a statutory claim for "unauthorized publication" under 40.08, Fla. Stat., were not barred by the Economic Loss Rule.

As to the statutory claim, the court holds that "when the legislature creates a statutory cause of action ... it is presumed to know the common law of contract and tort and the limitations on such remedies created by judges. ELR is one of those judicial limitations on the common law remedies in tort and contract. In crafting new statutory causes of action, the legislature is master of the elements and boundaries of the new cause of action." Cf. Comtech Int'l v. Milam Commerce Park, 711 So.2d 1255 (Fla. 3d DCA 1998) (holding that a statutory claim can be barred by the economic loss rule - supreme court review is pending).

As to the common law claim, the economic loss rule does not bar claims for independent torts.


Insurance - Agents

Bill Eyerly Ins., Inc. v. Gregory
24 Fla. L. Wkly. D433 (Fla. 5th DCA 1999)

The claimant obtained a default judgment against the insured. The insured sued his insurance agent for negligence and breach of contract for failing to forward the summons and complaint to the insurance company as requested. The insured then assigned the cause of action to the claimant in exchange for a covenant not to execute. The claimant also sued the insured's insurance company, which settled for the policy limits, plus a small amount of attorneys' fees and costs. As part of their settlement and release, the claimants preserved their claim against the agent. The court held that the claimant could recover the excess judgment against the insurance agent because the damages were attributable to the insurance agent's breach of contract or negligence and not to the underlying contingency insured against. However, because of the way the settlement with the insurance company was drafted, they were not entitled to interest on the original judgment. The settlement preserved only thoseclaims against the agent "which were not recoverable against" the insurance company. The court held that because the interest could have been recovered against the insurance company, it did not come within the parameters of the claims preserved in the settlement.


Insurance - Auto

Budget Rent-A-Car v. State Farm
24 Fla. L. Wkly. D406 (Fla. 2d DCA 1999)

The State Farm policy provision covering non-owned vehicles cannot be construed to exclude coverage for short-term rental vehicles rented for non-commercial purposes. The court finds the clause ambiguous. The court explains that "it is more important that non-owned automobile coverage protect Floridians for their use of rental vehicles than vehicles that they borrow from friends".


Insurance - PIP

Rollins v. Pizzarelli
24 Fla. L. Wkly. S69 (Fla. 1999)

The DCA certified the following question to the Supreme Court, which the Supreme Court answered in the negative:

Whether the term "paid or payable" in 627.736(3), Florida Statutes (Supp. 1996) should be defined as "that which has been paid, or presently earned and currently owing" so that the statutory language of 627.736 will not be interpreted to permit any remaining personal injury protection benefits to be used for set-offs for future collateral sources.

This means that the tortfeasor gets a setoff for future PIP benefits, including "expenses which have not yet accrued but which will result from the covered injury." Justice Pariente, dissenting, says that the statute should be strictly construed. The court's decision gives the tortfeasor a windfall and the PIP carrier, which is not a party to the litigation, is not bound by the jury's determination of future expenses. Thus, the PIP carrier will be able to contest the reasonableness and necessity of the medical expenses when they are incurred in the future, and there is no guarantee that the PIP carrier will actually pay the benefits for which the tortfeasor is receiving a setoff. She also notes that, at the very least, the setoff should be taken from the gross amount of recovery, before the reduction to present money value.

Allstate Ins. Co. v. Ivey
24 Fla. L. Wkly. D390 (Fla. 3d DCA 1999)

The insured's doctor submitted an ambiguous bill, which the insurer deemed excessive because it appeared that the doctor was charging a large amount for one visit, when actually the doctor was charging for two visits. As soon as it became clear during the lawsuit that the bill was for two treatments, the insurer paid. The court held that the insured was not entitled to attorneys fees. I believe this decision is contrary to the purpose of the PIP statute, which should put the burden on the insurer to obtain a clarification of an ambiguous bill. See generally Fortune Ins. Co. v. Pacheco, 695 So.2d 394 (Fla. 3d DCA 1997) and Martinez v. Fortune Ins. Co., 684 So.2d 201 (Fla. 4th DCA 1996). A motion for rehearing and rehearing en banc is pending.

Fleagle v. State Farm
24 Fla. L. Wkly. D455 (Fla. 3d DCA 1999)

Where the plaintiff was injured when a shotgun he was transporting in his vehicle went off, and the purpose of the trip was to transport the shotgun, the accident arose out of the use of the vehicle and there was PIP coverage. See Quarles v. State Farm, 533 So.2d 809 (Fla. 5th DCA 1988)


Jury Instructions

Standard Jury Instructions - Civil Cases
24 Fla. L. Wkly. S101 (Fla. 1999)

The Supreme Court has approved new standard instructions for the claim of an unmarried dependent under 768.0415 when a parent has sustained "significant permanent injury." Neither the statute nor the instructions define "significant permanent injury." The new instructions are 6.1e and 6.2h. The committee takes no position on whether the statute is limited to negligence cases. The damages listed are loss of "services, comfort, companionship and society". The Comment states that the committee takes no position as to whether there may be other elements of damages, or whether the duration of the future damages is the life of the parent or the duration of the claimant's dependency.

Esancy v. Hodges
24 Fla. L. Wkly. D483 (Fla. 2d DCA 1999)

Where the plaintiff's pre-existing spinal condition rendered her more susceptible to an injury than the average person, and her injury was "either an aggravation of a pre-existing condition or a permanent condition" according to her expert, it was error to refuse to give the standard jury instruction on concurring cause, 5.1(b). Even though the court gave the instruction on aggravation of a pre-existing condition, 6.2(b), a new trial was required because omission of the instruction could have led the jury to believe that the pre-existing injury was the cause of the plaintiff's damages.


Offer of Judgment

Lieff v. Sandoval
24 Fla. L. Wkly. D227 (Fla. 3d DCA 1999)

The trial court erroneously denied plaintiff's motion for attorneys fees after plaintiff obtained a judgment at least 25% more than the offer of judgment he had made. The trial court erroneously found that the offer was not made in good faith. Defendant had argued that the plaintiff did not intend the offer to terminate the litigation because the plaintiff intended to bring a bad faith action against the insurer. The court said the offer accomplished the intent of 768.79 because it would have terminated the litigation between the plaintiff and defendant, making it unnecessary to conduct a week-long jury trial and an appeal from that judgment. The court also rejected the contention that the offer was in bad faith because it was made solely to create the right to attorneys fees. The court held it is not bad faith to use 768.79 to obtain the right to attorneys fees.


Parental Immunity

Herzfeld v. Herzfeld
24 Fla. L. wkly. D386 (Fla. 3d DCA 1999)

The court holds that the doctrine of parental immunity does not bar an action by a minor child against a parent for damages arising from sexual abuse. The court certifies conflict with Richards v. Richards, 599 So.2d 135 (Fla. 5th DCA 1992).


Premises Liability

White v. Silverman
24 Fla. L. Wkly. D453 (Fla. 3d DCA 1999)

This court holds that, in an automobile collision case, a landowner cannot be held liable for a visual obstruction created by foliage growing on a landowner's property, so long as the foliage does not protrude into the public way.


Product Liability

E.I. Du Pont De Nemours & Co., Inc. v. Castillo
24 Fla. L. Wkly. D448 (Fla. 3d DCA 1999)

The plaintiff mother alleged that, while she was pregnant, she was sprayed with Benlate manufactured by defendant Du Pont. The alleged spraying occurred on defendant Pine Island's U-Pick field. The trial court admitted evidence of a phone conversation between Pine Island's owner and a reporter, in which he admitted using Benlate around the time in question. Because this evidence was admissible only against Pine Island (as an admission), and not against Du Pont, and because it was the only evidence that Benlate was what was sprayed on the plaintiff mother, Du Pont was entitled to a directed verdict.

The court also holds that, under Frye v. United States, 293 F. 1013 (D.C.Cir. 1923), plaintiff's scientific evidence was not admissible. Frye places the burden on the proponent of the evidence to prove, by a preponderance of the evidence, the general acceptance of the underlying scientific principle and the testing procedures used to apply that principal to the facts of the particular case. See Murray v. State, 692 So.2d 157 (Fla. 1997), Ramirez v. State, 651 So.2d 1164 (Fla. 1995).

The court applies a four step analysis to determine if evidence meets the Frye test. (1) the trial judge must determine whether such expert testimony will assist the jury in understanding the evidence or in determining a fact in issue; (2) the trial judge must decide whether the expert's testimony is based on a scientific principle or discovery that is "sufficiently established to have gained general acceptance in the particular field in which it belongs; (3) the trial judge must determine whether a particular witness is qualified as an expert to present opinion testimony on the subject; (4) the judge may then allow the expert to render the opinion, and the jury decides the credibility of the opinion, which it may accept or reject.

Here, the court finds that the trial court failed to make the required finding about whether the testimony is based on a scientific principal sufficiently established to have gained general acceptance in the particular field. The standard of review of a Frye issue is de novo; the court reviews expert testimony, scientific and legal writings, and judicial opinions. This Court finds that the plaintiff failed to prove that the experts methodologies are generally accepted among experts in the relevant scientific community. The plaintiffs conceded that their expert's direct extrapolation method was new and that they were unaware of any publication that had ever relied on direct extrapolation from in vitro testing to determine a teratogenic exposure level in a living human being.

The court holds that where plaintiffs wish to establish a substance causes birth defects in human beings based on animal and in vitro studies, the methodology used in the studies must be generally accepted in the relevant scientific community. My concern about this case is that it seems to rely substantially on federal cases. The federal law on admissibility of scientific evidence is much more stringent, and the Florida Supreme Court has rejected it. See Flanagan v. State, 625 So.2d 827, 829 n.2 (Fla. 1993)


Service of Process

York Communications Inc. v. The Furst Group
24 Fla. L. Wkly. D231 (Fla. 4th DCA 1999)

When you get that return of service back from the process server, read it! Here, the return of service said only that it was served on a corporate employee, without identifying the employee and without stating that the corporation failed to keep a registered agent at the registered office during the designated hours under 48.081(3). The court held that service was inadequate and vacated a default that had been entered against the defendant.


Subrogation

Dade County School Board v. Radio Station WQBA
24 Fla. L. Wkly. S71 (Fla. 1999)

This case involves who should pay for injuries caused by the flaming batons used by majorettes in a parade: the person responsible for the majorettes or the sponsor of the parade. As to common law indemnity, the court holds three elements are required: (1) the party seeking indemnification must be without fault, and only vicariously liable; (2) indemnification can only come from a party who was at fault; (3) there must be a special relationship between the parties, which the jury found did not exist in this case. As to equitable subrogation, the court holds that equitable subrogation is only appropriate where (1) the subrogee made the payment to protect his or her own interest; (2) the subrogee did not act as a volunteer; (3) the subrogee was not primarily liable for the debt; (4) the subrogee paid off the entire debt; and (5) subrogation would not work any injustice to the rights of a third party. Moreover, equitable subrogation does not apply unless the person seeking subrogation has paid off 100% of the debt and obtained a release of the other debtor from the claimant.


Whistle Blower

Sussan v. Nova Southeastern University
24 Fla. L. Wkly. D230 (Fla. 4th DCA 1999)

This court gives a very narrow construction to the Private Whistle Blower Act. Section 448.102 protects an employee who has "objected to, or refused to participate in, any activity, policy or practice of the employer which is in violation of a law, rule or regulation." The court holds that objecting to stealing by fellow employees is not covered by this act, because it was not the activity of the employer or anyone acting within the legitimate scope of their employment. The court notes that the Public Whistle Blower Act is different and would have covered this situation had it occurred in public employment.


Workers Comp Immunity

Byerly v. Citrus Publishing, Inc.
24 Fla. L. Wkly. D262 (Fla. 5th DCA 1999)

The plaintiff applied for worker's comp benefits, and the carrier denied benefits on the ground that the injury did not occur within the scope of employment because plaintiff had clocked out and left the building when she tripped over a bench outside. The plaintiff then sued the employer for negligence. The court held that the denial of coverage estopped the employer from asserting comp immunity as a defense. The employer "may not divorce itself from its compensation carrier's representation that an employee's injury did not occur in the course and scope of employment." This would "eviscerate the Workers' Compensation Act and allow employers to avoid all liability for employee job related injuries." Moreover, "the employer has an obligation to assist the employee in securing benefits.

Dade County School Board v. Laing
24 Fla. L. Wkly. D445 (Fla. 3d DCA 1999)

Section 440.11, Florida Statutes, provides an exception to workers' comp immunity when the employees involved in the incident are "operating in the furtherance of the employer's business but they are assigned primarily to unrelated works within private or public employment." In this case, a schoolteacher was run over by a janitor driving a golf cart in the school hallway. The court held that they were not assigned primarily to unrelated works. "The pertinent factor is whether the co-employees are involved in different projects. Thus, the focus is upon the nature of the project involved, as opposed to the specific work skills of individual employees." The court held that "both were involved as part of a team in promoting education at the school campus ... engaged in activities primarily related to the provision of education related services." The opinion does not address Holmes County School Board v. Duffel, 651 So.2d 1176 (Fla. 1995), in which the Supreme Court applied the unrelated works exception to an incident involving a school custodian and a school bus driver. However, at oral argument, the court pointed out that, in Duffel, the parties stipulated that the two employees were assigned primarily to unrelated works.

Caramico v. Artcraft Industries
24 Fla. L. Wkly. D498 (Fla. 5th DCA 1999)

An employer which uses an employee leasing company was held entitled to workers comp immunity in a premises liability action brought by a leased employee. Frankly, I find the concept of leasing human beings troubling.


Wrongful Death

Enterprise Leasing Co. v. Alley
24 Fla. L. Wkly. D377 (Fla. 2d DCA 1999)

A wrongful death action is not derivative, but is remedial and should be construed to fulfill its remedial function. It creates an entirely new and independent cause of action. The court holds that in a wrongful death action, a tortfeasor's exemption from immunity from suit for reasons personal to the decedent will not bar the survivor's action against the tortfeasor.

This is a case by the children of a deceased passenger against the long-term lessor of the vehicle that was negligently driven by the deceased's husband. The car was leased to the deceased and the drivers as co-bailees. The deceased, had she lived, could not sue the lessor because an owner/lessor is not liable for the injuries of a co-bailee that result from a bailee's negligent operation of the leased vehicle. Nevertheless, the children may sue the lessor, because the disability to sue is personal to the wife, and does not inhere in the tort itself. The Wrongful Death Act creates an entirely new cause of action, in an entirely new right for the recovery of damages suffered by the survivors, not by the deceased.

The court for the same reason rejects the defendants' claim that the doctrine of parental immunity should prevent the children's claim against the lessor.