January/February 1997

Argument - Improper

Cleveland Clinic Florida v. Wilson
21 Fla. L. Wkly. D2424 (Fla. 4th DCA 1996) (en banc)

The court en banc holds that a golden rule argument is not necessarily prejudicial per se, but is subject to harmless error analysis.

Birth Related Neurological Injuries

Florida Birth-Related Neurological Injury Comp. Assoc. v. Fla. Div. of Administrative Hearings
22 Fla. L. Wkly. S42 (Fla. 1997)

In order to be covered under NICA (a compensation system for children injured neurologically at birth), the infant must suffer both substantial mental and substantial physical impairment. Suffering only physical impairment without mental impairment is not enough. However, mental impairment does not just mean retardation. It also may include difficulty in translating cognitive abilities into adequate learning in a normal manner, and impairment of social and vocational development.

Destruction of Evidence

St. Mary's Hospital v. Brinson
21 Fla. L. Wkly. D2560 (Fla. 4th DCA 1996)

On rehearing, the court holds that the plaintiffs had a cause of action against a hospital for spoliation of evidence based on the hospital's failure to preserve a vaporizer used during the infant's surgery, thus impairing their ability to proceed against the manufacturer of the unit. It was not error to consolidate the negligence action with the spoliation action. Consolidation did not force the defendant to waive its risk management privilege in order to defend against the spoliation claim. Instead, the hospital made a conscious decision to waive the privilege to defend the claim.

The court also holds that the striking of the defendant's defenses as a sanction for violation of discovery orders meant that the defendant was not entitled to apportionment of fault.


Fla. R. Civ. P. 1.280 (1997)

The rule has been extensively amended to incorporate the holding in Elkins v. Syken, 672 So.2d 517 (Fla. 1996), regarding discovery of experts' financial bias, and to require a party claiming privilege or work product to describe the nature of the documents or things not produced in a manner that will enable the opposing party to assess the applicability of the privilege asserted

Economic Loss Rule

Baker v. American General Life & Acc. Ins. Co.
22 Fla. L. Wkly. D164 (Fla. 1st DCA 1997)

Without reciting any facts, the court reverses dismissal of the plaintiff's claims for fraud in the inducement and intentional infliction of emotional distress based on the economic loss rule. The court affirms dismissal of the plaintiff's negligence claim.


Brim v. State
22 Fla. L. Wkly. S45 (Fla. 1997)

In order to be admissible, DNA testing must satisfy the test of Frye v. United States, 293 F. 1013 (D.C.Cir. 1923): "while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs." Both the testing process and the statistical analysis must meet this test to be admissible.

Failure to Prosecute

Levine v. Kaplan
21 Fla. L. Wkly. D225 (Fla. 5th DCA 1997)

It was proper to dismiss the complaint for failure to prosecute even though a deposition was taken during the year before the motion to dismiss was filed. Neither the deposition itself, nor the motion to quash the taking of the deposition, constituted sufficient record activity to prevent dismissal of the case. Judge Griffin, dissenting, warns that the law on dismissal for failure to prosecute is "incomprehensible."

Insurance -- Duty to Defend

Allstate v. RJT Enterprises, Inc.
21 Fla. L. Wkly. S49 (Fla. 1997)

Section 627.7263 allows a longterm lessor of a vehicle to shift to the lessee the duty to provide the primary liability insurance coverage up to a specified amount, by including certain conspicuous language in the lease. The Supreme Court holds that this statute does not require the lessee to make the lessor an insured, and does not create a duty on the part of the lessee's insurer to defend the lessor.


McKenney v. Airport Rent a Car
22 Fla. L. Wkly. D256 (Fla. 4th DCA 1997)

This court rejects the argument that a plaintiff cannot be compelled to submit to an IME in a county other than the one in which he resides. The court recedes from Youngblood v. Michaud, 593 So.2d 568 (Fla. 4th DCA 1992) to the extent it might suggest that the contrary is a hard and fast rule.

Tsutras v. Duhe
22 Fla. L. Wkly. D122 (Fla. 5th DCA 1997)

A trial court order requiring the nonresident plaintiff to appear for one IME in Florida at an unspecified time at his own expense, and subsequent IMEs in Florida at defendant's expense, was error. An IME of a nonresident plaintiff should be taken at a location which has appropriate specialists and is convenient to the plaintiff, or the defendant should be required to cover the plaintiff's expenses.

Schagrin v. Nacht
22 Fla. L. Wkly. D3 (Fla. 4th DCA 1996)

It was error to order the plaintiff to submit to an IME that would include any test the doctor deemed necessary, because it could include invasive tests that might cause serious injury to the plaintiff.

Insurance -- Fraud in the Inducement

Perlman v. The Prudential Ins. Co. of America
22 Fla. L. Wkly. D237 (Fla. 3d DCA 1997)

The plaintiff alleged he was fraudulently induced to purchase life insurance by representations regarding the price. After he paid the agreed installments he was told that the insurance would be cancelled if he did not make an additional payment. The court held that he presented a jury issue on fraud in the inducement, and reversed a directed verdict for the carrier. The court also held that he was entitled to more than the cash value of the policy; he was entitled to return of his premiums, plus interest, less only the actuarial value of the insurance during its existence. Furthermore, the carrier has the burden of proof on the actuarial value because it is the party in possession of the pertinent facts and also the party seeking the setoff.

Finally, the plaintiff is entitled to claim punitive damages. See below, p.4.

Puig v. Citicorp Life Ins. Co.
22 Fla. L. Wkly. D131 (Fla. 3d DCA 1997)

The plaintiff, who did not read or speak English, bought what he was told on the phone was a life insurance policy. The defendant told him it would pay off his mortgage if he or his wife died from any cause. After his wife died from a reaction to an antibiotic, he learned that the policy issued was only an accidental death policy with enough exclusions to drive a Mack truck through. One of the exclusions was for death caused by medical treatment. The court held that the wife's death was an "accident" as required by the policy (rejecting an earlier line of cases), even though she intentionally ingested the medication. However, the death was excluded by the medical treatment exclusion.

The court reversed a summary judgment against the plaintiff on his claims for fraud in the inducement and reformation of the contract. The plaintiff is entitled to a jury determination of whether those representations were made. If so, he may recover damages for fraud and have the policy reformed to reflect the coverage he was told he was purchasing.

It was my great pleasure to handle this appeal for Ervin Gonzalez.

Wong Ken v. State Farm
22 Fla. L. Wkly. D133 (Fla. 3d DCA 1997)

A clause in a homeowners policy providing that intentional concealment or fraud voids the policy, whether the fraud occurs before or after a loss, is valid and enforceable, even if the fraud occurs in making the claim, not in obtaining the policy.

Insurance -- UM

Taylor v. USAA
22 Fla. L. Wkly. D47 (Fla. 5th DCA 1996) (en banc)

The insured was a married woman, in the military, who listed her mother's address as her permanent residence. However, evidence showed she had no intention to return there after her service was up. The court held that the policy did not cover her brother, who still lived with their mother, because the insured had set up a separate household and was not a member of the same household as her brother.

United Automobile Ins. Co. v. Rousseau
21 Fla. L. Wkly. D2477 (Fla. 4th DCA 1996)

The plaintiff repeatedly requested a copy of the policy and the insurer refused to provide it. Therefore, the trial court correctly refused to direct a verdict for the insurer on its affirmative defense which alleged that the plaintiff failed to comply with conditions precedent.


Vellef v. Control-o-Fax Corp.
21 Fla. L. Wkly. D2502 (Fla. 5th DCA 1996)

Where the plaintiff failed to introduce any evidence about the date on which it made a demand on the promissory note, plaintiff was entitled to prejudgment interest from the day suit was filed.

Jury Discrimination

State v. Holiday
21 Fla. L. Wkly. S493 (Fla. 1996)

Where a party objects to the other party's exercise of peremptory challenges on the grounds of race or gender, the objecting party must make a timely objection and demonstrate that the challenged juror is a member of distinct racial group, cognizable class, or gender. The court must then conduct an inquiry. The objecting party is not required to show that the challenge is being used impermissibly before the trial court must ask the party challenging the juror to state his reasons.

Jury Interview

Seymour v. Solomon
21 Fla. L. Wkly. D2573 (Fla. 3d DCA 1996)

It was error for the trial court to set a hearing to conduct an interview of jurors where the information on which the order was based was obtained by counsel in violation of Rule 1.431(h) and ethics Rule 4-3.5(d). Those rules prohibit counsel from contacting the jurors. The proper procedure is to serve a motion within ten days after rendition of the verdict identifying the jurors to be interviewed and the grounds for the challenge. (The motion must be based on sworn evidence). Counsel may not contact the jurors independently, and will be denied the interview if they do.


Schwartz v. Metro Limo
21 Fla. L. Wkly. D2527 (Fla. 3d DCA 1997)

Where the plaintiff filed suit against the wrong corporation, and that corporation participated in the proceedings to lead the plaintiff to believe that it was the correct corporation until the statute of limitations ran, the plaintiff's later amendment to name the correct corporation related back to the filing of the original complaint. See also, e.g., Hohl v. Croom Motorcross, Inc., 358 So.2d 241 (Fla. 2d DCA 1978); Barone v. Scandinavian, 531 So.2d 1036 (Fla. 3d DCA 1988)

Med Mal -- Arbitration

Platman v. Holmes Regional Medical Center
21 Fla. L. Wkly. D2593 (Fla. 5th DCA 1996)

On rehearing, the court holds that a party offering to arbitrate under 766.207 does not have to admit liability. Section 766.107 contains an express requirement of admission of liability, but 766.207 does not and the court declines to imply one. The right to a prompt determination of the claim without the need to prove fault was one of the primary reasons the Supreme Court found that the statute was not an unconstitutional denial of access to courts in University of Miami v. Echarte, 618 So.2d 189 (Fla. 1993). Consequently, I think that there may be serious constitutional problems with this opinion, and with the similar holding in Tallahassee Memorial Regional Medical Center v. Kinney, 655 So.2d 1191 (Fla. 1st DCA), rev. denied, 662 So.2d 344 (Fla. 1995). I hope the supreme court resolves it soon.

Med Mal -- Presuit

Kurzweil v. Larkin Hospital Operating Co.
22 Fla. L. Wkly. D65 (Fla. 3d DCA 1997)

Plaintiffs alleged that the defendant hospital was strictly liable for selling a defective silicone breast prosthesis which caused serious permanent injury to the plaintiff. Summary judgment was entered against the plaintiffs based on Porter v. Rosenberg, 650 So.2d 79 (Fla. 4th DCA), rev. denied, 661 So.2d 825 (Fla. 1995). Plaintiffs did not appeal. The hospital than moved for attorneys fees for failure to comply with presuit requirements. The court held that, since plaintiff's claim was not medical negligence, but products liability (just as if the hospital had sold them a defective wheelchair), the hospital was not entitled to attorneys fees.

Feifer v. Galen of Florida, Inc.
21 Fla. L. Wkly. D2406 (Fla. 2d DCA 1996)

Plaintiff did not have to comply with the med mal presuit requirements where her complaint alleged that the defendant hospital failed to provide a safe passage way or escort or wheelchair for the plaintiff who was elderly and visibly weak, who fell after being directed by hospital personnel to walk to various areas of the building. The plaintiffs were at the hospital to obtain treatment. The court says this is a premises liability case, not a malpractice case.

Medical Records

Hospital Correspondence Corp. v. McRae
21 Fla. L. Wkly. D2400 (Fla. 5th DCA 1996)

In this class action, the court held that section 395.3025(1) requires licensed medical facilities and their copying services to charge no more than $1.00 per page for paper copies, regardless of whether the original source copied was paper, microfiche or microfilm. The hospital is still entitled to litigate affirmative defenses, including waiver, estoppel, laches and the unconstitutionality of the statute.

Congratulations to Dock Blanchard, this year's chair of the AFTL Amicus Committee, for winning this important victory for patients who need their medical records.

New Trial

State Farm v. Miller
21 Fla. L. Wkly. D2479 (Fla. 4th DCA 1996)

There is no such thing as a rehearing of an order denying or granting a new trial. The court has no jurisdiction to enter such an order. The only remedy for such an order is an appeal.

Offer of Judgment

MX Investments, Inc. v. Crawford
21 Fla. L. Wkly. D2444 (Fla. 1st DCA 1997)

At last some common sense in the offer of judgment statute, making the statute a little bit less of a mine field. The court holds that a defendant who made an offer of judgment under 768.79 was not entitled to attorneys fees where the plaintiff took a voluntary dismissal. The court certifies conflict with Tampa Letter Carriers Inc. v. Mack, 649 So.2d 890 (Fla. 2d DCA 1995) and Special's Trading Co. v. International Consumer Corp., 21 Fla. L. Wkly. D2055 (Fla. 4th DCA 1990).

Peer Review Privilege

Mease Hospital v. Lawrence
22 Fla. L. Wkly. D280 (Fla. 2d DCA 1997)

The court refuses to quash an order requiring the hospital to respond to requests for admission which, the hospital contended, sought peer review privileged information. The hospital must respond to the extent it can, using "information, documents or records otherwise available from original sources."

Product Liability

Glazer v. Florida Power & Light
22 Fla. L. Wkly. D239 (Fla. 3d DCA 1997)

This is a profoundly sad case. The plaintiff and his late wife both contracted a rare, terminal form of cancer, allegedly from exposure to magnetic fields created by electrical power lines grounded to a water main located behind their bedroom. The court rejects FP&L's position that it had no duty to warn of the dangerously high level of magnetic fields because it did not own the pipes. But the court affirms summary judgment for FP&L because it had no duty to warn because the level of the magnetic fields was negligible and had never been linked to any form of cancer, and because any danger was unknown at the time the plaintiffs were exposed to the magnetic fields

Punitive Damages

Perlman v. The Prudential Ins. Co. of America
22 Fla. L. Wkly. D237 (Fla. 3d DCA 1997)

A claim of fraud sufficient to support compensatory damages is also sufficient in and of itself to support a claim of punitive damages.


Baudo v. Bon Secours Hospital
21 Fla. L. Wkly. D2421 (Fla. 3d DCA 1996)

The plaintiffs' release of a shopping center where she was injured did not release the nursing home where she was subsequently treated. Even though the plaintiffs' claim against the shopping center included a claim for the bedsore she got at the nursing home, the release of one tortfeasor does not release another tortfeasor, according to the plain language of 768.041 and 768.31, Florida Statutes.

Service of Process

Bankers Ins. Co. v. Thomas
21 Fla. L. Wkly. D2599 (Fla. 2d DCA 1996)

It was error to dismiss plaintiff's complaint for failure to serve within 120 days as required by Rule 1.070(i). Plaintiff did serve the complaint within the time required, although the service was later determined to be invalid and on the wrong person.

Onett v. Ahola
21 Fla. L. Wkly. D2414 (Fla. 3d DCA 1996)

If the plaintiff fails to serve the defendant within 120 days, the plaintiff is entitled to a hearing where he has an opportunity to show good cause for not doing so.

Fla. R. Civ. P. 1.070 (1997)

The rule has been amended to allow service of process by mail if the plaintiff requests it and the defendant agrees. Specific procedures are listed which must be followed.


Garrett v. Mohammed
21 Fla. L. Wkly. D2504 (Fla. 5th DCA 1996)

The high-low agreement entered into between the plaintiff and a defendant was not an illegal "Mary Carter agreement" banned by Dosdourian v. Carsten, 624 So.2d 241 (Fla. 1993). A codefendant was not entitled to a mistrial because of the high-low agreement between the plaintiff and another defendant. The agreement was subject to discovery.

To the best of my knowledge, this is the first post-Dosdourian decision on what constitutes an illegal Mary Carter Agreement. In my opinion, it's correct. The reason the Supreme Court outlawed Mary Carter agreements in Dosdourian was because the jury would be misled, thinking the settling defendant still had an interest in defeating the plaintiff's case, when in reality the settling defendant would really be on the plaintiff's side. With a high-low agreement, the settling defendant still has an interest in defeating the plaintiff's claim.

Sovereign Immunity

Fla. Med. Mal. Joint Underwriting Assoc. v. INA
22 Fla. L. Wkly. S4 (Fla. 1996)

Section 627.351(4)(c) gives the JUA immunity from suit. The court holds that this is not an affirmative defense which may be waived, but it affects the existence of the cause of action. The defendant could properly raise it by motion to dismiss on the 6th day of trial. The defense of failure to state a cause of action can be raised under 1.140(h)(2) at trial. What a waste!


Kriston v. Webster
22 Fla. L. Wkly. D123 (Fla. 5th DCA 1997)

It was reversible error to submit a general verdict form, instead of an itemized verdict form requested by one of the parties.

Workers Comp Immunity

Vause v. Bay Medical Center
22 Fla. L. Wkly. D94 (Fla. 1st DCA 19970 (en banc)

The court en banc reverses the panel opinion and finds that the defendant was entitled to worker's comp immunity because the negligent fellow employees were engaged in related work. The decedent normally worked in the defendant hospital's obstetrical department, but was asked to accompany a patient into the hyperbaric chamber in another part of the hospital. The chamber was negligently operated, and she was negligently treated, and died. The court held that her work was not unrelated to the negligent employees'. (See earlier opinion in the November, 1995 Caselaw Update). However, the court held that her battery, fraud and conspiracy claims against individual employees were sufficient to survive a motion to dismiss. The court also held that she was entitled to amend her complaint against the physician/codirector of the chamber to allege negligence and a doctor-patient relationship for his failure to diagnose and treat her.