July 1999

Collateral Source

Budget Rent-A-Car Systems, Inc. v. Castellano
24 Fla. L. Wkly. D2459 (Fla. 4th DCA 1999)

The court holds that the defendant is not entitled to a setoff for future medpay, and certifies the question to the supreme court:

Should an award of future medical benefits be set off by the amount of medpay benefits unused at the time of judgment?

Conflict of Laws

Merkle v. Robinson
24 Fla. L. Wkly. S321 (Fla. 1999)

Section 95.10, Florida Statutes. the “borrowing statute,” provides: “When the cause of action arose in another state or territory of the United States, or in a foreign country, and its laws forbid the maintenance of the action because of lapse of time, no action shall be maintained in this state.” Here, the court construes the statute so that, when the cause of action arose in another state, which has a “more significant relationship” with the case than Florida does, and the statute of limitation of that state would not bar the cause of action, but the statute of limitations of Florida would, the cause of action is not barred.

Custodial Interference

Stone v. Wall
24 Fla. L. Wkly. S283 (Fla. 1999)

The court recognizes the tort of custodial interference where a nonparent who has no custody rights over the child intentionally abducts a minor child from a parent legally entitled to the child’s custody. Here, when the mother was dying, her relatives took the child and hid the child from the father.

This case contains a thorough discussion of the history of the common law tort, and a recognition that “the parent-child relationship has fundamental constitutional significance,” which has been recognized and protected by tort law.

Economic Loss Rule

Moransis v. Heathman
24 Fla. L. Wkly. S308 (Fla. 1999)

The purchaser of a home had a cause of action for professional malpractice directly against the professional engineers who worked for the engineering corporation that plaintiff hired to perform engineering services. The economic loss rule does not bar a claim directly against the individual engineer, even though the contract was with the corporation, where the engineers knew or reasonably should have known that the plaintiff would be injured if they were negligent.

Moreover, the economic loss rule does not bar the claim even where there are no personal injuries or property damage other than defects in the home the engineering firm was hired to inspect. The court traces the history of the economic loss rule, noting that it has not always been clear in its decisions about the rule. The rule has been expanded “beyond its principled origins” and has been applied “to situations well beyond our original intent.” The economic loss rule should not apply to actions for professional negligence, which often involve purely economic loss without any accompanying personal injury or property damage. To do so would effectively extinguish such causes of action.


There are some hopeful signs that the courts are starting to try to limit the damage caused by the supreme court’s decision in Fabre v. Marin, 623 So.2d 1182 (Fla. 1993).

Association for Retarded Citizens - Volusia, inc. v. Fletcher
24 Fla. L. Wkly. D1422 (Fla. 5th DCA 1999)

Stuart v. Hertz lives! In Stuart v. Hertz, 351 So.2d 703, 705 (Fla. 1980), the Supreme Court held that a medical provider who aggravates an injury inflicted by the original tortfeasor is not a joint tortfeasor but a distinct and independent tortfeasor; the initial tortfeasor is responsible for any damages caused by the subsequent malpractice; and the initial tortfeasor is not entitled to bring the medical provider into the suit. But there was a dearth of case law on whether Stuart survived Fabre. The 5th DCA squarely holds that it does. The court says that 768.81 applies only to parties who negligently contributed to the infliction of the plaintiff’s initial injury, not to medical providers who subsequently aggravated it. The defendant cannot require the plaintiff to litigate a medical malpractice claim in what should be a simple tort suit.

Thomas v. Daniel 24 Fla. L. Wkly. D1430 (Fla. 1st DCA 1999)

The trial court properly refused to allow the defendant to assert a Fabre defense at trial, where the defendant claimed he suspected certain third parties might have deposited a rock in the road (which caused the plaintiff’s car to run off the road), but never specifically identified those parties.

Forum Non conveniens

Woods v. Nova Companies Belize, Ltd.
24 Fla. L. Wkly. D1297 (Fla. 4th DCA 1999)

The plaintiff was injured in an accident in Costa Rica. He was a resident of Belize suing a Belize corporation, which did substantial business in Florida, continuously and systematically, selling 18% of its product in Florida; moving nearly all of its product through the state, purchasing equipment and supplies from Florida suppliers, using storage facilities in Florida, and establishing essential business relationships in Florida. The majority of plaintiff’s medical treatment occurred in the United States, with a substantial amount in Florida. The court held it was error to dismiss the case on grounds of forum non conveniens where dismissal would significantly disadvantage the plaintiff and litigating in Florida would not significantly disadvantage the defendant.

Free Speech

Rodriguez v. Feinstein
24 Fla. L. Wkly. D1341 (Fla. 3d DCA 1999)

The trial court’s order prohibiting the plaintiffs and their lawyer from discussing any matters or issues involved in this case with the media without leave of court was a violation of the First Amendment rights where the court made no findings that it was necessary to ensure a fair trial and where it was not narrowly tailored to preclude only extra-judicial statements which are substantially likely to materially prejudice the trial. The trial court can protect against pretrial publicity only for good cause when necessary to assure fair trials.

Insurance — UM — Stacking

United Services Automobile Assoc. v. Roth
24 Fla. L. Wkly. D1470 (Fla. 4th DCA 1999)

The court holds that 627.727(9), which sets the procedure for an insurer to avoid stacking, does not apply to an umbrella policy. The insurer did not comply with 627.727(9), but did not charge a premium for stacking; the premium charged was not dependent on the number of vehicles owned by the insured. The court holds that, consequently, there was no stacked UM.

Med Mal — Arbitration

Johnson v. Levine
24 Fla. L. Wkly. D1456 (Fla. 4th DCA 1999)

As if things weren’t complicated enough, here’s another arbitration statute you have to learn about if you are doing med mal.

The judge ordered the parties in this multiple defendant med mal case to non-binding arbitration under 44.103, Florida Statutes. Note that this is NOT one of the specific med mal arbitration statutes in Chapter 776. Under 44.103, a party dissatisfied with an arbitration decision must seek a trial de novo. Rule 1.820, Fla. R. Civ. P. requires the motion for trial to be made within 20 days of service of the arbitration decision. Otherwise, the court “shall” enter orders and judgments to carry out the terms of the arbitration decision. The court held that defendants who did not file a motion for trial within 20 days were bound by the arbitration decision, and the trial court was required to enter a money judgment against them, even though they did file exceptions to the arbitration award. The moral of the story is, if you are dissatisfied with the arbitration award (and this goes for plaintiffs too), you must file a motion for trial de novo within 20 days. Filing exceptions is not enough.

Med Mal — Discovery

Figaro v. Bacon-Green
24 Fla. L. wkly. D1408 (Fla. 3d DCA 1999)

The defendant issued a mail-in subpoena under Rule 1.351 to one of the plaintiff’s treating doctors. The doctor complied. Later, the defendant contacted the doctors ex parte to get updated medical records. The court held that the trial court departed from the essential requirements of law in refusing to prohibit such ex parte contacts with the plaintiff’s doctors. See 455.667(5)(c), which provides that, without the patient’s written authorization, the patient’s records may only be obtained upon the issuance of a subpoena and proper notice to the patient or his legal representative. Discovery subpoenas are not continuing in nature.

Baptist Hospital v. Rawson 24 Fla. L. Wkly. D1371 (Fla. 1st DCA 1999)

The trial court properly granted a new trial where the defense expert presented a new opinion at trial as to the cause of the death, which had not been disclosed in deposition. See Binger v. King Pest Control, 401 So.2d 1310 (Fla. 1981). Note that the trial court made efforts to find a solution short of excluding the expert’s testimony, before finally granting a new trial.

Med Mal — Informed Consent

Cedars Medical Center v. Ravelo
24 Fla. L. Wkly. D1409 (Fla. 3d DCA 1999)

The court holds that the hospital had no duty to obtain the patient’s informed consent to surgery where the doctor was an independent contractor who had only staff privileges at the hospital. It was error to instruct the jury on the duty to use reasonable care in carrying out a duty that has been voluntarily undertaken, even though the hospital obtained the patient’s signature on the informed consent form after administering drugs to her. The court construes 766.103 as limiting the responsibility for obtaining informed consent to a physician, and holds that the plaintiff did not plead the voluntary undertaking specifically enough.

The court also rejects the plaintiff’s corporate negligence theory, even though the hospital knew that the doctor’s staff privileges had been temporarily suspended in another state, and the hospital never investigated the issue.

Med Mal — Presuit

Nolan v. Turner
24 Fla. L. Wkly. D1468 (Fla. 4th DCA 1999)

Affirming a ruling that the defendant unreasonably failed to engage in informal discovery as required by 766.106(7) and 766.205(2), the court holds that the defendant should have responded to written interrogatories, which the court calls “less onerous” than an unsworn statement. The court upholds the striking of the defendant’s defenses for unreasonably failing to participate in informal discovery (the first case I am aware of upholding the striking of a defendant’s pleadings), but reverses the award of attorneys fees because they are unauthorized by statute. The court notes that the statute makes no sense, but says it should be addressed by the legislature.

Negligence — Duty

Bien Aime v. State Farm Mut. Ins. Co.
24 Fla. L. wkly. D1396 (Fla. 4th DCA 1999)

The plaintiff was injured while a passenger in a car that was involved in an accident. The car had been in an accident five years before. After the first accident, the insurer, State Farm, selected the company that made the repairs, and took an active role in or controlled the adjustment process. The complaint alleged that State Farm used or required the use of after market parts, non-genuine parts, parts that did not properly fit, and improper repair methods, and that, as a result, the car was not crashworthy and the plaintiff was injured. The court held that the complaint stated a cause of action. State Farm owed him a duty to repair the vehicle in a reasonable and prudent manner, because the plaintiff was within the foreseeable zone of risk of State Farm’s conduct in repairing the car after the first accident. See McCain v. Fla. Power Corp., 593 So.2d 500 (Fla. 1992). “We hold that if State Farm controlled the repair as alleged, then State Farm had a duty to assure the repair was done properly so that its insured and all subsequent passengers of the vehicle would not be injured as a result of the repair.”

Nursing Home

First Healthcare Corp. v. Hamilton
24 Fla. L. Wkly. D1511 (Fla. 4th DCA 1999)

This is one of those good news / bad news cases. It involves a nursing home patient who wandered away from the nursing home, fell into a pond and drowned.

First, the plaintiff was not required to go through med mal presuit, because the “gist” of plaintiff’s complaint and proof was that the defendants negligently failed to provide for the protection, supervision and safety of the decedent, not in their failure to properly diagnose or treat him. My recommendation on this kind of case is to go through presuit anyway, since the law is unsettled, but to remember that, if it turns out it’s not med mal, the presuit will not toll the time, so file the lawsuit before the statute — without tolling — would run.

The court also upholds the trial court’s decision to give the jury a preemptive instruction that the nursing home was deemed to be on notice of the patient’s propensity to wander and that he was a danger to himself. The defendant had failed to produce a number of incident reports, and it was ultimately disclosed that the defendant had renamed them “event reports.” The defendant unsuccessfully argued that the plaintiff did not ask for “event reports” so it did not have to produce them. The court also found bad faith because the defendant first asserted that the requested items were privileged, then when the privilege was overruled, asserted that the documents did not exist. The court states that “where a party had objected to production on the grounds that the requested material was protected from discovery, and then upon the objection being overruled, had filed a response that such material did not exist, such action constituted discovery abuse and improper delaying tactics.”

That’s the good news. The bad news is, the court holds that the nursing home statute does not permit recovery of the deceased’s pain and suffering prior to his death. This conflicts with Beverly Enterprises-Florida, Inc. v. Spilman, 661 So.2d 867 (Fla. 5th DCA 1995). The court rejects the argument that this ruling will make it cheaper to kill the resident than to merely injure him. The court also holds that the standard for punitive damages under the nursing home statute is the same as the common law standard, not some lesser standard. However, the evidence in this case was sufficient to justify punitive damages.

Offer of Judgment

Deltona House Rentals, Inc. v. Cloer
24 Fla. L. Wkly. D1420 (Fla. 5th DCA 1999)

An offer of judgment of $101, made four months after suit was filed, was not in bad faith where the defendant’s evaluation of the case was always one of no liability, and the trial court granted summary judgment for the defendant. In denying fees, the trial court said he did not think that there was any reasonable likelihood that the plaintiff would have accepted the $101 offer. In reversing, the appellate court said that the case was one of zero liability from the outset and the offer should have been accepted. A key purpose of the statute is to cull out meritless cases at an early stage.

When defense lawyers hit you with this case, point out that the court also said: We hasten to add that not every summary judgment will give rise to a fees award. Some cases, especially where the dispute is legal rather than factual, may be decided against a plaintiff on summary judgment but yet may be novel or complex or otherwise difficult to assess, and a low offer in such a case may well be found to be not a good faith offer.

In other words, there is still plenty of room to argue that an offer was made in bad faith.

Jaffrey v. Baggy Bunny, Inc.
24 Fla. L. Wkly. D1355 (Fla. 4th DCA 1999)

Where the defendant had made two offers of judgment and, in its motion for attorneys fees did not specify which offer was the basis for the motion, the defendant was not entitled to attorneys fees. The motion must state the specific basis for the fees claim, and must do so within thirty days of the verdict. See Fla. R. Civ. P. 1.442(g) and 1.100(b).

Hold v. Manzini
24 Fla. L. Wkly. D1541 (Fla. 3d DCA 1999)

This legal malpractice case makes the important point that the offer of judgment statute is substantive and applies in federal court in a diversity case. See Tanker Management v. Brunson, 918 F.2d 1524 (11th Cir. 1990).

Privilege — Psychotherapist

Partner-Brown v. Bornstein
24 Fla. L. Wkly. D1329 (Fla. 5th DCA 1999)

A complaint that alleges loss of enjoyment of life, without more, does not put the plaintiff’s mental or emotional condition in issue sufficiently to waive the psychotherapist patient privilege. These plaintiffs successfully pled their way around the decision in Nelson v. Womble, 657 So.2d 1221 (Fla. 5th DCA 1995) which held, erroneously, I think, that alleging mental anguish does put the plaintiff’s mental condition in issue. The court takes great pains to distinguish Nelson, rather than overrule it.


Fisher v. Clarizo
24 Fla. L. Wkly. D1516 (Fla. 4th DCA 1999)

The plaintiffs settled with some of the defendants, intending to proceed against the remaining defendants. See JFK Medical Center v. Price, 647 So.2d 833 (Fla. 1994) (allowing party who dismisses active tortfeasor to proceed against passive tortfeasor). The trial court granted summary judgment to the remaining defendants based on the failure to preserve the other claims. The plaintiff obtained a corrected release to reflect the true intention of the parties and sought relief under Rule 1.540, and the trial court denies it. The court holds that the original summary judgment was wrong under JFK Medical Center, and the denial of the 1.540 motion was also error.

Be very careful when you are settling with some but not all tortfeasors. Be sure to preserve all other claims specifically in your release, settlement agreement and notice of dismissal or notice of dropping party. You should also carefully preserve your client’s rights to future insurance benefits. See Connecticut General Ins. Co. v. Dyess, 569 So.2d 1293 (Fla. 5th DCA 1990).

Relief from Judgment

Everett v. Florida Transportation Services, Inc. 24 Fla. L. Wkly. D1355 (Fla. 4th DCA 1999)

It was error to deny relief from judgment under Rule 1.540 where the complaint was dismissed on statute of limitations grounds, where the plaintiff’s attorney had stated the wrong date of the accident in the complaint. (Whew!). Such a motion, based on mistake, must be filed within one year. The mistake must be a mistake of fact


Enriquillo Export & Import, Inc. v. M.B.R. Industries
24 Fla. L. Wkly. D1354 (Fla. 4th DCA 1999)

Where the parties’ settlement agreement provided for periodic payments on specified dates, it was not sufficient for the party to mail the check on that date. “The tender of a mere check does not constitute payment of cash or its equivalent and thus makes such a tender of payment merely conditional.”

All American Semiconductors, Inc. v. Bytek Corp.
24 Fla. L. Wkly. D1334 (Fla. 5th DCA 1999)

If your settlement includes an assignment of a cause of action, be careful how you draft it. Here, the defendant argued that the settlement agreement and assignment released the settling party from all liability to plaintiff, so that the plaintiff as assignee had no cause of action against the defendant. The court held that the settlement agreement and assignment did not extinguish the original defendant’s liability, but only constituted an agreement not to sue in exchange for an assignment of the cause of action. The language of the settlement agreement is included in the decision and may help you successfully draft your agreements.

Sovereign Immunity

Henderson v. Bowden
24 Fla. L. Wkly. S325 (Fla. 1999)

The decedents were passengers in a vehicle that was stopped by the police. The police arrested the driver for drunk driving. They then instructed another passenger, who allegedly was also intoxicated, to drive. He did, getting into the accident that caused the deaths of the other two passengers. The court held that the deputies placed the passengers in danger by directing the intoxicated other passenger to drive, and that this direction more likely than not, created a foreseeable zone of risk, thereby giving rise to a legal duty. The court relies on Kaisner v. Kolb, 543 So.2d 732 (Fla. 1989) and McCain v. Florida Power Corp., 593 So.2d 500 (Fla. 1992).

Rejecting a claim of sovereign immunity for a discretionary function, the court distinguishes Everton v. Willard, 468 So.2d 936 (Fla. 1985), because Everton dealt with an officer’s decision whether to arrest or detain a potential subject, and this case deals with alleged negligence in carrying out a roadside detention. The distinction is between deciding whether to detain someone, which is protected as discretionary, and carrying out the detention, which is not protected.


Aldrich v. Roche Biomedical Laboratories, Inc.
24 Fla. L. Wkly. D1336 (Fla. 5th DCA 1999)

Where the loss of evidence was not the fault of the plaintiffs, but the evidence was apparently lost in the mail after it was sent out for a second opinion by the defendant, the trial court should not have granted the defendant a summary judgment on liability due to spoliation. The defendant, attempting to blame the plaintiff, offered an affidavit from its expert that the expert had not lost the slide, but it was “outside the scope of the affiant’s knowledge.” The court said blame could not be placed with confidence on any party.

Summary Judgment

Premier Cruise Lines, Ltd., Inc. v. Picaut
24 Fla. L. Wkly. D1418 (Fla. 5th DCA 1999)

Motions to amend should be liberally granted, even at a hearing on a motion for summary judgment. But it is not an abuse of discretion for the trial court to deny leave to amend where the motion for leave to amend is not filed until 8 months after the summary judgment hearing, and eleven days after the summary judgment order, to move for leave to amend.