Who Wants to be a Millionaire: Case Law Update

Transcription

1 Who Wants to be a Millionaire: Case Law Update Claims Defense Update Seminar Thursday, Presented by: Robert Anderson, Esquire John M. Miller, Esquire robert.anderson@henlaw.com john.miller@henlaw.com FORT MYERS BONITA SPRINGS SANIBEL Henderson, Franklin, Starnes & Holt, P.A.

2 Robert Anderson Associate Practice Areas Tort & Insurance Litigation Office Fort Myers Direct Dial Fax Undergraduate Degree University of Georgia, B.A., 2006 Law Degree University of Florida, Levin College of Law, J.D., cum laude, 2009 Admission to The Florida Bar 2009 Robert Anderson concentrates his practice in the areas of personal injury defense, professional liability defense, construction litigation and real estate litigation. He is admitted to practice in all Florida State courts, as well as in the United States District Court for the Middle Districtof Florida. Before graduating cum laude from the University of Florida, Robert was managing editor of the Florida Journal of International Law and was a teacher s assistant for legal research, writing and appellate advocacy. Prior to attending law school, Robert spent six years as a non-commissioned officer in the United States Marine Corps Reserve where he managed the information systems for an aviation squadron and served as a markmanship instructor for his unit. Robert also served as an intern at the United States Attorney s office in Tampa. Robert grew up in Nashville, Tennessee, and currently resides in Fort Myers with his wife. When he is not working, Robert enjoys fishing, golf and tennis. PROFESSIONAL AND CIVIC AFFILIATIONS Robert is very active in the Southwest Florida community and serves on the City of Fort Myers Imaginarium Science Center Board of Directors. He also is Treasurer of the Lee County Bar Association s Young Lawyers Division. Robert is a member of the Florida Defense Lawyers Association, Defense Research Institute and Southwest Florida Claims Association. Blogs: swflemploymentlawblog.com legalscoopswflre.com FLimmigrationlawblog.com

3 John M. Miller Associate Practice Areas Tort & Insurance Litigation Office Fort Myers Direct Dial Fax Undergraduate Degree University of Florida, B.A., 2004 Law Degree Stetson University College of Law, J.D., cum laude, 2008 Admission to The Florida Bar 2008 John Miller focuses his litigation practice in tort and insurance defense, municipal and governmental liability defense, and professional negligence defense. He also speaks and writes frequently before public and private associations on matters of social media and technology in litigation. John is admitted to practice in the United States District Court for the Northern, Middle and Southern Districts of Florida, as well as the United States Court of Appeals for the Eleventh Circuit. In 2012, John received the James A. Dixon Young Lawyer of the Year Award, given annually to a young lawyer who exceeds the standards of excellence, dedication and commitment to the Florida Defense Lawyers Association and its goals. He has also been recognized by Florida Super Lawyers magazine as a Rising Star in the field of civil litigation defense (2011, 2013). John is AV rated by Martindale-Hubbell. Prior to attending law school, John worked as a high school math teacher at Fort Myers High School. John also worked as a summer associate with Henderson Franklin before joining as an associate. He also served as a judicial intern for Judge Darryl Casanueva, Florida Second District Court of Appeals. Before graduating cum laude in 2008 from Stetson, John was a Stetson Ambassador helping new students with the transition to law school. A native of Florida, John is originally from Pine Island and presently resides in Cape Coral with his wife Alicia, daughter Harper, son Jack, and three dogs. When he is not working, John enjoys running, kiteboarding, camping, and running triathlons. PROFESSIONAL AND CIVIC AFFILIATIONS John is very active in the community and serves on the Foundation for Lee County Public Schools Board, as well as on the Child Care of Southwest Florida Board. He also serves as the Young Lawyer Director on the Florida Defense Lawyers Association Board of Directors. John is the President of the Young Lawyers Division of the Lee County Bar Association and is a member of the Defense Research Institute. Blogs: swflemploymentlawblog.com legalscoopswflre.com flimmigrationlawblog.com

4 Who Wants to be a Millionaire - Case Law Update presented by John M. Miller, Esquire and Robert Anderson, Esquire APPELLATE PROCEDURE In Nogales v. Countrywide Home Loans, Inc., 37 Fla. L. Weekly D2296 (Fla. 2d DCA Sept. 28, 2012), appeal dismissed as untimely where the notice of appeal was not filed within thirty days of rendition of the challenged order, even if the order was void. The time to file an appeal is not extended where the rendered order is void ab initio. The district court in Advanced Chiropractic & Rehabilitation Center, Corp. v. United Automobile Insurance Co., 37 Fla. L. Weekly D2186 (Fla. 4th DCA Sept. 12, 2012), concluded that the tipsy coachman doctrine does not permit a reviewing court to reverse on an unpreserved and unargued basis. Therefore, the Fourth District held that the circuit court in its appellate capacity departed from the essential requirements of law, resulting in a denial of due process, when it reversed based on evidentiary deficiencies which were neither preserved in the county court nor raised in the insurer s county court appellate brief. ATTORNEY'S FEE APPORTIONMENT BETWEEN CLAIMS In Blanton v. Godwin, 98 So. 3d 609 (Fla. 2d DCA 2012), the Second District declined to adopt a blanket rule that loss of consortium claims are always so intertwined with the injured spouse s claim that allocation for purposes of awarding attorney s fees is never possible. Trial court erred in awarding attorney s fees for the consortium claim pursuant to a proposal for settlement where the evidence did not establish that the fees awarded were solely related to the work done on that claim. On remand, the consortium spouse s award of attorney's fees should be reduced to the number of hours identified by the fees expert as being directly attributable to the loss of consortium claim. In Saunders v. Dickens, 37 Fla. L. Weekly D2274 (Fla. 4th DCA Sept. 27, 2012), the Fourth District declined to adopt the blanket rule that consortium claims are always so intertwined with the injured spouse s claims that allocation of attorney s fees is never possible. The court remanded for an evidentiary hearing at which the defendant, as the party recovering fees, will have the burden of allocating fees between the claims or show that allocation is impossible. Page 1

5 AED USAGE In Limones v. Sch. Dist. of Lee County, 111 So. 3d 901 (Fla. 2d DCA 2013), the Second District held that the School District of Lee County did not have a statutory or common law duty to make an AED available to a student who collapsed during a soccer game. The student's parents brought their action against the school board, alleging that the school board negligently failed to maintain, make available for use, or actually use an automated external defibrillator (AED) on or near the school's soccer field, and that as a result, the student had suffered severe injuries after collapsing on field while playing soccer. The Second District upheld the circuit court's grant of summary judgment as to the School Board's duty to make an AED available to the student, reasoning that there existed no common law duty or duty under F.S CLOSING ARGUMENT DEFAULT In Reffaie v. Wal-Mart Stores, Inc., 96 So. 3d 1073 (Fla. 4th DCA 2012), the Fourth District concluded that defense counsel improperly insinuated during closing argument that personal injury law firms transported their clients to the plaintiff s expert witness and treating neurologist. There was no evidence to support defense counsel s insinuation or to establish that the plaintiff s expert had any business relationships with personal injury law firms. The district court therefore reversed in part and remanded for a new trial on damages only. In Brady v. P3 Group, 98 So. 3d 1206 (Fla. 3d DCA 2012), trial court erred in entering a default judgment against a third-party defendant on the motion of the plaintiff in the main case, because the plaintiff had not sued the third-party defendant and all parties to the third-party action objected to the entry of default. The Third District stated that in a multi-claim lawsuit, a party to one of the claims who is not a party to another may not prosecute the latter claim to a final judgment. In this regard, third-party claims are separate and distinct from the claims brought in the main action. In Motors, Pumps & Accessories, Inc. v. Miami Medley Bus. & Indus., LLC, 38 Fla. L. Weekly D1170 (Fla. 3d DCA 2013), the Third District reversed an order of the circuit court denying the defendants' Motion to Vacate a Default Judgment that had been entered as a sanction after the defendants failed to attend court ordered mediation and failed to attend the subsequent non-evidentiary hearing on the plaintiff's Motion for Sanctions following the non-appearance. The Page 2

6 defendants claimed that they had never been informed by their counsel of the mediation or the hearing on the Motion for Sanctions. The circuit court refused to vacate the default or alter the judgment in the amount of $32,671 that had been entered. The Third District held that it was error for the circuit court to refuse to vacate the default without consideration of the factors set forth in Kozel v. Ostendorf, 629 So. 2d 817 (Fla.1993). Additionally, the Third District held that it was error for the circuit court to have entered final judgment as to damages without an evidentiary hearing on the matter. DISCOVERY/IN CAMERA REVIEW EVIDENCE In Paul B. Walker and Bright House Networks, LLC. v. Gary Ruot and Jennifer Ruot, 2013 WL (Fla.App.5 Dist.), the Fifth District held that the trial court erred in compelling the production of the entire employment file of one of Brighthouse's drivers without conducting an in camera review of the documents to determine whether the documents were discoverable. Gary and Jennifer Rout filed an automobile negligence action against Bright House and its former employee, Paul Walker, after Walker, who was driving a van owned by Bright House, rear-ended the Ruot vehicle. The Ruots requested Bright House to produce Walker's employee file. Bright House objected and argued that the file contained irrelevant information and the production of such file would disclose confidential information and violate Walker's privacy rights. The trial court ordered that Walker's entire file be turned over holding that the documents were clearly relevant. Bright House filed a petition for certiorari review. The Fifth District, on certiorari review, stated that the relevancy and practicality concerns relating to discovery requires a trial court to be cautious about ordering the production of the entire contents of an employment file since they undoubtedly contain private information and that legitimate privacy concerns exist. The court held that some of the information in the file would be relevant and some would not and that a portion of the irrelevant information would be highly intrusive if disclosed. Therefore, the court held that the trial court erred in not conducting an in camera inspection of the file in order to segregate the irrelevant documents from relevant. In Lenhart v. Basora, 37 Fla. L. Weekly D2439 (Fla. 4th DCA Oct. 17, 2012), the Fourth District determined it was error to grant defendant s motion to prevent plaintiff from introducing certain evidence pertaining to the defendant s negligence, including the fact that he had never been issued a driver s license, he had only driven a car once before the accident, he did not remember if he was wearing glasses at the time of the accident, and he failed to take his medication for depression and anger management on the day of the accident. The defendant Page 3

7 could not avoid the introduction of such evidence by admitting that he negligently operated the car where he asserted that plaintiff s recovery should be reduced by her failure to wear a helmet while riding a scooter as a passenger. The jury needed to hear the totality of fault of each side in order to parse out the comparative negligence of the parties. The district court thus ordered a new trial on both liability and damages. INSURANCE COVERAGE In Soronson v. State Farm Florida Insurance Co., 96 So. 3d 949 (Fla. 4th DCA 2012), the Fourth District affirmed a summary judgment in favor of the insurer with regard to a Hurricane Wilma-related claim. The homeowners insurance policy required the insureds to give immediate notice of loss and submit a sworn proof of loss within 60 days of the loss, as a condition precedent to suit. The insureds untimely pre-suit notice of loss and untimely pre-suit submission of sworn proof of loss created a presumption of prejudice to the insurer which the insureds failed to rebut, thereby precluding the insureds from recovering under the policy. JUROR MISCONDUCT/VOIR DIRE Florida 1 st DCA in Morgan v. Milton, 37 Fla. L. Weekly D2401 (Fla. 1st DCA Oct. 16, 2012), affirmed an order denying defendant s motion for new trial where a juror failed to disclose that he was involved in pending litigation before the trial judge during voir dire. The juror s concealment of the pending litigation was found not to be material because defense counsel failed to strike other jurors who had been involved in litigation. The Third District in Borroto v. Garcia, 37 Fla. L. Weekly D2122 (Fla. 3d DCA Sept. 5, 2012), held that the trial court abused its discretion in denying defendant s motion to interview jurors who failed to reveal that they had been injured in automobile accidents after having been specifically asked by the court whether they had ever been injured. MEDICAL MALPRACTICE In Rell v. McCulla, 37 Fla. L. Weekly D2399 (Fla. 2d DCA Oct. 12, 2012), trial court departed from the essential requirements of law by denying the defendant healthcare providers motion to dismiss the plaintiffs medical malpractice complaint for failure to satisfy the statutory presuit requirements. Specifically, the plaintiffs medical expert's corroborating affidavit did not indicate that the defendants provided negligent care or treatment, or that there were reasonable grounds to believe that medical negligence had occurred. Page 4

8 In Acosta v. Healthspring of Florida, Inc., 38 Fla. L. Weekly D1534b (Fla. 3d DCA Jul. 17, 2013), held that the plaintiffs' claims were not claims for "medical malpractice" as that term is defined by F.S (1)(a) (2009). In May 2009, the plaintiff suffered a stroke and was seen at North Shore Medical Center. Healthspring provided Medicare health benefits to the plaintiff. After his first stroke, plaintiff sought transfer to the University of Miami Hospital for a procedure to prevent a second stroke. The transfer was allegedly delayed by Healthspring's administrative process and four days after the first stroke, and prior to any transfer, the plaintiff had a second stroke. The plaintiffs sued Healthspring alleging contractual claims. Healthspring moved for summary judgment arguing that plaintiffs had failed to comply with the presuit requirements for medical malpractice actions. The circuit court granted summary judgment, and plaintiffs appealed. The Third District reversed on this point ruling that the plaintiffs' claims were not for medical malpractice as defined by F.S (1)(a). NEGLIGENT HIRING/RETENTION The district court in Valeo v. East Coast Furniture Co., 95 So. 3d 921 (Fla. 4th DCA 2012), affirmed the trial court s finding, with respect to the plaintiff s negligent hiring and retention claims, that the defendant employer did not owe a duty to the plaintiff at the time of the accident. Plaintiff had sought to hold the employer liable for injuries he sustained when the defendant s employee swung a padlock at him, hitting him in the eye, after a collision between plaintiff s truck and the truck defendant s employee was driving in between jobs. However, the plaintiff did not allege a sufficient nexus between him and the employee s employment to support a finding that the defendant had a duty to hire and retain non-dangerous employees, despite the fact the employee was on duty and allegedly feared that the plaintiff was trying to rob him of cash he was carrying for the employer s business. PERSONAL INJURY/CONTROL OF MECHANISM In Reider v. Dorsey, 98 So. 3d 1222 (Fla. 3d DCA 2012), the Third District found that the defendant did not owe a duty of care to the plaintiff, who was attacked with a tomahawk by a third party after the tomahawk had been taken from the defendant s truck. Although the defendant was the owner of the tomahawk, he was not in actual control of it at the time of the attack, and the defendant was not in actual or constructive control of the third-party tortfeasor. The defendant was therefore entitled to a directed verdict. In Bowen v. Taylor-Christensen, 98 So. 3d 136 (Fla. 5th DCA 2012), the court held that the trial court erred in denying the plaintiff s motion for directed verdict Page 5

9 where the plaintiff s husband was killed as a result of the defendant s ex-wife s negligent operation of a vehicle titled in the names of both the defendant and his ex-wife. The defendant claimed to have given his ex-wife the car as a gift. Because the defendant, as a matter of law, had an identifiable property interest in the vehicle at the time of the accident, the plaintiff was entitled to a directed verdict pursuant to the dangerous instrumentality doctrine. The district court certified the issue to the Florida Supreme Court. PERSONAL INJURY/NECESSITY OF MEDICAL TREATMENT In Costa v. Aberle, 96 So. 3d 959 (Fla. 4th DCA 2012), the Fourth District determined that the trial court erred in granting defendant s motion for new trial based on special jury instructions read to the jury after defense experts were permitted to testify that the course of treatment provided by the plaintiff s treating physician was improper. The trial court appropriately instructed the jury that any damages plaintiff incurred from medical treatment obtained due to the accident would be regarded as caused by the defendant s negligence and that the question of necessity of treatment was to be viewed from the plaintiff s perspective. During trial, the defense had suggested that the plaintiff s surgeon improperly used a particular device to treat the plaintiff. The defense experts testified that the surgery performed on plaintiff was not related to the accident in question, and defense counsel made comments during closing implying that the discogram performed by the surgeon caused the disc to leak and the surgeon was motivated to make money, however the surgery was not medically necessary. PRE-INJURY RELEASE The district court in Give the Kids the World, Inc. v. Sanislo, 98 So. 3d 759 (Fla. 5th DCA 2012), reversed the trial court s order denying the defendant nonprofit organization s motion for summary judgment based on its affirmative defense of release. The language of the release signed by the plaintiffs clearly and unambiguously released the defendant from liability for the physical injuries sustained during the plaintiffs stay at the defendant s resort village for seriously ill children, and was sufficiently clear to make the plaintiffs aware of the scope of the release and what rights they were contracting away, although there was no express reference to the defendant s negligence in the release. The Fifth District certified conflict with the First, Second, Third, and Fourth Districts to the extent those districts require specific reference to a defendant s negligence in a release. Page 6

10 PREMISES LIABILITY The district court in Kenz v. Miami Dade County, 2013 WL (Fla. 3d DCA Apr. 24, 2013), recently held that Florida Statute applies retroactively to cases involving accidents prior to July 1, 2010, the enactment date of This statute imposes on a plaintiff in slip and fall cases involving a transitory substance in a business establishment the additional burden of proving as an element of his or her claim that the premises owner had actual or constructive knowledge of the transitory foreign substance before he or she can prevail on a claim for negligence. PRODUCTS LIABILITY In Tricam Industries, Inc. v. Coba, 100 So. 3d 105 (Fla. 3d DCA 2012), the Third District held that the jury s verdict was fundamentally inconsistent where it found that there was no design defect in the ladder from which the decedent fell, but still found defendants were negligent because all of plaintiff s evidence related to the ladder s purported design defect. Additionally, the defendants did not waive the inconsistency objection by failing to object before the jury was discharged, because the inconsistency was of a fundamental nature. PROPOSAL FOR SETTLEMENT In Arnold v. Audiffred, 98 So. 3d 746 (Fla. 1st DCA 2012), the First DCA held that a proposal for settlement submitted by only one plaintiff was, when read as a whole, a joint proposal because it clearly expressed the promise that both plaintiffs would dismiss with prejudice each of their individual claims against defendant upon acceptance. The district court held that the plaintiffs joint proposal for settlement was invalid because it failed to apportion the proposed amount between the two plaintiffs, and reversed the award of attorney s fees against the defendant. The Fourth District in R.T.G. Furniture Corp. v. Coates, 93 So. 3d 1151 (Fla. 4th DCA 2012), concluded that a proposal for settlement which was served on the 45th day before trial was timely. Rule 1.442(b) states that no proposal shall be served later than 45 days before the date set for trial or the first day of the docket on which the case is set for trial, whichever is earlier. The district court stated that the proper method for counting the 45 days is to include the day the proposal for settlement was served and to exclude the date set for trial since the rule requires the proposal to be served 45 days before the trial date. Finally in Alamo Fin., L.P. v. Mazoff, 112 So. 3d 626, (Fla. 4th DCA 2013) the Fourth District reversed the circuit's denial of Defendant, Alamo Financing's Page 7

11 RECUSAL motion for attorney's fees after Alamo obtained summary judgment following the plaintiff's rejection of Alamo's proposal for settlement. Alamo served a proposal for settlement on the plaintiff, offering the plaintiff $13, to resolve [a]ll Claims made in the present action by the party to whom this proposal is made including any claims that could be made against Defendant ALAMO FINANCING, L.P., which arise out of the same occurrence or event set forth in this action. One of the conditions of the proposal was that the plaintiff would execute a stipulation for dismissal with prejudice as to Alamo. Another condition of the proposal was that the plaintiff would execute a release in favor of Alamo Financing. Specifically, that condition stated: "(4) Plaintiff shall execute a general release of the Defendant, ALAMO FINANCING, L.P., in the form general release attached as Exhibit A. The general release attached to the proposal for settlement provided that the plaintiff would release Alamo Financing and their parent corporations, subsidiaries, officers, directors, and employees from any and all claims. The plaintiff did not respond to the proposal for settlement within 30 days and therefore it was deemed rejected. Alamo obtained summary judgment and moved for its attorney's fees under the proposal. The circuit court denied the motion, finding that the proposal was ambiguous as to whether it was resolving all claims against Alamo only or all claims in the action (plaintiff had also sued the driver of the Alamo vehicle). The Fourth District reversed and held that the proposal was not ambiguous. It further held that the fact that the attached release sought to release Alamo, as well as its parent corporations, subsidiaries, officers, directors, and employees, did not render the proposal an impermissible undifferentiated joint proposal. In Philip Morris USA, Inc. v. Brown, 96 So. 3d 468 (Fla. 1st DCA 2012), the First DCA held that the Circuit Court judge s statements comparing the defendant tobacco company s former CEO to a Nazi war criminal raised a reasonable question as to the judge s ability to remain impartial and was legally sufficient to warrant the judge s recusal. The trial judge was required to enter an order of disqualification. SETTLEMENT AGREEMENT In Trapper John Animal Control, Inc. v. Gilliard, 96 So. 3d 461 (Fla. 5th DCA 2012), the Fifth District affirmed a summary judgment in favor of the defendant physician sued for contribution by an exterminating company which settled claims brought against it by the estate of an individual who inhaled rat poison sprayed by the company. The exterminating company did not have a right of contribution against the physician who allegedly negligently treated the decedent after he inhaled the poison, where the exterminating company s settlement clearly and unambiguously settled the company s liability, but did not Page 8

12 release the physician. The trial court properly found that the second release, which discharged the physician s liability and which was procured by the exterminating company 14 months later without any involvement of the physician, was not connected to the first release and original agreement. STATUTE OF LIMITATIONS In Reyes v. Roush, 99 So. 3d 586 (Fla. 2d DCA 2012), trial court erred in granting the defendant s motion to dismiss on the basis that the lawsuit was barred by the statute of limitations where that issue involved both a factual and legal determination. Specifically, where the plaintiff alleged she did not become aware of or discover that she had a claim for medical malpractice until four years after the birth of her child, the trial court should not have determined the veracity of that allegation but should have, instead, restricted its consideration to whether the paragraph was properly plead. Dismissal could not be based on the argument of defense counsel that the procedural history suggested plaintiff knew within months of the child s birth that there was a reasonable possibility that negligence had occurred. SUMMARY JUDGMENT PROCEDURE In Asset Recovery Ctr. Invs., LLC v. Estate of Hossairati, 113 So. 3d 1035 (Fla. 5th DCA 2013), the Fifth District concluded that the trial court abused its discretion in denying a motion for rehearing, which established excusable neglect by Appellant's counsel in failing to appear at the summary judgment hearing and failing to file a counter-affidavit. The court held that because the late-filed affidavit created an issue of material fact, summary judgment was precluded. SUMMARY JUDGMENT/REAR END COLLISION In Jiminez v. Faccone, 98 So. 3d 621 (Fla. 2d DCA 2012), the Second District held that the trial court erred in granting the plaintiffs motion for summary judgment in a rear-end collision case. The evidence fairly and reasonably tended to show that plaintiffs vehicle was illegally stopped in the roadway at a time when it was both dark and raining, and there was conflicting testimony regarding whether the emergency flashers on plaintiffs vehicle were illuminated, thereby sufficiently rebutting the rear-end collision presumption. WORK-PRODUCT PRIVILEGE The Fourth District in Publix Supermarkets, Inc. v. Anderson, 92 So. 3d 922 (Fla. 4th DCA 2012), granted certiorari review and quashed an order requiring the Page 9

13 defendant to produce an incident report prepared by its store manager and a customer incident witness statement of a customer service staff associate where both were prepared on the same day, after the plaintiff s fall. The documents were prepared in anticipation of litigation and plaintiff did not demonstrate an inability to obtain the substantial equivalent by other means and without undue hardship. The district court in Estilien v. Dyda, 93 So. 3d 1186 (Fla. 4th DCA 2012), concluded that where the billing records of opposing counsel are sought solely for the purpose of supporting a claim for attorney s fees, the party seeking production must establish that the requested material is actually relevant to a disputed issue, that the records sought are needed to prepare for an attorney s fees hearing, and that the substantially equivalent material cannot be obtained from another source. Accordingly, the Fourth District held that the trial court departed from the essential requirements of law when it ordered production of opposing counsel s billing records without a showing of relevancy, need, and undue hardship in obtaining the information elsewhere. Page 10