April 1995


Stembridge v. Mintz,
20 Fla. L. Wkly. D721 (Fla. 3d DCA 1995)

It was error to enter summary judgment in favor of the plaintiff based solely upon the defendant's failure to respond to requests for admissions where the defendant's sworn answers to interrogatories and sworn answer to the complaint raised issues of material fact, and the record was replete with evidence contradicting the admissions.


Noel v. North Broward Hospital District
20 Fla. L. Wkly. D774 (Fla. 4th DCA 1995)

It was error to enter summary judgment based on sovereign immunity in favor of doctors who worked as consultants for Children's Medical Services, a facility created by Ch. 391 to provide medical services to indigent children and run by HRS, where factual issues remained as to whether the doctors were agents of the state. All of the facilities are staffed by consultants who are required to care their own insurance and spend less than one day a week at the clinics, maintaining their own private practices. The consultants are generally unsupervised, but ultimate authority resides with the director of CMS who can refuse to pay for proposed therapy or treatment with which he disagrees. Financial remuneration may be an important factor in a doctor's decision to render treatment but the court holds it is not equivalent to actually directing the type and course of treatment.

Argument -- Improper

Owens Corning Fiberglass Corp. v. Morse,
20 Fla. L. Wkly. D647 (Fla. 3d DCA 1995)

Where defense counsel in closing argument accused plaintiff's counsel of trickery and "hiding the ball" and that plaintiff's answers "had to have been told to him by his attorneys", it was fundamental error requiring a new trial, even though there were no objections. The court equated the argument with accusing the attorneys of lying and perpetrating a fraud on the court.

While counsel for a second defendant did not have the duty to object to disassociate itself from the remarks, the comments deprived the plaintiffs of a fair trial as to both defendants and a new trial was required as to both defendant. In addition, the trial court properly imposed plaintiffs' costs as a sanction against the defendant whose attorney made the argument.


Seropian v. Forman,
20 Fla. L. Wkly. D762 (Fla. 4th DCA 1994)

The use of the term "influence peddling" in a letter sent by the defendant to the plaintiff and others in response to a letter plaintiff had written to an administrative hearing officer was not defamatory because it did not impute conduct incompatible with the proper exercise of the plaintiff's office, did not tend to subject him to hatred, distrust, ridicule, contempt or disgrace, was not obviously directed to the plaintiff, and did not have a settled opprobrious meaning.

Economic Loss Rule

Palau International Traders, Inc. v. Narcam Aircraft, Inc.,
20 Fla. L. Wkly. D649 (Fla. 3d DCA 1995)

The court en banc holds that under a negligence theory a purchaser of a used airplane cannot recover for purely economic losses from an airplane mechanic with whom it has no privity, where there were no personal injuries and no damage to property outside the contract. The economic loss rule takes precedence over Restatement (Second) of torts 552 which allows liability for one who in the course of a business transaction supplies false information for the guidance of others in their business transactions.

Evidence -- Expert

Maklakiewicz v. Berton 20 Fla. L. Wkly. D759 (Fla. 3d DCA 1994)

It was error to permit a police officer, testifying as an accident reconstruction expert, to serve solely as a conduit for the presentation of hearsay from two witnesses who did not testify.

The officer investigated the accident scene, but stated he would not be able to reach his conclusions without relying on the hearsay statements.

Federal Preemption

Hernandez v. Coopervision,
20 Fla. L. Wkly. D752 (Fla. 2d DCA 1995)

The defendant's motion to dismiss on the grounds of federal preemption was granted without an evidentiary hearing. The court held that preemption is a matter of subject matter jurisdiction; however, such a motion cannot be granted based only on a defendant's version of facts as asserted by its attorney. An evidentiary hearing is required a which the burden of proof is on the defendant.

Insurance -- Duty to Defend

State Farm Fire & Cas. Co. v. Compupay, Inc.,
20 Fla. L. Wkly. D653 (Fla. 3d DCA 1995)

An insurer had no duty under either the bodily injury or personal injury provisions of a policy to defend the insured against a complaint arising out of allegations of sexual harassment and discrimination committed by its officer against an employee. Acts of harassment and discrimination are neither negligent nor accidental. Allegations that the insured knew of the officer's history of sexual harassment and ignored plaintiff's complaints showed that the acts were predictable and should have been within the insured's expectations. The court also notes that workers' comp is an available remedy. See Byrd v. Richardson-Greenshields, 552 So.2d 1099 (Fla. 1989) (holding that worker's comp is not the exclusive remedy for sexual harassment.

Insurance -- Estoppel

Doe v. Allstate,
20 Fla. L. Wkly. S135 (Fla. 1995)

If an insurance company assumes the defense of an action with knowledge of facts which would have permitted it to deny coverage, it is estopped from subsequently raising the defense of non coverage if the insured demonstrate's that the insurer's assumption of the defense has prejudiced the insured. The court acknowledges that the insurer which undertakes the defense controls the defense and settlement decisions; if the insured is prejudiced by those decisions, the insurer is estopped to deny coverage. The court also holds that the insurer's failure to comply with 672.426(2) does not preclude an insurer from disclaiming liability when the policy has expired or the coverage sought is excluded by the policy.


Lumbermen's Mut. Cas. Co. v. Percefull
20 Fla. L. Wkly. S155 (Fla. 1995)

Under a medical insurance policy that provides for claims to be paid directly to the insured immediately upon filing proof of loss, the insured is entitled to prejudgment interest on the amounts due, even if the insured has not paid the medical bills. The court distinguishes cases involving UM policies which, the court says, really involve unliquidated personal injury claims.

Jury Interview

Doe v. Harbor Island Security
20 Fla. L. Wkly. D787 (Fla. 2d DCA 1995)

A vague, anonymous letter, signed "juror" and stating that the plaintiff did not get a fair trial is not sufficient to allow a jury interview.

Med Mal -- Birth Related Neurological Injuries

Turner v. Hubrich
20 Fla. L. Wkly. D703 (Fla. 5th DCA 1995)

Reversing on rehearing its earlier decision, the Court held that the burden is on NICA participants to give their patients notice of their participation; the trial court properly allowed the plaintiffs to amend their complaint to argue that the defendants failed to give such notice and were thus not entitled to statutory immunity. The language of this decision is a bit vague.

Product Liability

Sanders v. American Body Armor
20 Fla. L. Wkly. D688 (Fla. 1st DCA 1995)

The manufacturer of a bulletproof vest had no duty to warn where the vest's failure to overlap at the sides was open and obvious.

However, the court disapproves of part of the trial court's reasoning. The deceased was killed by two bullets; one of the bullets would have been stopped by a non-overlapping vest; the other was outside the area the vest was designed to protect. The trial court held that the failure of the vest to overlap was not the proximate cause of the death because of the second bullet; this was error. If two causes combine to cause a death, and either one of them alone would have caused the death, neither is absolved from responsibility.


Sangiovanni v. Stengle
20 Fla.L. Wkly. D681 (Fla. 2d DCA 1995)

It was error to grant summary judgment for defendant in an action arising out of a three car collision where a question of fact existed as to whether the plaintiffs intended to release everybody or just those specifically named in the printed general release form.

When settling with less than all defendants, it is important to modify any boilerplate release language to specifically preserve claims against any defendants whom you do not intend to release.

The plaintiffs prevailed here on appeal, but careful drafting of the release could have avoided the need to litigate this issue at all.

Service of Process

National Powerboat Assoc. v. Calabro
20 Fla. L. Wkly. D758 (Fla. 3d DCA 1995)

An order denying a motion to dismiss based on failure to serve within 120 days as required by Fla. R. App. P. 1.070 is not reviewable on interlocutory appeal. This is an area where the courts are in disarray. This opinion lists conflicting opinions from other DCA's. See, e.g., Comisky v. Rosen Management Serv., Inc., 630 So.2d 628 (Fla. 4th DCA 1994) (en banc).

Sovereign Immunity

Department of Education v. Roe
20 Fla. L. Wkly. D686 (Fla. 1st DCA 1995)

The Department of Education has no common law duty to use reasonable care in hiring and retaining a teacher (who molested the plaintiff child), because the DOE has no authority to hire and retain teacher. The statute pertaining to issuance of teaching certificates does not establish that DOE owes a private duty to a student who is harmed by a teacher.

Worker's Comp Lien

Century Elevator Co. v. Spinos
20 Fla. L. Wkly. D732 (Fla. 4th DCA 1995)

The insurer filed a worker's comp lien. The plaintiff and defendant settled, and filed a stipulation of dismissal. Two years later, the carrier filed a motion to enforce its lien, arguing that its lien had not been satisfied. The trial court allowed the carrier to reduce future benefits to the plaintiff until the amount of the lien was discharged, and that the tortfeasor had to reimburse the plaintiff that amount. The court of appeal reversed because the trial court had not jurisdiction to review, modify or enforce the settlement after the case had been dismissed. The settlement could only be enforced in a separate action.