April 1998


Prudential Securities, Inc. v. Ruskin
23 Fla. L. Wkly. D865 (Fla. 4th DCA 1998)

Clarifying its earlier opinion at 23 Fla. L. Wkly. D215, the court holds that a party does not have to specifically plead attorney’s fees during an arbitration proceeding, but must give notice, whether formal or informal, that it will later seek attorney’s fees pursuant to a specific contractual provision or statute.

Hirschfeld v. Crescent Heights X, Inc.
23 Fla. L. Wkly. D814 (Fla. 3d DCA 1998)

A party entitled to arbitration may waive arbitration by conduct inconsistent with that right. One way to waive arbitration is to actively participate in a lawsuit. Here the court holds that filing a motion to dismiss directed at technical deficiencies in the complaint is not active participation amounting to a waiver. Moreover, a formal motion to compel arbitration is not required where a movant seeks dismissal based on a contractual right to arbitration. In that situation the motion to dismiss serves as the motion to compel arbitration.

Verzura Constr., Inc. v. Surfside Ocean, Inc.
23 Fla. L. Wkly. D819 (Fla. 3d DCA 1998)

The trial court correctly confirmed an arbitration award where the party opposing the award raised only challenges to the arbitrators’ factual and legal conclusions. The Florida Arbitration Code allows setting aside an award only where it was procured by corruption or fraud, there was partiality or misconduct, the arbitrators exceeded their powers, the arbitrators conducted the hearing in a way that substantially prejudiced a party, or there was no arbitration agreement. These are the only grounds upon which an arbitration award may be challenged.

Collateral Source

Provident Life v. Lewis
23 Fla. L. Wkly. D862 (Fla. 4th DCA 1998)

A collateral source insurer is permitted to intervene in a personal injury case to assert its subrogation claim. Where the parties settled after the verdict, the court holds that the insurer is entitled to a pro rata share of the amount of a settlement that is apportioned to the medical bills paid by the insurer, in the same proportion as the jury determined in the verdict, less a pro rata share of the attorney’s fees. In other words, where the jury apportioned a certain proportion of the verdict to the bills paid by the insurer, the insurer was entitled to that proportion of the settlement, minus attorney’s fees. The entire amount could be paid from the current settlement, or part could be paid from future annuities. The insurer was also entitled to prejudgment interest, with interest continuing to accrue on any unpaid balance.

Environmental Law

Kirk v. United States Sugar Corp.
23 Fla. L. Wkly. D750 (Fla. 4th DCA 1998)

A private citizen may bring an action against a sugar processing company alleging that the company created a public nuisance by disposing of dangerous chemicals without a Department of Environmental Protection permit. The plaintiffs had standing or could allege it if they showed special injuries different from those suffered by the public. The doctrine of “primary jurisdiction” did not require the court to defer to the administrative agency.

Evidence — Frye Test

Williams v. State
23 Fla. L. Wkly. D752 (Fla. 3d DCA 1998)

Where a scientific principle has been established and generally accepted in the relevant scientific community, and has also bee Frye tested in the legal community, it is no longer “new or novel” and there is no need to reapply a Frye analysis. This case has a lengthy and scholarly opinion by Judge Gersten, with a lengthy and scholarly dissent by Judge Cope.

Insurance — Dec Action

TIG Ins. Co. V. Wagner
23 Fla. L. Wkly. D736 (Fla. 4th DCA 1998)

It was a departure from the essential requirements of law to abate the insurer’s dec action pending the outcome of the tort action, where the dec action contested coverage based only on the lack of notice, an issue which was not involved in the tort action, and if the insurer won the dec action it would have no duty to defend the tort action.

Insurance — PIP

Atlanta Cas. Co. v. Blish
23 Fla. L. wkly. D777 (Fla. 5th DCA 1998)

The insured was attacked by an unknown assailant and robbed as he changed a tire. The court held that the attack did not arise out of the ownership, maintenance or use of the automobile where the assailant appeared to want only the victim’s money, and did not attempt to steal the automobile. Consequently there was no PIP coverage.

Insurance — UM

Gilmore v. St. Paul Fire & Marine Ins. Co.
23 Fla. L. Wkly. D947 (Fla. 1st DCA 1997)

Where the liability provisions of a policy afforded coverage to an employee driving her personal vehicle in the course and scope of her employment, the insurer could not lawfully exclude UM coverage for that employee.

Jury Instructions

Standard Jury Instructions — Civil Cases
23 Fla. L. Wkly. S192 (Fla. 1998)

The Supreme Court has issued revisions to the model jury instructions and verdict forms to reflect revisions to the standard jury instructions required by changes in the law such as Fabre.

Med Mal — Emergency Room

Garcia v. Randle-Eastern Ambulance Service, Inc.
23 Fla. L. Wkly. D853 (Fla. 3d DCA 1998)

The plaintiff’s expert testified that the deceased presented to the emergency room with an extreme medical condition that required immediate treatment and expeditious transfer to a facility where he could be treated (because the defendant hospital’s equipment was not working); that the defendant delayed, and the delay caused the decedent’s death. The court held that there was sufficient evidence for a jury to find that the hospital recklessly disregarded the consequences of its actions, and that it knew or should have known that the delay would be likely to result in the decedent’s death, taking into account the factors in section 768.13(3). The court reversed a JNOV that had been entered in favor of the hospital after a jury verdict for the plaintiff.

The court applied the statutory definition of recklessness in 768.13, and rejected the defendant’s argument that the more stringent common law standard should be applied.

Med Mal — Limitations

Rothschild v. NME Hospitals, Inc.
23 Fla. L. Wkly. D800 (Fla. 4th DCA 1998)

After the defendant’s denial of the claim during the 90 day presuit period, the plaintiff had either 60 days or the remainder of the presuit period, whichever was greater, to file suit. It was error for the trial court to grant summary judgment for the defendant on the statute of limitations where plaintiff did not file within 60 days of receipt of the notice, but 200 days still remained under the statute of limitations. See Tanner v. Hartog, 618 So.2d 177 (Fla. 1993) for a discussion of how the statute of limitations works with the tolling period for presuit discovery and the petition for automatic ninety day extension. It’s not as easy as it looks, and it looks pretty hard to begin with.

This case is a little confusing only because talks about the time running both from the “service” of the defendant’s notice and from the “receipt” of the notice. I sure do wish a court would clear up the confusion, since it can often make a difference of several days.

Med Mal — Periodic Payments

Psychiatric Institute of Delray, Inc. v. Keel
23 Fla. L. Wkly. D737 (Fla. 4th DCA 1998)

Section 768.78(2) provides for periodic payments of economic damages awards in excess of $250,000 in medical malpractice cases. This Court holds that where a party requests the court to do so, the court must enter a judgment ordering periodic payments of future economic damage. The statute also has another subsection, 768.78(1), which applies to other cases (not med mal), which give the court discretion to decline to make such an apportionment if “manifest injustice would result to any party.”


Thibault v. Transact Realty & Investment
23 Fla. L. Wkly. D873 (Fla. 5th DCA 1998)

Just when you thought it was safe to go out into the real estate market, caveat emptor rears its ugly head again. The court holds that caveat emptor does not bar claims of fraud based on affirmative misrepresentation. A claim based on failure to disclose financial information that a broker “knew or should have known” because he owned similar properties did not meet the pleading requirements of fraud. Judge Thompson dissented, noting that in the commercial arena, caveat emptor bars only claims for intentional nondisclosure of material facts, and is not relevant to negligent misrepresentation claims, where comparative negligence applies.

Negligence — Comparative

Markell v. Mi Casa, Ltd.
23 Fla. L. Wkly. D912 (Fla. 4th DCA 1998)

It was error to grant a summary judgment for the defense in a premises liability case involving a trip over rubber weather stripping. The plaintiff presented expert testimony that the condition constituted a hidden trap which would not necessarily have been visible to a person entering or exiting the building, but would have been readily observable by a repair person. Whether the condition was open and obvious was a question of fact for the jury. It created an issue of comparative negligence.

Offer of Judgment

Stephenson v. Holiday Rambler Corp.
23 Fla. L. Wkly. D736 (Fla. 4th DCA 1998)

Where a defendant made an offer of judgment which included attorney’s fees, and the parties later settled and a judgment was entered in an amount which did not include attorney’s fees, the trial court was required to calculate the plaintiff’s reasonable attorney’s fees up to the time of the offer, then add that amount to the final judgment, and then use that total to determine whether the defendant should be awarded fees under 768.79. I think this case is a bit strange; if the parties settled, why are they still talking about attorney’s fees. A party should not be able to use the offer of judgment statute in this fashion, in my opinion.

Product Liability

King v. Cutter Laboratories
23 Fla. L. Wkly. S172 (Fla. 1998)

In Conley v. Boyle Drug Co., 570 So.2d 275 (Fla. 1990), the Supreme Court recognized the market share liability doctrine and applied it to a case involving the prescription drug DES. The doctrine applies in cases where the plaintiff cannot identify which product manufacturer actually caused a specific injury. Where the products from various manufacturers pose a uniform risk of harm, the doctrine allows the courts to spread the loss among those manufacturers in proportion to their share of the market, instead of leaving an innocent plaintiff uncompensated. Here, the plaintiffs sought application of that doctrine to Factor VIII blood concentrates which were infected with HIV.

The market share liability doctrine requires three basic principles: (1) the doctrine applies only to negligence actions; (2) the plaintiff must demonstrate a genuine and diligent attempt to locate and identify the manufacturer responsible for the injury; (3) the risk of harm posed by the various defendants who are producers of the products must be the same. This issue must be resolved by the court as a matter of law. The court called this a “jurisdictional question.”

The court held that the trial court must conduct an evidentiary hearing to determine whether this third factor has been met. The trial court must determine whether the scientific evidence establishes that the blood products of each named defendant were “sufficiently uniformly infectious to justify the application of the market share” theory. The court relinquished jurisdiction to the trial court for a limited time to conduct the hearing.

The court rejected the argument that market share applies only to DES, the product at issue in Conley.

Ferayorni v. Hyundai Motor Co.
23 Fla. L. Wkly. D923 (Fla. 4th DCA 1998)

The plaintiff’s decedent was killed in a car accident because she wore her shoulder belt under her arm instead of over her shoulder. The court held that there is a distinction between strict liability failure to warn and negligent failure to warn. A prima facie case of strict liability failure to warn does not require a showing of negligence. Strict liability requires a plaintiff to prove only that the defendant did not adequately warn of a particular risk that was known or knowable in light of generally recognized and prevailing scientific and medical knowledge available at the time of manufacture and distribution. Manufacturers are held to a higher standard than imposed under negligence jurisprudence, but are not insurers. I find this standard hard to distinguish from the negligence standard of a duty to warn of a particular risk of which a reasonably prudent manufacturer would have known and warned about.


Magnum Towing, Inc. v. Sunbeam Television Corp.
23 Fla. L. Wkly. D850 (Fla. 3d DCA 1998)

A motion for “reconsideration” tolls rendition of the final judgment where the relief sought was from a final order and thus the motion was in substance a proper motion for rehearing. The court “declin[es] the appellee’s invitation to elevate form over substance.”

WARNING: not all DCA’s share the Third District’s wisdom on this issue.

Relief from Judgment

Stembridge v. Preferred Risk Mutual
23 Fla. L. Wkly. D904 (Fla. 3d DCA 1998)

The pendency of an appeal did not stay the one year period for filing a motion for relief from judgment under Rule 1.540(b).


Kmart Corp. V. Hayes 23 Fla. L. Wkly. D852 (Fla. 3d DCA 1998)

What should you do when you find out your opponent is not telling the truth on the stand? In this case, the plaintiff made a tactical decision to proceed with the trial rather than asking for a continuance or moving for a mistrial. After the trial and a defense verdict, the plaintiff moved for new trial based on the false testimony. The trial court granted the new trial, and the Third District reversed. The court held that the plaintiff made a tactical decision to take his chances with the jury and had to live with his decision. This is really a shame. At his deposition, the defendant testified that he owned the store at the time of plaintiff’s accident. At trial, defendant testified that he had checked his records and learned that he did not.

Griefer v. DiPietro
23 Fla. L. Wkly. D909 (Fla. 4th DCA 1998)

It was error to exclude plaintiff’s human factors expert as a sanction for a discovery violation where the expert’s name was timely disclosed, and the defense received answers to their interrogatories and took the expert’s deposition two weeks before trial, and there was no evidence of prejudice to the defendant. The defendant’s expert was capable of addressing the opinions formed by the plaintiff’s expert as demonstrated by the subsequent deposition of the defense expert. The error was not harmless where none of the testimony was cumulative

Sovereign Immunity

Laskey v. Martin County Sheriff’s Department
23 Fla. L. Wkly. D856 (Fla. 4th DCA 1998)

The court holds that the operation of a 911 system is part of the law enforcement and protection of public safety service provided by the sheriff’s office and therefore falls within category II of Trianon Park Condo. Assoc. v. City of Hialeah, 468 So.2d 912 (Fla. 1985). The duty is owed to the public at large, not to a particular person. Consequently, absent a special relationship, the sheriff could not be held liable for failing to timely forward a 911 call that reported a vehicle going the wrong way on an interstate. The vehicle crashed into the decedent’s car, killing him. The court held his survivors had no cause of action.

Trianon divided governmental functions into four categories for sovereign immunity: (I) legislative, permitting, licensing and executive ; (II) law enforcement and protection of public safety; (III) capital improvements and property control; and (IV) provision of professional, education and general services for the health and welfare of citizens. Categories I and II functions do not have a common law duty of care, and liability may be imposed only where there is a special relationship.

The court certifies conflict with Cook v. Sheriff of Collier County, 573 So.2d 406 (Fla. 2d DCA 1991), where the sheriff’s failure to respond to 911 information that a stop sign had been knocked down was held to be an actionable breach of duty.

Summary Judgment

Bush v. State Farm
23 Fla. L. Wkly D896 (Fla. 2d DCA 1998)

It was error to grant a summary judgment that was not noticed for hearing, had previously been denied, and was not pending before the trial court. The strict procedural requirements of the summary judgment rule are designed to protect the constitutional right to a trial on the merits, and are not mere procedural niceties.

Work Product

Dimeglio v. Briggs-Mugrauer
23 Fla. L. Wkly. D901 (Fla. 2d DCA 1998)

The insurer exercised its right under the UM policy to have the insured examined by a physician of its choice before the plaintiff filed suit. The court held that, even if the examination was done in anticipation of litigation and the insurer did not intend to call the doctor at trial, the plaintiff was entitled to depose the doctor under Rule 1.360(b). The court specifically holds that rule 1.360 encompasses presuit examinations.

Worker’s Comp Immunity

Moniz v. Reitano Enterprises, Inc.
23 Fla. L. Wkly. D803 (Fla. 4th DCA 1998)

The plaintiff was bitten on the neck by her supervisor. She settled a worker’s comp claim and sued her employer for sexual harassment and retaliation in violation of Title VII, intentional infliction of emotional distress, assault and battery, and false imprisonment. The court held that her settlement of the worker’s comp claim was a conclusive election of remedies as to the assault and battery and false imprisonment claims based on the biting incident, and the plaintiff could not pursue a tort claim on those theories. However, to the extent her sexual harassment and emotional distress claims arose out of a separate course of conduct from the biting incident, the plaintiff had not elected her remedies and was free to pursue her civil action.