April 2003


The Stetson Law Review has published my article: Cracking the Code: Interpreting and Enforcing the Appellate Court’s Decision and Mandate, 32 Stetson L. Rev. 393 (2003). It discusses what to do after the appeal, when you’re back in the trial court and trying to figure out what the appellate court wants you to do next. The entire winter edition of the Stetson Law Review is a symposium on appellate practice, and there are a number of helpful articles.

Attorneys Fees – 57.105

Ins. Co. of North America v. HMY Yacht Sales, Inc.
28 Fla. L. Weekly D677 (Fla. 3d DCA 2003)

Reversing a summary judgment and ordering the trial court to allow leave to amend, the court also reverses an award of attorneys’ fees under the 2001 version of 57.105 because the plaintiff’s claim was “not completely lacking in merit.”

Bankruptcy Stay

Natural Solutions Corp. v. Terrabind International, Inc.
28 Fla. L. Weekly D748 (Fla. 3d DCA 2003)

The automatic stay resulting from the bankruptcy filed by one defendant did not stay proceedings against other defendants.

Class Actions

Fung v. Florida Joint Underwriters Assoc.
28 Fla. L. Weekly D681 (Fla. 3d DCA 2003)

A settlement of a class action must be submitted to the court for approval. The trial court “has the authority to conduct whatever inquiry the court feels appropriate regarding the fairness of a proposed class action settlement.” However, the court cannot rewrite a portion of the settlement of which it disapproves. Therefore, if the court believes the attorneys fees provision of a settlement is improper, the court may inform the parties what modifications might make the agreement acceptable, but the court cannot order the parties to accept an agreement that is different from the one they negotiated.

Evidence – Frye

Spann v. State
28 Fla. L. Weekly S293 (Fla. 2003)

In declining to revisit the issue of admissibility of expert testimony on handwriting comparison, the court points out that Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) is applicable only in federal courts, not Florida courts. Florida applies Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), which applies only in cases of new or novel scientific techniques.


Hendry v. Zelaya
28 Fla. L. Weekly D741 (Fla. 3d DCA 2003)

The trial court did not abuse its discretion in denying the defendant’s motion for leave to amend to add a Fabre defendant. The motion was filed on the Friday before the scheduled trial. The defendant knew sufficient facts at the time he filed his answer to plead the particular Fabre defendant, but failed to do so. Moreover, the additional facts on which the defendant claimed to rely were disclosed at a deposition taken a month before trial, so the defendant should have raised the issue at least by that time.

Insurance – Exclusions

Swire Pacific Holdings, Inc. v. Zurich Ins. Co.
28 Fla. L. Weekly S307 (Fla. 2003)

A clause in a builder’s risk policy excluded “loss or damage caused by fault, defect, error or omission in design, plan or specification, but this exclusion shall not apply to physical loss or damage resulting from such fault, defect, error or omission in design, plan or specification.” The court held that this provision excluded coverage for structural defects resulting from a design deficiency.

Insurance – PIP

Magnetic Imaging Systems I, Ltd. v. Prudential Prop. & Cas. Ins. Co.
28 Fla. L. Wekly D679 (Fla. 3d DCA 2003)

Where an insurer pays a claim after suit is filed, but before a judgment is rendered, the payment operates as a confession of judgment, entitling the insured to an attorneys’ fees award under 627.428, Florida statutes. This rule applies to a health care provider to whom PIP benefits have been assigned by the insured.

Allstate Insurance Co. v. Kaklamanos
28 Fla. L. Weekly S287 (Fla. 2003)

The PIP policy contained a provision that the insurance company could refuse to pay medical expenses that it deemed “unreasonable or unnecessary” but would defend and indemnify the insured if he was sued by a medical provider because of it. The court held that this provision did not deprive the insured of standing to sue the insurer for failure to pay PIP benefits to the provider when due, even if the insured has incurred no out-of-pocket expenses and the provider has not sued the insured. To require the insured to wait until the doctor sued him would threaten irreparable injury to the doctor-patient relationship, could harm the insured’s credit, and is contrary to the PIP statute.

Interestingly, the court notes that “the doctrine of standing does not exist in Florida ‘in the rigid sense employed in the federal system.’”

Ortega v. United Automobile Ins. Co.
28 Fla. L. Weekly D796 (Fla. 3d DCA 2003)

The trial court erroneously directed a verdict against the plaintiff in a PIP suit for failure to prove that his medical providers were licensed. Lack of a license should be treated as an affirmative defense.

Med Mal – H.M.O.

Villazon v. Prudential Health Care Plan, Inc.
28 Fla. L. Weekly S267 (Fla. 2003)

This is an extremely important case clarifying the legal responsibility of an H.M.O. for the care of one of its members. The deceased was a member of the defendant’s H.M.O. She died as the result of failure to diagnose and treat what turned out to be cancer. The plaintiff alleged that the H.M.O. was vicariously liable for the actions of the doctors and that the H.M.O. had a nondelegable duty to the patient, as a result of its agreement to provide the patient with comprehensive health care services, and because of state and federal statutes and regulations. The Court held:

ERISA does not preempt a state law claim for direct and vicarious liability for negligence in the rendering of medical services to member patients. The plaintiff’s claim that agents or apparent agents of the H.M.O. made negligent treatment decisions in caring for the patient are not preempted. Although it may be necessary to refer to the H.M.O. plan to determine issues of agency, as long as the claim is not for wrongful plan administration, it is not preempted.

The H.M.O. statute, 641.17 et seq., does not create a private cause of action or a nondelegable duty. This does not preclude the right to bring a common law negligence claim based on the same allegations. The existence of an agency relationship is generally for the trier of fact. If the H.M.O. had the right to control the actions of the doctor, under the totality of the circumstances test, the doctor could be the agent of the H.M.O. See Stoll v. Noel, 694 So.2d 701 (Fla. 1997) (finding doctors who worked as consultants for a state program were state agents under totality of circumstances). The conclusory statement in the doctors’ contracts that they were “independent contractors” does not conclusively preclude the existence of an agency relationship. Here, there was significant evidence of the H.M.O.’s “right to control the means bywhich medical services were rendered by member physicians to member patients.” The H.M.O. concept has “dramatically altered” the traditional pattern of physicians as “independent centers of occupation and profession.” Here, the plan documents, including the contract between the H.M.O. and the patient and the contracts between the H.M.O. and the doctors, and the “totality of the circumstances operating within the current reality of the interaction within the decision-making process” gave the H.M.O. the “right to control important aspects of patient care,” and created genuine issues of material fact as to actual agency.

The court also directed the trial court to reevaluate the issue of apparent agency.

Med Mal – Limitations

Walker v. Virginia Insurance Reciprocal
28 Fla. L. Weekly S237 (Fla. 2003)

The presuit screening provisions of chapter 766, Florida Statutes, including the tolling of the statute of limitation, apply to a contribution claim based on medical malpractice. However, the presuit provisions are not applicable where the liability of the joint tortfeasor already has been determined. See Baptist Hosp. of Miami, Inc. v. Abaunza, 563 So.2d 174 (Fla. 3d DCA 1990), which explains that the statutory proceedings are intended to be applied preliminarily to a determination of liability. “Where there has been a determination of liability ... an action for contribution is not properly deemed to be within” the requirements of the statute. In footnote 6, the Court states “However, this does not include those circumstances where a nonparty is determined to have responsibility on a verdict form and is included on the form because of Fabre requirements.” It is not clear whether the court is talking here about the rule or the exception to the rule. I think this ambiguous language could support an argument that a defendant who wishes to allege medical negligence as a Fabre defense must go through presuit of the Fabre defendant.

Negligence – Duty

Brown v. Woodham
28 Fla. L Weekly D765 (Fla. 1st DCA 2003)

The sheriff breached a special duty of care to a man who was murdered by the husband of the woman the deceased was visiting. The husband had been jailed for domestic violence, and wrote several threatening letters to the wife, which the sheriff kept in his file without warning the wife. The sheriff released the husband despite a trial court order that no bond should be given. The husband went to the wife’s house and murdered the deceased. The court cites Restatement (Second) of Torts 319, which provides that “one who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.”

Offer of Judgment

Bennett v. Morales
28 Fla. L. Weekly D774 (Fla. 5th DCA 2003)

Even where the parties have agreed that the substantive law of another state applies to their dispute, the Florida offer of judgment statute still applies.

Punitive Damages

State Farm Mut. Auto. Ins. Co. v. Campbell
2003 WL 1791206 (U.S. 2003)

This is an extremely important punitive damages case from the United States Supreme Court. The Court holds that a punitive damages award of $145 million against State Farm in a bad faith case violated due process as “grossly excessive and arbitrary.” Due process requires that a person receive fair notice of the conduct that will subject him to punishment and of the penalty that a state may impose. “Exacting appellate review” is required. (This is a higher standard of review than the courtgives in post-conviction relief death penalty cases.) The jury should not have been permitted to consider conduct by State Farm that occurred out of state that had no connection to the plaintiffs’ injury, and may have been lawful where it occurred. Lawful out of state conduct may be considered only if it bears on an issue such as the defendant’s intent, and has some nexus with the harm suffered by the plaintiff. The opinion suggests that, where there are no personal injuries, a ratio of punitive to compensatory damages of one to one should be enough if the compensatory damages are substantial; but where the damages are small or hard to determine, a higher ratio might be appropriate.


Naylor v. District Board of Trustees
28 Fla. L. Weekly D720 (Fla. 5th DCA 2003)

The plaintiff enrolled in a training course required for certification as a police officer and signed a broad release. During the training she was injured, allegedly by the negligence of a trainer. She argued that the release was contrary to public policy, since the course was required in order to become a police officer. The court certifies the question to the Supreme Court: “May one who elects to participate in a training program required for certification as a police officer validly release from personal injury liability those responsible for the training?”

Service of Process

Kohler v. Vega-Maltes
28 Fla. L. Weekly D711 (Fla. 2d DCA 2003)

Where the plaintiff’s lawyer’s litigation assistant became ill and missed several weeks of work, and the plaintiff’s lawyer’s mother died and the lawyer missed two weeks of work, the plaintiff demonstrated good cause and excusable neglect for failure to serve process within 120 days of filing the complaint under Fla. R. Civ. P. 1.070(j).

Settlement – Enforcement

Paulucci v. General Dynamics
28 Fla. L. Weekly S235 (Fla. 2003)

Consistent with the policy of encouraging settlement and making it a easy as possible, the Supreme Court holds that a trial court has jurisdiction to enforce a settlement agreement where the court has either incorporated the settlement agreement into a final judgment or entered an order approving the settlement and retained jurisdiction to enforce its terms. The court overrules prior decisions of the 5th DCA which held that it is necessary to bring a separate action. The court approves Buckley Towers Condominium, Inc. v. Buchwald, 321 So.2d 628 (Fla. 3d DCA 1975).

Once a judgment has been rendered, “the court loses jurisdiction over the subject matter of the suit, other than to see that proper entry of judgment or decree is made and that the rights determined and fixed by it are properly enforced.” Davidson v. Stringer, 147 So. 228, 220 (Fla. 1933). A trial court “has the inherent power to do those things necessary to enforce its orders.” Levin, Middlebrooks v. United States Fire Ins. Co., 639 So.2d 606 (Fla. 1994).

However, where the parties settle and dismiss without an order of the court pursuant to Fla. R. Civ. P. 1.420, the settlement cannot be enforced by a motion filed in the dismissed case, but a new breach of contract action must be filed.

Sovereign Immunity – Notice

Casanova v. Dept. of Children & Family Services
28 Fla. L. Weekly D798 (Fla. 3d DCA 2003)

The defendant was estopped to assert that the plaintiff’s claim letter sent to the defendant on behalf of her daughter did not include the plaintiff’s individual claim, where the defendant waited until after the statute of limitations ran to assert the defense. The defendant’s original affirmative defense alleged only that the plaintiff did not wait 6 months after giving notice before filing the claim.

Spoliation of Evidence

Jost v. Lakeland Regional Medical Center
28 Fla. L. Weekly D710 (Fla. 2d DCA 2003)

The court recognizes that spoliation is an independent tort, recognized in Florida, but holds that destruction of evidence is required; mere concealment of evidence is not actionable. Holding that there is no cause of action for spoliation if the spoliator is the original tortfeasor, the court aligns itself with the 4th DCA in Martino v. Wal-Mart Stores, 28 Fla. L. Weekly D321 (Fla. 4th DCA 2003), which certified conflict with Bondu v. Gurvich, 473 So.2d 1307 (Fla. 3d DCA 1984). The court also holds that the plaintiff’s spoliation claim against the tortfeasor’s insurer was premature, and should have been dismissed without prejudice, where the plaintiff’s underlying claim against the tortfeasor was still pending.

Workers Comp Immunity

Cuero v. The Ryland Group, Inc.
28 Fla. L. Weekly D707 (Fla. 2d DCA 2003)

A contractor which is an injured worker’s “statutory employer” under 440.10(1)(b), Florida Statutes, is entitled to workers comp immunity under 440.11. However, in order to be a statutory employer, the contractor must “sublet any part or part of his or her contract work to a subcontractor;” in that situation, the subcontractor’s employees are deemed employees of the contractor; the contractor is legally obligated to provide them with workers comp benefits, and is therefore entitled to immunity. It is the obligation to secure workers compensation that gives the employer immunity; the immunity is commensurate with the duty to secure compensation.
In order to be entitled to immunity, the contractor must have “contract work” which it “sublets” to the subcontractor. Where the contractor was performing the work as a commercial business venture for itself, not for someone else, the contractor was not subletting “contract work” and was not the injured worker’s statutory employer.

Fitzgerald v. South Broward Hosp. Dist.
28 Fla. L. Weekly D813 (Fla. 4th DCA 2003)

There is no worker’s comp immunity where an employee is injured by the negligent acts of fellow employees “when each is operating in the furtherance of the employer’s business but they are assigned primarily to unrelated works within private or public employment.” 440.11(1), Florida Statutes. See Holmes County School Board v. Duffel, 651 So.2d 1176 (Fla. 1995). The courts have not done a very good job of explaining this provision. Some courts apply a “case-by-case” analysis focusing on whether the employees are part of the same team or on the same project. The other courts apply a bright line test, which defines “works” as a factory, plant, or building or system of buildings where a specific type of business or industry is carried out. Here, the court holds that, under either test, the claim a nurse who was injured by the negligence maintenance of the building where she worked was barred by comp immunity. The court also states that the unrelated works exception should be narrowly construed.