October 1995 Part 2


Class Actions

Kuhnlein v. Dept. of Revenue
20 Fla. L. Wkly. S526 (Fla. 1995)

The Supreme Court has explained how to determine class action attorneys fees in a class action in which the fees are to be paid from the common fund created by the litigation, rather than from a statutory award from the opposing party. The court held that fees are not to be awarded based on a percentage of the common fund. Rather, a modified lodestar approach should be used, based on the hours expended and a reasonable hourly rate. A multiplier as high as five may be used. The fee agreement between the attorneys and the class representatives is not determinative of the fee.


Collateral Estoppel

Jones v. The Upjohn Co.
20 Fla. L. Wkly. D2271 (Fla. 2d DCA 1995)

The plaintiff, who was convicted of first degree murder, sued a drug company for failing to sufficiently warn of the dangerous side effects of the drug, Halcion, and for falsifying some of the research. The court held that collateral estoppel does not bar the plaintiff's claim. Because Upjohn was not a party in the criminal case, it cannot use that conviction to bar the plaintiff's claim, because there was no mutuality of parties. The court also notes that while Upjohn has a serious public policy argument that criminals should not benefit from their misdeeds, there is a countervailing public policy consideration that corporations should not be shielded form liability for allegedly harmful products or reprehensible deeds, including manipulation of the FDA approval process.


Hospital Bills

Payne v. Humana Hospital Orange Park
20 Fla. L. Wkly. D2301 (Fla. 1st DCA 1995)

Reversing the dismissal of plaintiff's claim against the hospital where he was treated, the court upholds the plaintiff's cause of action for "money had and received through imposition" for a refund of money paid for his hospital bills, and for a declaratory judgment that the bills were excessive and unconscionable. The court holds that "a patient may not be bound by unreasonable charges in an agreement to pay charges in accordance with 'standard and current rates.'" When the contract fails to fix the price, a reasonable price is implied. The court rejects Humana's allegation that the contract required the payment of "prevailing rates" and "regular charges", holding that these issues cannot be determined on a motion to dismiss. The court holds it is a question of fact at this point whether the charges are set and ascertainable, since they are only contained in a document called a "charge master" which Humana keeps; it is hundreds of pages long and in code.


Insurance -- UM

Baker v. United Services Automobile Assoc.
20 Fla. L. Wkly. D2297 (Fla. 1st DCA 1995)

Reversing a summary judgment in favor of the insurance company and its agent, the court held that it was for a jury to decide plaintiff's claim of fraudulent misrepresentation. Plaintiff was injured while riding in a car owned by his mother. He alleged that the agent for his UM carrier told him that his UM coverage was pro rata with his mother's policy, rather than excess over it. In reliance, he settled with this mother's insurer for less than the policy limits, and then his own UM carrier refused to settle. The court held there were questions of fact as to whether the representations were statements of fact or expressions of opinion, whether the agent intended the plaintiff to rely on the representations, and whether the plaintiff reasonably relied on the statements to his detriment. The representations were made while the plaintiff was in negotiations with the other insurer. It seems to me that, at the very least, there is some sort of estoppel argument to be made here against the plaintiff's UM carrier.

The court, in strong terms, refuses to hold, as a matter of law, that the insured "had no right to rely upon a representation made to him by his own insurance agent because the representation was nothing beyond a mere opinion." The court says that to do so would be to make it impossible for insureds to settle any claim.

GEICO v. Stafstrom
20 Fla. L. Wkly. D2303 (Fla. 5th DCA 1995)

The plaintiffs owned two insured vehicles. They bought a third car and added it to their policy, paying an additional premium. Shortly after that, the plaintiff was injured in an accident. The court held that the addition of a third covered vehicle, with payment of an additional premium, triggered the insurer's duty under 672.727, Florida Statutes, to obtain a written rejection of UM coverage because a new contract was formed. The court refused to apply the exception in 627.727(1), that, when the insured initially selected lower limits, higher limits need not be offered on any policy which renews, extends, changes, supersedes or replaces an existing policy unless the insured requests it.

Therefore, the plaintiff was entitled to UM coverage equal to the bodily injury liability coverage on the third vehicle.


Jury Trial

Ulrich v. Berton
20 Fla. L. Wkly. D2273 (Fla. 3d DCA 1995)

The plaintiff requested a jury trial in a case against multiple defendants. Two of the defendants did not show up for trial; one of them claimed illness. The others waived jury trial and the court conducted a nonjury trial of all claims. The court held that it was error to hold a nonjury trial, even against the defendants who did not show up. "A demand for trial by jury may not be withdrawn without consent of the parties." Since the court entered a default against one of the non-appearing defendants, he was entitled to a jury trial on damages. The other non-appearing defendant was entitled to a jury trial on all issues.


Med Mal

Marshall v. Stein
20 Fla. L. Wkly. D2239 (Fla. 3d DCA 1995)

The plaintiff is not entitled to a res ipsa loquitur instruction in a med mal case in which the plaintiff suffered from hypoxia after surgery, while still under anesthesia. The court interprets 766.102(4), Florida Statutes, as prohibiting a res ipsa instruction in this case. The statute provides "the existence of a medical injury shall not create any inference or presumption of negligence against a health care provider...". The court notes that the statute was given a narrow construction in Borghese v. Bartley, 402 So.2d 475 (Fla. 1st DCA 1981), in which the court held that it only applies to an injury sustained as a result of medical treatment or diagnosis, and not when the injuries are outside the scope of the treatment or diagnosis. The court here says that even if the narrow interpretation is correct, the injury here was related to the anesthesia, and the anesthesia was an integral part of the operation.

Sova Drugs, Inc. v. Barnes,
20 Fla. L. Wkly. D2304 (Fla. 5th DCA 1995)

In an action against a pharmacy and pharmacist for negligence in incorrectly filling a prescription, the court held that neither the pharmacy nor the pharmacist is a health care provider under the statute, and therefore, the plaintiff need not comply with the presuit requirements of chapter 766. See Weinstock v. Groth, 629 So.2d 835 (Fla. 1993) for a discussion of who are and are not health care providers. 766.105(1)(b) lists health care providers for purposes of presuit. Even though pharmacists may be listed in other sections of the statute, since they are not covered here, they are not.


Sovereign Immunity

Grace v. City of Miami
20 Fla. L. Wkly. D2249 (Fla. 3d DCA 1995)

The plaintiff, a two-year-old child, was injured while attending a lunch program, sponsored by the city at a city-owned park. Reversing a defense summary judgment, the court holds that the plaintiff is entitled to go to a jury on a negligent supervision theory, because, once the city undertakes to provide a lunch for children, it assumes the duty to operate the program safely.