September 1998


Additur

Food Lion v. Jackson
23 Fla. L. Wkly. D1545 (Fla. 5th DCA 1998)

Although the additur statute, 768.74, says that when the court grants an additur it must give the adverse party the choice of accepting the additur or a new trial on damages only, the court is not precluded from ordering a new trial on both damages and liability where it appears that the jury compromised the verdict. In my opinion, the language of the additur statute is rather confusing, and it could use some work.


Appearance

Hicks v. Hicks
23 Fla. L. Wkly. D1689 (Fla. 5th DCA 1998)

Fla. R. Jud. Am. 2.060(i) requires a court order for substitution of counsel. This Court holds that the failure to comply does not render a pleading a nullity. Once the attorney has complied, the pleadings filed before compliance are legally effective retroactively.


Argument - Improper

Knoizen v. Bruegger
23 Fla. L. Wkly. D1641 (Fla. 5th DCA 1998)

It was not improper for plaintiff’s counsel to argue that the accident was devastating to the plaintiff’s children and family, where the argument was supported by the evidence. Counsel argued, among other things, that the injury was “devastating to her family, to her kids, devastating to everybody that knows her and cares for her.” The court says that, in light of the serious and debilitating injuries and the testimony from plaintiff’s family about the substantial changes in her life, the argument was “only marginally objectionable.” In other words, it was supported by the evidence and did not appeal to the emotions so much as to destroy the fairness of the trial.


Attorneys Fees

Widmer v. Caldwell
23 Fla. L. Wkly. D1680 (Fla. 1st DCA 1998)

The plaintiff’s failure to comply with presuit notice requirements did not mean there was a complete absence of justiciable issue of law or fact. Therefore, it was error to award attorneys fees under 57.105.


Continuance

Ferrer v. State
23 Fla. L. wkly. D1536 (Fla. 4th DCA 1998)

The trial court abused his discretion by beginning jury selection at 7:30 p.m. after the defendant’s lawyer had already worked a full day in court representing various clients and told the court he was exhausted. The trial court deprived the defendant of meaningful voir dire. The court advises against routinely conducting trials well into the evening, because it wears out the lawyers and is unfair to the jurors.


Dismissal

Smith v. St. Vil
23 Fla. L. Wkly. D1661 (Fla. 4th DCA 1998)

Dismissal for improper joinder of an insurance company should be without prejudice. Under rule 1.420(b), dismissals for lack of jurisdiction, improper venue, and lack of an indispensable party are not on the merits. Nor are dismissals for failure to prosecute (Rule 1.420(e)) or for failure to serve within 120 days (Rule 1.070(j)). Such orders are not on the merits, and should not contain the words “with prejudice” but are final orders for purposes of appeal. The court says it is important to look at an order for what it does, not for what it says. See, e.g., Carnival Corp. v. Sergeant, 690 So.2d 660 (Fla. 3d DCA 1997) (holding order dismissing complaint for failure to state a cause of action without prejudice, but which did not grant leave to amend, was a final order that should have been appealed.)


Economic Loss Rule

Asbestos Certified Technicians, Inc. v. The Coca-Cola Company
23 Fla. L. Wkly. D1559 (Fla. 2d DCA 1998)

This court holds that the economic loss rule bars a negligence claim by an independent contractor to recover purely economic losses it suffers when its employees are injured on the premises of a third party with whom the independent contractor has contracted to perform work. Unfortunately, this cryptic decision does not explain the circumstances of the case. Maybe I am reading too much into it, but this case seems to have the potential to have a major impact on claims for indemnity and contribution and equitable subrogation.


Employment - Discrimination

Smith v. Avatar Properties, Inc.
23 Fla. L. wkly. D1642 (Fla. 5th DCA 1998)

Plaintiff’s claim of discrimination under the Americans with Disabilities Act (ADA) was not precluded by the fact that he was receiving Social Security Disability benefits. The two are not mutually exclusive, where the plaintiff told Social Security that he was unable to work, but did not claim that he was totally and permanently disabled; there was evidence that the plaintiff wanted to work but was unable to find work, and believed that his lack of success was due to the status of his health.

The Social Security Administration has issued an “interpretive guidance” on the relation between the ADA and the SSD determination process stating that the fact that an individual “may be able to return to past relevant job, provided that the employer makes the accommodations, is not relevant to the issues to be resolved .... [H]ypothetical inquiries about whether an employer would or could make accommodations that would allow return to a prior job would not be appropriate.” The court notes that “the Social Security Administration may find that a person is unable to do any work that exists in the national economy [the standard for SSD benefits] even though that person can work with a reasonable accommodation.”


Employment - Promissory Estoppel

Leonardi v. City of Hollywood
23 Fla. L. Wkly. D1653 (Fla. 4th DCA 1998)

In what appears to be a case of first impression, the court holds that a plaintiff who quits his job in another city in reliance on an offer of at-will employment has no cause of action when the new employer withdraws the offer before the plaintiff begins work. The court finds the plaintiff’s reliance on the offer unreasonable as a matter of law because, under the employment at will doctrine, the defendant could have terminated the plaintiff immediately after he began working. This case collects cases from around the country reflecting both points of view on this issue. The contrary view is explained in Grouse v. Group Health Plan, Inc., 306 N.W. 2d 114 (Minn. 1981), holding that the plaintiff had a right “to assume he would be given a good faith opportunity to perform his duties to the satisfaction of [the defendant] once he was on the job.”


Evidence - Expert

Carrier v. Ramsey
23 Fla. L. Wkly. D1802 (Fla. 5th DCA 1998)

The trial court properly excluded the defense expert’s testimony that the accident did not generate sufficient force to cause any physical injury to the plaintiff. The witness, Gary Phillips, had experience as an accident reconstructionist but no academic degrees. He based his opinion on photographs of the plaintiff’s car, some depositions, and the plaintiff’s report of the accident. He did not take the photographs and did not know the distance from which they were taken. He did not examine either car, and did not review the police report. He did not consider any roadside evidence and did not know the configuration of the road or the weather conditions. He did not have any data about the physical characteristics of the plaintiff.

This is an important opinion because more and more insurance companies are using so-called experts to testify that the plaintiff’s injuries could not have been caused in the accident, even though they have no real expertise in, for example, medical issues.


Evidence - Impeachment

State v. Raydo
23 Fla. L. Wkly S404 (Fla. 1998)

This is the kind of case that gives appellate lawyers gray hair. The court holds that, under 90.610(1) and 90.410, a plea of nolo contendere, without a conviction (e.g., adjudication is withheld), is inadmissible and may not be used to impeach. However, the defendant did not preserve the issue by deciding not to testify after the court ruled that if he took the stand, he could be impeached with his prior nolo contendere plea.


Federal Preemption

Brown & Williamson Tobacco Co. V. Carter
23 Fla. L. Wkly. D1564 (Fla. 1st DCA 1998)

In this tobacco products liability case, the court held the plaintiff’s claim was barred by the statute of limitations. The court also then went on to state that the 1969 federal labeling act preempted the plaintiff’s cause of action based on a claim that additional or more clearly stated warnings should have been placed on advertising or promotional materials. The court broadly construes the term “advertising or promotion” to encompass “all forms of communication directed to a mass market”. In my opinion, since the court already resolved the case on statute of limitations grounds, this portion of the opinion is dicta.


Insurance - Arbitration

Rios v. Tri-State ins. Co.
23 Fla. L. Wkly. D1522 (Fla. 3d DCA 1998)

Here’s one way that arbitration and appraisal are different from litigation. The court holds that where an insurance policy provides for each party to select a “competent, independent appraiser”, the insured may select an appraiser whose fee will be based in whole or in part on a percentage of the amount awarded, so long as it is disclosed in accordance with the Code of Ethics for Arbitrators in Commercial Disputes. The Code allows for “nonneutral arbitrators.” Excerpts from that Code are attached to the opinion.

The insurer is not allowed discovery of the agreement itself, but must make the disclosure required by the Code: “Disclosure by nonneutral arbitrators should be sufficient to describe the general nature and scope of any interest or relationship, but need not include as detailed information as is expected from persons appointed as neutral arbitrators.”

The court also holds that the order in which the issues of damages and coverage are to be determined is within the discretion of the trial judge; therefore discovery on coverage may proceed before the court, before a determination of the amount of damages by the appraisers.


Insurance - Bad Faith

Paz v. Fidelity National Ins. Co.
23 Fla. L. Wkly. D1577 (Fla. 3d DCA 1998)

Section 624.155, the first party bad faith statute, requires the insured to give notice to the insurer and the insurance commissioner. The insurer can then prevent a bad faith cause of action if, within 60 days, “the damages are paid or the circumstances giving rise to the violation are corrected.” The insurance company was not entitled to the benefit of this provision by merely sending a letter within 60 days stating that it would pay the benefits due; actual payment is required. Here payment was not forthcoming for nearly another month, and the court held that was not sufficient compliance with the statute.


Insurance - Duty to Defend

Mactown, inc. v. Continental Ins. Co.
23 Fla. L. Wkly. D1665 (Fla. 3d DCA 1998)

The intentional tort exclusion of the insurance policy excluded coverage for a claim for battery based on respondeat superior, but did not exclude coverage for a claim for negligent retention. Because part of the complaint fell within the coverage, the insurer had a duty to defend the entire complaint.


Insurance - PIP

Cimino v. U.S. Security Ins. Co.
23 Fla. L. Wkly. D1887 (Fla. 1st DCA 1998)

Certifying conflict with the Second DCA’s decision in Klipper v. Government Employees Ins. Co., 571 So.2d 26 (Fla. 2d DCA 1990), the court holds that, absent a valid reason for denial, a claimant seeking PIP benefits cannot be precluded from having her attorney present with a video camera at an examination scheduled by her insurance company.


Insurance - Reservation of Rights

American Reliance ins. Co. v. Perez
23 Fla. L. Wkly. D 1517 (Fla. 3d DCA 1998)

The insured was sued because her son brought a gun to school and shot a classmate. The homeowner’s insurer defended under a reservation of rights and brought a dec action alleging that the intentional act exclusion applied. The insureds settled with the injured plaintiff without the consent of the insurer, and entered into a stipulation that the shooting was negligent. The court held that there was no coverage because the insured settled without the insurer’s consent. The policy provided “the insured will not except at the insured’s own cost, voluntarily make payment, assume obligation or incur expense other than for first aid to others at the time of the bodily injury.”


Legal Malpractice

Coyne v. Schwartz, Gold, Cohen, Zakarian & Kotler
23 Fla. L. Wkly. D1705 (Fla. 4th DCA 1998)

Section 90.502(4)(c) provides that there is no lawyer-client privilege when a communication is relevant to an issue of breach of duty by the lawyer to the client or by the client to the lawyer, arising from the lawyer-client relationship. The court holds that this exception does not apply to communications between the client and his present attorney who took over representation in the underlying action from the attorney being sued. The exclusion is to be interpreted very narrowly.

Tarleton v. Arnstein & Lehr
23 Fla. L. Wkly. D1929 (Fla. 4th DCA 1998)

In a legal malpractice case, a client cannot be found comparatively negligent for relying on an attorney’s erroneous legal advice or for failing to correct errors of the attorney which involve the exercise of professional expertise. The same rule seems to apply in medical malpractice cases. See Norman v. Mandarin Emergency Care, Inc., 490 So.2d 76 (Fla 1st DCA 1986); Mack v. Garcia, 433 So.2d 17(Fla4th DCA 1983)


Limitations

Brown & Williamson Tobacco Corp. V. Carter
23 Fla. L. wkly. D1565 (Fla. 1st DCA 1998)

The court holds that, as a matter of law, the plaintiff knew or should have known that he had a smoking related disease, where he began coughing up blood, quit smoking, saw his doctor who took x-rays and discussed them with him, and told him that he had a spot or abnormality on his lungs which could be cancer or tuberculosis. By that time, says the court, he knew that his lungs were injured and was on notice that it was probably caused by smoking.


Med Mal - Informed Consent

Alvarez v. Smith
23 Fla. L. Wkly. D1806 (Fla. 5th DCA 1998)

The defendants did not violate their duty to inform the plaintiff of medical risks by failing to tell the plaintiff that the screws they were using in his spinal fusion surgery had not been approved by the FDA and were classified as “experimental or investigational.” From a patient’s perspective, I am surprised that the court would not think this is something the patient has a right to know. However, the court states that the experimental status is not a “medical risk of surgery.”


Med Mal - Statute of Repose

Hernandez v. Amisub (American Hospital), Inc.,
23 Fla. L. Wkly. D1521 (Fla. 3d DCA June 24, 1998)

Section 95.11(4)(b), Florida Statutes, extends the statute of limitations in medical malpractice cases “in which it can be shown that fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the injury with the 4-year period ....” In such cases, the statute is extended two years from the date the injury is discovered or should have been discovered, up to a maximum of 7 years from the date of the incident.

The court held that the term “concealment,“ in the statute does not require “intent or deliberation.” Moreover, even “intentional misrepresentation” may be shown by “carelessness or recklessness” as to the truth of the matter asserted In this case, the defendant negligently left a lap pad inside the plaintiff, which was not discovered for five years. The court held that the plaintiff proved “concealment” or “intentional misrepresentation,” by showing that the hospital reported that it had performed an accurate count of lap pads at the conclusion of the plaintiff’s surgery, when it had not. “Not only was the count not properly performed, as evidenced by the pad left inside Hernandez’ body, but the Hospital demonstrated reckless disregard for the truth by its false report indicating that the count had been properly performed.” The hospital’s operating room technician admitted that “sometimes she would sign off on the pad count without actually having conducted it.”(!) The court calls this “more than mere negligence.”

The Third District reverses a directed verdict for the defendant, and orders a directed verdict in favor of the plaintiff on this issue. Because the hospital admitted negligence, the court should have directed a verdict for the plaintiff. While the court declines to go so far as to hold that the “concealment” requirement is met in every case in which a foreign object has been left in a patient’s body, skillful inquiry of hospital personnel at deposition should enable plaintiffs in many of these cases to obtain a summary judgment or directed verdict.


Offer of Judgment

Clinica Lourdes, Inc. v. Miro
23 Fla. L. wkly. D1618 (Fla. 3d DCA 1998)

An offer of judgment (or “proposal for settlement”) which states that “all issues relating to both parties’ right to attorneys’ fees shall be submitted to and determined by the court if the offer is accepted” is too indefinite to be enforced; the party making such an offer is not entitled to attorneys fees. See State Farm Life Ins. Co. V. Bass, 605 So.2d 908 (Fla. 3d DCA 1992). The court refuses to certify conflict with Siedlicki v. Arabia, 699 So.2d 1040 (Fla. 4th DCA 1997), cause dismissed, 705 So.2d 7 (Fla. 1997), rev. dismissed, 707 So.2d 1126 (Fla. 1998), stating that it does not believe any conflict exists. Siedlicki held that a demand for judgment was valid even though it “excluded costs accrued to date.” The Siedlicki court stated that “a plaintiff need not include taxable costs or attorneys fees otherwise provided by statute and rule that the court would tax against a defendant incidental to the jury’s damage award.”

It seems to me that the difference between the two cases may be that the offer in Miro provided for a court determination of fees to either party if the offer was accepted; therefore it did not resolve an important issue in the case. The offer in Siedlicki simply stated that the amount that the offeree would have to beat did not include costs or fees.

U.S. Alliance Corp. v. Tobon
23 Fla. L. Wkly. D1941 (Fla. 3d DCA 1998)

The defense made an offer of judgment which inadvertently omitted the name of one of the defendants. The plaintiff accepted the offer, knowing it was a mistake. The Third District held that it was error for the trial court to deny the defendant relief from its mistake and to enter final judgment on the acceptance of the offer. The court relies both on Rule 1.540 and cases that allow rescission of a contract based on a unilateral mistake unless the mistake is the result of an inexcusable lack of due care or unless the other party has so far relied on the contract that rescission would be inequitable. See Maryland Cas. Co. v. Krasnek, 174 So.2d 541 (Fla. 1965). Defiguerido v. Publix, 648 So. 2d 1256 (Fla. 4th DCA 1995)

Allstate Ins. Co. V. Manasse
23 Fla. L. Wkly. D1875 (Fla. 4th DCA 1998)

The attorneys fees provisions of the offer of judgment statute are mandatory unless the offeree shows the offer was made in bad faith. The offeree has the burden of proof, but it was not error for the trial court to ask the insurer to explain first why its offer was in good faith. It is not enough to show that the rejection was reasonable.


Premises Liability

Rowe v. Winn-Dixie Stores
23 Fla. L Wkly. D1848 (Fla. 1st DCA 1998)

Over Judge Lawrence’s dissent, the court holds that a grocery store cannot be held liable for negligently operating their establishment so as to create a dangerous condition, without showing that the store had actual or constructive notice of the material on which the plaintiff slipped. The court calls this a “negligent method of operation theory” and notes that the Third District recently recognized that it is applicable to a slip and fall in a grocery store. Publix Supermarket v. Sanchez, 700 So.2d 405 (Fla. 3d DCA 1997). Judge Lawrence, dissenting, uses the foreseeable zone of risk analysis and points out that offering seafood salad to customers from an unsupervised self-service display creates a foreseeable risk that the salad will be spilled on the floor, creating a duty for the store to have precautions to check for and clean up spills.


Service of Process

Litwinski v. Weitzer Country Homes, Inc.
23 Fla. L. Wkly. D1581 (Fla. 3d DCA 1998)

When a plaintiff seeks an extension of the 120 day requirement for service of process before the 120 days expires, the plaintiff is not required to show good cause for the extension. The plaintiff in such circumstances is only required to show reasonable grounds. Counsel’s involvement in a “lengthy trial” was sufficient. Commendably, the court points out “the law’s preference for resolving cases on their merits and the general, and desirable, liberality for granting extensions of time periods timely requested.”

Linn v. Kidd
23 Fla. L. Wkly. D1855 (Fla. 1st DCA 1998)

The plaintiff’s attempt to serve the defendant was ineffective. The court held that the defendants did not submit to the court’s jurisdiction by filing a “proposal for settlement”, because it did not constitute a request for affirmative relief inconsistent with the defendants’ initial defense of lack of jurisdiction. Dismissal is not an appropriate remedy for failure to properly serve a defendant within the time allowed by Rule 1.070(j), where plaintiff’s efforts were timely but invalid. Rather, the appropriate disposition is to quash the attempted service with leave to perfect service thereafter. The Third District is in agreement. See John Greene Corp. v. Coello, 635 So.2d 127 (Fla. 3d DCA 1994).


Summary Judgment

Briguera v. Behr Paint Corp.
23 Fla. L. Wkly. D1630 (Fla. 2d DCA 1998)

While a party may not contradict his deposition testimony in an affidavit opposing summary judgment, he may explain his testimony in the affidavit. Where the plaintiff testified that the porch on which he slipped “looked dry”, it was not a contradiction to submit an affidavit that the porch in fact was moist from dew.


Whistle Blowers

Jenkins v. The Golf Channel
23 Fla. L. Wkly. D1548 (Fla. 5th DCA 1998)

The whistle blower statute provides some protection to employees who object to wrongful actions by their employers. This case certifies conflict with Potomac Systems Engineering, Inc., v. Deering, 683 So.2d 180 (Fla. 2d DCA 1996), in which the employee lost because he had not given the employer written notice. Section 448.102(1) prohibits an employer from retaliating against an employee who has “disclosed, or threatened to disclose, to any appropriate governmental agency, under oath, in writing, an activity, policy or practice of the employer that is in violation of a law, rule or regulation.” That subsection requires the employee to give written notice to the employer or a supervisor and a reasonable opportunity to correct the problem. Subsection (3) prohibits retaliating against 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 statute provides a cause of action for the employee, but 448.103(1)(c) says that “an employee may not recover in any action pursuant to this subsection if he or she failed to notify the employer ... as required by 448.102(1) ...”. In Potomac Systems, the Second District held that this subsection barred the plaintiff’s claim. The Third District in Baiton v. Carnival Cruise Lines, Inc., 661 So.2d 313 (Fla. 3d DCA 1995) construed the statute so that the written notice requirement applies only to employees alleging violations of 448.102(1), not to violations of 448.102(3). The court notes that the statute is remedial and should be liberally construed.

The court also rejects the defendant’s argument that the whistle blower statute has been preempted by the Florida Civil Rights Act


Workers Comp Immunity

Linton v. Gulf County
23 Fla. L. Wkly. D1601 (Fla. 1st DCA 1998)

This case presents two related concepts:”statutory employee” and “special employee”, in the context of whether the defendant and was entitled to worker’s comp immunity. At the time of his death, the decedent could not have been the employer’s “statutory employee” because there was no evidence in the record that the defendant had a contractual relationship with a third party and then delegated or sublet part of it to a subcontractor. Whether a “special employment” relationship exists is a question of fact depending on “(1) whether there is a contract of hire, express or implied, between an employee and the special employer; (2) whether the work being done at the time of the injury is essentially that of the special employer; and (3) whether the special employer has the right to control the details of the work.”

Deen v. Quantum Resources, Inc.
23 Fla. L. Wkly. D1637 (Fla. 2d DCA 1998)

The court certifies the following question to the supreme court:

Does a self-insured public utility which undertakes, pursuant to 440.571, Florida statutes (1991) (now 624.46225, Florida Statutes (1997) to provide worker’s compensation coverage to a subcontractor working on its property, obtain the benefit of workers’ compensation immunity provided in 440.11, Florida Statutes (1991), as to injuries sustained by an employee of the subcontractor resulting from the negligence of the public utility?

The court holds that the utility is immune, agreeing with the Third District in Cartier v. Florida Power & Light Co., 594 So.2d 755 (Fla. 3d DCA 1991). Judge Patterson dissents, arguing that the workers comp statute is in derogation of the common law and must be strictly construed, and that immunity depends on the statutory obligation to provide compensation, not on any voluntary act.


Wrongful Death

Garber v. Snetman
23 Fla. L. Wkly. D1623 (Fla. 3d DCA 1998) Mizrahi v. North Miami Medical Center
23 Fla. L. Wkly. D1624 (Fla. 3d DCA 1998)

The Third District certifies the following question as one of great public importance:

Does section 768.21(8) ..., which is part of Florida’s Wrongful Death Act, violate the Equal Protection Clause of the Florida and federal constitutions, in that it precludes recovery of nonpecuniary damages by a decedent’s adult children where the cause of death was medical malpractice while allowing such children to recover where the death was caused by other forms of negligence?

The court holds the statute constitutional because it bears a rational relationship to the legitimate state interest of ensuring accessibility of medical care by curtailing “skyrocketing” [I hate that word] medical malpractice premiums.