December 1995

Dangerous Instrumentality

General Motors Acceptance Corp. v. Davis
20 Fla. L. Wkly. D2566 (Fla. 2d DCA 1995)

The legislature has created an exception to the dangerous instrumentality doctrine under 324.021(9)(b), Florida Statutes. The lessor of a vehicle under a long term lease may be immune if the lease requires the lessee to obtain insurance containing limits of not less than $100,000 / $300,000 bodily injury liability and $50,000 property damage liability, so long as the insurance remains in effect. The court held that a policy with a combined single limit of $300,000 for property damage and bodily injury was not in compliance and the lessor could not be exempt from liability.

Discovery Sanctions

Garlock, Inc. v. Coons
20 Fla. L. Wkly. D2511 (Fla. 3d DCA 1995)

Garlock, Inc. v. Harriman
20 Fla. L. Wkly. D2511 (Fla. 3d DCA 1995)

It was error for the trial court to strike the pleadings of the defendant for flagrant discovery violations in the Coons case, where the case was not yet set for trial and the plaintiff's case was not prejudiced because the answers to interrogatories eventually were filed before trial.

However, it was not error to strike the defendant's pleadings in the Harriman case, because the noncompliance was flagrant, the case was set for trial, and the plaintiffs were therefore prejudiced.

Due Process

Brown v. Walton County
20 Fla. L. Wkly. D2609 (Fla. 1st DCA 1995)

It was a violation of due process where, at a quasi-judicial proceeding before the County Grievance Committee, the county's attorney both acted as an advocate and proffered legal advice -- apparently to the Committee.

Economic Loss Rule

Woodson v. Martin
20 Fla. L. Wkly. D2556 (Fla. 2d DCA 1995)

Sitting en banc, with almost half the court dissenting, this court holds that the plaintiff's claim for fraud in the inducement of a real estate purchase was barred by the economic loss rule, where the property had numerous serious defects. The court held that the nature of the damages suffered determines whether the economic loss rule bars recovery based on tort theories. If the damages are purely economic, and there are no personal injuries or damages to other properties, the claim is barred.

The court certifies the question to the supreme court.

One of the dissents argues that the economic loss rule applies only to negligence cases, and was not intended to apply to intentional torts, despite some loose language in Casa Clara Condominium Assoc. v. Charley Toppino & Sons, Inc., 620 So.2d 1244 (Fla. 1993). The third district has agreed with the dissent. See HTP, Ltd. v. Lineas Aereas Costarricenses, S.A., 20 Fla L. Wkly. D2086 (Fla. 3rd DCA 1995).


U.S.Security Services Corp. v. Ramada Inn, Inc.
20 Fla. L. Wkly. D2510 (Fla. 3d DCA 1995)

An innkeeper has a nondelegable duty to keep its premises safe for guests. When it hires an independent contractor to provide security services, it is jointly and severally liable for the negligence of the independent contractor in failing to protect the guest. This case does not address whether the intentional tortfeasor belongs on the verdict form.

Garlock, Inc. v. Harriman
20 Fla. L. Wkly. D2511 (Fla. 3d DCA 1995)

It was error to allow the jury to apportion liability between the defendant and twenty-one other asbestos manufacturers where the defendant failed to produce "evidence establishing the specifics of different products, how often the products were used on the job sites, and the toxicity of those products as they were used." The court places the burden of proof of the Fabre defense squarely on the defendant. Accord, W. R. Grace & Co.-Conn. v. Dougherty, 636 So.2d 748 (Fla. 2d DCA 1994).

Gonzalez v. MI Temps of Florida Corp.
20 Fla. L. Wkly. D2520 (Fla. 4th DCA 1995)

The plaintiffs' child drowned due to the alleged negligence of the defendant's lifeguard. The record showed that the lifeguard was trained, supervised and controlled by the county. The court held that, contrary to the defendant's argument, the county was not an indispensable party, because there was no reason why the issues between the parties could not be determined without the county, especially in light of Fabre.

Family Law

In Re Family Law Rules of Procedure
20 Fla. L. Wkly. S581 (Fla. 1995)

The Supreme Court has adopted new family law rules of procedure.

Hospital Liens

Hillsborough County Hospital Authority v. Fernandez
20 Fla. L. Wkly. D2650 (Fla. 2d DCA 1995)

It was error to find the hospital's charges unreasonable and reduce the amount of the hospital lien merely because the hospital entered into contracts with some managed care providers whereby the hospital gave discounts for treatment of plan participants. The plaintiff was not a member of any of those plans.

If the plaintiff had belonged to a plan, at least one federal case holds that the hospital would have been limited, under federal law, to the amount it agreed to accept from the HMO, medicaid or other managed care plan. Evanston Hospital v. Hauck, 1 F.3d 540 (7th Cir. 1993). Attorney David Lillesand, who spoke at the November DCTLA meeting, is very knowledgeable on this issue and, in general, how to protect your client's SSI and Medicaid benefits when you settle their personal injury case. You should not settle a personal injury case without considering these issues.

Insurance -- Exclusions

Auto Owners Ins. Co. v. Van Gessel
20 Fla. L. Wkly. D2559 (Fla. 2d DCA 1995)

The abrogation of the doctrine of interspousal tort immunity does not invalidate a family exclusion clause in a liability insurance policy, and therefore there was no coverage for a claim by the wife's estate against the estate of the insured husband. Enforcement of the exclusion does not violate public policy.

Jury Discrimination

Martinez v. State
20 Fla. L. Wkly. D2519 (Fla. 4th DCA 1995)

Where a prospective juror has been arrested or has a relative who has been arrested, the state in a criminal case has a race-neutral reason for a peremptory challenge.

Smith v. State
20 Fla. L. Wkly. D2553 (Fla. 2d DCA 1995)

The defendant's fear that a prospective juror would identify with the victim's girlfriend, the state's witness, who was a single parent with two children like the juror, was a race-neutral reason for the defendant's peremptory challenge.


Berisford v. Jack Eckerd Corp.
20 Fla. L. Wkly. D2593 (Fla. 4th DCA 1995)

The tolling effect of fraudulent concealment is not limited to medical malpractice actions and applies to wrongful death actions as well. See Sullivan v. Fulton County Administrator, 20 Fla. L. Wkly. D2113 (Fla. 4th DCA 1995). The doctrine was part of the common law before the enactment of any statute. A jury question was created on the issue of fraudulent concealment where the plaintiff contended that the pharmacy negligently provided numerous refills of a prescription drug without authorization from a treating physician. The pharmacy, in response to a request for records from the plaintiff's attorney, responded with a computer printout including a certification that "these drugs and medicines were dispensed to the above named person by order of his or her personal physician." Even if the doctor's medical records should have put them on notice that the doctor had not ordered the refills, the record did not conclusively show a lack of due diligence by the plaintiff's counsel.

Offer of Judgment

Tangerine Bay Co. v. Derby Road Investments
20 Fla. L. Wkly. D2640 (Fla. 2d DCA 1995)

Another explosion in the minefield that is the offer of judgment statute, 768.79. The plaintiff's voluntary dismissal without prejudice does not preclude an award of attorneys fees to a defendant whose offer of settlement was rejected. Nor does the voluntary dismissal preclude the trial court from finding that the plaintiff's claim lacked legal or factual support under the civil theft act. You should now be very cautious in taking a voluntary dismissal if there is an outstanding offer of settlement or other basis for award of attorney's fees.

Gasperin v. Reeves
20 Fla. L. Wkly. D2640 (Fla. 2d DCA 1995)

It was error to refuse to award attorneys fees under 768.79 where the plaintiffs rejected the defendant's offer and then obtained a judgment less than 75 percent of the offer. The record would not support a finding of bad faith even though the offer included attorneys fees and the offer was "vastly below what they had already expended in attorneys fees as of the date of the offer." Cf. Stewart Select Cars v. Moore, 619 So.2d 1037 (Fla. 4th DCA 1993), rev. denied, 632 So.2d 1027 (Fla. 1994) (offer not made in good faith where plaintiff's complaint contained two good counts for which attorneys fees could be awarded, offer included attorneys fees, and plaintiff's counsel had already expended far more time than would be covered by the amount of the award).

Privilege -- Attorney-Client

Calzon v. Capital Bank
20 Fla. L. Wkly. D2603 (Fla. 3d DCA 1995)

The attorney-client privilege covers all information that would supply "links of incriminating evidence in an existing chain of inculpatory events, or lead to the filing of criminal charges." Therefore, it was reversible error for the trial court to order the attorneys to create a "log" of privileged documents, which was to include the general content of privileged documents. 90.502, Florida Statutes protects the contents and an order to divulge the contents without first conducting an in camera inspection is a departure from the essential requirements of law.

Med Mal -- Limitations

Stone v. Rosenthal
20 Fla. L. Wkly. D2578 (Fla. 4th DCA 1995)

The plaintiff personal representative served notices of intent. One defendant objected to the expert opinion and she mailed a revised notice. The court held that the mailing of the revised notice did not begin a new tolling period. However, there was an issue of fact as to when the statute of limitations began to run because the deceased had no notice of the injury or that it might be caused by medical malpractice because he was unconscious from the date of his injury until the date of his death. The personal representative, the decedent's wife, did not stand in his shoes until she was appointed the decedent's personal representative, and thus her notice could not be imputed to him.

Med Mal -- Presuit

Escobar v. Olortegui
20 Fla. L. Wkly. D2577 (Fla. 4th DCA 1995)

It was error to require the plaintiff to produce her presuit expert's affidavit, and to abate the action until she complied, where the defendant had failed to provide the plaintiff with the requested records. The failure to provide the records waived the requirement of the corroborating affidavit. See 766.204, Wilkinson v. Golden, 630 So.2d 1238 (Fla. 2d DCA 1994). Mailing a typed transcript of the records was not adequate compliance.

Nursing Homes

Boyd v. Pheo, Inc.
20 Fla. L. Wkly. D2583 (Fla. 1st DCA 1995)

The trial court entered an order prohibiting plaintiff's counsel from having ex parte communications with any of defendants' employees who directly participated in the care of the decedent. It appears from the context that the order also applied to former employees. The court held the order could not be reviewed by certiorari because the plaintiff did not demonstrate irreparable harm. The court reasoned that nothing in the order prevented her from obtaining the names of the employees and former employees and taking their depositions.

Two DCAs have addressed this issue. In Barfuss v. Diversicare Corp. of America, 656 So.2d 486 (Fla. 2d DCA 1995), the court held that the trial court could properly prohibit such communications. In Reynoso v. Greynolds Park Manor, Inc., 659 So.2d 1156 (Fla. 3d DCA 1995), the court allowed ex parte contact with former employees, and certified conflict to the Supreme Court.

Premises Liability

Hawkins v. Champion International Corp.
20 Fla. L. Wkly. D2564 (Fla. 1st DCA 1995)

The plaintiff was injured while working for an independent contractor at the defendant's paper mill. The court held that the property owner could be liable if the injury was caused by a latent defect, the owner was aware of the defect, and gave only a general warning about the dangers of working around moving equipment. The adequacy of the warning was for a jury.

Sovereign Immunity

Paushter v. South Broward Hospital District
20 Fla. L. Wkly D2524 (Fla. 4th DCA 1995)

Even though recovery under the sovereign immunity statute is limited to $100,000 per claim, the plaintiff is still entitled to recover judgment in the full amount of damages and to go to the legislature for a claims bill for any amount in excess of the $100,000. Therefore, even though the plaintiffs had settled with another defendant for an amount exceeding the cap, they were still entitled to proceed against the government agency.

Work Product

Inapro, Inc. v. Hofrichter
20 Fla. L. Wkly. D2602 (Fla. 3d DCA 1995)

This is an example of the shifting burdens on the parties when the work product privilege is asserted, and of why appellate lawyers always tell trial lawyers to take a court reporter to all significant hearings.

The trial court ordered production of documents which were assertedly work product, granting the exceptions to the report of the general master, which had recommended against production. The party seeking the documents did not file a particularized motion to compel, and his objections to the report of the master were in very general terms, and there was no transcript of the hearing at which the court granted the exceptions. The appellate court held that, to overcome the work product privilege, it is not necessary to show in the request for production that the party meets the requirements for need and undue hardship. However, once the privilege is asserted in the response to the request, a particularized showing must be made in the motion to compel. Here, however, the party from whom production was sought did not present a transcript of the hearing, so it was unable to show a timely objection to the production. Therefore, the court affirmed the order compelling production.

Worker's Comp Immunity

General Cinema Beverages of Miami, Inc. v. Mortimer
20 Fla. L. Wkly. D2509 (Fla. 3d DCA 1995)

Section 440.39(7) requires the employer and employee in a workers comp case to cooperate with each other in investigating and prosecuting claims against a third party tortfeasor. The court holds that this includes a duty on the part of the employer to preserve any evidence which includes non-privileged documents and inspection of the premises. The employer is not immune from suit for violation of this requirement. The employer's failure to preserve the truck and the tire which blew out, injuring the plaintiff, is a violation of that statute.