July 2002


Van Mill v. Bay Data, Inc.
27 Fla. L. Weekly D1479 (Fla. 4th DCA 2002)

The trial court wrongly directed a verdict for the defendant ship owner on the crew member’s claim of failure to provide prompt and adequate medical care, even though the plaintiff did not follow the physician’s directions.

“The law places a greater obligation on the captain to provide for crew members’ welfare than it does on the crew members themselves.”

The captain or shipowner is required by law to insure the well being of a crew member whether or not the crew member requests such aid, and is not relieved of its responsibility because of the crew member’s refusal of assistance or failure to follow directions.


K.W.Brown & Co. v. McCutchen
27 Fla. L. Weekly D1476 (Fla. 4th DCA 2002)

Whether a particular claim is arbitrable should be determined by the court, unless there is an express agreement to submit the claim to arbitration. This is a securities arbitration case. I’m afraid we are likely to see more and more of these. The case arose under the Federal Arbitration Act. Although the Act favors arbitration, it “does not require parties to arbitrate when they have not agreed to do so.” The brokers’ membership in the National Association of Securities Dealers provides for arbitration of any dispute “between a customer and a member ... arising in connection with the business of such member” if there is a written agreement to do so, or upon demand of the customer. Here, the customers demanded arbitration of the claims of fraud, negligence and breach of fiduciary duty, and the court holds that those claims must be arbitrated upon the demand of the customer, because the claims arose “in connection with the business” of the broker.

Destruction of Evidence

Jordan v. Masters
27 Fla. L. Weekly D1454 (Fla. 4th DCA 2002)

It was error to give an instruction, based on Public Health Trust v. Valcin, 507 So.2d 596 (Fla. 1987), that where a party fails to produce evidence within his control, an adverse inference may be drawn that the withheld evidence would be unfavorable to the party failing to produce it, where the plaintiff failed to offer evidence to support the contention that the missing evidence did or should have existed, and that the missing evidence hindered the plaintiff’s ability to proceed.

Employment Discrimination

De la Campa v. Grifols America, Inc.
27 Fla. L. Weekly D1623 (Fla. 3d DCA 2002)

Although the Dade County Code used to provide a private cause of action for employment discrimination, the court holds that a subsequent amendment eliminated it. The court also holds that verbal abuse and disparate treatment based on plaintiff’s sexual orientation would constitute “objectionable and offensive conduct,” but are not sufficiently outrageous to support a claim for intentional infliction of emotional distress.

Carnesi v. Ferry Pass United Methodist Church
27 Fla. L. Weekly S605 (Fla. 2002)

The court quashes a lower court decision in a case involving hostile work environment and sexual harassment, assault, battery and false imprisonment by a church volunteer, and remands it for reconsideration in light of its recent decisions in Doe v. Evans, 814 So.2d 370 (Fla. 2002) and Malicki v. Doe, 814 So.2d 347 (Fla. 2002), which involved clergy abuse.

Failure to Prosecute

Moossun v. Orlando Regional Health Care
27 Fla. L. Weekly S596 (Fla. 2002)

Entry of an order setting a case management conference does not constitute “record activity” sufficient to prevent dismissal for lack of prosecution under Rule 1.420(e).


Halili v. Radiation Oncology Consultants
27 Fla. L. Weekly D1492 (Fla. 5th DCA 2002)

Where the insurer for one of several defendants became insolvent, the entire proceedings must be stayed, not just the proceedings as to the defendant insured by the insolvent insurer. See 631.67, Florida Statutes.


R.J.Reynolds Tobacco Co. v. Kenyon
27 Fla. L. Weekly D1513 (Fla. 2d DCA 2002)

The defendant’s post trial motion was timely served and filed on the day after Christmas, because Christmas Eve, December 24 (the 10th day, on which the motion would have been due), is a legal holiday because it was announced to be a legal holiday under the local administrative order issued by the chief judge of the circuit, and the clerk’s office was closed. The court suggests that there should be some kind of uniform legal holiday list applicable to all cases under all rules of procedure, and lists a number of different statutes and rules which define legal holidays differently.

Hospital Liens

Wellington Regional Medical Center v. Meder
27 Fla. L. Weekly D1488 (Fla. 4th DCA 2002)

The hospital lien in this case is contractual, not statutory. The plaintiff was hurt in a car crash. While his lawsuit was pending, he did not have enough money to pay for surgery he needed, so he entered into a deferred payment plan. The plan provided that the payment was not contingent on recovery in the tort suit, and also provided for attorneys fees if the hospital had to sue to collect medical bills. The tort suit settled, and the hospital refused to accept anything less than full payment. The plaintiff filed a motion for equitable distribution, and the hospital intervened. The court held that the hospital’s contractual lien was valid. The court could equitably distribute the proceeds of the settlement, giving the hospital less than the amount of its lien. However, that distribution would not constitute payment in full, and the hospital could still hold the plaintiff to the terms of the contract. The hospital was not entitled to attorneys fees.

Insurance – UM

Nationwide Mut. Fire Ins. Co. v. Hild
27 Fla. L. Weekly D1440 (Fla. 2d DCA 2002)

Section 627.727(9) does not require a new selection form for non-stacked coverage every time a vehicle is added to an existing policy.

Juror Misconduct

Kelly v. Community Hospital of the Palm Beaches
27 Fla. L. Weekly S470 (Fla. 2002)

The trial court should have granted a new trial where one juror concealed the fact that he had been disbarred and had been a party in dozens of legal actions, two other jurors failed to reveal their involvement in prior litigation, and three jurors violated the judge’s instruction not to discuss the case during trial recesses. The plaintiff met his burden of showing (1) that the nondisclosure was material; (2) that the juror concealed the information during questioning, and (3) that the failure to disclose the information was not attributable to the plaintiff’s lack of diligence. The attorney’s questions indicated that he wanted the jurors to disclose any kind of litigation they had been involved in at any time. The information likely would have resulted in a peremptory challenge.

Jury Instructions – Causation

Hart v. Stern
27 Fla. L. Weekly D1499 (Fla. 5th DCA 2002)

Where the evidence presented a number of possible causes for the infant’s injuries that may have acted together, the court should have given the concurring cause instruction. Moreover, where one expert testified that the injury could have been caused during pregnancy, and another testified that the defendant’s actions may have played some part in causing or worsening the injury, but that he could not apportion the damages from the different causes, the court should also have given the aggravation of pre-existing condition instruction. Failure to give the aggravation instruction could mislead the jury to believe that, if they could not apportion the specific part of the damages caused by the defendant, they could not find the defendant liable.


DR Lakes, Inc. v. Brandsmart U.S.A.
27 Fla. L. Weekly D1484 (Fla. 4th DCA 2002)

The statutory confidentiality of mediation, 44.102(3) appears on its face to be pretty strong. It provides that each party in a court-ordered mediation has a privilege to refuse to disclose, and to prevent anyone else from disclosing, communications made during the mediation. “All oral or written communications in a mediation proceeding,other than an executed settlement agreement ... shall be confidential and inadmissible in any subsequent legal proceeding, unless all parties agree otherwise.” However, the court holds that the privilege did not apply where one of the parties contended that the mediation agreement contained a $600,000 clerical error. The court held that the right of access to courts allows the party to establish that the clerical error was a mutual mistake.

Med Mal – Limitations

Nehme v. Smithkline Beecham Clinical Laboratories
27 Fla. L. Weekly D1498 (Fla. 5th DCA 2002)

The med mal statute of repose, 95.11(4)(b) is extended for two years from discovery, up to seven years from the incident, in cases of fraud, concealment or intentional misrepresentation of fact that prevented discovery of the injury. The court holds that misreading of the pap smear, resulting in failure to diagnose cancer, resulting in death, did not amount to “concealment” and did not extend the statute of repose. The court certified to the supreme court the question:

Does the term concealment as used in section 95.11(4)(b), Florida Statutes, encompass negligent diagnoses by a medical provider?
For another view on this issue, see Hernandez v. Amisub, 714 So.2d 539 (Fla. 3d DCA 1998), holding that a hospital’s report that it had performed an accurate count of lap pads when, in fact, it had not, constituted concealment.

Med Mal – Standard of Care

Liberatore v. Kaufman
27 Fla. L. Weekly D1549 (Fla. 4th DCA 2002)

An expert may not bolster his opinion on direct examination by testifying that a treatise or American College of Obstetrics and Gynecology Bulletin agrees with him. The defendant should not have been allowed to testify that for the last three years he had been on a list of “top doctors” in a publication.


Ricks v. Loyola
27 Fla. L. Weekly S591 (Fla. 2002)

The trial court did not abuse its discretion in reserving ruling on the plaintiff’s motion for mistrial made after the defendant mentioned settlement with other tortfeasors in opening statement, and then granting a new trial after the jury returned a defense verdict. The court’s discretion to reserve ruling is broad and must be granted deference by the appellate court – “the call remains essentially for the trial court to make from its superior vantage point.”

Negligence – Strict Liability – Ultrahazardous Activity

Baltodano v. CTL Distribution, Inc.
27 Fla L. Weekly D1541 (Fla. 3d DCA 2002)

The unloading of sulfuric acid from a tanker through a hose and nozzle under pressure into individual 55-gallon drums is not an ultrahazardous activity because the risk can be eliminated through the exercise of reasonable care. (Therefore, it is not subject to strict liability).

Offer of Judgment

Island Hoppers, Ltd. v. Keith*
27 Fla. L. Weekly D1257 (Fla. 4th DCA 2002)

A contingency fee multiplier may be awarded under the offer of judgment statute and rules. The court agrees with Lewis v. Bondy, 752 So.2d 1225 (Fla. 1st DCA 2000) and Pirelli v. Armstrong, 752 So.2d 1225 (Fla. 2d DCA 2000) and certifies conflict with Allstate Insurance Co. v. Sarkis, 809So.2nd 6 (Fla. 5th DCA 2001). Additionally, although the plaintiffs’ expert on fees did not conduct a detailed review of the file, that went to the weight of his testimony, not the admissibility. The court questions whether there should be a hard and fast rule requiring expert testimony at all, although it recognizes that it may be necessary to establish the need for a multiplier in the relevant market, because the judges may not be sufficiently familiar with the current market conditions.

* In the June Caselaw Update, I misstated which cases the court agreed with and which case was certified for conflict.

Jamieson v. Kurland
27 Fla. L. Weekly D1511 (Fla. 2d DCA 2002)

The court has withdrawn the opinion originally reported at 27 FLW D955, and in the May issue of the Caselaw Update. The court substitutes an opinion holding that it was error to award fees and costs to the prevailing defendant where the offer did not state the total amount of the proposal, and did not state what non-monetary terms were included. The offer stated in one place that it was for $200 and in another that it was $1,000. It also stated in one place that a general release with a confidentiality agreement was required; and in another place that there were no non-monetary terms.

Hyler Sod, Inc. v. Willis Shaw Express, Inc.
27 Fla. L. Weekly D1469 (Fla. 1st DCA 2002)

An offer of settlement from two plaintiffs to a single defendant which stated only a total amount and did not apportion between the plaintiffs was invalid and could not support a claim for attorney’s fees.

Anderson v. King
27 Fla. L. Weekly D1394 (Fla. 2d DCA 2002)

Plaintiff sued the defendant for negligent maintenance of the plaintiff’s boat. In determining whether the “judgment obtained” by the plaintiff was at least 25 percent less than the amount of the defendant’s offer, the trial court should have used the net judgment entered in favor of the plaintiff, not the amount of the verdict before it was reduced by the amount the plaintiff received from the sale of the boat in question.