February 2000

Class Actions

Petitio v. A.H. Robins Co.
25 Fla. L. Weekly D19 (Fla. 3d DCA 1999)

The Third DCA recognizes a claim for medical monitoring in this Phen-fen class action. The court reverses a defense judgment on the pleadings, and allows the plaintiffs to seek an injunction requiring the defendants to fund a court supervised medical monitoring program to provide for testing, monitoring and study of the plaintiffs and the class for conditions caused by their use of the drug.

The court distinguishes Eagle-Pitcher Industries, Inc. v. Cox, 481 So.2d 517 (Fla. 3d DCA 1995). In Eagle-Picher, the court held that a plaintiff cannot recover for the enhanced risk that he will contract a disease. A claim for medical monitoring “seeks to recover only the quantifiable costs of periodic medical examinations necessary to detect the onset of physical harm, [but] an enhanced risk claim seeks compensation for the anticipated harm itself, proportionately reduced to reflect the chance that it will not occur.”

The court also holds that the rule against splitting causes of action will not prevent plaintiffs in medical monitoring cases from bringing claims for physical injuries that later arise.

Latman v. Costa Cruise Lines, N.V.
25 Fla. L. Weekly D309 (Fla. 3d DCA 2000)

The trial court should not have denied class certification to plaintiffs claiming that the cruise lines violated the Florida Deceptive and Unfair Trade Practices Act, §§501.201-213, Florida Statutes, by including amounts for “Port Charges” in the ticket price, but keeping part of the port charges for themselves. The court rejects the argument that the plaintiffs failed to demonstrate reliance and damages.

Dangerous Instrumentality

Aurbach v. Gallina
25 Fla. L. Weekly S74 (Fla. 2000)

A parent who holds neither legal title nor an identifiable property interest in a car driven by his child is not vicariously liable for the child’s negligence under the dangerous instrumentality doctrine, where he is not the legal title holder, beneficial owner or bailor of the vehicle. Because the daughter was an adult, the father had no duty to control her use of the vehicle. But legal title is not the only basis to impose vicarious liability in a family relationship; the court points out that bailment may be a basis for such liability. The court also points out that a parent may be vicariously liable when the parent signs a minor child’s driver’s license application; the liability ends when the child reaches majority. In general, parents are not vicariously liable for their children’s torts.

Employment Discrimination

Donato v. American Tel. & Tel. Co.
25 Fla. L. Weekly S44 (Fla 2000)

Section 760.10, Florida Statutes, prohibits, among other things, employment discrimination based on marital status. The Court here construes “marital status” narrowly to mean only the state of being married, single, divorced, widowed or separated, and not to include the identity of the person to whom the plaintiff is married. Therefore, a plaintiff who alleged he was fired in retaliation for a lawsuit filed against the employer by his wife did not have a claim under the statute.


Clark v. Polk County
25 Fla. L. Weekly D354 (Fla. 2d DCA 2000)

The plaintiff’s decedent was killed after a driver failed to stop at the intersection because somebody had knocked down the stop sign. It was error to instruct the jury to apportion the defendant county’s fault with the fault of an unknown person who knocked down the stop sign. There was no evidence that the person’s actions in knocking down the stop sign were tortious. There was no evidence whether the person was negligent, or swerved to avoid hitting another car or a person or animal in the road.

I have long argued that Nash v. Wells Fargo Guard Service, 678 So.2d 1262 (Fla. 1996), requires a defendant to prove all the elements of negligence against a Fabre defendant — duty, breach of duty, proximate cause and damages. I believe this case stands for that proposition.

False Arrest

Walker v. City of Pompano Beach
25 Fla. L. Weekly D215 (Fla. 4th DCA 2000)

In light of all of the discussion of racial profiling and “DWB” (driving while black) arrests, thiscase is especially interesting and timely. A BOLO describing armed robberies by three to five black males wearing ski masks, in a small red car, with no additional description, did not provide a “founded suspicion” for police officers to stop a small red Nissan containing three black men and three black women, who were not acting in any unusual way. The court reverses a summary judgment in favor of the defense in this false arrest case.

Impact Rule

Gracey v. Eaker
25 Fla L Weekly D137 (Fla. 5th DCA 2000)

The trial court dismissed plaintiffs’ complaint against a psychotherapist who disclosed to the other spouse confidential information the other spouse had disclosed to him. The court affirms the dismissal under the impact rule, but certifies to the supreme court the question:

Whether an exception to Florida’s impact rule should be recognized in a case where infliction of emotional injuries resulted from the breach of a statutory duty of confidentiality.

This is the second time the 5th DCA has certified an impact rule question to the Supreme Court in recent weeks. See Coca-Cola Bottling Co. v. Hagan, 24 Fla. L. Weekly D2688 (Fla. 5th DCA 1999), which certified the question: “Should the impact rule be abolished or amended in Florida?”


Ross Dress for Less, Inc. v. Radcliff
25 Fla. L. Weekly D166 (Fla. 2d DCA 2000)

I use the heading “IME” because that’s how people are used to looking for it when they do research, but in reality there’s nothing “independent” about it, as the Court holds in this case. The court holds that IME reports are not always inadmissible as untrustworthy per se, but that the trial court did not abuse its discretion in refusing to admit the report based on the court’s belief that the report was untrustworthy because it was made in preparation for litigation.

Insurance — Arbitration

Nationwide Mut. Ins. Co. v. Pinnacle Medical, Inc.
25 Fla. L. Weekly S72 (Fla. 2000)

In a ringing reaffirmation of the right of access to courts, the Supreme Court holds that the provision of the PIP statute which requires medical providers who accept assignment of benefits to arbitrate their claims, is unconstitutional. The court finds that the PIP statute does not provide the medical providers with a commensurate benefit for taking away their right to sue. The court also finds that the attorney fee provision in §627.736(5), which provides for prevailing party attorneys fees, violates due process because it results in further delay to insureds from receiving medical benefits by encouraging medical providers to require payment from insureds at the time services are rendered.

Insurance — PIP

Nationwide Mut. Fire Ins. Co. v. Southeast Diagnostics, Inc.
25 Fla. L. Weekly D316 (Fla. 4th DCA 2000)

This court holds that a PIP insurer is not required to obtain a medical report based on a physical examination of the insured before it may withdraw PIP benefits. This court apparently approves so-called “paper IMEs,” so long as they are obtained from a physician licensed under the same chapter as the treating physician.

Insurance — UM

Young v. Progressive Southeastern Ins. Co.
25 Fla. L. Weekly S120 (Fla. 2000)

A UM policy provision which excludes a vehicle owned or operated by a self-insurer from the definition of “uninsured motor vehicle” for purposes of uninsured/underinsured motorist coverage is not permissible under Florida law or public policy. Such a provision is void. The court notes that a person can obtain a certificate of self insurance with only “a net unencumbered worth of $40,000”. The court notes that this would be particularly unfair in cases against government entities. “The critical question in determining whether a motorist is uninsured or underinsured is whether the tortfeasor possesses insurance that will make the injured party whole.”

Schmidt v. State Farm
25 Fla. L. Weekly D108 (Fla. 2d DCA 2000)

The insured was riding his motorcycle, which he was forced to lay down on its side in order to avoid collision with a car at an intersection. The insured became separated from the motorcycle during the slide. The driver of the car placed his car in revers and backed over the insured’s legs. The court held it was error to grant summary judgment finding no UM coverage under a policy that covered the insured’s vehicles other than the motorcycle, which contained an exclusion “for bodily injury to an insured while occupying a motor vehicle owned by you, your spouse or any relative if it is not insured for coverage under this policy.” The issue of whether the insured was “occupying” the motorcycle, after he was ejected from it, will depend on how much time elapsed between the time he came to rest and the moment the car backed over him, and what he was doing in the meantime — whether his occupancy had terminated, and a new activity had commenced before the injury



Amerace Corp. v. Stallings
25 Fla. L. Weekly D169 (Fla. 2d DCA 2000)

The trial court must award prejudgment interest from the date of the verdict to the date of the judgment in a personal injury case. The interest must be included in the judgment.


Zelinka v. Americare Healthscan, Inc.
25 Fla L. Weekly D256 (Fla 4th DCA 2000)

Section 770.01, Florida Statutes, requires five days written notice before a suit may be instituted for publication or broadcast, in a newspaper, periodical, or other medium of a libel or slander. The court holds that this provision does not apply to a private citizen who posts a statement on an internet bulletin board. The court states that such a person is not a “media defendant,” but notes that someone who maintains a web site and regularly publishes internet “magazines” on the site might be considered a “media defendant.”


Rodriguez v. DiLido Beach Hotel Corp.
25 Fla. L. Weekly D99 (Fla. 3d DCA 2000)

This is an excellent decision which precludes the defendant from waiting until the statute of limitations runs to disclose the grounds for the motion to dismiss. The court holds that where the errors in the complaint were or should have been known by the defense before, but were not called to the plaintiff’s or the court’s attention until after the statute of limitations had run, and there was no other prejudice to the defendant, it was error to dismiss the complaint without leave to amend. The court reverses, with direction to grant leave to amend the complaint “to reflect the correct location of the accident and the name of the responsible party, with the amendments deemed to relate back to the date of the filing of the original complaint.”

Limitations - Repose

Pulmosan Safety Equip. Corp. v. Barnes
25 Fla. L. Weekly S12 (Fla. 2000)

Diamond v. Squibb, 397 So.2d 671 (Fla. 1981) held that it would be unconstitutional to deprive a plaintiff of her cause of action where her injuries were latent and undiscoverable within the period of the statute of repose. The court now holds that Diamond is still the law. The court quotes with approval from the Third DCA’s decision in Owens-Corning Fiberglas Corp. v. Corcoran, 679 So.2d 293 (Fla. 3d DCA 1996): “[B]ecause a public necessity was never enunciated, demonstrated, or contemplated for application of the now defunct section 95.031(2) to a case such as this one, resulting a long delay in manifestation of symptoms that will support a medical diagnosis of injury, such application is constitutionally impermissi[ble]”. The particular statute of repose was repealed, but a new statute of repose was enacted by the Legislature last year. This case should apply to that statute, as well.

Offer of Judgment

United Services Automobile Assoc. v. Behar
25 Fla. L. Weekly D222 (Fla. 2d DCA 2000)

A joint proposal for settlement by the defendant to both plaintiffs, which did not specify how much would go to each plaintiff, was defective and could not support an award of attorneys fees. Rule 1.442(c)(3) requires the offer to specify the amount offered to each party.

Premises Liability

Grant v. Thornton
25 Fla. L. Weekly D26 (Fla. 2d DCA 2000)

The applicable building code prohibited the use of deadbolts which required a key on doors that provide ingress and egress to the premises. The landlord knew that the building had such a lock. The tenant was burned in a fire and suffered lacerations when he had to go out the window. The court held that the warranty of habitability for residential premises requires the landlord to be responsible for this item, and failure to comply is evidence of negligence. The court reversed a summary judgment for the landlord.

Brown v. Suncharm Ranch, Inc.
25 Fla. L. Weekly D141 (Fla. 5th DCA 2000)

The defendant leased property to a bar owner on a verbal, month-to-month lease. The plaintiff’s decedent was shot at the bar by another patron. The court held that the defendant landowner could not be held responsible for dangerous conditions on the premises merely by virtue of his authority to terminate the lease. But see Vasques v. Lopez, 509 So. 2d 1241 (Fla. 4th DCA 1987).


Enterprise Leasing Co. v. Jones
25 Fla. L. Weekly D57 (Fla. 5th DCA 1999)

In Fabber v. Wessel, 604 So.2d 533 (Fla. 4th DCA 1992), the Fourth DCA held that disclosure to the judge of confidential settlement negotiations establishes a presumption of contamination of the neutrality of the judge, requiring disqualification as a matter of law. The Second DCA rejects that reasoning, holding that the mere knowledge by the trial judge of settlement offers should not place a reasonable person in fear of not receiving a fair trial. As a practical matter, trial courts are frequently called on to enforce or set aside settlements, or make rulings in limine regarding settlements with co-defendants or with non-parties. The court certifies conflict with the Second DCA.


Marina Funding Group, Inc. v. PS Marinas 3
25 Fla. L. Weekly D15 (Fla. 3d DCA 1999)

Where the parties announce in open court that a settlement agreement has been reached, the agreement is enforceable. Where the agreement is read in open court without objection from either party, there is no need to hold an evidentiary hearing as to the existence of the settlement. The court may enforce the settlement on the motion of one of the parties.

Sovereign Immunity

Florida Dept. Of Natural Resources v. Garcia
25 Fla. L. Weekly S124 (Fla. 2000)

The plaintiff was paralyzed in a diving accident at a public beach. The beach was not formally designated a public swimming area. The court held that it is not necessary for an area to be formally designated as a public swimming area before a duty arises to maintain it in a reasonably safe condition. The court declines to address whether the duty is nondelegable, because the state did not challenge in the Supreme Court the Third District’s statement that the duty is nondelegable. (When a duty is nondelegable, the person having the duty can delegate the work, but not the responsibility for carrying it out safely).


The Golf Channel v. Jenkins
25 Fla. L. Weekly S31 (Fla. 2000)

Section 448.102(1) prohibits an employer from retaliating against an employee for disclosing or threatening to disclose an illegal policy or activity of an employer, but requires the employee to bring the policy or activity to the attention of a supervisor or the employer in writing and to give the employer a reasonable opportunity to correct it. Section 448.103(1)(c) of the Whistleblower Act makes this a condition precedent to filing suit. The court holds that the requirement is limited to actions under §448.102(1), and does not apply to the other sections of the act, which protect employees who provide information to, or testify before, a government agency, or who object to or refuse to participate in the illegal activity. Therefore, an employee who alleged that he was fired in violation of §448.102(3) for objecting to other employees’ unlawful acts and reporting them to his supervisors was not required to give the written notice as a condition precedent to filing suit.

Workers Comp Immunity

Roca v. Sheraton Key Largo Resort
25 Fla. L. Weekly D157 (Fla. 3d DCA 2000)

The court affirms a summary judgment against a plaintiff who alleged that her employer and the workers comp carrier, in bad faith, refused to authorize emergency surgery recommended by comp physicians and wrongfully persisted in refusing to authorize it for two months after ordered by the comp judge. The court rejects claims under chapter 772 (civil actions for criminal practices) and intentional infliction of emotional distress. The court is bound by its prior decision in a related case, Sheraton Key Largo v. Roca, 710 So.2d 1016 (Fla. 3d DCA 1998), and finds no conflict with Associated Indus of Florida v. Smith, 633 So.2d 543 (Fla. 5th DCA 1994) holding c1wthat this is just a coverage dispute, although Judge Cope in a footnote states that in his opinion it is well beyond that. The court declines to certify a question to the Florida Supreme Court.