February 1995

Apparent Agency

Mobil Oil v. Bransford
20 Fla. L. Wkly. S11 (Fla. 1995)

This is the case I left out of the last Update because I couldn’t quite figure out what to say about it. The court has wrought a major change in the law of apparent agency in franchise situations.

This case involves an attack on the plaintiff by an employee of a gas station that was operated by a franchisee.

The court holds that as a matter of law, the oil company’s ownership of the property on which the franchisee operated the gas station, the sale of the oil company’s products there, the use of its logo throughout the premises, and the franchise support provided does not create apparent agency.

The court states: "it is well understood that the mere use of franchise logos and related advertisements does not necessarily indicate that the franchisor has actual or apparent control over any substantial aspect of the franchisee’s business or employment decisions. Nor does the provision of routine contractual support services refute this conclusion." The court placed heavy reliance on what it assumes to be common knowledge, and on the contractual provision that the gas station operator was an "independent contractor."

The court also holds that there is no special rule for gas stations, and that apparent agency analysis is the same in any franchise situation.

The elements of apparent agency are: "(a) a representation by the purported principal; (b) reliance on that representation by a third party; and (c) a change in position by the third party in reliance on the representation." What the court appears to do here is to hold as a matter of law that there can be no reliance, and no representation in the use of the oil company’s logo.

The court distinguishes Orlando Executive Park v. Robbins, 433 So.2d 491 (Fla. 1993) because in that case the franchisor actually operated several components within the project where the attack on the plaintiff took place.

If you have a franchisor liability case, you can try to salvage it in several ways. You can factually distinguish your case, as for example, when there is actual control by the franchisor sufficient to establish actual agency. You can also try to fit yourself into the Orlando Executive Park facts if the franchisor actually operates part of the complex on which the business is located. If the franchisor owns the land on which the franchise is operated, you may want to take a look at whether the landlord retains any actual control over any part of the property; also look at Restatement of Torts, Second, 359, which makes a lessor liable under certain circumstances where it leases property for a purpose open to the public, in a dangerous condition, knowing that the lessee will not change it; and at the law of nuisance, which makes a lessor liable in some situations when it leases property containing an actual or incipient nuisance. See Bowen v. Holloway, 255 So.2d 696 (4th DCA 1971).

If you have any success with any of these, please let me know.

Attorney Fees

Bass v. State Farm Life Ins. Co.
20 Fla. L. Wkly. D345 (3d DCA 1995)

Don’t forget to plead and move for attorneys fees at the trial level. The plaintiff won a verdict against an insurance company and moved for attorneys fees only under the offer of judgment statute and rule. The trial court denied the motion. The insurer appealed the verdict and the plaintiff won, and the court of appeal remanded for an award of appellate attorneys fees under 627.428. The plaintiff then moved for an award of trial attorney fees as well pursuant to 627.428. The court of appeal held that because of its limited mandate on appellate attorneys fees, and because the motion was filed 22 months after final judgment, the trial court properly denied trial level attorneys fees. The trial court has continuing jurisdiction to award attorneys fees after final judgment, but the motion must be filed "within a reasonable time." Finkelstein v. North Broward Hosp. Dist., 484 So.2d 1241 (Fla. 1986).


Madison v. Midland National Life Ins. Co.
20 Fla. L. Wkly. D206 (4th DCA 1995)

The court holds that the Statewide Uniform Guidelines for Taxation of Costs are only guidelines. It was not an abuse of discretion for the trial court to award costs to the plaintiff for travel expenses incurred by plaintiff’s counsel in taking some out of state depositions, even though the guidelines don’t include such costs.


Auto-Owners Ins. Co. v. Tompkins
20 Fla. L. Wkly. S49 (Fla. 1995)

Resolving a conflict among the districts, the Supreme Court holds that a finding of permanent injury is not required to sustain an award of future economic damages. Future economic damages are recoverable when they are established with reasonable certainty. A permanent injury is not a prerequisite to recovering future economic damages, but it is a significant factor in establishing the reasonable certainty of future damages.

Destruction of Evidence

Brown v. City of Delray Beach
20 Fla. L. Wkly D353 (4th DCA 1995)

The court reverses a summary judgment for the city, which destroyed evidence pertaining to an alleged hit and run. The plaintiff contended that the city would not allow plaintiff access to the physical evidence while a criminal investigation was pending, but assured the plaintiff the evidence would be preserved. After charges against the driver were dropped, the city destroyed the evidence. The plaintiff contended that this prevented his experts from being able to form an opinion, and prevented plaintiff from proving his case against the driver. The court held (1) that the plaintiff did not have to prove that he would have succeeded against the driver if the evidence had not been destroyed and (2) that the city was not entitled to immunity, but owed a duty to the plaintiff because of the special relationship created by its repeated assurances that it would take care of the evidence for the plaintiff.

Election of Remedies

Lowry v. Logan
20 Fla. L. Wkly. D363 (1st DCA 1995)

It was error to enter summary judgment against the plaintiff based on election of remedies where a genuine issue remained whether the plaintiff was an employee or an independent contractor, and if so whether he was acting in the scope of his employment, and where the plaintiff never signed the notice of injury filed by his employer and never filed a claim for benefits, even though some benefits were paid by the worker’s comp carrier. To constitute an election of remedies, the workers comp remedy must be pursued to a determination or conclusion on the merits. Mere passive acceptance of some benefits doe not constitute an election. Wisehart v. Laidlaw Tree Service, Inc., Fla. 2d DCA 1991); Velez v. Oxford Dev. Co., 457 So.2d 1388 (3d DCA 1984), rev. den., 467 So.2d 1000 (Fla. 1985).


I’ve listened to an audio tape of the oral argument in the Florida Supreme Court in Tallahassee Memorial Regional Medical Center v. Wells, the pending case on calculation of the setoff. The argument was heard on December 7. It is always difficult to predict from an oral argument how a case is going to come out. However, the Court did ask several questions indicating a concern about distinguishing between economic and noneconomic damages. All in all, the argument seemed to go pretty well for the plaintiffs. The defendants seem to be unhappy with their argument, and filed an unusual motion with the court asking for permission to file a supplemental memorandum giving better answers to some of the questions than the ones they gave in the argument. The Supreme Court has denied the motion.

I hope the court will reach a decision soon, so that we can all know what to advise our clients about the effect of settlements on any verdicts they may get against nonsettling tortfeasors. Meantime, I recommend allocating specific portions of the settlement to economic and non-economic damages, so that the issue will be preserved in case the court ultimately allows that distinction.

Insurance -- Bad Faith

Florida Medical Malpractice Joint Underwriting Association v.
Indemnity Ins Co of North America

20 Fla. L. Wkly. D205 (4th DCA 1995)

Section 627.351(4)(c), Fla. Stat., provides the JUA and its members immunity from liability in some civil actions. This court holds that the immunity issue is not jurisdictional, but an affirmative defense which can be waived, as it was here, by the failure to plead it.

Insurance -- Exclusions

Brown v. The Travelers Ins. Co.
20 Fla. L. Wkly. D291 (4th DCA 1995)

The insurer under a homeowners policy may not avoid coverage under the fire coverage section of a policy based upon the intentional acts exclusion in the liability section of the policy. This case has a good discussion of the rules applicable in interpreting insurance policies.

Insurance -- UM

State Farm Mut. Auto. Ins. Co. v. Hassen
20 Fla. L. Wkly. D318 (2d DCA 1995)

In 1992, the legislature amended the UM statute to provide, in 627.727(6), that a UM carrier wishing to preserve its subrogation rights by refusing to allow the insured to settle with an underinsured motorist’s liability carrier must pay the insured the amount of the offer from the liability carrier. This court holds that the statute cannot be applied to a policy executed before its effective date and is unconstitutional. The court certifies the question to the Supreme Court.

Jury Misconduct

Powell v. Allstate
20 Fla. L. Wkly. S37 (Fla. 1995)

In this UM action, the plaintiffs were black, of Jamaican origin. The jury returned a verdict far below the amount plaintiffs were seeking. After the trial, a juror contacted the judge and one of the plaintiffs’ attorneys and told them that jurors made racist remarks and jokes throughout the trial and deliberations. The judge interviewed this juror, but refused to conduct an evidentiary hearing, or to grant a new trial. The court held that such racist comments are overt acts of misconduct which might have prejudicially affected the verdict. The trial court is required to conduct an inquiry to determine whether the comments were made. If they were made, the trial court is not permitted to conduct an inquiry into the jurors’ subjective thoughts or whether they were affected by the comments. If the court finds the comments were made, a new trial is mandatory. The plaintiff has moved for rehearing on this procedural point, contending that an evidentiary hearing is not necessary.

The Supreme Court draws a fine line between the jurors’ subjective thoughts, which inhere in the verdict, and their statements. The court analogizes these statements to receipt of prejudicial nonrecord information. While carefully guarding the sanctity of the jury room, the court decisively rules in favor of the right to a fair trial before an impartial jury and to equal protection of the law.

The powerful language in this decision extends to "color, religion or ethnic origin." An open question is whether it will also apply to gender.

I was proud to participate in the preparation of a joint amicus brief on behalf of the Academy of Florida Trial Lawyers and the Florida Association for Women Lawyers in this case. With me on the amicus brief were Roy Wasson, Sally Richardson and Marisa Mendez. I’m proud of the Florida Supreme Court for once again taking a strong stand against racial prejudice in the courtroom.

Wright v. CTL Distribution, Inc.
20 Fla. L. Wkly. D328 (2d DCA 1995)

This decision involves facts similar to those in Powell v. Allstate. Following that case, the court holds that an evidentiary hearing is required based on allegations that jurors said they did not want to give the plaintiff anything because she was a fat black woman on welfare and would blow the money. In addition, the plaintiff alleged that the jury asked the bailiff a question on the award of past pain and suffering and the bailiff answered the question instead of referring it to the judge. The court held that this also required an evidentiary hearing to determine if it occurred. If it did, a new trial is required. Note that the plaintiff presented these allegations in the form of an affidavit from one of the jurors. This is required pursuant to Baptist hospital v. Maler, 579 So.2d 97 (Fla. 1991).

Jury Selection

Betancourt v. State
20 Fla. L. Wkly. D212 (3d DCA 1995)

The trial court erred in conducting an inquiry into the defense’s exercise of a peremptory challenge, and disallowing the challenge, where the state gave no reason for its objection other than the fact that the juror was hispanic, and the defendant gave the race neutral reason that the juror had been foreman in a prior jury and was a "leader".

Thompson v. State
20 Fla. L. Wkly. D216 (3d DCA 1995)

The prohibition against discrimination in the use of peremptory challenges is equally applicable to discrimination against men and women.

Med Mal

St. Anthony’s Hospital v. Lewis
20 Fla. L. Wkly. D235 (2d DCA 1995)

The two year med mal statute of limitations applies to claims against a hospital for the negligent selection and retention of a physician. Compliance with all presuit procedures is also required. The appellate court granted the extraordinary remedy of certiorari to quash the trial court’s denial of the hospital’s motion to dismiss.

Auster v. Gertrude and Philip Strax Breast Cancer Detection Institute, Inc.
20 Fla. L. Wkly. D257 (4th DCA 1995)

In this action for malpractice for negligent interpretation of a mammogram, it was reversible error to instruct the jury on the standard of care based on 766.102(3)(a). That section provides that if the injury is "claimed to have resulted from the affirmative intervention of the health care provider," the plaintiff must show that the injury was not within the necessary or reasonably foreseeable results of the procedure if the procedure was carried out in accordance with the prevailing professional standard of care by a reasonably prudent similar health care provider.

The court holds the instruction is confusing (really it’s incomprehensible), and that it does not apply to a misdiagnosis. It was also reversible error to refuse to instruct the jury on concurring cause and aggravation of a pre-existing condition. Congratulations to Karen Haas and Jan Gallagher.

Alachua Gen. Hosp. v. Stewart
20 Fla. L. Wkly. D365 (1st DCA 1995)

The defendant hospital, which was charged with vicarious liability for negligence of a doctor who was alleged to be an agent of the hospital is entitled to conduct ex parte interviews with doctors who provided treatment, even though the hospital denied in its answer that any doctors were its agents. The court relies on 455.241(2) which waives confidentiality if the health care provider is or expects to be a malpractice defendant. The court held that the plaintiff was stuck with the allegations in his pleadings, and the defendant was entitled to talk with former alleged employees who could only have gained their knowledge of the plaintiff’s condition while in its alleged employ. This issue is currently pending before the Florida Supreme Court in Richter v. Bagala, 19 Fla. L. Wkly. D1817 (2d DCA 1994) as well as before the Third District en banc. See Johnson v. Mt. Sinai Medical Center, 615 So.2d 257 (Fla. 3d DCA 1993).

Nursing Homes

Barfuss v. Diversicare Corp. of America
20 Fla. L. Wkly. D241 (2d DCA 1995)

The plaintiff, a former patient, sued the nursing home for negligence and violation of Chapter 400, the Nursing Home Bill of Rights. The appellate court held that Chapter 766 might apply to some of the plaintiff’s allegations against the nursing home, such as failure to properly treat pressure ulcers, and failure to keep plaintiff’s catheter free from leakage. The court held that the plaintiff was not required to divulge the identity of her experts, despite defendant’s theory that in a medical negligence case the plaintiff must retain and disclose her expert witnesses, who were protected by the work product privilege. The court also held that it was not error to prohibit the plaintiff from contacting former employees of the defendant, limited to those former employees whose actions were alleged to be the basis of the defendant’s liability. See also Rule 4-4.2, Florida Rules of Professional Conduct, and the Comment to it. The court acknowledges there is a split of authority on contact with former employees, ranging from decisions allowing communication with any former employee provided no other privilege is violated, to decisions prohibiting any communication with former employees. This case falls somewhere in between.

Offer of Judgment

Crayne v. Krayne
20 Fla. L. Wkly. D256 (4th DCA 1995)

Where the offer of judgment was conditioned on the offeree’s dismissal of a separate pending action, the condition was not authorized and the offer was invalid. Therefore, no attorneys fees could be awarded as a result of the rejection of the offer.

Tampa Letter Carriers, Inc. v. Mack
20 Fla. L. Wkly. D278 (2d DCA 1995)

The entitlement to attorneys fees under 57.105 or 768.79 does not have to be pled, but may be raised by motion filed after a voluntary dismissal by the plaintiff. The plaintiff cannot avoid the award of fees by a voluntary dismissal.

Premises Liability

Publix Super Markets, Inc. v. Jeffery
20 Fla. L. Wkly. D281 (3d DCA 1994)

The defendant Publix grocery store owed no duty to its invitee to keep the parking lot safe where Publix leased space in a commercial shopping center containing several tenants but the landlord retained the sole responsibility under the lease of maintaining the common areas including the parking lot used by business invitees of the various tenants. The obligation for keeping the parking lot safe against criminal acts by third persons belonged to the owner, not to the tenant. However, if Publix had actually controlled the parking lot, it could have been liable despite the terms of the lease.

The tenant has no duty to warn its business invitees about potential criminal attacks in the parking lot exclusively maintained by the shopping center owner. The court holds that Combs v. Aetna Ins. Co., 410 So.2d 1377 (Fla. 4th DCA 1992), imposing a duty to warn, is inapplicable because it involved an improperly marked, lighted marker, which the court describes as a "static" condition, for which a warning would have done some good. This was a case in which the issue of Fabre apportionment with an intentional tortfeasor was raised but not decided by the court.

Punitive Damages

W.R. Grace & Co. v. Waters
638 So.2d 502 (Fla. 1994)

Although I discussed this case in the June, 1994 Update, there was a specific request for more information at the last DCTLA meeting, and DCTLA President Ervin Gonzalez has just published an article about it in the February Florida Bar Journal. In Waters, the Supreme Court outlined procedural requirements for awarding punitive damages. Ervin’s article explains how those requirements should work: On motion of the defendant, the trial court is required to bifurcate the trial. During the first portion of the trial, the jury should hear evidence regarding liability, compensatory damages, and entitlement to punitive damages. The verdict form for the initial trial should only refer to these issues. The amount of punitive damages should not be discussed in this phase, nor should it be on the verdict form.

Once the jury determines these issues, a second phase will be conducted on the amount of punitive damages. In this second phase, the plaintiff may introduce evidence regarding the defendant’s net worth and other financial information, and the defendant may introduce opposing evidence, including lack of ability to pay, prior punitive damages awards, or other relevant financial information. After that evidence has been presented, there should be closing arguments and a verdict form that asks the jury to assess the amount of punitive damages.

Of course, before you even get to this, the plaintiff must demonstrate to the court that sufficient evidence exists to support the punitive damages claim. 768.72, Florida Statutes. The plaintiff is not even allowed to plead punitive damages until this showing is made.

Thanks to Judge Philip Bloom for calling my attention to the need for further discussion on this issue, and to Ervin for explaining it so clearly.


DeFiguieredo v. Publix Super Markets, Inc.
20 Fla. L. Wkly. D304 (4th DCA 1995)

The plaintiff alleged that the defendant knew she had trouble with the English language and got her to sign a release by telling her that it was a receipt pertaining only to money paid. The trial court entered summary judgment for the defendant on the release and the court of appeal reversed, holding that the defendant’s misrepresentation as to the "contents, import or legal effect" of the release would be sufficient to avoid the release. The court notes that there is also authority that a release may be rescinded based on a unilateral mistake of fact.

Service of Process

Wyatt v. Haese
20 Fla. L. Wkly. D290 (4th DCA 1995)

This case is a textbook illustration of how not to obtain service of process. An $8.3 million verdict was overturned because of lack of service. The case arose out of an auto accident. Plaintiffs’ first attempt at substituted service on the Secretary of State under 48.161 was invalid because they failed to allege that the defendant was a non-resident or was concealing himself and failed to send notice of service to the defendant or to file an affidavit as required by 48.161. The second attempt was invalid because, although the complaint was amended, two attempts to mail notice to the defendant were returned "unclaimed" and "not at this address," and no affidavit was filed. The third attempt, service by publication, was invalid because such service is not authorized in negligence actions.


Soucy v. Casper
20 Fla. L. Wkly. D198 (4th DCA 1995)
and 20 Fla. L. Wkly. D202 (4th DCA 1995)

In these related appeals, the court wisely allowed the plaintiff to avoid some of the pitfalls involved in the signing of releases. The plaintiffs, husband and wife, were injured in a car accident. The husband settled with several insurance companies for the policy limits, including State Farm and Allstate. The husband and wife signed preprinted release forms provided by the insurance companies, which released all claims.

Subsequently, the wife filed suit for her own personal injuries. The defendants asserted the releases as a defense. The wife contended that, as to her claim, all parties to the release intended only to release her loss of consortium claim, and not her own injuries, and filed supporting affidavits of their own attorneys. The defendants did not contradict the affidavits. The court held that this was sufficient evidence of a mutual mistake to prevent summary judgment based on the releases. Further, it was error to refuse to allow the wife to amend her complaint a few days before the summary judgment hearing to add a count for reformation of the release due to mutual mistake.

Circuit Judge Juan Ramirez, sitting as an Associate Judge in the Fourth District, wrote both of these well reasoned opinions. See Connecticut General Life Ins. Co. v. Dyess, 569 So.2d 1293 (5th DCA 1990), rev. denied, 581 So.2d 1307 (Fla. 1991) for the story of a plaintiff who was not so fortunate. Read all releases carefully and limit the language where it is appropriate to preserve any claims you don’t want to release.

City of Largo v. Lagrande
20 Fla. L. Wkly. D399 (2d DCA 1995)

Reversing 57.105 attorneys fees, the court holds that the city had non-frivolous grounds to challenge, in a contribution action, the settlement of the underlying case where there was a great difference between the settlement amount and the claim for damages asserted against the city, and where the underlying case was settled after less than a year.

Sovereign Immunity

State of Fla. Dept. of Corrections v. Vann
20 Fla. L. Wkly. D381 (1st DCA 1995)

While holding that there is no duty and no liability, the court certifies to the Supreme Court the question whether the Dept. of Corrections may be held liable as a result of the criminal acts of an escaped prisoner. This case has a good discussion of the issues of duty and sovereign immunity.