February 1996


Montadas v. Dade Scrap Iron & Metal
21 Fla. L. Wkly. D287 (Fla. 3d DCA 1996)

The court reverses a defense summary judgment in an action by a pizza delivery man who was assaulted by a business owner when he was late delivering the pizza. The court held that there was a conflict in the record about whether the defendant company had a practice of ordering pizza for its employees to expedite their lunch breaks, and whether the attacker was "acting in furtherance of a perceived business interest" in preventing the waste of the employees' time, when he assaulted the delivery man.


Fisel v. Wynns
21 Fla. L. Wkly. S59 (Fla. 1996)

The plaintiff's car collided with the defendant's cow, which had gotten loose and wandered onto the road. The court held that the plaintiff cannot hold the owner liable without showing at least negligence on the part of the owner.


Hagan v. Sun Bank
21 Fla. L. Wkly. D212 (Fla. 2d DCA 1996)

This case includes an excellent discussion by Judge Altenbernd of the confusion caused by the numerous cases holding various arguments to constitute fundamental error that could be raised on appeal even though no objection was made. A party seeking a new trial based on an improper argument by opposing counsel should face a higher burden when no objection was made during the trial. If there is no objection, a new trial may be required if the argument is so prejudicial that "neither rebuke nor retraction may entirely destroy their sinister influence."

I've noticed a trend in the cases to treat some arguments as fundamental error that did not appear to meet that standard. While the trial judge should be free to stop such arguments even without objection, the loose standard for a new trial sometimes allows the non-objecting party to create a trap -- the arguing attorney keeps going because he thinks the argument is okay because nobody is objecting, and then the non-objecting party comes back asking for a new trial based on fundamental error.

In my opinion, if it's bad enough to constitute fundamental error, it should be obvious to the opposing attorney at trial.

Attorneys Fees

Patsy v. Patsy
21 Fla. L. Wkly. D302 (Fla. 4th DCA 1996)

Although neither 57.105 nor Rule 1.150 allows the imposition of attorneys fees as a sanction for filing a frivolous or bad faith motion, the court has inherent authority to impose fees as a sanction against an attorney for litigating in bad faith. The power must be exercised "cautiously."

Imperial Terrace East Homeowners Assoc. v. Grimes
21 Fla. L. Wkly. D201 (Fla. 5th DCA 1996)

The prevailing party should only get attorneys fees for the claims for which he has prevailed and for those other claims that cannot be separated from it.

State Farm Fire & Cas. Co. v. Kambara
21 Fla. L. wkly. D156 (4th DCA 1996)

A person who was injured on the insured premises and was forced to litigate to receive medical payments under the premises liability policy was entitled to attorneys fees as an omnibus insured under 627.428(1). Although the plaintiff was a tenant of the premises, that does not seem to be a requirement of the decision.

Civil Theft

Burr v. Norris
21 Fla. L. Wkly. D278 (Fla. 2d DCA 1996)

The civil theft statute applies to real property fixtures.

Class Actions

R.J. Reynolds Tobacco Co. v. Engle
21 Fla. L. Wkly. D284 (Fla. 3d DCA 1996)

Plaintiffs seeking damages for disease caused by addiction to smoking could sue the tobacco companies in a class action. The common issues of liability predominate over the individual issues, even though some individual issues will have to be tried as to each class member. The nationwide class sought by plaintiffs was too large to be manageable, so the court certified a class limited to Florida citizens and residents.


Starita v. West Putnam Post
21 Fla. L. Wkly. D195 (Fla. 5th DCA 1996)

Where the prevailing party seeks expert witness fees and the losing party specifically objects, the court may not award the fees unless the party seeking the award presents testimony that the fees were necessary and reasonable.

Courts -- Jurisdiction

Wild v. Dozier
21 Fla. L. Wkly. S57 (Fla. 1996)

The supreme court upholds the practice of assigning county court judges to successive "temporary" six month assignments in circuit court by administrative order. However, the duties must not interfere with the full performance of county judge duties, and the judges must not be assigned to more than half the circuit cases within a county. Administrative orders assigning trial judges must be challenged first in the trial court and then reviewed in the supreme court via a petition for writ of prohibition. The district court of appeal does not have jurisdiction to review the order.

Holsman v. Cohen
21 Fla. L. Wkly. S61 (Fla. 1996)

A circuit judge may be assigned on a regular basis to part time duties as a county judge presiding over misdemeanor prosecutions, in a special domestic violence unit.

Economic Loss Rule

Fishman v. Boldt
21 Fla. L. Wkly. D187 (Fla. 4th DCA 1996)

The economic loss rule bars a claim for damages caused by negligent performance of a contract, unless the negligence causes personal injury or damages to other property. The economic loss rule bars plaintiffs' negligence claim against the builder of a seawall which failed, causing damage to their pool, patio and home. The builder apparently built the home, patio and pool as well. The pool, patio and home were not other property for purposes of the economic loss rule. See Casa Clara Condo. Ass'n v. Charley Toppino & Sons, Inc., 620 So.2d 1244 (Fla. 1993).


Godales v. Y.H. Investments
21 Fla. L. Wkly. D282 (Fla. 3d DCA 1996)

In a wise and humane decision, this court holds that, as a matter of public policy, the damages awarded to a child cannot be reduced by negligence attributed to the child's parent, despite Fabre and 768.81. The court notes that most injured minors can only bring suit through their parents. If the parents feared liability through contribution, they might withhold suit.

"The language of 768.81 does not explicitly abrogate the common law rule that a child's recovery should not be diminished by his parent's negligence. As such, it must be construed to preserve this common law rule." However, if the parent has applicable insurance that could be used for contribution, the court may place the parent on the verdict form.

The court certifies the question to the supreme court.

Score one for the good guys, and hats off to Bob Parks and Joel Perwin.

Forum Non Conveniens

Kinney System, Inc. v. Continental Ins. Co.,
21 Fla. L. Wkly. S43 (Fla. 1996)

Overturning decades of caselaw, based on a perceived burden on Florida's courts, the court adopts the federal rule of forum non conveniens and adopts a new rule of civil procedure, 1.061, to implement it.

The trial court may dismiss on the grounds that a satisfactory remedy may be sought in a more convenient form if the court finds (1) that an adequate alternate forum exists which possesses jurisdiction over the whole case; (2) all relevant factors of private interest favor the alternate forum, weighing in the balance a strong presumption against disturbing the plaintiff's initial choice of forum; (3) if the balance of private interests is "at or near equipoise", the court finds that public interest factors tip the balance; and (4) the plaintiffs can reinstate their suit in the alternate forum without undue inconvenience or prejudice.

If they move for dismissal under this rule, the defendants are deemed to stipulate that the action was filed in the new forum on the date it was filed in Florida.

The court limits the new rule's effect in pending cases by requiring courts to refuse to dismiss cases that have already substantially completed discovery or are now ready for trial, or have completed trial and are seeking an appeal, or if application of the rule would undermine the interests that forum non conveniens seeks to preserve.

Government Employees Ins. Co. v. Burns
21 Fla. L. Wkly. D181 (Fla. 3d DCA 1996)

The court may not sua sponte transfer a case from a proper venue on the grounds of forum non conveniens where neither party had raised the issue, neither party had notice before the judge ruled, and no evidence was presented on this issue.

Insurance -- Cancellation

Tench v. American Reliance Ins. Co. 21 Fla. L. Wkly. D185 (Fla. 3d DCA 1996)

The insurer issued a homeowners policy to the plaintiffs, and mailed it to their home address. The policy covered a vacant house. The insurer had a company policy of not insuring vacant houses and cancelled the policy. The insurer sent the notice of cancellation to the address of the vacant house. The court held that the cancellation was invalid because it was mailed to the vacant house when the insurer knew the insureds' correct address.

Insurance -- Dec Action

Canal Ins. Co. v. Reed
21 Fla. L. Wkly. S22 (Fla. 1996)

In a procedural victory for insurers, the court holds that when an insurance coverage issue has been decided in a third party declaratory judgment action or a separate dec action prior to a final determination of liability in the underlying action, the insurer may seek immediate appellate review of the declaratory judgment as a final order. The appeal will not automatically stay the underlying cause of action. The court also "suggests" that appellate courts provide expedited review, and directs the appellate rules committee to prepare a rule. (It's beyond me why these actions would require expedited review, with a special appellate rule, rather than other cases which might be more urgent from a public policy standpoint, for example child custody, adoptions and nursing home cases, to name just a few).

Insurance -- Misrepresentation

Kaufman v. Mutual of Omaha
21 Fla. L. Wkly. D171 (Fla. 3d DCA 1996)

Section 627.607 requires insurers to include an incontestability clause in any health insurance policy. The statute gives the insurer two choices regarding misstatements in the application: either (1) all defenses regarding misstatements are barred after two years unless the misstatements are fraudulent; or (2) all defenses regarding misstatements are barred after two years (excluding any period during which the insured is disabled). The insurer tried to combine the two and incorporated both into the policy. The court held that the policy must be construed to comply with the requirements of the statute, so that it could include only one of these two choices, not both.

The court held that the policy must be construed to include only the choice more favorable to the insured. Incontestability clauses are to be construed in favor of the insured, if possible. Further, the pre-existing condition exclusion was subject to the two year incontestability provision.

Insurance -- PIP

Amica Mut. Ins. Co. v. Cherwin
21 Fla. L. Wkly. D245 (Fla. 4th DCA 1996)

The plaintiff, a pedestrian, was injured when he dove out of the way of a car that was coming at him. The court held that the plaintiff could recover PIP benefits even though he did not have physical contact with the car. The court cited Lumbermens Mut. Cas. Co. v. Castagna, 368 So.2d 348 (Fla. 1979) which held that the phrase, "caused by physical contact with a motor vehicle" incorporated tort concepts of causation and did not require actual physical contact. It would be contrary to public policy to provide coverage only if the plaintiff let the car hit him.

Insurance -- UM

Government Employees Ins. Co. v. Stafstrom
21 Fla. L. Wkly. D201 (Fla. 5th DCA 1996) (en banc)

Reversing en banc the earlier panel decision, the court holds that the addition of a third vehicle to an existing policy does not constitute a variation in the terms of the policy material enough to require a new rejection of uninsured motorist coverage. But see Fireman's Fund Ins. Co. v. Pohlman, 485 So.2d 418 (Fla. 1986), holding that the addition of a new vehicle and a new premium constitutes creation of a new contract.

Jury Discrimination

Ratliff v. State
21 Fla. L. Wkly. D268 (Fla. 1st DCA 1996)

The court certifies to the supreme court the question: "When a litigant objects that an opposing party seeks to exercise a peremptory challenge for constitutionally impermissible reasons, who has the burden to prove (or disprove) the facts on which the objector relies?" The court is not very subtly asking the supreme court to reconsider the rule that the objecting party need only make a timely objection alleging discrimination against a protected class.


Beach v. Great Western Bank
21 Fla. L. Wkly. D291 (Fla. 4th DCA 1996)

Under the federal Truth in Lending Act, the borrower has the right to rescind the mortgage for three years after the loan, if the statute was violated by the lender. The court holds that the borrower may not assert rescission as a defense in recoupment in a foreclosure action after the three years has run. Cf. Allie v. Ionata, 503 So.2d 1237 (Fla. 1987) for the basic rule that recoupment may be asserted even though the defendant's underlying claim is barred by the applicable statute of limitation. Judge Pariente dissented.

West Volusia Hospital Authority v. Jones
21 Fla. L. Wkly. D309 (Fla. 5th DCA 1996)

In an action for injuries to a child, it was error to permit amendment of the complaint after the expiration of the statute of limitations to add the father's claim for loss of filial consortium. It was a separate action which must be brought before the statute of limitations runs. This was not a wrongful death action merely adding a new claimant. This case seems to directly conflict with City of Miami v. Cisneros, 20 Fla. L. Wkly. D2086 (Fla. 3d DCA 1995).

Med Mal -- Presuit

Acosta v. Richter
21 Fla. L. Wkly S29 (Fla. 1996)

Disapproving the decisions of the third DCA in Johnson v. Mount Sinai medical Center, 615 So.2d 257 (Fla. 3d DCA 1993) and Castillo-Plaza v. Green, 655 So.2d 197 (Fla. 3d DCA 1995), the court gives a narrow construction to the statutory exception to the physician - patient privilege in medical malpractice cases. Section 455.241(2) provides a broad doctor-patient privilege for the patient's medical information and a limited exception for disclosure by a defendant doctor in a medical negligence action in order for the doctor to defend himself. The defendant's lawyer in a medical malpractice case is not permitted to have an ex parte conference with the plaintiff's current treating physician.

Med Mal -- Presuit

Karr v. Sellers
21 Fla. L. Wkly. D186 (Fla. 4th DCA 1996)

Under 766.206(3), when a defendant fails to serve a corroborating medical expert opinion with the letter rejecting the plaintiff's claim, it is error to strike the defendant's pleadings. The statute allows the court to strike the defendant's "response", but the court holds that the failure to corroborate the rejection with an affidavit is not in and of itself sufficient to warrant sanctions.

Ironically, there are plaintiff's cases that have been dismissed for failure to file a corroborating affidavit. E.g., Kukral v. Mekras, 19 Fla. L. Wkly. D1108 (Fla. 3d DCA 1994).

Nondelegable Duty

U.S. Security Services Corp. v. Ramada Inn, Inc.
21 Fla. L. Wkly. D139 (Fla. 3d DCA 1996)

On rehearing, the court upholds the nondelegable duty of a hotel to provide its business invitees with a reasonably safe premises, including reasonable protection against foreseeable third party criminal attacks.

Doak v. Green
21 Fla. L. Wkly. D161 (Fla. 1st DCA 1996)

It was error to enter summary judgment in favor of the defendant, who employed the driver of a log truck as an independent contractor, on the ground that the transportation of logs was not, as a matter of law, an inherently dangerous activity. If it were an inherently dangerous activity, the defendant would have a nondelegable duty, making the defendant vicariously liable for any negligence of an independent contractor. As a general rule, the question of whether work is inherently dangerous is a question of fact for the jury. Cf. Madison v. Midyette, 559 So.2d 1126 (Fla. 1990), holding the clearing of land by fire was inherently dangerous as a matter of law. This court distinguishes Madison on the ground that the factual record was fully developed in Madison.


Resha v. Tucker
21 Fla. L. Wkly. S25 (Fla. 1996)

A violation of Article I, 23 of the Florida Constitution does not give rise to an action for money damages against a state official based on acts outside the scope of the official's state duties. The court declines to decide the broader issue of whether an action may be brought against the state.

Products Liability

Anheuser-Busch, Inc. v. Lenz
21 Fla. L. Wkly. D200 (Fla. 5th DCA 1996)

Plaintiff was injured by an exploding beer bottle. The evidence showed that the injury was caused either by a defect in the bottle or by negligence of the plaintiff but not both. The court held it was error to submit the issue of comparative negligence to the jury.

The jury found the bottler 70 percent at fault, but also found there was no defect in the bottle. Although some courts have treated this as an inconsistency in the verdict which requires a new trial, this court directed the entry of a verdict in favor of the defendant on remand. Cf. Moorman v. American Safety Equipment, 17 Fla. L. Wkly. D345 (Fla. 4th DCA 1992) (finding of no defect not inconsistent with finding of negligence, where issue was adequacy of warning).


Stein v. Professional Center, S.A.
21 Fla. L. Wkly. D180 (Fla. 3d DCA 1996)

A recused judge may not be subpoenaed by a successor judge to explain the meaning of an order she entered before she was recused.

Rule 1.540

Harrison v. La Placida Community Assoc.
21 Fla. L. Wkly. D150 (Fla. 4th DCA 1996)

Rule 1.540 cannot be used to vacate an order dismissing a party from a lawsuit, where the plaintiff dismissed the party based on a view of the law expressed in a nonfraudulent representation by the defendant. Once the defendant was dismissed the trial court no longer had jurisdiction over that defendant. Even if the dismissal was based on a misrepresentation, Rule 1.540 does not provide relief from misrepresentations which are not fraudulent.


Post-Newsweek Stations v. Bryce
21 Fla. L. Wkly. D158 (Fla. 4th DCA 1996)

The court approves a settlement pursuant to which the losing appellee's motion for rehearing was withdrawn, the appeal was dismissed, and the court withdrew its earlier opinion. There is a growing body of case law on whether, as part of a settlement, the parties can stipulate to the withdrawal of an appellate opinion. The courts are split.

Sovereign Immunity

Cygler v. Presjack
21 Fla. L. Wkly. D295 (Fla. 4th DCA 1996)

The Dept. of Transportation was immune from suit for failing to construct and maintain a barricade dividing northbound and southbound traffic on I-95.

Voir Dire

Morton v. State
21 Fla. L. Wkly. D304 (Fla. 1st DCA 1996)

It was reversible error to unduly restrict the defendant from questioning the jurors about their attitudes toward drugs and alcohol, where the defendant's defense was intoxication. It was not enough to allow him to ask if anyone was prejudiced against persons who drink and, if so, whether such prejudice would interfere with the juror's ability to follow the law.