April 2002

Attorneys’ Fees – 57.105

Lidsky Vaccaro & Montes v. Morejon
27 Fla. L. Weekly D580 (Fla. 3d DCA 2002)

The circuit court appellate division erroneously granted fees under 57.105 for what it deemed to be a frivolous, untimely appeal from a county court order, failing to provide a transcript of the proceedings, and asking the court to revisit a prior appellate ruling that was law of the case. The appeal was not untimely because an order which merely grants a motion for summary judgment and does not otherwise contain words of finality is not a final appealable order; it is not itself a judgment; therefore the appellant could wait until judgment was entered before taking an appeal. Failure to provide a transcript of an evidentiary hearing on the amount of fees did not preclude appellate review of the determination of entitlement of the fees. Finally, it is not sanctionable under 57.105 to make a good faith argument asking the court to reconsider and correct a prior ruling that has become law of the case, where a manifest injustice otherwise would result.


Roseman v. Town Square Assoc., Inc.
27 Fla. L. Weekly D588 (Fla. 4th DCA 2002)

The court notes that, in affirming the trial court’s bifurcation of the trial, it is holding only that bifurcation was not an abuse of discretion – i.e., that reasonable people could differ – not that it was what the appellate court would have done. In this case, the court held that the issues were not so intertwined that the trial court’s determination to bifurcate was an abuse of discretion.

Discovery – Burdensomeness and Relevance

McPherson v. Church of Scientology
27 Fla. L. Weekly D767 (Fla. 2d DCA 2002)

The trial court departed from the essential requirements of law in a wrongful death action in requiring the plaintiff estate to produce documents concerning the payment of any money to plaintiff or her attorney used to pay costs of the litigation. The court found the plaintiff would be irreparably harmed by the disclosure of this information because it would create a chilling effect on future funding, and because the defendant would know how long the estate “can last before it has to throw in the towel due to lack of funds.” The court notes the defendant’s forty-seven requests for production, as indicating that the defendant would litigate until the plaintiff no longer could continue. Moreover, the information is not reasonably likely to lead to the discovery of admissible evidence.

Discovery Sanctions

Carpenter v. McCarty
27 Fla. L. Weekly D603 (Fla. 4th DCA 2002)

It was error to dismiss plaintiff’s complaint with prejudice without an express finding of willful noncompliance with discovery orders. A finding that the plaintiff’s conduct “appears to be” a calculated attempt to block discovery is not sufficient.

Emotional Distress – Impact Rule

Coca-Cola Bottling Co. v. Hagan
27 Fla. L. Weekly D613 (Fla. 5th DCA 2002)

Plaintiffs drank part of a coke which tasted flat, before noticing what appeared to be a used condom floating in it. The 5th DCA originally held that their claim was barred by the impact rule. The Supreme Court reversed, holding that a plaintiff need not show physical injury in order to recover for negligent infliction of emotional distress caused by consuming a contaminated food or beverage. 804 So.2d 1234 (Fla. 2001). On remand, the 5th DCA held that, because most of the plaintiffs’ damages resulted from an “unfounded” fear of AIDS, and they would not have had that fear if they had had the stuff analyzed and learned that in fact it was just mold, their fear was not based on a “rational or scientific basis.” Because they failed to show that AIDS could be transmitted by a used condom, even if they had established that the substance was a used condom, and they failed to show a “medically and scientifically accepted channel for transmitting the disease”, their fear was “unreasonable as a matter of law and not a legally compensable injury.”

Employment Discrimination

Castleberry v. Edward M. Chadbourne, Inc.
27 Fla. L. Weekly D573 (Fla. 1st DCA 2002)

Florida does not recognize a common law cause of action for negligent failure to maintain a workplace free of sexual harassment. (The only authority the court cites for this holding is a federal district court case). Therefore, the trial court properly entered summary judgment for the defense on the plaintiff’s claims of negligent retention, negligent supervision and negligent training. However, the trial court improperly entered summary judgment in favor of the employer on the sexual harassment claim, where there were disputed issues of fact as to whether the employee timely complained of the harassment and whether the employer acted reasonably in taking remedial action. In order to prove a sexual harassment claim, the employee cannot rely on respondeat superior, but must prove that the employer knew or should have known of the harassment and failed to take remedial action.

Evidence – Frye

Holy Cross Hospital, Inc. v. Marrone
27 Fla. L. Weekly D668 (Fla. 4th DCA 2002)

The trial court erroneously failed to conduct a hearing under Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923), where the plaintiff introduced expert testimony as to when the plaintiff’s cancer spread, which was based on staging studies which tracked the growth and spread of cancers in general, but used them in a new way to determine when the lymph nodes became involved. The new and novel application of the established principle required the Frye hearing. If the evidence was improperly admitted, a new trial was required; otherwise, the verdict for the plaintiff would stand. The failure to conduct a Frye hearing does not per se require a new trial if the evidence in fact was properly admitted under Frye.


Suarez v. Gonzalez
27 Fla. L. Weekly D730 (Fla. 4th DCA 2002)

A landlord has a nondelegable duty to exercise reasonable care in selecting a competent independent contractor to make repairs on premises occupied or to be occupied by a tenant. See Restatement (Second) of Torts 411, making an employer responsible for physical harm caused by failure to use reasonable care to employ a competent and careful contractor to do work which involves a risk of physical harm unless skillfully and carefully done, or to perform any duty the employer owes to a third person.

The employer was vicariously liable for the negligence of an anonymous independent contractor it hired off the street to hang cabinets; therefor, the independent contractor did not go on the verdict form as a Fabre defendant, and there could be no apportionment of fault.

Basel v. McFarland & Sons, Inc.
27 Fla. L. Weekly D792 (Fla. 5th DCA 2002)

This is the first case I have seen discussing the 1999 “tort reform” amendments, which among other things amended 768.81 to create a sort of sliding scale for joint and several liability based on the percentage of fault and capping the amount of damages for which a defendant can be jointly and severally liable at different levels for different percentages of fault, regardless of how badly the plaintiff was hurt. The court holds that the amendments cannot apply to a cause of action that accrued before the effective date of the statute, because it effected a substantive change in the law and altered the size of the plaintiff’s enforceable judgment against certain defendants.
The entire statute is currently being challenged by the Florida Consumer Action Network, the AFTL and others. Judge Nikki Clarke in Tallahassee has held the statute unconstitutional, and several other circuit judges around the state have agreed. The Academy of Florida Trial Lawyers has the various decisions available. The decision is currently pending on appeal before the 1st DCA. If you have a case involving this issue, you should contact the AFTL.

Insurance – Cancellation

Bankers Ins. Co. v. General No-Fault Ins. Co.
27 Fla. L. Weekly D778 (Fla. 4th DCA 2002)

This case is a victory for consumers because it limits the insurers’ ability to engage in post-claims underwriting. The trial court properly granted a summary judgment in favor of the insureds on the insurer’s claims for rescission and cancellation. The insurer was not entitled to rescission where it failed to tender all premiums paid by the insured. The insurer should have tendered all premiums, including those during the initial policy period and the renewal period, where it alleged a misrepresentation in the original application. The insurer was not entitled to cancellation where it failed to return the unearned premium to the insured, but sent it to the finance company. Because the insured assigned the refund to the premium finance company, the insurer should have made the check payable to both.

Insurance – Evidence

Nevarez v. Friskney
27 Fla. L. Weekly D805 (Fla. 5th DCA 2002)

Evidence of a defendant’s insurance ordinarily is not admissible, but it can be admitted if it has some “independent probative value.” The trial court properly admitted the evidence where the defendant denied that he owned the car involved in the accident, or that he was involved in the accident, but the plaintiff testified that he got the driver’s license tag number and insurance policy number from the defendant at the scene of the accident, and the insurance policy information was the only thing the plaintiff could not have obtained from public records. See Carlton v. Johns, 194 So.2d 670 (Fla. 4th DCA 1967) (recognizing that fact of insurance can be established at trial where the issue of ownership is in dispute). Admission of this evidence did not violate the nonjoinder statute, 627.730, Florida Statutes.

Insurance – Liability

C.A. Seguros Catatumbo v. Herrera
27 Fla. L. Weekly D.747 (Fla. 3d DCA 2002)

Section 627.4136(4), Florida Statutes provides that “At the time a judgment is entered or a settlement is reached during the pendency of litigation, a liability insurer may be joined as a party defendant for the purposes of entering a final judgment or enforcing the settlement by the motion of any party, unless the insurer denies coverage ... or defended under a reservation of rights.” It provides for service of the motion to join the insurer by certified mail. The motion must be made before or at the time of entry of final judgment. Where the plaintiff moved to add the insurer as a defendant after judgment, it was error to grant the motion. The plaintiff filed the motion after prevailing in a declaratory judgment action on the issue of coverage.

The plaintiff’s proper remedy was a motion for supplemental relief in the declaratory judgment action. The motion should be deemed filed as of the date the plaintiff filed the motion in the tort action. Marsh v. Patchett, 788 So.2d 353 (3d DCA 2001) (improper motion to extend the life of a judgment, filed when the judgment had almost expired, could be converted to a complaint on the judgment by a motion to amend and amendment would relate back to filing of the motion)

Legal Malpractice

Schreiber v. Rowe
27 Fla. L. Weekly S248 (Fla. 2002)

Judicial immunity does not extend to public defenders for legal malpractice claims. In order to prevail on a legal malpractice claim arising out of a criminal case, the client must prove actual innocence as an element of the cause of action for legal malpractice. The cause of action does not accrue, and the statute of limitations does not begin to run, until the criminal defendant has obtained postconviction relief or had the conviction set aside on appeal. See Steel v. Kehoe, 747 So.2d 931 (Fla. 1999) (appellate or postconviction relief is a prerequisite to maintaining a legal malpractice action).

Eagle American Insurance Co. v. Nichols
27 Fla. L. Weekly D596 (Fla. 4th DCA 2002)

This case demonstrates the perils of Fabre for plaintiffs’ attorneys and their clients – and also for defendants, because it strongly supports filing against every potential defendant. Here, an excellent attorney was sued for failing to join all possible defendants in a medical malpractice case. The court held that the failure to join several possible defendants constituted one claim under the language of a “claims made” policy, to which the “per claim” policy limits applied. Although the failure to join several potential defendants may constitute several wrongful acts, those acts resulted in only one injury to the client, an award that did not compensate the client for the full extent of his damages.


Gilliam v. Smart
27 Fla. L. Weekly D622 (Fla. 1st DCA 2002)

Some jurisdictions allow the filing of a “John Doe” complaint to stop the running of the statute of limitations when the plaintiff is having trouble identifying the real party. The 1st DCA holds that Florida does not recognize this procedure. The filing of a complaint that identified a defendant police officer as John Doe, with a badge number, did not commence an action against a real party and did not stop the running of the statute of limitations. The name “John Doe” and badge number did not constitute a misnomer allowing the filing of an amended complaint to relate back. The court pointed out that a codefendant disclosed the officer’s name in its answer, and the plaintiff should have amended the complaint at that time, but did not. It is my belief that this decision overlooked or misapplied the “misnomer” cases, which allow an amendment to reflect the correct name of a defendant to relate back to the original filing, if there is no doubt as to who was really being sued. See, e.g., Francese v. Tamarac Hospital, 504 So.2d 546 (Fla. 4th DCA 1987) (amendment to identify defendant as the corporation that operated the hospital, instead of just the name of the hospital, related back to the filing of the complaint).

Snyder v. Wernecke
27 Fla. L. Weekly D771 (Fla. 4th DCA 2002)

The plaintiff’s purchased a home from the defendant, who was the owner and the builder. Long afterwards, the plaintiffs discovered that the home had been built on loose sand, marl, and muck. The plaintiffs sued for fraud, breach of warranty of habitability, violation of the building code, rescission and unjust enrichment. The court held that the 15 year statute of repose in 95.11(3)(c) for an action founded onthe design, planning or construction of an improvement to real property did not apply to the plaintiffs’ claim against the defendant in his separate and distinct capacity as owner and seller. Moreover, the four year negligence and fraud statutes of limitations did not begin to run as a matter of law the first time plaintiffs noticed cracking, because the cracks could have been due to problems other than the defective foundation, and therefore notice of the cracking was not notice of the defect.

Longarm Jurisdiction

Hoechst Group v. Lozano
27 Fla. L. Weekly D648 (Fla. 3d DCA 2002)

The defendant non-resident corporation was not subject to jurisdiction in Florida in a tort action where all the tortious activities took place in South Carolina and the only connections to Florida were the actions of its subsidiaries. The actions of a subsidiary cannot be imputed to the parent corporation for purposes of subjecting the parent to longarm jurisdiction.

Med Mal – Birth Related Neurological Injury

Nagy v. Florida Birth-Related Neurological Injury Compensation Association
27 Fla. L. Weekly D591 (Fla. 4th DCA 2002)

The Administrative Law Judge improperly found that the plaintiff’s claim was a “birth- related neurological injury covered by NICA, as defined in 766.302(2), Florida Statutes. The baby did not sustain an injury to her brain during labor, delivery or the post-delivery period. The doctor used a vacuum extractor, which caused the initial injury to the skull and to the tissue outside the brain, resulting in a hemorrhage which at some point caused an injury to the brain. The baby’s death, 14 hours after birth, was the result of a progressive deterioration caused by blood loss, which led to a total failure of all body systems. The court notes that there are many non-cranial, mechanical injuries which could lead to undiscovered bleeding that robs the brain of oxygenated blood. It was not the legislature’s intent to cover all of them, only those that meet the statutory definition.

“Because the Plan is a statutory substitute for common law rights and liabilities, it should be strictly construed to include only those subjects clearly embraced within its terms.”
The court held that the statute must be given its plain meaning. The fact that a brain injury from oxygen deprivation could be traced back to a mechanical injury outside the brain resulting in subgaleal hemorrhaging does not satisfy the requirement that the oxygen deprivation or mechanical injury to the brain occurred during labor or delivery.

This case is significant because the surviving parents did not file a NICA claim, but instead filed a petition with the Division of Administrative Hearings for a determination as to whether the baby suffered a “birth-related neurological injury” covered by the statute. The statute gives the ALJ exclusive jurisdiction to determine this issue (reviewable by an appellate court), so this is the safer way to go, rather than filing first in court. The statute has a provision for tolling the statute of limitations on a med mal claim while this avenue is pursued. 766.306, Florida Statutes.

Offer of Judgment

Motter Roofing, Inc. v. Leibowitz
27 Fla. L. Weekly D576 (Fla. 3d DCA 2002)

Attorneys’ fees in the offer of judgment statute includes attorneys’ fees on appeal. Therefore, where a party is entitled to fees under the offer of judgment statute, the appellate court must award fees on appeal as well.

Oglesby-Dorminey v. Lucy Ho’s Restaurant
27 Fla. L. Weekly D635 (Fla. 1st DCA 2002)

Offers of Judgment and Proposals for Settlement are covered by statutes and rules of civil procedure. 768.79, Florida Statutes; Rule 1.442. Rule 1.442(g) requires motions for fees to be filed within 30 days after the return of the verdict in a jury action. The court held that this requirement is procedural and governed by the rule, not by the statute. The appellant’s belief that it was covered by the statute and that the statute allowed the motion to be served within 30 days of the judgment did not constitute excusable neglect. The court held that the motion must be filed within 30 days of the verdict and, if necessary, can be supplemented after judgment is entered.


Hunter v. Ward
27 Fla. L. Weekly D808 (Fla. 1st DCA 2002)

In a rear-end accident, a sudden stop by the lead vehicle does not overcome the presumption of negligence of the rear vehicle if it occurs at a place where a sudden stop can reasonably be expected.

Privilege – Doctor-Patient

Royal v. Harnage
27 Fla. L. Weekly D786 (Fla. 2d DCA 2002)

Section 455.667(6) provides for a broad doctor-patient confidentiality privilege for a patient’s medical information, and a limited exception for disclosure by a defendant doctor in a medical malpractice action “to other health care practitioners and providers involved in the care and treatment of the patient” in order for the doctor to defend himself. Therefore, it was error for the trial court to enter an order prohibiting the defendants, their representatives or counsel from talking to a treating surgeon until after he was sworn to testify for his deposition or at trial, even though that surgeon was not a defendant in the case. The court holds that, because these doctors could talk to each other about their mutual patient before she filed suit, they can talk to each other after she filed suit.


Howard v. Savitsky
27 Fla. L. Weekly D606 (Fla. 2d DCA 2002)

If you want to release only certain parties or certain claims, be sure to specify in your release that you are preserving other claims. A release was ambiguous where it contained language releasing “all other firms or corporations” but that language was crossed out. Parol evidence is admissible to show the parties’ intent. To avoid having to litigate it, I recommend including language in the release about preserving other claims not specifically released.


Normius v. Eckerd Corp.
27 Fla. L. Weekly D607 (Fla. 2d DCA 2002)

Although the trial court could properly grant a remittitur in a false imprisonment case where it concluded that the damages awarded were excessive under the factors listed in 768.74, it was error to limit damages to a nominal award where the evidence supported an award of compensatory damages. A new trial on damages is required.

Rule 403

Mount v. Camelot Care Center
27 Fla. L. Weekly D646 (Fla. 3d DCA 2002)

It was reversible error in an action for negligence and violation of a patient’s rights under the Assisted Living Facility Resident Bill of Rights, 400.428, Florida Statutes, to allow evidence of the prior drug and alcohol problems of the resident’s only child and potential heir. The trial court abused its discretion under 90.403 because the unfair prejudicial effect substantially outweighed any probative value. The error affected liability and damages, and a new trial is required on all issues.

Service of Process

NTCA Corp. v. Associates Commercial Corp.
27 Fla. L. Weekly D647 (Fla. 3d DCA 2002)

The plaintiff properly served a subpoena duces tecum on the general manager of a dissolved corporation, in the absence of a superior officer, and did not have to serve it on the registered agent of the corporation. 48.081(1), Florida Statutes.

Spoliation of Evidence

Home Emergency Services, Inc. v. Humana Worker’s Compensation
27 Fla. L. Weekly D628 (Fla. 3d DCA 2002)

The employer’s liability provision of an insurance policy included coverage for a claim of spoliation of evidence where it included coverage for damages “because of bodily injury to your employee that arises out of and in the course of employment, claimed against you in a capacity other than as employer.” The court cites Lincoln Insurance Co. v. Home Emergency Services, Inc., 27 Fla. L. Weekly D513 (Fla. 3d DCA 2002) (en banc) and certifies conflict with Norris v. Colony Insurance Co., 760 So.2d 1010 (Fla. 4th DCA 2000). Where the defendant was sued as owner of a ladder, it was sued in a “capacity other than as employer.”

DeRosier v. Cooper Tire & Rubber Co.
27 Fla. L. Weekly D773 (Fla. 4th DCA 2002)

The plaintiffs’ child was killed in a car accident. Photographs taken by the police showed that the tread on a tire had separated. A towing company towed the car to a storage lot. The tread was never seen again; both parties agreed it was never in the custody of either party after the crash. It was error to dismiss the plaintiff’s claim based on spoliation of evidence where the tread was never in the plaintiff’s custody. The court cites Cassisi v. Maytag Co., 396 So.2d 1140 (Fla. 1st DCA 1140) as holding that the plaintiff is entitled to an inference that the product was defective if the product malfunctions during normal operations, even if it is lost, destroyed or damaged as a result of the malfunction. The court also notes that the defendant was not so prejudiced by the loss of the tread as to preclude them from defendant against the claim. The defendant’s expert stated that without the tread, neither he nor any other expert could determine how the tread separated; however, he was able to use other evidence to offer an opinion that a flat tire, rather than a blowout, caused the separation.

Wrongful Death – Damages

Meeks v. Florida Power & Light Co.
27 Fla. L. Weekly D679 (Fla. 5th DCA 2002)

A minor may recover damages for the wrongful death of a parent for the emotional pain and suffering past the statutory age of minority (25). The damages are not limited to the period of minority, but may extend over the life expectancy of the child. The court notes the standard jury instruction allows the jury to consider the joint life expectancy of the parent and child, but allows them to award damages for a longeror shorter duration. The court certifies the question to the Florida Supreme Court. It seems to me that the statute does not evidence any legislative intent to preclude damages for the lifetime of emotional pain that can result from the loss of a parent at an early age.