June 1995

Attorney Fees

Martin v. Lenehan
20 Fla. L. Wkly. D1346 (Fla. 4th DCA 1995)

The court rejected a claim for restitution brought by a doctor and his insurer against the attorneys who innocently represented a fraudulent plaintiff in a medical malpractice action. An attorney is not obligated to make restitution for fees obtained through a judgment that is subsequently reversed as long as the attorney acted in good faith in prosecuting the action.

Brambhatt v. Allstate
20 Fla. L. Wkly. D1300 (Fla. 4th DCA 1995)

Marrone v. State Farm
20 Fla. L. Wkly. D1300 (Fla. 4th DCA 1995)

In both of these cases, the Fourth District sua sponte affirmed and ordered attorney's fees under 57.105. In the first, the plaintiff sought UM coverage after the insured was shot when he stopped to assist a disabled motorist.

In the second, the plaintiff was a third party beneficiary of an insurance policy which was issued based on unintentional misrepresentations by the named insured. The insured did not know about, and therefore did not disclose, prior claims made by the plaintiff under policies that the plaintiff had obtained by falsifying the named insured's signature. The plaintiff also made numerous misrepresentations during the course of the claim.

Birth-Related Neurological Injury

White v. Florida Birth Related Neurological Injury Comp. Plan
20 Fla. L. Wkly. D1372 (5th DCA 1995)

Health care providers who are not the legal representatives of an injured infant do not have the right to initiate a claim on behalf of the infant under the Birth Related Neurological Injury Compensation Act. It may be filed only by the legal representative on behalf of the injured infant. See section 766.305(1); 766.302(3).

Economic Loss Rule

Airport Rent-A-Car v. Prevost Car, Inc.
20 Fla. L. Wkly. S276 (Fla. 1995)

The economic loss rule applies to negligence claims for the manufacture of a defective product where the only damages claimed are to the product itself and where the plaintiff claims to have no other cause of action, even where the damage to the product is caused by a sudden calamitous event. There is no cause of action even when plaintiff alleges a duty to warn arising from facts which came to the knowledge of the company after the manufacturing process and after the contract.


Tallahassee Memorial v. Wells
20 Fla. L. Wkly. S278 (Fla. 1995)

I'm happy to have good news for you for once. The Supreme Court has overruled the infamous Fabre footnote and set up a rational system for calculating the setoff when a case settles with one tortfeasor and goes to trial against another.

The court held that there is no setoff for damages for which there is no joint liability. Judgment for noneconomic damages should be entered on the basis of each party's percentage of fault as determined by the jury, without regard to any setoff.

A setoff is permitted for the economic damages portion of the settlement against the economic damages portion of the verdict. The portion of the settlement attributable to economic damages cannot be determined by the parties to the settlement, but must be determined by the jury. The court allowed the plaintiff's total recovery from the settlement plus the judgment to exceed the jury's determination of total damages.

Here's how it works:

1. Economic damages: The defendant is entitled to a setoff against the economic damages verdict of the portion of the settlement attributable to economic damages. To determine the amount of the settlement attributable to economic damages, calculate the percent of the total verdict that is attributable to economic damages. That same percentage of the settlement will be attributable to economic damages. For example, if forty percent of the verdict consists of economic damages, forty percent of the settlement will be attributed to economic damages. That portion of the settlement will be set off against the economic damages portion of the verdict.

2. Noneconomic damages: The nonsettling defendant will pay the portion of noneconomic damages assessed by the jury according to his percentage of fault. For example, if the nonsettling defendant is found to be sixty percent negligent, then he must pay sixty percent of the noneconomic damages.

Ray Miller, Jeff Dickstein, and I wrote an Amicus brief on behalf of the Academy of Florida Trial Lawyers in this case.

In a concurring opinion, two justices stated that they thought Fabre should be reexamined. From now on, you should consider raising this point in all of your cases -- that Fabre is wrong.

Deleuw, Cather & Co. v.Grogis
20 Fla. L. Wkly. D1343 (Fla. 4th DCA 1995)

The court rejects a defendant's argument that it should only be liable for costs in proportion to the percentage of negligence that the jury attributed to it in the verdict. (The defendant argued that since it was found only 10% at fault, it should be responsible for only 10 % of the costs). Section 768.81 pertains to damages, not costs.

Yablon v. North River Ins. Co.
20 Fla. L. Wkly. D1184 (Fla. 4th DCA 1995)

The UM carrier can only be held liable for the uninsured motorist's percentage of fault.

The court also holds that it was error to find that the insureds were not entitled to UM benefits because of their settlements with other tortfeasors where the insurer's subrogation right as to economic damages could not have been prejudiced because the insured waived economic damages.

Insurance -- Exclusions

Security Ins. Co. v. Baad
20 Fla. L. Wkly. D1130 (3d DCA 1995)

An insurance policy could not be retroactively endorsed to exclude dog bites where a dog bite had occurred prior to the insured's acceptance of the endorsement containing the exclusion.

Insurance -- PIP

Newkirk v. Hannah
20 Fla. L. Wkly. D1348 (4th DCA 1995)

Where an injured plaintiff has received PIP benefits, the trial court must set off from any verdict against the tortfeasor the amount of PIP benefits paid, plus the amount of the PIP deductible. The court construes 627.739(1). The court certifies the question to the Supreme Court.

Insurance -- UM

Weiss v. American Fire & Cas. Co.
20 Fla. L. Wkly. D1237 (Fla. 4th DCA 1995)

The insured's claim was submitted to arbitration pursuant to the policy, but the insurer elected to reject the arbitration award and proceed to trial pursuant to a valid escape clause. The escape clause provided that when the escape clause was exercised, only the damages award became non-binding. The court held that the arbitrator's finding on the insured's comparative fault was not an element of damages and could not be tried. The arbitrator's finding on comparative negligence was binding.

Interspousal Immunity

Cerniglia v. Cerniglia
20 Fla. L. Wkly. D1188 (Fla. 3d DCA 1995)

This is an interesting twist on the results of abolishing interspousal tort immunity. In the parties' divorce, the wife signed a general release releasing all claims against the husband. The court held that the release barred a subsequent action by the wife against the husband for assault and battery, intentional infliction of emotional distress, common law fraud and breach of contract.

Jury Selection

Hunter v. State
20 Fla. L. Wkly. S251 (Fla. 1995)

It was harmless error to prohibit backstrikes after the panel was formed where the defendant had exhausted all of his peremptory challenges at the time the judge prohibited the backstrikes. Otherwise, the error would have been reversible. See Gilliam v. State, 514 So.2d 1098 (Fla. 1987). The court implies that harmless error analysis will not apply if there are peremptory challenges left to exercise.

Med Mal -- Arbitration

Bombalier v. Lifemark Hospital of Florida
20 Fla. L. Wkly. D1124 (Fla. 3d DCA 1995)

The plaintiff wife was negligently treated at the hospital and gave birth to a stillborn fetus and to a baby who died a few weeks later. The plaintiffs submitted a single notice of intent on behalf of the husband, the wife and the estate of the baby. The defendant admitted liability and demanded arbitration under 766.207-209. The husband and wife agreed to submit the wife's claim for personal injury and the husband's derivative claim for loss of consortium to arbitration, but wanted to litigate the wrongful death claims. The court held that the wife's personal injury claim and the husband's consortium claim were separate and distinct from the wrongful death claim and could be dealt with separately, even though they were caused by the identical tortious acts and were included in the same notice of intent.

Med Mal -- Discovery

Castillo-Plaza v. Green
20 Fla. L. Wkly. D1253 (3d DCA 1995)

The court en banc, interpreting 455.241(2), holds that the statutory privilege of confidentiality for information disclosed to a health care practitioner does not apply in a medical malpractice action when any health care provider is or reasonably expects to be named as a defendant. The defense lawyer may have ex parte contact with the plaintiff's non-party treating physicians. The court certifies the question to the supreme court. The dissenting judges argue that 455.241(2) does apply to non-defendant treating physicians. Those of us who remember the history of the statute, which was enacted to overrule the decision in Coraluzzo v. Fass, 435 So.2d 262 (Fla. 3d DCA 1983), aff'd 450 So.2d 858 (Fla. 1984), agree with the dissent.

Med Mal -- Presuit

Davis v. Orlando Regional Medical Center
20 Fla. L. Wkly. D1177 (Fla. 5th DCA 1995)

Section 766.203(2), which requires presuit notice, does not require the notice or the corroborating expert affidavit to identify every possible instance of medical negligence. The court granted certiorari to reverse an order excluding evidence of post-surgical negligence that was not mentioned in the presuit notice.

Offer of Judgment

Johnson v. Fye
20 Fla. L. Wkly. D1147 (Fla. 1st DCA 1995)

The offer of judgment statute in effect at the time the cause of action accrues is the version that should be applied. See Metropolitan Dade County v. Jones Boatyard, 611 So.2d 512 (Fla. 1993)

Public Records

Time Publishing Co. v. Ake
20 Fla. L. Wkly. S271 (Fla. 1995)

The clerks of the circuit courts, when acting with respect to judicial records and administration of the courts, are an arm of the judicial branch and are not subject to the Public Record Act, Chapter 119, Florida Statutes.

Punitive Damages

Miele v. Prudential-Bache Securities
20 Fla. L. Wkly. S260 (Fla. 2995)

Section 768.73, which requires a percent of punitive damages awards to be paid to the state, does not apply to arbitration awards, or to actions to confirm arbitration awards. The statute has recently been sunsetted.

Med Mal -- Discovery

Amente v. Newman
20 Fla. L. Wkly. S172 (Fla. 1995)

The plaintiff in a medical malpractice case alleging negligent obstetrical care and treatment was entitled to discovery of the defendant's records of other similar patients with similar conditions, redacted to protect the identity and privacy of the other patients. Prior notice to the patients under 455.241(2) is not required, because their identities are protected. The defendant doctor had testified that he relied on his past experience with similar patients in choosing his method of treatment of the plaintiff. The court held that the evidence of how the other patients were treated by the doctor was relevant to issues of notice to the doctor about whether the method of delivery was appropriate, and to causation.

Med Mal -- Limitations

Arango v. Orr
20 Fla. L. Wkly. D1384 (Fla. 2d DCA 1995)

Where the plaintiff alleged that he became aware of his injury in October, 1991, and he filed his complaint in May, 1993, the allegations were sufficient to defeat a motion to dismiss based on the statute of limitations. The claim was not barred by the four year statute of repose where the plaintiff made specific allegations of fraud, concealment and intentional misrepresentation that prevented discovery of the negligent conduct. The complaint asserted that the doctor falsified several reports regarding procedures that were performed and their results, left information out of the discharge summary, and concealed records even when the plaintiff requested copies. The complaint specified what the pertinent information was.

You really should make your allegations very specific if you are relying on fraudulent concealment.

Nondelegable Duty

Metrolimo, Inc. v. Lamm
20 Fla. L. Wkly. D1355 (Fla. 3d DCA 1995)

A joint venture which contracted with the County to provide special transportation services for disabled drivers was vicariously liable to an injured passenger for the negligence of an independent contractor it hired to carry out the contract, even though the driver used his own vehicle. "The joint venture was free to hire independent contractors if it wished, but the carrying out of the contract with Dade County was the responsibility of the joint venture and the joint venture partners. The joint venture and joint venture partners could not, by subcontracting, exonerate themselves from liability."

Dixon v. Whitfield
20 Fla. L. Wkly. D1148 (1st DCA 1995)

The defendant independent contractors were not agents of the school board when transporting students and the school board did not have a nondelegable duty to safely transport the students. The independent contractors were not entitled to sovereign immunity for an accident in which a student was killed due to the negligence of a bus driver.

Service of Process

Federal Home Loan Mortgage Corp. v. Lascio
20 Fla. L. Wkly. D1139 (Fla. 4th DCA 1995)

It was error to sua sponte dismiss the case for failure to serve the defendants within 120 days as required by Rule 1.070(i) without notice or an opportunity to show good cause. Settlement

Gordon v. Rosenberg
20 Fla. L. Wkly. D1142 (Fla. 4th DCA 1995)

Where the plaintiff sustained separate, distinct injuries from the negligence of a dentist and a periodontist, it was error to setoff the damages recovered in the settlement with the dentist from the damages awarded against the periodontist. The court's reasoning seems consistent with Tallahassee Memorial v. Wells -- no setoff for damages for which tortfeasors are not jointly liable.

Sovereign Immunity

Dept. of Education v. Roe
20 Fla. L. Wkly. D1167 (Fla. 1st DCA 1995)

In its original opinion at 20 Fla. L. Wkly. D686, reported in the April Caselaw Update, the court held that the department of education had no duty to a child to refrain from granting a teaching license to a child molester. The court now vacates that decision based its own lack of jurisdiction to review an order denying a motion to dismiss, and dismisses the appeal. The court distinguishes Tucker v. Resha, 648 So.2d 1187 (Fla. 1994), which allows interlocutory appeals from orders denying motions to dismiss on the issue of qualified immunity in cases arising under the federal civil rights laws.

Work Product

Freshwater v. Freshwater
20 Fla. L. Wkly. D1187 (Fla. 3d DCA 1995)

The wife's diaries, kept in connection with the litigation at the direction of her attorney, were protected by the work product privilege.

Worker's Comp Immunity

Holder v. Waldrop
20 Fla. L. Wkly. D1264 (Fla. 1st DCA 1995)

The defendant was not estopped to sue his employer for injuries received in an automobile accident where there was a factual issue about whether the employee was in the course and scope of his employment, and the employee had requested wage loss benefits and submitted them at his employer's request; the carrier had paid them based on information supplied by the employer.

Wrongful Death

Pearson v. DeLamerens
20 Fla. L. Wkly. D1305 (Fla. 3d DCA 1995)

This case involved medical malpractice causing the wrongful death of a child. The mother was the custodial parent, and the father rarely had contact with her. Some of the defendants offered $700,000 to settle the mother's claim and $10,000 to settle the father's claim. The trial court reapportioned the settlement to give more to the father. The court reversed. The wrongful death act allows settlement of the claim of one survivor without the settlement of the claim of the other so long as the nonsettling survivor is not prejudiced. 768.25. Since the father objected to the settlement of his claim, the court should have approved and enforced only the settlement of the mother's claim.

Rivet v. Perez
20 Fla. L. Wkly. D1133 (3d DCA 1995)

Plaintiff's expert testimony that the deceased patient had a 51 percent chance of survival if a second surgeon had performed emergency surgery immediately instead of relying on the first surgeon's assumptions was sufficient to prove causation. See Gooding v. University Hospital Building, Inc. 445 So.2d 1015 (Fla. 1984) (standard of proof is that the negligence more likely than not caused the death).