September 1996


Admiralty -- Jones Act

Favio Waggon-Dixon v. Royal Caribbean Cruises
21 Fla. L. Wkly. D1709 (Fla. 3d DCA 1996)

A seaman who slipped and fell on the ship as he was climbing down the stairs holding a heavy bag of laundry could sue under the Jones Act for unseaworthiness. Unseaworthiness is not limited to the condition of the ship, and the failure to properly train cabin stewards how to carry heavy objects on the stairs may constitute unseaworthiness. The wet and dirty condition of the stairs may also constitute unseaworthiness.


Argument -- Improper

Baldez v. State
21 Fla. L. Wkly. D1896 (Fla. 4th DCA 1996)

Where the objection to the improper argument was overruled, it was not necessary to move for mistrial to preserve the issue, because the motion would have been a futile act.

Palustre v. Brenson
21 Fla. L. Wkly. D1713 (Fla. 3d DCA 1996)

It was error to grant a new trial to the defendant landlord in an action for wrongful eviction and intentional infliction of emotional distress (locking out tenants after hurricane Andrew) where the plaintiff’s counsel argued his personal opinion that the landlord’s action was not appropriate to the time and place; the trial court sustained the defense objection; and the defense neither requested a curative instruction nor moved for mistrial. The argument did not constitute fundamental error.

Brown v. State
21 Fla. L. Wkly. D1931 (Fla. 4th DCA 1996)

It was not improper for counsel to refer to specific witnesses as liars where the argument was based on the evidence. It was reversible error for the judge to tell counsel in front of the jury that “there is no evidence that anybody is a liar.” The court may not comment on the credibility of any witness in front of the jury. It was not improper for the attorney to single out one juror, a doctor, and speak directly to her during closing argument. The court may not force counsel to apologize to the jury for questions during voir dire which the court deemed insulting regarding sympathy toward a victim because she was a woman. While the court has power to intervene during arguments and voir dire when the other side does not object, that power should be exercised exceedingly rarely.


Attorneys Fees

Smith & Burnetti, P.A. v. Faulk
21 Fla. L. Wkly. D1694 (Fla. 2d DCA 1996)

Where a serious conflict arose between the law firm and the client which left the firm no ethical choice but to withdraw, the trial court erred in denying the law firm a charging lien, with fees based on quantum meruit “without a lodestar”. (I think the court means “without a multiplier”.)

National Environmental Products, Ltd. v. Falls
21 Fla. L. Wkly. D1893 (Fla. 4th DCA 1996)

The defendant’s failure to plead entitlement to 57.105 fees prior to final judgment does not prevent the recovery of such fees. Ganz v. HZJ, Inc., 605 So.2d 871 (Fla. 1992). It is difficult, if not impossible, to plead 57.105 fees in good faith before the case is concluded. However, filing the motion nineteen months after final judgment and six months after the conclusion of the appeal was too late.


Civil Procdure -- Rule 1.540

In Re: Estate of Willis v. Gaffney
21 Fla. L. Wkly. D1752 (Fla. 2d DCA 1996)

Where motion for relief from judgment was erroneously entitled “motion for new trial”, but sought to have the judgment set aside because of perjury and fraud on the court, the trial court erroneously treated it as an untimely motion for new trial under Rule 1.530. He should have treated it as a motion under 1.540(b) and held an evidentiary hearing.


Depositions -- Use at Trial

Kelley v. Webb
21 Fla. L. Wkly. D1663 (Fla. 5th DCA 1996)

It was reversible error to refuse to allow the plaintiff to read the defendant’s deposition to the jury merely because the defendant was present in the courtroom. See Rule 1.330(a)(2): “The deposition of a party ... may be used by an adverse party for any purpose.”


Economic Loss Rule

Randolph v. Mitchell
21 Fla. L. Wkly. D1808 (Fla. 5th DCA 1996)

The economic loss rule did not bar a cause of action against an insurance agent for fraud in the inducement based on the agent’s alleged misrepresentation of the scope of coverage of the policy to induce the plaintiff to purchase the policy. The court relies to some extent on the insurance agent’s holding himself out as an expert in insurance coverage, acting as a third party intermediary who, for a fee, brings about a contract between two other parties. (In my opinion, it shouldn’t make any difference because fraud in the inducement should not be barred at all.) The court certifies the question to the supreme court.


Federal Preemption

Brown & Williamson Tobacco Co. v. Carter
21 Fla. L. Wkly. D1651 (Fla. 1st DCA 1996)

This is a suit by a smoker for injuries caused by cigarette smoking. The tobacco company moved for summary judgment on the grounds that all claims for damages after 1969 were preempted by the federal warning label statute. The trial court denied the motion. The tobacco company sought review by certiorari. The court denied the petition, holding that cert is not available because the tobacco company has an adequate remedy by appeal.

Frappier v. Wishnov
21 Fla. L. Wkly. D1885 (Fla. 4th DCA 1996)

The court joins the second DCA in holding that the party claiming preemption bears the burden of proof. See Hernandez v. Coopervision, Inc., 661 So.2d 33 (Fla. 2d DCA 1995). The court may receive testimony on factual issues in making the determination. In this case, the defendant HMO contended that it was an ERISA plan and that the malpractice claims against it were preempted by federal law. It was error for the trial court to fail to hold an evidentiary hearing on whether the HMO was an ERISA plan.

The plaintiff alleged in four counts that the HMO was directly negligent in selecting the doctor; that it was vicariously liable for the negligence of its agents or apparent agents; that it breached its common law and statutory duty to assure the competence of its physicians; and that it breached an implied contractual non-delegable duty to provide appropriate medical care. The court held that if the HMO were an ERISA plan, the vicarious liability claim (based on agency and apparent agency) would not be preempted. However, the direct negligence, corporate liability and implied contract claims would be preempted because they present issues related to the administration of the plan.


Insurance -- Cancellation

Ruiz v. Fortune Ins. Co.
21 Fla. L. Wkly. D1772 (Fla. 3d DCA 1996)

The insurer proved that it mailed a notice of cancellation to the insureds. They claimed they didn’t get it. The court held that the insurer’s proof of mailing the notice of cancellation prevailed as a matter of law over the insured’s denial of receipt. Moreover, because the insurer severed its ties with the agent, the agent’s subsequent acceptance of a renewal premium did not estop the insurer from denying coverage. The insurer had sent the insureds a notice which was virtually incomprehensible but which purported to inform them that the agent was no longer the insurer’s agent. The court held that this notice put the insureds on a duty of inquiry.


Insurance -- Coverage

Niglio v. Omaha Property & Cas. Ins. Co.
21 Fla. L. Wkly. D1897 (Fla. 4th DCA 1996)

The plaintiff was shot in a drive-by shooting. The court held that there was no PIP or UM coverage, because the shooter’s use of the vehicle in the drive-by shooting was only incidental to the act causing the injury. The court distinguishes Valdes v. Smalley, 303 So.2d 342 (Fla. 3d DCA 1974), cert. discharged 341 So.2d 975 (Fla. 1976), in which the plaintiff was injured when someone threw a beer mug at him from the window of a passing car, because in Valdes the speed of the car contributed substantially to the velocity of the beer mug, which caused the injury to be more severe. The court applies “traditional tort concepts of causation” to determine causation. However, this approach may be questionable in light of Prudential v. Swindal, 622 So.2d 467 (Fla. 1993), which held that traditional tort concepts of foreseeability don’t apply in determining coverage. There, the court stated that “Florida law has long followed the general rule that tort law principles do not control judicial construction of insurance contracts.” 622 So.2d at 470.


Insurance -- Exclusions

Yampierre v. Seminole Cas. Ins. Co.
21 Fla. L. Wkly. D1877 (fla. 5th DCA 1996)

The named insured’s daughter, who was listed as a “designated driver” on one of the insured vehicles, was not an “insured” for purposes of an exclusion for bodily injury “sustained by an insured”. The exclusion was ambiguous as to whether it intended to exclude a designated driver; therefore the court construed it against the insurer.

Mitchell v. State Farm
21 Fla. L. Wkly. D1703 (Fla. 5th DCA 1996)

This court rejects the argument that the abolition of interspousal tort immunity makes family exclusions void as contrary to public policy. The court does note Judge Zehmer’s concurrence in Chrysler Credit Corp. v. United Services Auto. Assoc., 625 So.2d 69 (Fla. 1st DCA 1993) that, while courts assume the insured is free to purchase policies without a family exclusion, such policies may not really be available.

This is an open invitation from the court. Won’t somebody please bring a challenge to a family exclusion clause in which they prove at the trial level that policies without the exclusion are not available?

State Farm Fire & Cas. Co. v. Deni Assoc.
21 Fla. L. Wkly. D1640 (Fla. 4th DCA 1996) (en banc)

The policy in this case contained a “pollution” exclusion which broadly defined “pollution” as the “discharge, dispersal, release or escape” of “any solid, liquid, gaseous or thermal irritant or contaminant...”. The court held there was no coverage for claims brought against the insured for personal injuries resulting when a bottle of ammonia accidentally broke inside an office building.

The court rejects the “doctrine of reasonable expectations”, which would require coverage consistent with the insured’s objectively reasonable expectations as to the scope of coverage for two reasons: (1) it hasn’t been adopted in Florida and (2) it only applies when the policy is ambiguous.

The court certified to the supreme court the question: “Where an ambiguity is shown to exist in a CGL policy, is the court limited to resolving the ambiguity in favor of coverage, or may the court apply the doctrine of reasonable expectations of the insured to resolve ambiguities in CGL policies?

In my opinion, there are some problems with the court’s analysis. First, although the court says that the doctrine of reasonable expectations has never been adopted in Florida, arguably it has been adopted. See United States Fire Ins. Co. v. Preuss, 394 So.2d 468 (Fla. 4th DCA 1981) (“reasonable, practical and sensible interpretation consistent with the intent of the parties.”) Second, as the dissent argues, the policy here appears ambiguous as applied to the facts of this case. Third, as Roy Wasson has pointed out to me, the doctrine of reasonable expectations should be applied when the policy is not ambiguous, but rather when the insurer applies an unexpected definition to a commonly understood word.

Miami Beach Entertainment, Inc. v. First Oak Brook Corp.
21 Fla. L. Wkly. D1907 (Fla. 3d DCA 1996)

The insurance policy issued to a night club excluded coverage for assault, battery, or “harmful or offensive contact between two or more persons ... without regard to ... the alleged failure of the insured ... to attempt to prevent ... such conduct.” The court held this excluded coverage for the injury to a night club patron who was hit in the head by a champagne bottle thrown during a brawl. What’s interesting here is that the court stated “Although the complaint was couched in terms of the bar owner’s negligence in failing to keep control over its patrons, for purposes of determining insurance coverage, the injuries arose from the assault and battery.” While tort and insurance contract concepts aren’t interchangeable, it’s interesting that this was written by Judge Jorgenson, the dissenter in Stellas v. Alamo, 21 Fla. L. Wkly. D. 1202 (Fla. 3d DCA 1996). In his dissent in Stellas, he argued that the intentional tortfeasor should not go on the verdict form in an action for premises liability because the action arose out of an intentional tort.


Insurance -- PIP

Kokotis v. Demarco
21 Fla. L. Wkly. D1765 (Fla. 5th DCA 1996)

The court holds that the jury’s award for future medical expenses must be reduced by the amount of PIP benefits payable on future claims because 627.737(3) provides that an injured party shall have no right to recover damages for which PIP benefits are “paid or payable.” The court holds that this statute controls over 627.7372, the collateral source statute.


Interest

Underhill Fancy Veal, Inc. v. Padot
21 Fla. L. Wkly. D1923 (Fla. 1st DCA 1996)

The court affirmed an award of prejudgment interest in this commercial tort action in which the jury found that the defendants caused the failure of the plaintiff’s business. There are two prerequisites to the award of prejudgment interest: (1) out of pocket pecuniary loss and (2) a fixed date of loss.

Prejudgment interest may be awarded in tort cases as to those damages for which there has been an ascertainable out of pocket loss occurring at a specific time prior to the entry of the judgment. In cases involving the destruction of a vested property interest, it is not necessary to demonstrate that the party has actually made an expenditure to replace the property. Nor is it necessary for the parties to be in agreement as to the value of the damages on the date of the loss. It is only necessary that the value was ascertainable at the time of the loss. It was my privilege to share in this victory with Roy Wasson, Rob Denson and Rick Delmond.


Interspousal Tort Immunity

Cerniglia v. Cerniglia
21 Fla. L. Wkly. S357 (Fla. 1996)

The release of all claims in the parties’ marital settlement agreement released the wife’s tort claims against the husband for assault and battery, intentional infliction of emotional distress, fraud and breach of contract. The wife’s assertions of fraud, duress and coercion in her 1.540 motion to set aside the final judgment in the divorce were barred by the one year limit for seeking relief from final judgment because the amendment extending the time for fraud does not apply retroactively, and because they alleged intrinsic, not extrinsic fraud.


Judgment on the Pleadings

Martinez v. Fraxedas
21 Fla. L. Wkly. D1903 (Fla. 3d DCA 1996)

It was error to enter judgment on the pleadings for the plaintiff where the defendant, who was not represented by counsel, wrote a letter to the court which, broadly construed, denied responsibility, and requested appointment of counsel. The court also notes that it is error to enter a partial judgment on the pleadings.


Jurisdiction -- Longarm

The Walt Disney Co. v. Nelson
21 Fla. L. Wkly. D1706 (Fla. 5th DCA 1996)

The fact that a foreign corporation has subsidiaries doing business in Florida does not subject the corporation to jurisdiction in the state of Florida.

Note that the plaintiff alleged that the corporation was doing business in Florida both itself and through its subsidiaries. This stated a prima facie case of jurisdiction. The defendant contradicted, with an affidavit, the allegation that the corporation itself did business in Florida. This shifted the burden back to the plaintiff to produce sworn testimony in support of jurisdiction. The plaintiff failed to do so.


Jury Instructions

Craig v. School Board of Broward County
21 Fla. L. Wkly. D1937 (Fla. 4th DCA 1996)

This case arose out of an accident in which a child riding an adult tricycle lost control, veered into the street and was hit by a bus. The court held it was error to refuse to give standard instruction 4.12 on a driver’s duty to use reasonable care to guard against the unpredictable behavior of children if he knows or should know of their presence. The trial court also should have instructed on the speed limit statute.


Jury Interview

Travent, Ltd. v. Schecter
21 Fla. L. Wkly. D1732 (Fla. 4th DCA 1996)

The plaintiff was not entitled to a post-verdict jury interview where one juror disclosed that another juror had stated, after the jury was discharged, that she wasn’t going to award money to some rich attorney. There was no showing of the kind of overt misconduct or statements of bias that caused the reversal in Powell v. Allstate, 652 So.2d 354 (Fla. 1995), in which jurors had made racist remarks during deliberations. The court states that Powell is limited to racial prejudice.


Jury Misconduct

Wright v. CTL Distribution, Inc.
21 Fla. L. Wkly. D1968 (Fla. 2d DCA 1996)

The plaintiffs, African Americans, who were found 70 percent negligent, were entitled to a new trial where post-trial jury interviews disclosed that the all-white jury had made racial slurs and comments during deliberations; several jurors said they did not want to award anything to plaintiff because she was a black woman on welfare who would blow the money on liquor, cigarettes and gambling; and one juror commented that they would be paying either way, either through welfare or through a damages award.

This eloquent, heartfelt decision by Judge Quince was jointed by Judge Altenbernd and Judge Lazzara. It is a ringing defense of our the right to a fair trial:

"We cannot avoid, nor should we try to avoid, the fact that our evolution as a society is not yet complete. Only through constant vigilance by those in positions of authority, to bring forth, to encourage, and to uphold the highest aspects of our humanity, can we continue to progress toward that elusive goal of a society of citizens equal in all respects before the law, rich or poor, black, brown, red, yellow or white. All citizens are entitled to a fair trial, one decided by legally relevant facts and law, and one untouched by the taint of overt bias or prejudice."

We are fortunate to have judges such as these.


Jury Selection -- Peremptory Challenges

Melbourne v. State
21 Fla. L. Wkly. S358 (Fla. 1996)

The Court clarifies the procedure for asserting discrimination in the exercise of peremptory challenges. (1) An objecting party must (a) make a timely objection on that basis, (b) show that the venireperson is a member of a distinct racial group, and (c) request that the court ask the striking party its reasons for the strike. If these requirements are met, the court must ask the proponent of the strike to explain the reason for the strike. (2) The burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation. (3) If the explanation is facially race-neutral and the court believes it is not a pretext, the strike will be sustained. The focus is not on reasonableness of the reason, but its genuineness. (4) Finally, the objection must be renewed before the jury is sworn.

Peremptories are presumed to be exercised in a non-discriminatory manner. Trial court decisions on credibility will be affirmed unless clearly erroneous.


Legal Malpractice

Noris v. Silver
21 Fla. L. Wkly. D1859 (Fla. 3d DCA 1996)

The referring attorney would be liable for the malpractice of the attorney to whom he referred the case if he and the negligent attorney agreed to share the fee, because they are in a joint venture and because of the ethical rules.

Jones v. Crosby
21 Fla. L. Wkly. D1666 (Fla. 2d DCA 1996)

Before the Supreme Court decided JFK Medical Center, Inc. v. Price, 647 So.2d 833 (Fla. 1994), the courts were split over whether a plaintiff could settle with an active tortfeasor and dismiss him with prejudice, and still continue the action against the tortfeasor who was only vicariously liable. This court holds that, because of the uncertainty in the law at the time, a jury could find that it was legal malpractice for the lawyer to settle with the active tortfeasor and dismiss him with prejudice, resulting in the dismissal of plaintiff’s case against the vicariously liable tortfeasor.

Note that, since JFK Medical Center, it is safe to settle with the active tortfeasor and preserve the claim against the vicarious tortfeasor.


Limitations

State Farm v. Lee
21 Fla. L. Wkly. S335 (Fla. 1996)

In an eminently sensible decision, the court holds that the statute of limitations for a claim for failure to pay PIP does not begin to run until the insurer has breached its duty to pay benefits. It does not run from the date of the accident.

Owens-Corning Fiberglass Corp. v. Corcoran
21 Fla. L. Wkly. D1629 (Fla. 3d DCA 1996)

Reviving Diamond v. E.R. Squibb & Sons, Inc., 397 So.2d 671 (Fla. 3d DCA 1996), the court holds that it would be an unconstitutional denial of access to court to apply the statute of repose to bar the plaintiff’s claim, in an asbestos case, where the plaintiff’s injury did not manifest itself in symptoms that would support a medical diagnosis until after the statute had run.

Unfortunately, the court distinguishes the medical malpractice statute of repose and holds that its decision does not affect medical malpractice cases. In medical malpractice cases, the courts and the legislature have found the requisite “overriding public necessity” required for a denial of access to courts. See Carr v. Broward County, 541 So.2d 92, 95 (Fla. 1989). In the asbestos context, no such necessity has ever been enunciated.

Estate of Smith v. Scruggs
21, Fla. L. Wkly. S332 (Fla. 1996)

The statute of limitations for an action to determine paternity does not begin to run until the child reaches majority. 95.11(3)(b). While paternity may be established in the course of probate proceedings, the cause of action does not accrue with the death of the decedent, but when the child reaches majority.


Med Mal Presuit

Royle v. Florida Hospital-East Orlando
21 Fla. L. Wkly. D1876 (Fla. 1996)

The trial court properly dismissed the plaintiff’s medical malpractice action with prejudice where she did not provide a verified corroborating medical opinion, and the statute of limitations had run. The court found inadequate a cryptic letter signed by a doctor which had no corroborating facts, and a longer letter which had detailed facts and was on the doctor’s letterhead, but was not signed.

The court also aligns itself with the Second District in Pearlstein v. Malunney, 500 So.2d 585 (Fla. 2d DCA 1986), rev. denied, 511 So.2d 299 (Fla. 1987), holding that the presuit requirements do not unconstitutionally deny her right of access to courts, although it previously had expressed such concern in dicta in Stebilla v. Mussalem, 595 So.2d 136 (Fla. 5th DCA 1992), case dismissed, 604 So.2d 487 (Fla. 1992).


Offer of Judgment

Twiddy v. Guttenplan
21 Fla. L. Wkly. D1913 (Fla. 2d DCA 1996)

An offer of judgment was made jointly on behalf of two defendants. The jury returned a verdict exonerating one defendant and awarding minimal damages against the second defendant. The court reversed the award of fees to the first defendant because of the statute in effect at the time the cause of action accrued, which did not permit awards of fees when there was a defense verdict. The court reversed the award to the second defendant because the offer was not signed by her or her attorney, and because the offer was made in a single total amount and it was therefore impossible to determine the amount of the offer made on behalf of that defendant, and whether the judgment was at least 25% of the offer made on her behalf. This result was necessary because the two defendants were not joint tortfeasors (apparently because one of them was found not liable).


Peer Review

Hillsborough County Hosp. Authority v. Lopez
21 Fla. L. Wkly. D1668 (Fla. 2d DCA 1996)

The hospital’s medical review committee records were absolutely privileged under 766.101(5) and the privilege was not waived by disclosure to persons outside the hospital. However, note that the disclosure did not take place in the context of the litigation; the result might be different if the hospital showed the record to its expert in malpractice litigation and the expert used it to form his opinion.


Release

Chester v. Keys Hosp. Foundation
21 Fla. L. Wkly. D1776 (Fla. 3d DCA 1996)

The plaintiff, injured in a slip and fall, settled his premises liability action and released the tortfeasor. He subsequently brought a medical malpractice action against his treating doctors and hospital. The court held that there was a genuine issue of material fact as to whether the plaintiff received full compensation from the initial tortfeasor, and whether the parties to the release intended to effect a discharge of the doctors and hospital.

WARNING!! Whenever you release a tortfeasor, you should state in your release that you do not release the other tortfeasors or health care providers, and that the settlement does not fully compensate the client for his injuries.


Setoff

Lauth v. Olsten Home Healthcare, Inc.
21 Fla. L. Wkly. D1810 (Fla. 2d DCA 1996)

The plaintiff’s action against an ACLF (Adult Congregate Living Facility) under Chapter 400, Florida Statutes, for violating the ACLF statute and regulations, negligence per se and intentional disregard of its duties to the resident were different from the plaintiff’s claim against a nursing service for medical malpractice and should not have been set off against her recovery in the malpractice action. “A separate and distinct claim is one that involves different elements of damages.”


Worker’s Comp Immunity

Hastings v. Demming
21 Fla. L. Wkly. D1756 (Fla. 2d DCA 1996)

In 1992, the Supreme Court created a new category of appealable interlocutory orders: orders which determine that a party is not entitled to workers’ compensation as a matter of law. Fla. R. App. P. 9.130 (a)(3)(C)(vi). The unclear language of the rule has created confusion about what orders are appealable. In this case, the Second District holds that an order denying without explanation a motion for summary judgment based on worker’s comp immunity is not appealable. The court construes the rule as limited to cases in which the court has determined clearly, conclusively and beyond doubt that a party is not entitle to immunity as a matter of law, and is not entitled to present the defense to the jury. The court certifies conflict with Breakers Palm Beach, Inc. v. Gloger, 646 So.2d 237 (Fla. 4th DCA 1994) and City of Lake Mary v. Franklin, 668 So.2d 712 (Fla. 5th DCA 1996). The court certifies the question to the Supreme Court.