December 2002

Amendment – Relation Back

Thomas v. Northside Foods, Inc.
27 Fla. L. Weekly D2182 (Fla. 3d DCA 2002)

Under Fla. R. Civ. P. 1.190(c), an amendment of a complaint to add a new party related back to the filing of the original complaint, where the defendants had sufficient identity of interest, sharing officers, directors and registered agent, such that the new defendant would not be prejudiced. The defendants’ insurance adjuster identified the wrong entity as the owner. See also Darden v. Beverly Health & Rehabilitation, 763 So.2d 542 (Fla. 5th DCA 2000).

Attorneys Fees – Motion

Graef v. Hegedus
27 Fla. L. Weekly D2219 (Fla. 4th DCA 2002)

A motion for attorneys’ fees under the offer of judgment statute and rule must be filed within thirty days after the entry of judgment or after a voluntary or involuntary dismissal. Failure to timely file the motion precludes the award.

Collateral Estoppel

Amador v. Florida Board of Regents
27 Fla. L. Weekly D2390 (Fla. 3d DCA 2002)

The collateral estoppel effect of a prior judgment rendered in federal court is determined by federal law. Therefore, in a subsequent Florida proceeding, complete mutuality of parties is not required for collateral estoppel, even though it would be if the prior judgment were a state judgment, because the Florida court must apply the federal rule of issue preclusion to the federal judgment.

Dangerous Instrumentality

Toombs v. Alamo Rent-A-Car, Inc.
27 Fla. L. Weekly S915 (Fla. 2002)

A co-bailee has no right to recover against the bailor under the dangerous instrumentality doctrine for the negligence of the other co-bailee. Where two people rent a car together, the passenger cannot recover against the rental car company for the negligence of the driver. Therefore, if the passenger is killed, the survivors cannot recover against the rental car company either. Although an action for wrongful death is distinct from the decedent’s action for personal injuries had he or she survived, a cause of action for wrongful death is predicated on the decedent’s entitlement to maintain an action and recover damages if death had not ensued. It is, in that sense, derivative of the injured person’s right, while living, to recover for the injury. If the decedent would not have had a cause of action for injuries, the survivor cannot have a cause of action for wrongful death.

Discovery - Privacy

Cedars Healthcare Group v. Freeman
27 Fla. L. Weekly D2387 (Fla. 3d DCA 2002)

The plaintiff alleged she was raped by at least twice by two male patients while she was a patient in the psychiatric ward of the defendant’s hospital. The Third District grants certiorari and quashes an order requiring the defendant to produce to the plaintiff photographs of all male patients present in the psychiatric ward during the relevant time. The court held that the order impinges upon the privacy rights of the non-party patients, and threatens to violate the patient/psychotherapist privilege in 90.503(2), Florida Statutes, as well as 394.4615, Florida Statutes, which provides for the confidentiality of clinical psychiatric records. The plaintiff did not demonstrate a compelling need for the information that outweighs the constitutional privacy rights of the non-party psychiatric patients.

The decision is without prejudice to a renewed request that will satisfy the court’s concerns, including proof that the plaintiff is competent to testify as to what occurred at the time of the incident. Judge Cope dissents, stating that mental illness is an illness like any other, and should not be treated with the assumption that it carries a special stigma.

Neither the majority nor the dissent discusses Alterra Healthcare Corp. v. Shelley 27 Fla. L. Weekly S735 (Fla. 2002), discussed in the October Caselaw Update. However, they both appear to conduct the kind of balancing the Supreme Court required in Alterra.

Economic Loss Rule

American Express Travel Related Services Co., Inc. v. Symbiont Software Group, Inc.,
27 Fla. L. Weekly D2181 (Fla. 3d DCA 2002)

The economic loss rule bars tort claims arising out of a breach of contract where there is no personal injury or damage to other property. The rule does not bar a claim for negligent hiring and retention, and negligent security, against a company that provided “point of sale” systems used for payment by credit card, for theft of financial information of American Express members by the defendant’s former employees. The claims pled were totally independent of any contracts which may have existed between the defendant and buyers or users of its system.

Insurance – Bad Faith – Discovery

Southern Diagnostic Associates v. Bencome,
27 Fla. L. Weekly D2344 (Fla. 3d DCA 2002)

In an action for statutory bad faith for failure to conduct a reasonable investigation of the insured’s PIP claim, the insured was entitled to records of payments to two doctors who performed “IMEs” and their professional associations over a three year period. The court rejected the insurer’s argument that it did not have to turn over the records because it did not have them because the examinations were arranged, scheduled and paid for through Southern Diagnostics. The insurer “cannot avoid the mandate of Allstate Ins. Co. v. Boecher, [733 So.2d 993 (Fla. 1999)] by employing Southern Diagnostic in an attempt to shield itself from inquiries about its relationship with its experts.” The order, which allowed inspection of the insurance company’s computer, must be narrowly tailored to protect privileged information in the insurance company’s computer.

Note: The court refers to these examinations as IMEs, which stands for “Independent Medical Examination.” I think this is a misnomer, because there is nothing independent about them – they are purely a function of the insurance company. For that reason, they should be referred to as CMEs, for “Compulsory Medical Examination”.

Insurance – Cancellation

Southern Group Indemnity, Inc. v. Cullen,
27 Fla. L. Weekly D2213 (Fla. 4th DCA 2002)

Where the premium finance company sent out a notice of cancellation of the policy before the accident, but the insurer did not receive the notice until after the accident, the policy was effective on the date of the accident, even though the notice of cancellation specified an earlier effective date. The insurance policy stated that it could be canceled by “giving advanced written notice of the date cancellation is to take effect.” Sections 678.848(1)(c) and (d) provide requirements for notices of cancellation when the premiums are financed, and require compliance by the premium finance company with contractual requirements in the policy.

Insurance – Exclusions

Cabezas v. Florida Farm Bureau Cas. Ins. Co.,
27 Fla. L. Weekly D2186 (Fla. 3d DCA 2002)

The intentional act exclusion in a homeowner’s insurance policy excluded coverage for injuries cause by intentional acts committed in self-defense.

Insurance – Misrepresentations

Fresh Supermarket Foods, Inc. v. Allstate Ins. Co.
27 Fla. L. Weekly D2477 (Fla. 2d DCA 2002)

It was error to grant a summary judgment to the insurer on a fire insurance claim, on the grounds of misrepresentation in the insurance application, where there were disputed issues of material fact with respect to whether the insurer’s agent had knowledge of the true facts at the time of the application. Notice to the agent at thetime of the application of facts material to the risks constitutes notice to the insurer.

Flores v. Allstate Insurance
27 Fla. L. Weekly D2533 (Fla. 2d DCA 2002)

In Flores v. Allstate, 819 So.2d 740 (Fla. 2002), the court held that the insured’s fraud in connection with his claim for PIP benefits did not void his UM coverage. On remand, the DCA holds that the admission of the PIP fraud in the UM trial was reversible error, because of the great emphasis that Allstate placed on the plaintiff’s fraudulent acts. The court noted that it would be possible that on retrial the plaintiff might testify in a way that opens the door to admission of the evidence for some limited purpose, by putting his credibility in issue; and the trial court might determine that any prejudice from such evidence might outweigh the probative value. That is a decision the trial court must make.


Davis v. Monahan
27 Fla. L. Weekly S930 (Fla. 2002)

The delayed discovery doctrine, which delays the commencement of the statute of limitations, does not apply to causes of action for breach of fiduciary duty, civil theft, conspiracy, conversion and unjust enrichment. The court distinguishes cases where the legislature had enacted the delayed discovery doctrine by statute, such as fraud, 95.031(2)(a); products liability, 95.031(2)(b); medical malpractice, 95.11(4); and intentional torts based on abuse, 95.11(7).

Florida Department of Health and Rehabilitative Services v. S.A.P.
27 Fla. L. Weekly S980 (Fla. 2002)

The plaintiff alleged that when she was a small child in foster care supervised by HRS, she was burned, beaten and starved because of HRS’ failure to supervise and monitor her foster care placement and to remove her from the dangerous home. The complaint alleged that the department actively concealed the facts concerning the negligence from the plaintiff, those involved in her care, and the public, and obstructed law enforcement efforts to investigate the abuse. The court held that HRS was barred by equitable estoppel from asserting the defense of the statute of limitations. The courts will not protect defendants who are directly responsible for delays of filing because of their own willful acts. The court holds that the doctrine of equitable estoppel is applicable to 768.28(13), the limitations provision of the sovereign immunity act. The court applied the same principle it applied to other civil actions in Major League Baseball v. Morsani, 790 So.2d 1071 (Fla. 2001).

Equitable estoppel is a basic tenet of the common law and any statute enacted in derogation of the common law must expressly so provide. The express language of the statue here does not mention equitable estoppel and therefore cannot be construed to preclude it. Moreover, equitable estoppel is consistent with the basic purpose of a statute of limitations, to protect defendants from unfair surprise and stale claims. A defendant cannot be taken by surprise by the late filing of a suit when the defendant’s own actions are responsible for the lateness.

Med Mal – Limitations

Florida Hospital Waterman v. Stoll
27 Fla. L. Weekly D2415 (Fla. 5th DCA 2002)

The defendant hospital waived its defense that the plaintiff failed to provided a verified written medical expert opinion as required by the pre-suit screening statute, 766.106, Florida Statutes, by failing to raise the issue before the statute of limitations had run; the defects in the affidavits were technical, rather than substantive and were cured prior to the trial court’s ruling.

Offer of Judgment

Bottcher v. Walsh
27 Fla. L. Weekly D2427 (Fla. 2d DCA 2002)

The defendant timely served a proposal for settlement, but prematurely filed it with the court in violation of Rule 1.442(d). Rule 1.442 must be strictly construed. The premature filing of the proposal precluded the award of fees.


The Neiman-Marcus Group, Inc. v. Robinson,
27 Fla. L. Weekly D2361 (Fla. 4th DCA 2002)

Although mere contributions by one of the parties’ attorneys to a judge’s campaign will not necessarily disqualify a judge, an attorney’s recent service as the judge’s campaign treasurer requires recusal.


Schlosser v. Perez
27 Fla. L. Weekly D2479 (Fla. 2d DCA 2002)

The plaintiff offered to settle for payment of the policy limits of all applicable policies and included in the offer a request for “all the information required by Florida Statute 627.4137” within 30 days. The offer made clear that the plaintiff would accept the check only if his understanding about the extent of the coverage was correct. The insurer responded with the check, but without the requested disclosure of the name and coverage of each of defendant’s insurers in compliance with the statute. The court ruled that the insurer failed to comply with the terms of the offer, and therefore there was no settlement.


D’Angelo v. Fitzmaurice,
27 Fla. L. Weekly D2217 (Fla. 2d DCA 2002)

Where the plaintiff sued the doctor and the hospital, and the hospital settled before trial, and the hospital was not included on the verdict form, the doctor was not entitled to a setoff for the settlement with the hospital. The court certifies the question to the supreme court: “Is it appropriate to set off against the damages portion of an award against one tortfeasor in a medical malpractice action the amount recovered from settlement from another for the same incident causing the injury where the settling alleged tortfeasor was not included on the verdict form?” Compare J.R.Brooks & Son, Inc. v. Quiroz, 707 So.2d 861 (Fla. 3d DCA 1998) (where a settling defendant’s liability is solely vicarious, the entire settlement must be set off from the verdict in entering the judgment.)

Caruso v. Grubbs
27 Fla. L. Weekly D2295 (Fla. 5th DCA 2002)

According to the Fifth DCA, defendant asserting a PIP setoff does not have to introduce that evidence during the course of the jury trial. The matter may be decided by the court post trial. The Fifth District notes that, in Bogosian v. State Farm, 27 Fla. L. Weekly D1240 (Fla. 3d DCA 2002) the court held that in a motor vehicle accident case, a collateral source instruction about PIP payments and benefits should be given to the jury.

Norman v. Farrow
27 Fla. L. Weekly D2403 (Fla. 1st DCA 2002)

The trial court did not err in reducing the amount of the PIP setoff by the percent of the plaintiff’s comparative negligence. Because the plaintiff’s total award was reduced by the percentage of comparative negligence, the reduction in the setoff does not provide the plaintiff with a double recovery. The court agrees with Aetna Cas. & Sur. Co. v. Langel, 587 So.2d 1370 (Fla. 4th DCA 1991), and disagrees with Assi v. Florida Auto Auction of Orlando, 717 So.2d 588 (Fla. 5th DCA 1998).

Spoliation of Evidence

Townsend v. Conshor, Inc.
27 Fla. L. L. Weekly D2420 (Fla. 2d DCA 2002)

Election of remedies barred the plaintiff’s claim against his employer for personal injuries, where he had filed a worker’s comp claim against the employer and settled; but it did not bar his claim for spoliation of evidence, where the employer destroyed the defective wooden railing that caused the plaintiff’s fall, making it difficult if not impossible for the plaintiff to pursue his negligence claim against the manufacturer and installer of the railing. A claim of spoliation is an independent cause of action for negligence for conduct that occurred subsequent to the conduct that caused the plaintiff’s personal injuries. The court notes that it doubts that the plaintiff even had an accrued cause of action against the employer for spoliation, because the action against the manufacturer and installer was still pending.

Nationwide Lift Trucks v. Smith
267 Fla. L. Weekly D2453 (Fla. 4th DCA 2002)

The plaintiff lost his foot in an incident involving a forklift owned by the defendant, allegedly caused by a problem with the braking mechanism. The trial court did not abuse its discretion in striking the defendant’s defenses because of the defendant’s negligent failure to preserve the braking mechanism, where the plaintiffs were unable to proceed with their case without it. The extent of sanctions for failing to preserve evidence depends on (1) wilfulness or bad faith of the responsible party; (2) extent of prejudice suffered by the other party; and (3) what is required to cure the prejudice. Harrell v. Mayberry, 754 So.2d 742 (Fla. 2d DCA 2000). Because the plaintiffs could not proceed without the braking mechanism, and there was no other way to cure the prejudice, the court did not abuse its discretion in striking the defenses even though the loss of the braking mechanism may have been negligent.

Sunshine in Litigation

State Farm v. Sosnowski
27 Fla. L. Weekly D2330 (Fla. 5th DCA 2002)

The Sunshine in Litigation Act, 69.081, Florida Statutes, prohibits a court from entering an order “which has the purpose or effect of concealing a public hazard or any information concerning a public hazard” or “any information which may be useful to members of the public in protecting themselves from injury which may result in the public hazard.” The court holds that “financial practices that constitute economic fraud are not a ‘public hazard’” under the statute. The court construes the statute narrowly as applying only to health and safety issues. Therefore, the statute did not preclude a trial court’s protective order which allowed an insurance company to confidentially produce to the plaintiff its evaluations of employees involved in the insurance company’s alleged fraud in handling the plaintiff’s insurance claim. (The fraud involved State Farm’s alleged failure to disclose and pay available uninsured motorist benefits available to her under her insurance policy.)

The court relies on the definition of public hazard in 69.081(2): “an instrumentality, including but not limited to any device, instrument, person, procedure, product or a condition of a device, instrument, person, procedure or product, that has caused and is likely to cause injury.” In my opinion, the court’s construction of this definition is awfully narrow. It doesn’t say “physical injury” or “personal injury”. It says “injury.”

Work Product

Acken v. Northup
27 Fla. L. Weekly D2230 (Fla. 2d DCA 2002)

The trial court should not have granted plaintiff’s request for production of copies of depositions of plaintiff’s expert that were in the possession of defense counsel. Defense counsel showed that he had done research to try to locate depositions that could be used for impeachment purposes, and that revealing the depositions that defense counsel had collected would reveal his thought processes as to what he thought was important. This decision is in accord with Smith v. Florida Power & Light Co., 632 So.2d 696 (Fla. 3d DCA 1994), where the Third DCA held that an attorney’s selection of documents, which by themselves would not be work product, renders the collection of documents, as a discrete unit, immune from discovery as work product. The court certifies conflict with Gardner v. Manor Care of Boca Raton, 27 Fla. L. Weekly D837 (Fla. 4th DCA 2002).

1620 Health Partners, L.C. v. Fluitt
27 Fla. L. Weekly D2530 (Fla. 4th DCA 2002)

In a nursing home action, the plaintiff requested “any and all records of accidents or unusual incidents referring in any way to Plaintiff. The court granted the plaintiff’s motion to compel production of incident reports, over defendant’s assertion of work product, attorney-client, quality assurance and quality review privileges, without holding an in camera inspection. The court held that the trial court must conduct an in camera inspection. If the documents are incident reports filed in compliance with 400.147(4), Florida statutes, they are discoverable upon a specific showing of need and inability to obtain equivalent information. If they are records from quality assurance or risk management meetings, or “communications regarding the like”, they are not discoverable.