April 1996

Dangerous Instrumentality

Ady v. American Honda Finance Corp.
21 Fla. L. Wkly. D130 (Fla. 1996)

324.021(9)(b), allows a long term lessor immunity under the dangerous instrumentality doctrine if the lessee maintains insurance on the leased vehicle in certain required amounts. The court strictly construes the statute and holds that the statute is not satisfied if the lessor maintains the insurance in the specified amounts instead of the lessee.

Discovery -- Experts

Elkins v. Syken
21 Fla. L. Wkly S159 (Fla. 1996)

In a decision that limits a trial court's authority over professional experts, the Supreme Court adopts the Third District's decision limiting what discovery can be obtained about the finances of a defense expert. It sets out new guidelines and directs that they be made part of the commentary to Fla. R. Civ. P. 1.280:

1. The expert may be deposed either orally or by written deposition.

2. The expert may be asked as to the pending case what he or she has been hired to do and what the compensation is to be.

3. The expert may be asked what expert work he or she generally does. Is the work performed for the plaintiffs, defendants or some percentage of each.

4. The expert may be asked to give an approximation of the portion of their professional time or work devoted to service as an expert. This can be a fair estimate of some reasonable and truthful component of that work, such as hours expended or percentage of income earned from that source, or the approximate number of IME's that he or she performs in one year. The expert need not answer how much money he or she earns as an expert or how much the expert's total annual income is.

5. The expert may be required to identify specifically each case in which he or she has actually testified, whether by deposition or at trial, going back a reasonable period of time, which is normally three years. A longer period of time may be inquired into under some circumstances.

6. The production of the expert's business records, files and 1099's may be ordered produced only upon the most unusual or compelling circumstances.

7. The patients' privacy must be observed.

8. The expert may not be compelled to compile or produce nonexistent documents.

Economic Loss Rule

Monco Enterprises v. Ziebart Corp.
21 Fla. L. Wkly. D755 (Fla. 1st DCA 1996)

Joining the Third District and rejecting the Second, the First District holds that the economic loss rules does not bar a claim for fraud in the inducement, and that actions for fraud in the inducement and breach of contract are not mutually exclusive.

Burke v. Napieracz
21 Fla. L. Wkly. D754 (Fla. 1st DCA 1996)

The economic loss rules does not bar claims for conversion and civil theft, where the defendant did not merely fail to perform the contract, but committed an affirmative and intentional act of converting the plaintiff's funds to his own use by stealing money entrusted to him.

Evidence -- Computer Animation

Pierce v. State
21 Fla. L. Wkly. D629 (Fla. 4th DCA 1996)

In a criminal prosecution for vehicular homicide, the trial court did not abuse his discretion in allowing the jury to view a computer generated accident reconstruction animation to illustrate the state's expert's opinion. As a demonstrative exhibit, it was not subject to analysis under the Frye test for general acceptance in the scientific community. In order to admit a demonstrative exhibit illustrating an expert's opinion, (1) the opinion evidence must be helpful to the trier of fact; (2) the witness must be qualified as an expert; (3) the opinion must be applied to evidence offered at trial; and (4) the prejudicial effect must not outweigh its probative value. In addition, (5) the proponent must establish that the facts or data on which the expert relied are of a type reasonably relied on by such experts; and (6) the animation must be a fair and accurate depiction of what it purports to be.


I'm delighted to have some good news to report on the Fabre front, even if I don't have a citation yet. In a decision that was not published at the time this Update went to press, the Fourth DCA has held that in a negligent security case, the fault of the intentional tortfeasor is not to be considered by the jury. The case is called Slawson v. Fast Food Enterprises. The court held that the statute must be strictly construed, and since it specifically says that it does not apply to actions arising out of intentional torts, it cannot apply in this situation.

Insurance -- Exclusions

Canal Ins. Co. V. Reed
21 Fla. L. Wkly. D748 (Fla. 1st DCA 1996)

A policy provision that excluded coverage for injuries to employees of the insured does not violate public policy where the policy was not issued to satisfy financial responsibility laws. (At the time of the accident, the insured did not have a Florida license or registration; thus, Florida could not have suspended or revoked his license and subsequently required proof of financial responsibility under 324.072.)


Quality Engineered Installation v. Higley South, Inc.
21 Fla. L. Wkly. S141 (Fla. 1996)

Prejudgment interest is awardable on a judgment for attorneys fees. It begins to accrue on the date the entitlement to fees is fixed by agreement, arbitration award, or court determination, even though the amount is not determined until later. Interest accrues on the entire amount including the amount which represents prejudgment interest.

Med Mal Arbitration

Mogler v. Franzen
21 Fla. L. Wkly. D637 (Fla. 4th DCA 1996)

On rehearing of its decision originally appearing at 20 Fla. L. Wkly. D2486 (Fla. 4th DCA 1996), the court holds that once parties have agreed to arbitrate, what damages are available in arbitration cannot be determined in a declaratory action prior to the arbitration award. This is so even though the arbitration statute makes arbitration reviewable under 766.212(1) and 120.68 after trial.

Med Mal - Presuit

Lowe v. Pugh
21 Fla. L. Wkly. D732 (Fla. 2d DCA 1996)

A defendant who was not served with the notices of intent served earlier on other potential defendants was entitled to obtain copies of them in discovery.

Pantino v. Einhorn
21 Fla. L. Wkly. D801 (Fla. 3d DCA 1996)

The plaintiff was not required to comply with the med mal presuit requirements before suing an optometrist for malpractice. An optometrist is not one of the health care providers enumerated in the statute. See 766.102(1), referring to 768.50; Weinstock v. Groth, 629 So.2d 835 (Fla. 1993)

Union Park Memorial Chapel v. Hutt
21 Fla. L. Wkly. S133 (Fla. 1996)

The plaintiff was injured in a collision while driving in a funeral procession organized by the defendant. She alleged that the defendant had a duty to operate and supervise the funeral procession in a reasonably safe manner. The Supreme Court held that a funeral director who voluntarily undertakes to organize and lead a funeral procession owes a duty of reasonable care to ensure that the participants proceed to the cemetery in a safe manner. Voluntarily undertaking an act that, if not accomplished with due care might increase the risk of harm to others or might result in harm to others due to their reliance upon the undertaking, confers a duty of reasonable care because it "creates a foreseeable zone of risk." MCain v. Florida Power Corp., 593 So.2d 500 (Fla. 1992), Restatement (Second) of Torts 324A (1965).

Iviricu v. Velasco
21 Fla. L. Wkly. D620 (Fla. 3d DCA 1996)

The plaintiff, a household employee of the defendant, was injured while trying to clean a piece of furniture while standing in a precarious position on a bed. She had asked her employer for a stepladder but the employer had refused. The court reversed a summary judgment for the defendant and held that it was for a jury to decide whether the employer breached his duty to provide the plaintiff a reasonably safe place to work and reasonably safe tools and equipment.

New Trial

Pennington v. Waldheim
21 Fla. L. Wkly. D782 (Fla. 5th DCA 1996)

Rule 1.530 requires a motion for new trial or rehearing to be served within 10 days of the verdict or judgment. Where the motion was filed but not served within 10 days, it was not timely.

Peer Review Privilege

Variety Children's Hospital v. Mishler
21 Fla. L. Wkly. D761 (Fla. 3d DCA 1996)

A hospital may not be required to produce surveys of the Joint Commission on Accreditation or its responses to the surveys. Any evaluations that a hospital makes on its own or takes part in to improve the standard of care or patient safety and to reduce the rates of death and diseases are privileged under 766.101(5). The court points out in a footnote that, although the documents may not be obtained from the hospital, they may be obtained from other nonprivileged sources.


Davis v. Chips Express, Inc.
21 Fla. L. Wkly. D698 (Fla. 1st DCA 1996)

The presumption that a driver who strikes another car from behind was negligent is rebuttable. Therefore, it was error to enter summary judgment for the front vehicle where there was evidence that inadequate lighting and the slow speed of the front vehicle may have been causative factors.

Punitive Damages

Simeon, Inc. v. Cox
21 Fla. L. Wkly. S153 (Fla. 1996)

Plaintiffs' complaint alleged specific instances of misconduct by the defendant. The complaint was sworn to and notarized. The court held that this does not comply with the strict requirement of 768.72 that the plaintiff obtain leave of court prior to pleading punitive damages. Once plaintiff has asked for leave, the trial court must then make a determination of whether there is a reasonable evidentiary basis for recovery of punitive damages.

The court of appeal may review by certiorari whether a trial judge has conformed with the procedural requirements of the statute, but not whether the evidence is sufficient.


Wiggins v. Braman Cadillac
21 Fla. L. Wkly. D612 (Fla. 3d DCA 1996)

Applying the formula adopted in Tallahassee Memorial v. Wells, 659 So.2d 249 (Fla. 1995), the court recalculates a $136,491.03 judgment to $1,068,452.80 against the non-settling defendant. The court also holds that underinsured motorist payments and medical payments made by the plaintiff's underinsured motorist carrier do not constitute "settlements" for purposes of setoff.

Wrongful Death

Young v. St. Vincent's Medical Center
21 Fla. L. Wkly. S122 (Fla. 1996)

Approving a decision of the First DCA in Young v. St. Vincent's Medical Center, 653 So.2d 499 (Fla. 1st DCA 1995), the court reaffirms its earlier holding in Hernandez v. Garwood, 390 So.2d 357 (Fla. 1980) that a fetus is not a person under the wrongful death act.

Thompson v. State Farm
21 Fla. L. Wkly. D675 (Fla. 3d DCA 1996)

The adult sister of the deceased was not a "survivor" under the wrongful death act where she was employed, lived apart from him in a townhouse, and was only dependent on him for the payment of expenses on a house they owned together and rented out, and for odd jobs in her own home. A finding of dependency requires actual inability to support one's self and an actual dependence upon someone else for support, with a reasonable expectation or claim of support from the deceased.