May 1997


Argument - Improper

Winterberg v. Johnson
22 Fla. L. Wkly. D1053 (Fla. 1st DCA 1997)

The defense attorney's closing argument expressing personal beliefs was not fundamental error and therefore was not grounds for reversal where there was no objection. The argument was not "so pervasive that it could not be corrected by proper instruction from the trial court."


Attorneys Fees -- Charging Lien

New England Mut. Life Ins. Co. v. Podhurst Orseck Josefsberg Eaton Meadow, Olin and Perwin, P.A
22 Fla. L. Wkly. D787 (Fla. 3d DCA 1997)

The law firm recovered insurance proceeds for an insured for a property loss under a policy under which the mortgagee was a loss payee. The court held that the mortgagee's lien had priority over the attorneys' charging lien, where the mortgage company was not a party to the underlying action. This unfairly allows the mortgagee to benefit from the attorneys' work without paying for it. However, if the law firm can show that the mortgagee consented to give priority to the firm's contingent fee, or agreed that the fee should come off the top of the insurance recovery, the firm will be entitled to prevail.


Borrowed Servant

Fleming Companies, Inc. v. Moreira
22 Fla. L. Wkly. D826 (Fla. 3d DCA 1997)

A temporary employee who was covered by his temp service's worker's comp, but was acting under the special employer's exclusive authority and control, was a "borrowed servant" of the special employer and therefore the special employer was entitled to worker's comp immunity. The law extends an employer's immunity to the work-related injuries of employees obtained through a "help supply services company". 440.11(2), Florida Statutes.


Civil Rights -- Qualified Immunity

Redo v. Sylvestri
22 Fla. L. Wkly. D846 (Fla. 4th DCA 1997)

It was error to grant a police officer's motion for summary judgment based on qualified immunity in a 1983 civil rights case where there were disputed issues of material facts and the plaintiff's version was that she was beaten while restrained and not resisting. Such actions are obviously a violation of a suspect's constitutional rights. The defense of qualified immunity requires that the officer show that he did not violate clearly established constitutional rights.


Continuance

Quinton v. Horvath
22 Fla. L. Wkly. D942 (Fla. 3d DCA 1997)

It was error to deny a continuance in a complex legal malpractice case where both defendant's lead attorney and the attorney's associate were seriously ill and under the care of a cardiologist.


Damages -- Sufficiency

Bucci v. Auto Builders South Florida Inc.
22 Fla. L. Wkly. D904 (Fla. 4th DCA 1997)

The damages were inadequate where it was undisputed that the plaintiff sustained a permanent injury as a result of the accident and the jury awarded him substantial past and future medical expenses but nothing for past or future noneconomic damages. The court ordered a new trial on all issues where liability was "hotly" contested (why do they always use that word?) because the defendant contended the plaintiff was a trespasser. The court certifies to the Supreme Court whether, to preserve this issue, the plaintiff must object before the jury is discharged and ask for the jury to be sent back to continue deliberating. The rule thus far has been that the issue may be raised by motion for new trial or for additur (see 768.74, Florida Statutes). The issue of whether it is also necessary to object before the jury is discharged is before the Supreme Court on a question certified in Allstate Ins. Co. v. Manasse, 681 So.2d 779 (Fla. 4th DCA 1996).


Economic Loss Rule

Hotels of Key Largo, Inc. v. RHI Hotels, Inc.
22 Fla. L. Wkly. D952 (Fla. 3d DCA 1997)

Despite the many recent decisions of the Supreme Court holding that the Economic Loss Rule does not bar claims for independent torts, the court carves out an exception here. The court holds that the plaintiff's claim based on oral misrepresentations could not serve as the basis for a fraud claim where the contract contained an integration clause providing that the contract constituted the entire agreement between the parties and superseded all prior agreements and understandings. I believe that this holding eviscerates the Supreme Court's holdings in the Economic Loss Rule cases such as HTP Ltd. v. Lineas Aereas Costarricences, S.A., 21 Fla. L. Wkly. S447 (Fla. 1996). The remainder of the opinion, holding that misrepresentation as to a party's performance is not an independent tort, is probably correct.

Sarkis v. Pafford Oil Co.
22 Fla. L. Wkly. D1049 (Fla. 1st DCA 1997)

Plaintiff's claims of post-contract fraud were barred by the economic loss rule. Plaintiff's claims for civil theft and racketeering, which really were just breach of contract claims dressed up, were also barred. However, plaintiff's claim under the Florida Unfair and Deceptive Trade Practices Act was not barred by the economic loss rule, because it was a claim independent of the contract and because that particular statute is designed not just to protect the plaintiff but the consumer public at large. I'm not sure that this really distinguishes it from the civil racketeering statute.


Evidence

Murray v. State 22 Fla. L. Wkly. S203 (Fla. 1997)

In this criminal case, the Court affirms the continuing vitality of the Frye test for the admissibility of scientific evidence (in this case, DNA evidence). See Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923). The burden is on the proponent of the evidence to prove the general acceptance of both the underlying scientific principle and the testing procedures used to apply that principle to the facts of the case at hand. See Ramirez v. State, 651 So.2d 1164 (Fla. 1995). The Court was particularly critical here of the use of an unproven method of DNA testing that had not been generally accepted in the scientific literature at the time of the testimony, and also critical of the expert's lack of knowledge of how the relevant data base, on which he based his analysis, was created. This case should not be used to exclude a new scientific idea that is based on generally excepted scientific principles and procedures.


Ex Parte Communications

Rho-Sigma, Inc. v. International Control & Measurements Corp.
22 Fla. L. Wkly. D791 (Fla. 3d DCA 1997)

The defendant asserted trade secret privilege against the plaintiff's discovery request. The court ordered production in camera, and then conducted an in camera, ex parte review of the documents with only the defense lawyer and a court reporter present, instructing the plaintiff's lawyer to remain behind. He ordered production of one of the documents. The trial court then again met ex parte with defense counsel to review the transcript and make sure the document had been properly redacted, with no court reporter present. The third district held that both ex parte meetings were departures from the essential requirements of law, and quashed the order denying discovery. The court held that the denial of notice and an opportunity to be heard was a denial of due process.


Experts -- Discovery

Carrera v. Casas
22 Fla. L. Wkly. D893 (Fla. 3d DCA 1997)

The trial court, over the plaintiff's objections, allowed three new defense expert examinations of the plaintiff after the discovery cutoff. The plaintiff then served interrogatories and requests for production seeking information about the experts' involvement in other cases and income from defense examinations. The court held that under Elkins v. Syken, 672 So.2d 517 (Fla. 1996) and Rule 1.280(b)(4)(A)(iii), the plaintiff was entitled only to the limited information described in the case and the rule, and that the plaintiff was not entitle to obtain this information from the defendant, but only from the witness.

It seems to me that it should be appropriate for a party to ask the opposing party, for example, to list all of the cases in which the expert has testified for that party's attorneys. This decision seems to suggest that it is not. Perhaps the rule should be amended to clarify this.


Fabre

Snoozy v. United States Gypsum Co.
22 Fla. L. Wkly. D1017 (Fla. 3d DCA 1997)

In this asbestos case, the jury attributed 25% fault to the defendant and 75% to unnamed non-parties. The court held that the plaintiff was entitled to a directed verdict as to the non-parties, and judgment in his favor in the full amount, where the defendant failed to introduce evidence of the "specifics of different products, how often the products were used on the job sites, and the toxicity of those products as they were used. Therefore, there was insufficient evidence to apportion fault between the defendants and "others." Judge Schwartz, dissenting, argues that it is not necessary to specifically identify the "others," citing a phantom driver case which the majority distinguishes.


Failure to Prosecute

Pasco County v. Quail Hollow Properties, Inc.
22 Fla. L. Wkly. D1087 (Fla. 2d DCA 1997)

This Court holds that a separate notice of appearance must be filed by additional counsel. A motion to dismiss filed by an attorney who did not file a notice of appearance is a nullity. Therefore, it was error to grant the motion and to dismiss the complaint for failure to prosecute.


Forum Non Conveniens

Chiquita Internationl Ltd. v. Fresh Del Monte Produce, N.V.
22 Fla. L. Wkly. D825 (Fla. 3d DCA 1997)

It was error to dismiss this action for tortious interference with a business relationship on the grounds of forum non conveniens. The tortious interference occurred in Coral Gables. None of the parties were Florida corporations, but the defendants have a "significant corporate presence" in Coral Gables, where some of their major executives are located. The majority of witnesses are in Coral Gables, Ohio, Bermuda and Costa Rica. Most of the documentary evidence is in Dade County. Thus, the private interests were not in "equipoise" -- were not evenly balanced. There was no showing that an adequate alternative forum would have jurisdiction over the case.


Impact Rule

Tanner v. Hartog
22 Fla. L. Wkly. S250 (Fla. 1997)

The parents of a stillborn child have a cause of action for negligent infliction of emotional distress and the impact rule does not apply. The court has carved out a narrow exception, not the wholesale abolition of the impact rule that some have suggested. The court disapproves Abdelaziz v. A.M.I.S.U.B. of Florida, Inc., 515 So.2d 269 (Fla. 3d DCA 1987) and a number of other cases which had created "clever mechanisms to satisfy the impact rule." The court notes that, because the impact rule does not apply, the father does not have to be present at the birth to recover damages. The damages are not those recoverable under the wrongful death statute, and are not those suggested by some courts -- the loss of the "living tissue" of her body. The damages are limited to "mental pain and anguish and medical expenses incurred incident to the pregnancy."

Ruttger Hotel Corp. v. Wagner
22 Fla. L. Wkly. D1016 (Fla. 3d DCA 1997)

The plaintiffs were the victims of a robbery in their hotel room. The court held that the impact rule barred their recovery in a negligence action against the hotel because they did not suffer any physical injury as a result of the physical impact. See R.J. v. Humana of Florida, Inc., 652 So.2d 360 (Fla. 1995). In a concurring opinion, Judge Shevin questions "the continued application of this harsh rule."


Insurance -- Auto

Trott v. Finlayson
22 Fla. L. Wkly. D837 (Fla. 4th DCA 1997)

Two insureds were injured when the insured child's father shot at a car to prevent the insured adult from driving off with the child to return him to his mother in a custody dispute. The adult was injured by a bullet, the child by glass from the broken windshield. The court held that neither insured was entitled to PIP or UM coverage. The injuries did not arise out of the ownership, maintenance or use of the vehicle. The court reasons that the gun, not the car, produced the injuries. This reasoning seems to contradict the Supreme Court's decision in Prudential v. Swindal, 622 So.2d 467 (Fla. 1993), which held that tort principles of proximate cause should not be used in interpreting insurance policies. Cf. Quarles v. State Farm, 533 So.2d 809 (5th DCA 1988) (accidental firing of gun in gun rack of pickup truck arose out of ownership/maintenance or use of pickup truck); Tuerck v. Allstate, 469 So.2d 815 (3d DCA 1985), rev. denied, 482 So.2d 347, 350 (Fla. 1986) (shooting arose out of ownership of car where assailants were looking for the occupant of a particular vehicle).

Croom's Transp., Inc. v. Monticello Ins. Co.
22 Fla. L. Wkly. D1053 (Fla. 1st DCA 1997)

Coverage for the plaintiff's injury was not excluded under a clause excluding coverage for injuries arising out of the loading or unloading of an automobile where the plaintiff nurse was injured when she assisted the insured's employees in moving a patient from a bed to a stretcher to be transported in the insured's van. This decision is important: In a footnote, the court distinguishes Gen. Acc. Fire & Life Assur. Corp. v. Liberty Mut. Ins. Co., 260 So.2d 249 (Fla. 4th DCA 1972), which applied a broad definition of loading and unloading in a coverage clause. Here, the court points out that the term must be read narrowly in an exclusionary clause as in the present case.


Insurance - Misrepresentation

Steele v. Jackson National Life Ins. Co.
22 Fla. L. Wkly. D817 (Fla. 5th DCA 1997)

The insured had been hospitalized several times for schizophrenia prior to applying for the policy. The insured's husband testified that he told the insurance agent about it, and that the insurance agent told him it didn't matter to the insurance company. The agent denied that he was told that. The court held that the agent, an independent agent, was acting on behalf of the insured, not the insurer, and could not be held to be acting on behalf of the insurer in issuing the policy where he was not authorized to issue a binder and did not collect a deposit. Further, the questions on the policy application specifically asking about hospitalizations for mental conditions put the insured on notice to inquire about the agent's authority to explain whether her history would be significant to the insurance company.

Green v. Life & Health of America
22 Fla. L. Wkly. D907 (Fla. 4th DCA 1997)

Even though the insured was unaware of his condition and therefore innocently gave an inaccurate answer to the insurer's questions on the application, the insurer was entitled to rescind the policy where the misrepresentation materially affected the risk. The court rejected the argument that there was no misrepresentation because the application form asked for the information "to the best of my knowledge and belief." The court holds that 627.409 makes knowledge and intent irrelevant; the issue is whether it materially affects the risk. The court acknowledges a contrary result reached by the First DCA in Carter v. United of Omaha Life Ins., 685 So.2d 2 (Fla. 1st DCA 1996), and in several federal 11th Circuit Cases. The court certifies conflict. Judge Pariente dissented, noting that it was the insurance company which chose the "knowledge and belief" language.


Insurance - PIP

Fortune Ins. Co. v. Pacheco
22 Fla. L. Wkly. D1077 (Fla. 3d DCA 1997)

The court en banc holds that a PIP insurer may not require an insured to submit all supporting medical records before the 30-day time period for payment of the claim begins. The statute, 627.736(4)(b), requires a PIP insurer to pay within 30 days of "reasonable proof of such loss and the amount of expenses and loss incurred which are covered by the policy." The statute does not define "reasonable proof" of loss; however, the court strictly construes the statute, consistent with a long line of cases holding that the burden is on the insurer to authenticate the claim within the statutory time period. See Dunmore v. Interstate Fire Ins. Co., 301 So.2d 502 (Fla. 1st DCA 1974). The court recognizes the reality that the insured usually does not have the records; the burden is on the insurer to obtain them. Congratulations to Robert Glazier for this vindication of claimants' rights to prompt payment, which is the heart of the no-fault system.

Enriquez v. Clark
22 Fla. L. Wkly. D936 (Fla. 5th DCA 1997)

The trial court erred in refusing to award a setoff for the plaintiff's future medicals where the medicals would be covered by the plaintiff's PIP. However, the trial court properly refused to reduce the judgment by the amount of the PIP deductible where the plaintiff suffered permanent injuries and thus met the PIP threshold. The setoff of the PIP deductible under Hannah v. Newkirk, 675 So.2d 112 (Fla. 1996) applies only when the damages caused by the tortfeasor do not exceed the no fault threshold.


Jury Misconduct

Wilcox v. Dulcom
22 Fla. L. Wkly. D833 (Fla. 3d DCA 1997)

Where a juror did not disclose when questioned that she had been involved in a collections dispute and a domestic action, a new trial was required, even though the cases were not the same kind of case as the one on which she sat as a juror. The court sets out a three part test: (1) the withheld information must be relevant and material to jury service; (2) the juror concealed the information during questioning; (3) the failure to disclose was not attributable to the complaining party's lack of diligence. The litigation history of a potential juror is relevant and material even if it involves a different type of case because the juror may sympathize with similarly situated litigants or develop a bias against legal proceedings in general. De La Rosa v. Zequeira, 659 So.2d 239, 241 (Fla. 1995).


Mediation

Paranzino v. Barnett Bank of South Florida
22 Fla. L. Wkly. D847 (Fla. 4th DCA 1997)

Be careful about the confidentiality requirements of mediation. This court holds that it was not an abuse of discretion for the trial court to dismiss the plaintiff's complaint for disclosing to a newspaper an offer made to her in mediation. Section 44.102(3), Florida Statues, makes the proceedings confidential. When the parties do not reach a settlement, the confidentiality must remain inviolate. By knowingly breaching the confidentiality requirements which were also set forth in the Mediation Report and Agreement, the plaintiff and her lawyer, according to this Court, deliberately violated the court's order setting the matter for mediation in accordance with the rules.


Med Mal - Birth Related Neurological Injuries

Galen of Florida, Inc. v. Braniff
22 Fla. L. Wkly. S227 (Fla. 1997)

The Florida Birth Related Neurological Injury Compensation Fund (NICA) provides no-fault compensation and immunity, similar to worker's compensation, for serious birth-related neurological injuries resulting in medical and physical impairment. See Florida Birth-Related Neurological Injury Comp. Assoc. v. Fla. Div. of Administrative Hearings, 22 Fla. L. Wkly. S42 (Fla. 1997). Section 766.316 requires health care providers to provide notice to patients. The court holds that, as a condition precedent to invoking immunity under the statute, the health care provider must give notice a reasonable time prior to delivery where practicable. Whether it is practicable depends on the facts of each case. The assertion of the immunity under the statute is an affirmative defense and where the facts are disputed it must be submitted to the jury.


Med Mal - Limitations

Stephens v. Bay Medical Center
22 Fla. L. Wkly. D972 (Fla. 1st DCA 1997)

It was error to enter summary judgment against the plaintiff on the statute of limitations in her medical malpractice action. The plaintiff was injured in an assault and, allegedly, by subsequent malpractice. Her attorney had written a letter to the state attorney's office indicating that he had been retained to investigate civil actions against "any of the tortfeasors, business proprietors and/or medical providers if there is a basis for civil liability." The court held that this letter did not conclusively show that the plaintiff was on notice of the medical negligence.

The court noted that in Tanner v. Hartog, 618 So.2d 177 (Fla. 1993), Justice Kogan had written that (1) a "possibility" of negligence does not exist if the untoward medical event reasonably appeared likely to have been the product of an agency other than malpractice and (2) "knowledge" about the possibility is viewed from the perspective of the actual plaintiffs, not someone with training or skill different from the plaintiffs'. The court must also inquire into what the medical providers actually told the plaintiff about the event.

Because the plaintiff's injuries were likely to have occurred as a result of the assault, summary judgment was error. The attorney's letter could have referred to representation in connection with the assault and to obtaining disability benefits.


Med Mal - Pleadings

Robbins v. Newhall
22 Fla. L. Wkly. D945 (Fla. 3d DCA 1997)

Be very careful about how specifically you plead in your medical malpractice complaints! In this case, the plaintiff pleaded that the defendant was negligent in using an improper surgical technique, failing to properly monitor plaintiff's condition after nasal reconstructive surgery, and failing to properly inform plaintiff of the risks. The court held that these allegations were not sufficient to encompass evidence that the defendant had removed too much cartilage, causing the plaintiff's nasal collapse. Consequently, it was error to submit that claim to the jury and a verdict should have been directed against the plaintiff on that claim. Since there was no expert evidence to support the plaintiff's other theories, the court should have directed a verdict in favor of the plaintiff on the entire case. You may avoid this problem, if your expert comes up with a new theory, by moving to amend your complaint to assert that theory. This may cause you to lose your trial date, but that is certainly preferable to a directed verdict.


Med Mal - Presuit

Citron v. Shell
22 Fla. L. Wkly. D776 (Fla. 4th DCA 1997)

The trial court did not depart from the essential requirements of law in refusing to dismiss plaintiffs' med mal complaint with prejudice for failure to provide a presuit expert opinion pursuant to 766.203. Providing the affidavit to the defendant is a condition precedent to suit. But where the statute of limitations has not yet run, the plaintiff still has time to comply and it would be error to dismiss with prejudice. The court should dismiss with leave to amend where there is still time to comply.

Correa v. Robertson
22 Fla. L. Wkly. D797 (Fla. 2d DCA 1997)

The plaintiff's expert affidavit in support of the notice of intent was inadequate because the expert was not a physician but held a masters degree in hospital administration. The expert must be a physician or a nurse. Be careful of this trap! The court holds that, as to one count which does not clearly allege medical malpractice, presuit notice may not be required.


Negligence - Duty

Green v. Ross
22 Fla. L. Wkly. D919 (Fla. 2d DCA 1997)

The plaintiff had no cause of action against the assailant's psychiatrist for failing to warn the plaintiff that the psychiatrist's patient presented a serious threat to the plaintiff. Section 491.0147, Florida Statutes allows the psychiatrist to warn a potential victim when the patient presents an actual threat to physically harm an identifiable victim and has an apparent ability to do so. The court holds that this does not create a duty to warn and cannot serve as the basis for a cause of action.


Negligence - Proximate Cause

Springtree Properties, Inc. v. Hammond
22 Fla. L. Wkly. S196 (Fla. 1997)

The Supreme Court, in a well-reasoned opinion by Justice Kogan, has clarified when the issue of foreseeability, as it relates to proximate cause, must be allowed to go to the jury.

This case arose out of an accident in which a driver in a restaurant parking lot inadvertently stepped on her accelerator instead of her brakes while parking her car in a head-in space in front of the parking lot. The car jumped the curb and hit the plaintiff, who was coming out of the restaurant. The plaintiff sued the restaurant alleging that it was negligent in failing to prohibit parking directly in front of the restaurant, failing to install some kind of barrier or bumper post, and in failing to warn patrons about the unsafe condition.

The trial court entered summary judgment for the restaurant based on the defendants' argument that there was no proximate cause because the accident was not foreseeable. The Second District reversed, certifying conflict with the Third District in Molinares v. El Centro Gallego, Inc., 545 So.2d 387 (Fla. 3d DCA), rev. denied, 557 So.2d 866 (Fla. 1989). The Supreme Court agreed with the Second District, and overruled Molinares.

The court held that the issue of foreseeability as it pertains to proximate cause may be decided as a matter of law only if "it appears to the court highly extraordinary that [the conduct] should have brought about harm." McCain v. Florida Power Corp., 593 So.2d 500, 504 (Fla. 1992). The mere fact that there have been no prior similar accidents at this location does not mean that the accident is unforeseeable as a matter of law. The business may have actual or constructive knowledge of prior similar accidents at other similar locations. Constructive knowledge of these accidents may be sufficient to establish foreseeability.

In this case, evidence of use of vertical bumper posts at similar locations in the vicinity, plus an expert's opinion that failure to install bumper posts was the proximate cause of the accident, was sufficient to take the case to the jury.


Nursing Homes

H.B.A. Management Inc. v. Schwartz
22 Fla. L. Wkly. S236 (Fla. 1997)

In a major victory for nursing home residents and for those who would protect their rights, and for all victims of negligence by corporations, the court holds that an attorney for a plaintiff may contact former employees of the defendant, ex parte. The decision is not limited to nursing homes. The court holds that Fla. Rule of Professional Conduct 4-4.2, which prohibits contacting persons represented by counsel, does not prohibit contacting the former employees of the opposing party, unless they are represented by counsel. The court notes that the former employer is no longer bound by the statements of the former employees, and the termination of the employment terminates the responsibility of the former employer for the employee's subsequent words or acts. The ruling applies regardless of whether the former employees were those allegedly responsible for the plaintiff's injuries. This thoroughly researched decision, written by Justice Anstead, knocks down a major obstacle encountered by many attorneys who were representing nursing home patients who were unable to tell the attorney how they were injured.


Offer of Judgment

Goldy v. Corbett Cranes Services, Inc.
22 Fla. L. Wkly. D927 (Fla. 5th DCA 1997)

The offeree's motion to enlarge the time to respond to an offer of judgment, pursuant to Fla. R. Civ. P. 1.090, tolled the time for responding to the offer. However, the offeror withdrew the offer before the hearing on the motion to enlarge time. This withdrawal rendered the offer void. Therefore, the offeror was not entitled to attorneys fees under the offer of judgment rule.


Privilege - Psychotherapist

Russell v. Stardust Cruisers
22 Fla. L. Wkly. D871 (Fla. 5th DCA 1997)

The defendant sought discovery of the deceased's psychological and psychiatric records via Rule 1.351, production from nonparty. Because there was evidence that the deceased had been drinking shortly before the accident, defendant wanted to find out if he had an alcohol or substance abuse problem. Plaintiff asserted psychotherapist-patient privilege, and also that the request was overbroad because it covered his entire psychological and psychiatric history with no limits as to time or subject matter. The court ordered production. The 5th DCA granted cert and held once the privilege was asserted, discovery must proceed under Rule 1.310 which requires taking the deposition of the records custodian. Further, although evidence of alleged alcoholism would be relevant to the decedent's health, life expectancy and habits, this does not allow carte blanche investigation of his entire mental health history. The court should have taken protective measures, including in camera inspection, and deposition of the psychologist and psychiatrist.


Punitive Damages

State Capital Ins. Co. v. Mattey
22 Fla. L. Wkly. D786 (Fla. 3d DCA 1997)

Section 624.155 allows for punitive damages in certain insurance bad faith cases. The court now holds that before a claim for punitive damages may be pled, the plaintiff must comply with 768.72, requiring a proffer of evidence justifying punitive damages. See also Key West Convalescent Center v. Doherty, 619 So.2d 367 (Fla. 3d DCA 1993) (same requirement as to claims under the nursing home statute).


Slavin Doctrine

Brady v. State Paving Corp.
22 Fla. L. Wkly. D778 (Fla. 4th DCA 1997)

Under Slavin v. Kay, 108 So.2d 462 (Fla. 1958), if a defect in construction is patent, the owner is on notice and the contractor is not liable for it after turning over the project to the owner. But if the defect is latent, the contractor remains liable. Here, the defect in construction resulted in a large, deep puddle of water. Although the puddle itself was obvious, the depth, which made the condition dangerous, was not obvious. Consequently, the contractor could still be held liable. In a concurring opinion, Judge Klein suggests that it is time to overrule Slavin, now that joint and several liability has been abolished. Let the jury decide how much fault belongs to the contractor and how much to the owner, instead of a bright line test. After Godales, I wonder if Slavin will still be the law.


Sovereign Immunity

Stoll v. Noel
22 Fla. L. Wkly. S177 (Fla. 1997)

The court extends sovereign immunity to physician consultants who contract with HRS Children's Medical Services to provide care at a health clinic. Even though the doctors were independent contractors, they were the agents of the state for purposes of providing health care at the clinic because of the degree of control the clinic exercised over their actions. It required them to abide by policies and rules in HRS's Manual; all services had to be authorized in advance by the clinic medical director; the Manual gave HRS the power to supervise treatment; the Medical Director had the power to overrule a recommended treatment for either medical or budgetary reasons and had ultimate authority over payment for treatment proposed by the consultants.

If there's a silver lining here, it's the potential for applying the court's reasoning to HMOs. There's a good argument for making the "independent contractor" doctor an agent of the HMO when the HMO vetoes a proposed treatment. The court appears to be acknowledging the reality of that kind of economic power over medical decisions


Workers Comp Immunity

Hastings v. Demming
22 Fla. L. Wkly. S243 (Fla. 1997)

Clarifying Fla. R. App. P. 9.130(a)(3)(C)(vi), the court holds that not all orders on worker's comp immunity are reviewable by interlocutory appeal. Only those orders which specifically state that, as a matter of law, the defendant is not entitled to worker's comp immunity, are appealable non-final orders. Those of us who have faced successive appeals on denials of motions to dismiss and denials of summary judgment are grateful for this clarification.