This Court holds that Rule 1.370(b) requires a party who wants to file a belated response to a request for admissions to file a motion; however, an ore tenus motion is sufficient. Note that the Third District has ruled that a party does not have to file a motion before a court can allow a belated response to request for admissions. See Sher v. Liberty Mut. Ins. Co., 557 So.2d 638 (Fla. 3d DCA 1990). The Fifth DCA takes the opposite view.
Plaintiff's counsel was disqualified where the secretary for defendant's counsel, who was primarily assigned to the case, went to work for the attorney for the plaintiff's counsel, regardless of whether plaintiff's counsel took steps to insulate the secretary from the case. The court rejects the approach taken by the courts in City of Apopka v. All Corners, Inc., 701 So.2d 641 (Fla. 5th DCA 1997) and Esquire Care, Inc. v. Maguire, 532 So.2d 740 (Fla. 2d DCA 1988), which interpose the additional step before a law firm may be disqualified of showing that the law firm obtained confidential information, thereby gaining an unfair advantage, from its new personnel.
An attorney who formerly worked for the law firm representing one party went to work for the law firm representing the other party. That law firm then fired the attorney. The two sides filed conflicting affidavits on the issue of whether the attorney had learned any confidential information at the first law firm.. The court held that the trial court departed from the essential requirements of law by denying a motion to disqualify the second law firm without conducting an evidentiary hearing.
This Court holds that it was error to certify a class in this fraud action against Humana. The plaintiffs alleged that Humana misrepresented or failed to disclose its financial arrangements with primary care physicians, and gag clauses which limited their ability to discuss treatment options with patients. Prospective class members testified at an evidentiary hearing, giving different answers to whether knowing about these provisions would have made a difference. The court, citing Lance v. Wade, 457 So.2d 1008 (Fla. 1984), held that it was inappropriate to certify a class because "what one person may rely upon in entering into a contract may not be material to another purchaser." The court distinguishes Paladino v. American Dental Plan, Inc., 697 So.2d 897 (Fla. 1st DCA 1997), dismissed, 717 So.2d 527 (Fla. 1998), pointing out that Paladino was a breach of contract case involving certification of a class of people with the identical contract. The court does not discuss Broin v. Philip Morris Co., 641 So.2d 888 (Fla. 3d DCA 1994), in which the Third District upheld certification of a class in a fraud action against the tobacco companies.
Where the plaintiff in a personal injury case pled guilty to fourteen counts of perjury in connection with his deposition, he was no longer entitled to pursue his action, which must be dismissed with prejudice. Cf. Figgie International, Inc. v. Alderman, 698 So.2d 563 (Fla. 3d DCA 1997) (affirming default against defendant which had destroyed evidence and presented false testimony). "A proper allegiance to our system of justice and a proper respect for our own role in preserving its sanctity mandate the conclusion that Murphy has forfeited his right to proceed."
This Court properly approves the trial court's refusal to allow the defense to play games with its witness list. The defendants listed "all parties to this action and/or their authorized representative." The trial court properly refused to allow the defendant's corporate representative, the defendant's administrator, who was not separately listed, to testify about specific factual matters. See Binger v. King Pest Control, 401 So.2d 1310 (Fla.1981), requiring a balancing of surprise and prejudice, as well as disruption of the orderly trial proceedings. The court certifies conflict with Casa de Alabanza v. Bus Service, Inc., 669 So.2d 338 (Fla. 3d DCA 1996), in which the Third District held that listing "any and all parties to this lawsuit" was sufficient to allow the defendant church to call its mechanic to testify about the repairs he had performed on the bus, which allegedly were negligently performed.
The trial court did not abuse its discretion in admitting human factors testimony to explain to the jury how the defendant driver could fail to see two people who ran out in front of his truck. While some of the testimony was within the common understanding and knowledge of a lay person, other portions were not, such as the effects of a "cluttered background" and glare on visibility, and the effect of the pedestrians coming from the driver's left making it less likely that he would see them. Although all of the factors might normally occur while a motorist is driving at night, the effect of those factors may not have been commonly understood by the jurors.
The Third District has rejected the position of the Fourth District in Allstate v. Boecher, 705 So.2d 106 (Fla. 4th DCA), review granted, 719 So.2d 268 (Fla. 1998). In Boecher, the Fourth District held that a plaintiff was entitled to discovery from an insurance company that is a party in a case about the amount it has paid to its expert over a period of time. The Fourth District distinguished Elkins v. Syken, 672 So.2d 517 (Fla. 1996), and ruled that Fla. R. Civ. P. 1.280(b)(4)(A)(iii) did not apply to bar discovery directly from the party defendant, rather than from its expert. The Third District refuses to accept that limitation, and holds that the rules does apply to discovery propounded directly to the opposing party.
A person from the defendant hospital called the risk manager for the insurance company of one of the plaintiff's treating doctors (a fact witness) and "remind[ed] him of anycollateral damage in this case while he's testifying." The court refused to allow the plaintiff to cross examine the doctor, or to examine the other people involved. Categorizing this tactic as "witness tampering", the court holds that it was reversible error for the trial court to have excluded the communication made to the witness as substantive evidence to be presented to the jury, showing the hospital's consciousness of the weakness of its case.
The court also holds that it was error to refuse to give the "aggravation" instruction in conjunction with the "concurring cause" instruction.
The defendant's IME doctor testified that he could not find any purely objective evidence of a permanent impairment, and that his testimony was based in part on a review of medical records compiled by other doctors. It was reversible error to refuse to allow the plaintiff to cross examine the doctor about the evaluations of the other doctors on which he relied. When the doctor testified on direct that he had based his opinion on the reports of other doctors, this opened the door for cross examination by the plaintiff inquiring into the reports on which he relied.
The trial court erred in putting an alleged intentional tortfeasor on the verdict form. The court does not grant a new trial, but directs entry of judgment in favor of the plaintiff for the full amount of the damages awarded by the jury.
The trial court erroneously ordered the plaintiff to submit to an examination by the defensene uropsychologist without permitting the examination to be videotaped and without allowing plaintiff's counsel to monitor the examination from an adjoining room, where the defendants did not show, as required by Broyles v. Reilly, 695 So.2d 832 (Fla. 2d DCA 1997) any case-specific reason for the restrictions. Even though the trial court did allow audio taping, that was not enough. If the defendants meet their burden on remand, they must also establish that no other qualified doctor in the area could properly perform the examination with a videotape recording it.
The insured came up behind a co-worker and playfully tickled his ear with the antenna of a hand held radio. This made the co-worker turn his head quickly and unexpectedly; the antenna slipped into his ear canal and ruptured his eardrum. The court held that it was error to grant summary judgment to the insurer based on the "intentional injury" exclusion, where there was no evidence that the insured intended or expected to cause bodily injury to the co-worker. The court distinguishes Aetna Cas. & Sur. Co. v. Miller, 550 So.2d 29 (Fla 3d DCA 1989), where the insured injured a co-worker when he deliberately grabbed the stethoscope around her neck and pulled and twisted it, causing her to suffer a herniated disk.
It is error to reduce a plaintiff's damage award because of his failure to obtain statutorily required PIP. The court certifies conflict with Holt v. King, 707 So.2d 1141 (Fla. 4th DCA 1998).
Section 627.736(7)(a) requires an insurer to obtain a physician's report (from a physician licensed under the same chapter as the treating physician) as a condition precedent to withdrawing or denying medical payments. Because it failed to obtain a physician's report prior to denying payment, the insurance company was precluded from raising the defense that the insured's bills were not reasonable or necessary.
The insurance company provided travel accident insurance to the deceased which paid specific amounts of benefits in the event of the insureds' deaths. The policies contained a subrogation clause in which the insurer reserved "the right to recover any payments we have made from anyone who may be responsible for the insured's loss. The court held that the policy was a "valued" policy - one in which the value of the thing insured and the amount to be paid in the event of loss is settled by agreement between the parties and inserted in the policy. Florida law does not recognize an insurer's right of subrogation in valued policies. The court held that therefore the insurance company had no right of subrogation.
In GEICO v. Krawzak, 675 So.2d 115 (Fla. 1996), the Supreme Court held that it is reversible error in an uninsured motorist case to mislead the jury about the existence of the insurance company, and to pretend that the tortfeasor is the only defendant. Here, the court holds that it is per se reversible error and cannot be harmless. The court calls misleading the jury in this manner a "miscarriage of justice."
The insureds originally rejected stacking. However, after their initial purchase, they later changed the liability limits of the policy. The form for selecting or rejecting stacking with the original policy contained language that selection of non-stacking would apply to "future renewals or replacements of such policy which are issued at the same bodily injury liability limits." The court held that when the limits were changed, the insurer should have obtained a new rejection. Unless the insurer can show an oral, knowing rejection, the insureds are entitled to stacking. Interest
Certifying conflict with the Third District's decision in Okun v. Litwin Sec., Inc., 652 So.2d 387 (Fla. 3d DCA 1995), the court holds that prejudgment interest is not available on punitive damages awards.
This is an important reminder. The final judgment must contain the address of the plaintiff, not just the plaintiff's attorney, before it can become a lien on the defendant's real property. See §55.10(1), Florida Statutes. If the address does not appear on the judgment, you can simultaneously record an affidavit with the address on it.
A state cannot exercise longarm jurisdiction over someone unless the defendant has sufficient minimum contacts with the state. The court holds that a defendant vehicle owner, a Texas resident who loaned his vehicle to another Texas resident to drive only in Texas did not have sufficient minimum contacts with Florida where he did not have any knowledge that the vehicle would be driven in Florida. See World-Wide Volkswagen v. Woodson, 444 U.S. 499 (1980).
The plaintiff did not preserve the trial court's improper denial of his challenge for cause of a prospective juror who was concerned about "money hungry" plaintiffs, where the plaintiff did not, prior to the jury being sworn, request any additional peremptory challenges, but accepted the jury before it was sworn, "subject to" her challenge.
The trial court erred in keeping the jury's notes and having them included in the record on appeal. Jurors' notes should be collected and destroyed by the presiding judge as soon as the jury is discharged.
The desire to reach another juror is not a legitimate neutral reason for a challenge; the state could have chosen to strike any other juror for the same reason but chose to strike the black juror.
The trial court abused its discretion in precluding defense counsel from fully inquiring of the jurors about their understanding and opinions of the defense of entrapment, and whether they were willing to accept it as a defense, where the question did not rise to the level of pretrying the facts or attempting to elicit a promise from the jurors as to how they would weigh the defense. See Lavado v. State, 492 So.2d 1322 (Fla. 1986).
In a legal malpractice action arising out of malpractice in litigation, where the underlying case proceeds to final judgment, the statute of limitations begins to run when the final judgment becomes final. A final judgment becomes final either upon the expiration of the time for filing an appeal or postjudgment motions, or, if an appeal is taken, upon the appeal being affirmed and either the expiration of the time for filing motions for rehearing or a denial of this motions for rehearing. This is a bright line rule and does not require the court to make a determination of when the negligence was or should have been discovered.
This case involves the difficult issue of when the statute of limitations begins to run on a continuing misdiagnosis. The plaintiff's husband suffered increasing back pain over several years, which for a long time was diagnosed as a sprain, and finally was diagnosed as an infection, from which he ultimately died.
The defense contended that the statute began to run on the date of the correct diagnosis. In an insightful opinion by Judge Griffin citing Ash v. Stella, 457 So.2d 1377 (Fla. 1984), the court rejected that position. Although the plaintiff learned on that date that her husband's true condition had not been correctly diagnosed, that did not put her on notice that the prior diagnosis was an act of professional negligence. The record showed she had no actual notice of an injury caused by a delay in diagnosis, nor did anything she was told put her on notice that the delay was possibly the result of negligence, as evidenced by the fact that she continued to allow the same doctor to treat her husband after that date.
The court perceptively and sensibly pointed out that "if the law is to place on a layperson like Mrs. Cunningham the burden of appreciating malpractice at the moment she learned that her husband had an infection, then the law must by rights impose on the physician a concomitant duty of disclosure. If this diagnosis is deemed in law to have spoken the reasonable probability of malpractice to Mrs. Cunningham, it must truly have resonated in the ears of Dr. Lowery. Yet, every fact we can find concerning his actions during the care and treatment of Mr. Cunningham, his words and actions afer Mr. Cunningham's death and throughout the litigation belie the notion that the diagnosis of infection in November 1993 spoke to him the reasonable possibility of his professional negligence. It would be both fair and desirable in order for a physician to claim the benefit of the running of the statute of limitations in a misdiagnosis case from the moment of the correct diagnosis, that the physician who continues to treat the patient be required to disclose to the patient or the patient's representative the fact of and the possible significance of the misdiagnosis."
This action alleged damages arising out of latent construction defects that did not become apparent until Hurricane Andrew. Section 95.11(3)(c) provides a 15 year statute of repose for actions involving property construction, running from the date of actual possession by the owner, the date of a certificate of occupancy, the date construction is abandoned, or the date of termination of a construction contract, whichever is later.
The court holds that the statute of repose was not tolled by the "turnover provision" of the Condominium Act, §718.124, Florida Statutes. That section provides that the statute of limitations for actions by a condominium association does not accrue until the unit owners have taken over control of the association. The court holds that this provision tolls only the statute of limitations, not the statute of repose. But see Wood v. Fraser, So.2d (Fla. 2d DCA 1996) (service of notice of intent in med mal case tolls statute of repose as well as statute of limitations).
The fact that the statute of repose was enacted after the events in this case took place does not prevent its application. Morever, the court also holds that a period of time during which the statute was held unconstitutional, until amended by the legislature, does not toll the time. Judge Cope, dissenting in part, argues that where there is any substantial doubt about the interpretation of a statute of limitations, it should be resolved in favor of a longer, rather than a shorter period. Therefore, §768.124 should be construed to toll the statute of repose.
It was error to direct a verdict for the plaintiff on the defendant's affirmative defense that the plaintiff was comparatively negligent for failing to stop smoking so that his wound would heal. There is some authority that the failure to follow medical advice may constitute comparative negligence. However, there is also significant authority that conduct of a patient which contributes to his medical condition is not a defense to malpractice which causes a distinct subsequent injury. See Matthews v. Williford, 318 So.2d 480 (Fla. 2d DCA 1975); Whitehead v. Linkous, 404 So.2d 377 (Fla. 1st DCA 1981). The court distinguishes those cases on the ground that the plaintiff's negligence in those cases occurred before the medical condition which led to the alleged negligent medical treatment. The testimony in this case appears rather tenuous on the issue of causation -- there seems to have been just some general testimony that smoking has been documented in literature as a problem in wound healing, and that three factors which contributed to the plaintiff's condition -- the original injury, the treatment for that injury, and the smoking. What seems to me to be missing is testimony that quitting smoking at that time would have prevented the injury.
Don't forget to file your supporting expert affidavit with your complaint, or at least before the statute of limitations runs. The trial court here properly dismissed the plaintiff's complaint with prejudice where the plaintiff failed to file a supporting affidavit with his complaint and failed to file it at any time within the limitations period.
This case is somewhat troubling, because the plaintiff contended that the medical records provided by the hospital did not contain a record of her injury; therefore, because of the hospital's failure to provide medical records, her failure to provide a corroborating expert affidavit should be excused. The court says that the hospital does not have to provide the records, since it contends the incident did not happen. It seems to me that that is an issue that a jury should determine.
The trial court erred in excluding records of the defendant doctor's treatment of other patients, to show that he routinely administered heparin during a cardiac catheterization. The court notes that what the doctor has usually done does not by itself establish a standard of care, it is some evidence of the standard of care. The jury should be instructed that the evidence does not, by itself, establish a standard of care. See Nesbitt v. Community Health of South Dade, Inc., 467 So.2d 711 (Fla. 3d DCA 1985). The plaintiff was apparently able to get discovery of these other procedures because of the Supreme Court's decision in Amente v. Newman, 653 So.2d 1030 (Fla. 1995). Rejecting the defendant's argument that the prejudice outweighed the probative value under §90.403, the court stated, "The standard of care in a medical malpractice case is the real issue in this case. If valuable judicial time is to be expended in litigation, it is this very type of issue on which such time should be invested."
It was also error to allow the defense expert, on redirect, to testify that he had spoken to the author of a treatise (with which the plaintiff had just impeached him), and the author had repudiated certain statements in the treatise. The expert may not serve as a conduit for inadmissible hearsay.
Finally, it was error not to allow the plaintiff to introduce evidence that he was blind, after the defense expert testified that he did not think the plaintiff had suffered a stroke because he did not think the plaintiff was blind, because the plaintiff was looking at him across the courtroom.
A trucking company's failure to have the truck driver complete the form required by the ICC for licensing was not sufficient evidence of negligent hiring or supervision where there was no evidence that improper licensing had any causal relation to the accident.
The facts of this case are unbelievable. The plaintiff, an amputee, was visiting Disney world. He rented an electric scooter, took off his prosthesis and held it in his lap. When he was leaving, he had a blister on his stump and could not get his prosthesis back on, so he asked Disney to let him take the scooter out to his car, or to have someone follow him out to the car with it. Incredibly, Disney refused. The plaintiff had to put his prosthesis back on his blistered stump and walk to his car. As a result, he suffered an aggravation of the blister on his stump that developed into gangrene. The court held Disney had no duty to allow the plaintiff to take the scooter to his car, and affirmed summary judgment in favor of Disney.
The trial court properly denied a motion for summary judgment by a bar, which unlawfully served alcohol to a minor, who then killed himself. The court held that the suicide was not unforeseeable as a matter of law. A jury could find that some self-inflicted injury to the minor was a reasonably foreseeable result of her intoxication. This case appears to be based on the foreseeability element of causation, not the foreseeability element of duty.
The defendant served an offer of judgment along with their motion to dismiss the complaint - their first pleading in the case, before any discovery was done. The offer was for $100. The court distinguishes its decision in Eagleman v. Eagleman, 673 so.2d 946 (Fla. 4th DCA 1996), stating that Eagleman holds only that nominal offers are suspect where they are not based on any assessment of liability and damages; not that all nominal offers are suspects. The court holds that the nominal offer was not determinative of bad faith. The court certified the question:
Is a mere purpose to shift fees by making a nominal offer of settlement, regardless of the objective indications at the time of making the offer or after the final disposition of the case, alone indicative of bad faith under §768.79?
Judge Farmer, concurring, suggests that the legislature intended that parties could make nominal offers of settlement solely for the purpose of shifting fees.
Judge Klein, concurring, disagrees with that contention. Judge Klein thoughtfully argues that finding nominal offers to be in good faith gives defendants a highly unfair advantage over plaintiffs, because "defendants can make nominal offers of judgment in every case, with nothing to lose other than the amount of the nominal offer. Plaintiffs, on the other hand, cannot make offers of settlement for less than what they are actually willing to accept. Allowing nominal offers thus allows defendants to shift fees at virtually no cost, with no corresponding right for plaintiffs." Such unfairness may violate the constitutional right of access to courts. Article I, §21, Fla. Const. Judge Klein believes the real legislative intent was to dispose of litigation at the early stages by encouraging realistic views of the claims made.
The Fifth DCA reaches the same conclusion here as did the 4th DCA in Fox - a minimal offer is not automatically a bad faith offer. The court must look to the relative amount of potential damage and factor in the risk of liability in determining whether the offer is in good faith. Judge Sharp, dissenting, said that there was evidence from which the trial court could have found that the defendants' attorneys had not sufficiently reviewed the case or the prior discovery. There is no statutory requirement that the trial court state specific findings to justify its exercise of discretion in determining that the offer was not made in good faith. Like Judge Klein in Fox, she states that an offer which serves no purpose but to lay a predicate for attorneys fees "fails to advance the purpose of the statute, to encourage settlement based on actual, clear-headed, analysis of the case."
In determining whether the plaintiff has obtained a judgment more than 25 percent greater than the demand, the trial court should add costs incurred before the demand for judgment was made, as well as prejudgment interest. The court certifies conflict with Mincin v. Short, 662 So.2d 1323 (Fla. 2d DCA 1995) and Williams v. Brochu, 578 So.2d 491 (Fla. 5th DCA 1991).
An offer of judgment was ineffective because it failed to comply with Rule 1.442(c) where it was addressed to three parties but did not specify the amount attributable to each party.
The plaintiff's insurance policy included "APIP", additional medical coverage which came into effect after the PIP coverage was exhausted. The court holds that, in determining whether the plaintiff beat the offer of judgment by 25%, the trial court should have set off the APIP payment from the amount of the verdict.
Section 768.79(6)(a), Florida Statutes (1997) requires the addition of "postoffer" collateral source payments "received or due" as of the date of the judgment to the net judgment in order to reach the "judgment obtained" for the purposes of determining whether the defendant is entitled to costs and fees under §768.79. The court holds that collateral source payments in this context include PIP payments. Consequently, the trial court should have added the amount of the PIP "received or due" between the date of the offer and the date of the judgment in determining whether the verdict was 75% less than the offer.
It was error to direct a verdict for the defendant in this slip and fall case where there was evidence that the banana on which the plaintiff slipped was discolored, which was sufficient for the jury to conclude that it had been on the floor long enough to charge Publix with constructive notice. In an amusing display of deference to the right to have a jury determine the facts, Judge Dauksch, concurring, specially, says "I concur with the result but am not experienced enough, regretfully, to know the diverse rates of deterioration of green leafy vegetable substances versus yellow-skinned fruit substances. In the interest of judicial economy and in order to aid in the expeditious rendering of the decision in this case, I have declined to undertake a study."
The trial court had authority to correct what it terms mathematical errors in the jury's verdict, in which the jury apparently added the future value, not the present value it had assigned to each item, to get the total. The correction of the addition is just a ministerial act. The court says that this is not an inconsistent verdict, so it was not necessary for anyone to object before the jury was discharged.