July 1998

Amendment — Relation Back

Permenter v. GEICO Gen. Ins. Co.
23 Fla. L. Wkly. D1510 (Fla. 2d DCA 1998)

This court holds that where the plaintiff sued the tortfeasor and then moved to amend to add the UM carrier, the motion to amend did not toll the running of the statue of limitations, and the amendment did not relate back to the filing of the motion or of the original complaint. The court certifies conflict with Smith v. Metropolitan Dade County, 338 So.2d 878 (Fla. 3d DCA 1976) (motion to amend complaint tolls statute of limitations and amended complaint relates back to the time of filing the motion to amend); and with Frew v. Poole & Kent Co., 654 So.2d 272 (Fla. 4th DCA 1992) (following Smith).

I have always understood the rule to be that, if the proposed amended complaint was attached to the motion for leave to amend, the filing of the amended complaint related back to the date of the filing of the motion, thus tolling the statute. Keep an eye on this issue.

Arbitration — Waiver

Owens & Minor Medical, Inc. v. Innovative Marketing & Dist. Serv., Inc.
23 Fla. L. Wkly. D1184 (Fla. 4th DCA 1998)

The plaintiff waived its right to arbitrate a counterclaim by participating in the litigation of the main claim. The counterclaim did not raise an issue “separate and distinct” from the main claim.

Collateral Source

State Farm Mut. Auto. Ins. Co. v. Gordon
23 Fla. L. Wkly. D1399 (Fla. 3d DCA 1998)

The trial court properly granted plaintiff’s motion in limine to exclude evidence of plaintiff’s receipt of substantial disability insurance payments on the issue of the plaintiff’s motivation to work. Although plaintiff opened the door when he misled the jury about his income, making the evidence arguably admissible, the defendant failed to properly preserve the issue. The defendant did not ask the court to reconsider its ruling after the plaintiff testified, but waited until its post trial motions, which was “too little, too late.”

Dangerous Instrumentality

Lavado v. General Electric Capital Auto Fin. Serv. Inc.
23 Fla. L. Wkly. D1193 (Fla. 3d DCA 1998)

Section 324.021(9)(b), Fla. Stat., provides that a long term lessor of a vehicle is not liable under the dangerous instrumentality doctrine where the lessee obtains $100,000/$300,000 coverage. The court holds that the purchase of single-limit coverage in the amount of $300,000 did not satisfy this requirement, because any person injured could exhaust the whole $300,000 and not leave anything to pay any other claimants.


Tobkin v. Jarboe
23 Fla. L. Wkly. S288 (Fla. 4th DCA 1998)

An individual who files a Bar complaint against an attorney and makes no public announcement about it, allowing the grievance procedure to run its natural course, has absolute immunity from a defamation action by the attorney. But if, after filing the complaint, the complainant comments outside the grievance process, the immunity ceases to exist. The court reasons that if the committee finds probable cause, the attorney is in no position to complaint. If the Bar finds no probable cause, then public exoneration is a suitable remedy.

Economic Loss Rule

Comptech International, Inc. v. Milam Commerce Park, Ltd.
23 Fla. L. Wkly. D1257 (Fla. 3d DCA 1998)

In a strongly contested opinion, the majority adheres to its original decision, over Judge Cope’s dissent, that the economic loss rule bars a lessee’s claim against the landlord for damages to the lessee’s computers resulting from the landlord’s negligent repairs of the premises. The court holds that the damages should have been contemplated by the parties’ original lease, and that the computers are not “other property” under the “damage to other property” exception to the economic loss rule.

Alarmingly, the court also holds that the economic loss rule bars the plaintiff’s claim for violation of the building code. As Judge Cope points out, this seems to conflict with the Third District’s own decision in Rubio v. State Farm Fire & Cas. Co., 662 So.2d 956 (Fla. 3d DCA 1995), which held that the plaintiff’s statutory bad faith claim was not barred by the economic loss rule. It also seems to me that it conflicts with the principle of separation of powers. If the legislature has chosen to create a statutory cause of action, how can the court refuse to allow the cause of action?

Look for further developments in this case.

Expert Witness Limitations

Ryder Truck Rental, Inc. v. Perez
23 Fla. L. Wkly. D1400 (Fla. 3d DCA 1998)

Where the trial court had limited the parties to one expert each per specialty, it was error to include the treating physician as an expert witness rather than a fact witness. In this case, the defendant wanted to present the plaintiff’s treating doctor, and the court held that the trial court should have allowed it. Judge Jorgenson dissents, because the defendant did not seek to introduce the treating doctors’ testimony about the course of treatment, but their ultimate opinions about the permanency of the plaintiff’s condition.

Forum Non Conveniens

Brunschwig v. Simpson
23 Fla. L. Wkly. D1331 (Fla. 3d DCA 1998)

The complaint should have been dismissed under forum non conveniens where the accident, the medical care, and all witnesses other than the defendants were in Virginia. Virginia’s lack of a statutory settlement procedure did not make it an inadequate alternative forum.

Hospital Liens

Schwartz v. GEICO Gen. Ins. Co.
23 Fla. L. Wkly. D1236 (Fla. 4th DCA 1998)

A private hospital is not entitled to a lien on an insured’s recovery under a UM policy because the lien law applies only to public hospitals. This particular statute is a special act applying only to Palm Beach County and you should check the statute for the county where the hospital is located.

A private hospital is defined in West Coast Hosp. Ass’n v. Hoare, 64 So.2d 293 (Fla. 1953) as one “founded and maintained by private persons or a corporation, the state or municipality having no voice in the management or control of its property or the formation of rules for its government.” A public hospital is one created and endowed by the government for general charity; an institution owned by the public and devoted chiefly to public uses and purposes. (Are there any of those left?)

Insurance — Bad Faith

National Cas. Co. v. Green
23 Fla. L. Wkly. D1185 (Fla. 3d DCA 1998)

Beware of insurance policies with a self-insured retention endorsement. This one provided that the insured must accept any reasonable offer of settlement within the self-insured retention. Because the insured did not, the court held that the insurer was not liable for any judgment in excess of the self-insured amount. It did not matter that the insured was reasonable in rejecting the offer.

Time Ins. Co. v. Burger
23 Fla. L Wkly. S309 (Fla. 1998)

In a first party bad faith claim against a medical insurer under 624.155, the insured may recover emotional distress damages if the refusal to pay the medical or hospital bills results in the inability to obtain health care. The plaintiff must present expert testimony, and must show: (1) that the bad faith conduct resulted in the insured’s failure to receive necessary or timely health care; (2) that, based upon a reasonable medical probability, this failure caused or aggravated the insured’s medical or psychiatric condition; and (3) that the insured suffered mental distress related to the condition or the aggravation of the condition. The plaintiff must substantiate these allegations with the testimony of “a qualified health care provider.”

Insurance — Coverage

Southeast Farms, Inc. v. Auto-Owners Ins. Co.
23 Fla. L. Wkly. D1374 (Fla. 4th DCA 1998)

Where an insurance policy limited coverage to the use of designated premises “and operations necessary or incidental to those premises” the term “necessary or incidental to those premises” is ambiguous. The insurer has a duty to defend a claim against the insured caused by a truck hauling potatoes brokered by the insured.

Insurance — Estoppel

Aetna v. Deluxe Systems, Inc.
23 Fla. L. Wkly. D1283 (Fla. 4th DCA 1998)

An insurance company is not estopped to assert any policy exclusion not specifically included in its initial correspondence to the insured. Coverage can only be created by estoppel if the insured was misled in connection with the initial acquisition of the insurance. Cf. State Farm v. Hinestrosa, 614 So.2d 633 (Fla. 4th DCA 1993) (insurance created by estoppel where plaintiff allowed other insurance to lapse in reliance on defendant’s assurance of coverage under defendant’s policy). This court holds that estoppel does not create coverage where the insurer initially agrees to defend the insured after a claim is made, but later attempts to raise an applicable exclusion.

The court also states that, as a matter of public policy, a commercial liability policy does not cover claims for replacement of a product due to defective or deficient workmanship.

Insurance — PIP

Derius v. Allstate Indem. Co.
23 Fla. L. Wkly. D1383 (Fla. 4th DCA 1998)

Answering two questions certified from the county court, the court holds (1) To recover PIP benefits, the plaintiff must prove by the greater weight of the evidence that the expenses are both reasonable and for necessary medical services; and (2) the trial court is not required to define the term “necessary” for the jury.

Invasion of Privacy

Doe v. Univision Television Group, Inc.
23 Fla. L. Wkly. D1409 (Fla. 3d DCA 1998)

It was error to grant the defendant television station summary judgment in plaintiff’s action alleging public disclosure of private facts. The defendant promised the plaintiff her identity would be concealed in its coverage of her problems caused by a foreign plastic surgeon, but then failed to conceal her identity in the broadcast. The court held that even though the issue of the plastic surgeon was a topic of legitimate public concern, the plaintiff’s identity was not.

Jurisdiction — Personal

Ginsberg v. Lamour
23 Fla. L. Wkly. D1177 (Fla. 4th DCA 1998)

A response to a motion for entry of default is a defensive action and does not submit the defendant to the jurisdiction of the court.

Jury Selection

Melara v. Cicione
23 Fla. L. Wkly. D1330 (Fla. 3d DCA 1998)

The defendant failed to preserve its objection to the trial court’s denial of defendant’s motion to strike the jury panel after two prospective jurors made remarks about insurance companies during voir dire, the defendant did not use up its peremptory challenges, and the defendant accepted the final panel without objection.

Mazzouccolo v. Gardner, McLain & Perlman, M.D., P.A.
23 Fla. L. Wkly. D1465 (Fla. 4th DCA 1998)

The plaintiffs were not entitled to a new trial where a juror failed to disclose a previous malpractice case that had been filed against the Visiting Nurses’ Assoc. at a time when the juror was its chief operating officer. The court faulted the plaintiff for failing to “squarely ask for the concealed information.” In order to get a new trial based on a juror’s concealment, you must show (1) that the information is relevant and material to jury service in the case; (2) that the juror concealed the information during questioning; and (3) that the failure to disclose the information was not attributable to the complaining party’s lack of diligence.

Medicaid Liens

State of Fla. Agency for Health Care Admin. v. Estabrook
23 Fla. L. Wkly. #1171 (Fla. 4th DCA 1998)

Medicaid liens appear to be one of the most powerful forces known in the universe. Here, the court holds that the Agency for Health Care Administration may satisfy the medicaid lien out of the proceeds of a worker’s comp settlement without regard to how the parties may have allocated the proceeds in the settlement. The court uses a two step analysis: (1) whether the paying entity (here, worker’s comp) is in fact a “third party” ---an entity which is or may be liable for any portion of the Medicaid-provided services; (2) if so, then the state “may satisfy its lien out of the entirety of the third party’s liability for the covered injury, even if such liability includes components not financed by Medicaid.” (Court’s emphasis). Before settling a comp or tort case, if your client has gotten Medicaid payments, make sure that you make arrangements with Medicaid to satisfy the lien. (I have heard they will negotiate some reduction, but not much).

Med Mal — Duty

Hawkins v. Pizarro
23 Fla. L. Wkly. D1412 (Fla. 3d DCA 1998)

The court refuses to recognize a duty owed by the doctor to the patient’s fiancee to correctly diagnose the patient’s infectious disease and warn the patient about it, where the fiancee was not known to the doctor at the time of the misdiagnosis. The court relies on Pate v. Threlkel, 661 So.2d 278 (Fla. 1998). The court did not discuss the Supreme Court’s discussion in Pate of the zone of foreseeable risk. See McCain v. Fla. Power Corp., 593 So. 2d 500 (Fla. 1992).

Med Mal — Limitations

Nowling v. Walton Regional Hospital
23 Fla. L. Wkly. D1316 (Fla. 1st DCA 1998)

The plaintiff was entitled to the automatic 90 day extension under 766.104(2) even though she filed the petition for extension in a county other than the county in which she filed the lawsuit. The court wisely places substance over form in interpreting the med mal statute. See, e.g., Kukral v. Mekras, 679 so.2d 279 (Fla. 1996) ( med mal statute to be interpreted to avoid unduly restricting access to courts.) The statue does not violate due process by allowing the extension without allowing the defendant notice or an opportunity to be heard. The defendant had no vested right in the statute of limitations before the statute of limitations expired, and it could be extended before that time without impacting on a constitutionally protected right.

Med Mal — Presuit

Maguire v. Nichols
23 Fla. L. Wkly. D1428 (Fla. 2d DCA 1998)

Once again a med mal case is dismissed for failure to provide the verified expert opinion at the time of the notice of intent or at any time before the expiration of the statute of limitations. My recommendation is to serve the expert affidavit with the notice of intent and to file the affidavit with the complaint.

Offer of Judgment

Cooper v. Brickell Bayview Real Estate, Inc.
23 Fla. L. Wkly. D1327 (Fla. 3d DCA 1998)

It was error for the trial court to award fees under the offer of judgment statute from the date the offer was filed (after judgment) rather than from the date the offer was served.

Peer Review

Liberatore v. NME Hospitals, Inc. 23 Fla. L. Wkly. D1471 (Fla. 4th DCA 1998)

The trial court properly denied the defendant’s motion for protective order. The defendant wanted to prevent the deposition duces tecum of its corporate representative. The plaintiff was entitled to obtain testimony and documents concerning procedures involved in granting staff privileges to doctors. Such information is not privileged.


Mosley v. American Medical International, Inc.
23 Fla. L. Wkly. D1385 (Fla. 4th DCA 1998)

The court on rehearing withdraws what I thought was a correct opinion, discussed in the March, 1998 Caselaw Update. The court holds that, where the plaintiff settled with the initial tortfeasor for all of his known injuries at a time when he was aware of all of his injuries, he could not subsequently sue his health care providers for aggravating that injury. The court says that a victim may not recover from both the initial tortfeasor and the negligent health care providers for the same injuries. This is a very difficult area of law, especially since there are many cases which allow an injured plaintiff to settle with one tortfeasor and preserve his claim against other tortfeasors. See, e.g., JFK Medical Center v. Price, 647 So.2d 833 (Fla. 1994) (dismissal of active tortfeasor did not bar claim against vicariously liable defendant).

Relief from Judgment

Rosso v. Golden Surf Towers Condo. Ass’n
23 Fla. L. Wkly. D1287 (Fla. 4th DCA 1998)

It was error to refuse to grant relief from a judgment and vacate the judgment where the party had not been served with a copy of the trial court’s order, the motion was verified and the other party’s response was not verified.

Successive Accidents

Gross v. Lyons
23 Fla. L. Wkly. D1163 (Fla. 4th DCA 1998)

This opinion written by Justice Pariente (sitting as an Associate Judge on the 4th DCA), explains how the jury should be instructed when the plaintiff is involved in two successive accidents that may have contributed to her injury, and sues only the tortfeasor in the first accident.

It was error to instruct the jury that the plaintiff could not recover for any injuries caused by the second accident, and to only the aggravation instruction, which was not applicable to the facts of the case because the plaintiff was suing the first tortfeasor, not the second. These contradictory instructions must have been confusing to the jury.

Instead, the court should first instruct the jury to apportion damages between the two accidents if it is reasonably possible to do so. Second, the court should instruct the jury that, if the injuries cannot be apportioned, it may return a verdict for the entire medical condition shown, by the greater weight of the evidence, to have been sustained by the plaintiff. See Maser v. Fioretti, 498 So.2d 568 (Fla. 5th DCA 1986); Washewich v. LeFave, 248 So.2d 670 (Fla. 4th DCA 1971); Hamblen, Inc. v. Owens, 172 So.2d 694 (Fla. 1937).

Judge Warner dissented in part and suggested that the question should be certified.