June 1996

Attorneys Fees

Life Care Centers of America v. Chiles 21 Fla. L. Wkly. D1288 (Fla. 1st DCA 1996)

Where the attorney was hired on a contingency fee basis to represent a client in a class action, but the client withdrew from the class action and did not recover anything in that action, the attorney was not entitled to a charging lien on the client's recovery in a separate dispute. The attorney is not entitled to a fee where he has been discharged in a contingency fee case and the contingency never occurs.


Baron Auctioneer, Inc. v. Ball
21 Fla. L. Wkly. D1334 (Fla. 4th DCA 1996)

It was an abuse of discretion to deny the defendant's motion for continuance where its attorney withdrew shortly before trial for legitimate medical reasons.

Destruction of Evidence

St. Mary's Hospital v. Brinson
21 Fla. L. Wkly. D1187 (Fla. 4th DCA 1996)

The plaintiffs' baby died after receiving an excessive amount of anesthesia during surgery. The hospital negligently or intentionally disposed of the vaporizer used in the anesthesia machine after it knew of the plaintiffs' potential claim. The court held that the plaintiffs had a cause of action against the hospital for spoliation of evidence, because it impaired the plaintiffs' ability to proceed against the manufacturer of the unit and other responsible agents. The court properly denied the defendant's motion to bifurcate the two claims. Moreover, consolidation did not require the hospital to waive its risk management privilege; the hospital voluntarily chose to do so to defend the spoliation claim.

The court ordered the hospital to produce some of its in house reports and the hospital refused to do so. The DCA held that the court did not abuse its discretion in striking the hospital's defenses and directing a verdict against the hospital on the spoliation claim. However, the court did abuse its discretion in refusing to allow the jury to apportion fault where the jury was presented with evidence that the defendant doctor was also partially at fault.

The court also holds that the trial court did not abuse its discretion in allowing the testimony of plaintiffs' grief expert, in light of Angrand v. Key, 657 So.2d 1146 (Fla. 1995).

Directed Verdict

Stringer v. Katzell
21 Fla. L. Wkly. D1259 (Fla. 4th DCA 1996)

It was reversible error to grant a directed verdict in favor of the defendant where, on direct examination, the plaintiff's expert testified that plaintiff's problem was due to the medical negligence, but on cross examination receded from his opinion based on a hypothetical proposed by defense counsel involving the plaintiff's alleged use of drugs an


Barwood Homeowners Assoc. v. Maser
21 Fla. L. Wkly. D1255 (Fla. 4th DCA 1996)

While affirming a verdict against a landlord for a dog bite where the landlord had knowledge of the presence of a vicious dog in the common area of its property, the court holds that the dog owner must go on the verdict form and the plaintiff's damages must be reduced by the dog owner's percentage of fault.

Stellas v. Alamo Rent-A-Car
21 Fla. L. Wkly. D1202 (Fla. 3d DCA 1996)

Expressly and directly conflicting with the Fourth District in Slawson v. Fast Food Enterprises, 21 Fla. L. Wkly. D846 (Fla. 4th DCA 1996), the court holds that, in an action for negligently failing to protect the plaintiff from foreseeable harm, the negligent defendant has the right to put the intentional tortfeasor on the verdict form. The court reasons that "the unmistakable intent of 768.81(3) is to limit the a negligent defendant's liability to his percentage of fault. The whole fault, of which a negligent defendant's acts are but a part, is broad enough to encompass an intentional tortfeasor's acts."

In an eloquent dissent, Judge Jorgenson points out that Florida's courts have never allowed negligence to be compared with intent for purposes of comparative fault, and that the statute, in derogation of the common law, must be strictly construed. The plain language of the statute excludes intentional torts. The majority's reasoning denies recovery because the very thing that the defendant had a duty to prevent happened. This essentially deprives the plaintiff of all protection and make the defendant's duty a nullity.

There's also a bit of good news in other portions of this decision. The court holds that a car rental agency has a duty to warn renters of the dangers of driving a rented car in certain areas of Dade County; and that the no-fault statute does not apply so that plaintiff need not show a permanent injury before recovering non-economic damages.

Forum non Conveniens

Hyatt Corp. v. Howarth
21 Fla. L. Wkly. D1272 (Fla. 3d DCA 1996)

The majority holds that the trial court did not abuse its discretion in refusing to change venue from Dade County to Monroe County under the doctrine of forum non conveniens where the plaintiff was injured in Monroe County, some witnesses reside in Dade county, plaintiff received significant medical care in Dade County, defendant has a place of business in Dade County, and Dade County is a more convenient place to travel for numerous out of state witnesses, including the plaintiff who was rendered a partial quadriplegic in the accident.

The dissent, citing the Florida Supreme Court's recent decision in Kinney Systems, Inc. v. Continental Ins. Co., 21 Fla. L. Wkly S43 (Fla. 1996), argues that this is a Monroe County case which belongs in Monroe County, and that "even though Miami is the home of many accomplished plaintiffs' lawyers and the substantial verdicts they win for their clients," Dade County should not be the courthouse for the State of Florida or for the Third District. (I don't know whether we should be flattered or worried, but I'm proud of my trial lawyer friends who make their living winning compensation for injured clients.)


Calvaneso v. Neal
21 Fla. L. Wkly. D1343 (Fla. 5th DCA 1996)

The plaintiff, a resident of Texas, brought suit in Florida where the accident occurred. It was error for the trial court to order her to appear in Florida for an examination by defendant's doctors. The court cites Fla. R. Civ. P. 1.410(d)(2), the subpoena rule, which provides that "a person may be required to attend an examination only in the county wherein the person resides or is employed or transacts business in person or at such other convenient place as may be fixed by an order of court.

Insurance -- Exclusions

Hagen v. Aetna Cas. & Sur.
21 Fla. L. Wkly. D1207 (Fla. 5th DCA 1996) (en banc)

A carpet store's general liability policy contained an exclusion for injuries arising out of the operation or use of an automobile. The plaintiff delivered four rolls of carpet in a pickup truck. The plaintiff and the insured's employees unloaded the carpet by tying a rope around each roll of carpet and tying the other end of the rope to the bumper of a van, then moving the van forward. The plaintiff was struck by the fourth roll of carpet when the insured's employee pulled the van forward without giving him time to move out of the way. The insurer determined that there was no coverage and then withdrew. The plaintiff then served an amended complaint which alleged only that the insured was negligent in failing to have adequate equipment for unloading carpet, such as a forklift.

The court held that there was no coverage and no bad faith failure to defend; the policy provision is clear and unambiguous and the injury arose out of the use of an automobile. The court rejects the theory that the use of the van was only incidental, and that the decision not to have a forklift was an independent act of negligence.

Dissenting, Judge Goshorn argues that the concurrent cause rule should apply: when an injury has more than one cause, and one of them is covered, the fact that the other is excluded does not absolve the insurer of its duty to indemnify. See Wallach v. Rosenberg, 527 So.2d 1386 (Fla. 3d DCA), rev. denied, 536 So.2d 246 (Fla. 1988). He also points out that the duty to defend is determined by the allegations of the complaint, not by the underlying facts.

Insurance -- Misrepresentation

Leonardo v. State Farm Fire & Cas. Co.
21 Fla. L. Wkly. D1165 (Fla. 4th DCA 1996)

It was error to enter summary judgment for the insurer on the issue of whether the insured had misrepresented his prior loss history where there was a genuine issue of fact of whether the form was blank at the time the insured signed it, and completed later by the agent without the insured's knowledge. The court adopts the rule that an insurer which accepts an application which is not fully completed accepts the application at its own risk. Additionally, an issue remains of whether the insurer waived its right to rescind the policy by continuing to accept payments of premiums for several months after denying the plaintiff's claim and notifying the insured of its intent to void the policy.

Anderson v. Armor Ins. Co.
21 Fla. L. Wkly. D1176 (Fla. 2d DCA 1996)

This court also reverses a summary judgment for the insurer based on an alleged misrepresentation where the plaintiff presented an issue of whether the insurer's agent merely misinterpreted the information requested in the application while filling it out with the insured. The insured testified without contradiction that the agent did not ask for the names of all residents in the household, but only asked for the names of everyone who would be driving the car. As a result the plaintiff did not give the insurer the name of her brother who was living in her house at the time.

Insurance -- PIP

Hannah v. Newkirk
21 Fla. L. Wkly. S243 (Fla. 1996)

Where an insured has elected PIP coverage with a deductible, and later recovers a verdict against the tortfeasor, the amount of the plaintiff's PIP deductible must be set off from the verdict in addition to the amount of the PIP.

The plaintiff in this case is also subjected to an award of fees pursuant to 768.79. Thus, the court is imposing a heavy financial penalty for pursuing an unsettled question of law. Justice Wells dissents from this result.

The court does not address whether, in light of all this, the statute unconstitutionally infringes the Florida constitutional right of access to courts. Art. I 21, Fla. Const. Justice Wells' dissent invites such a challenge.

Insurance -- UM

GEICO v. Krawzak
21 Fla. L. Wkly. S242 (Fla. 1996)

The court sets out the procedure to be followed under 627.727(6) when a UM insurer does not approve a settlement with an underinsured tortfeasor. The UM insurer has 30 days from receipt of a settlement agreement to approve the settlement, to waive its subrogation rights against the liability insurer and its insured, and to authorize the execution of a full release. If the UM insurer does not agree to the settlement, then the injured person may sue the tortfeasor and the UM insurer. Because the statute directs joinder, the nonjoinder statute, 627.7262, does not apply.

Overruling the 5th DCA's decision in Colford v. Braun Cadillac, Inc., 620 So.2d 780 (Fla. 5th DCA 1993), rev. denied, 626 So.2d 1367 (Fla. 1993), the court holds that, when a UM insurer is properly joined as a party in a lawsuit, it is improper to keep that fact from the jury. The Colford decision had required the trial court to pretend that the only party to the suit was the tortfeasor, and to keep the insurer's existence a secret. This decision is consistent with the policy emphasized by the supreme court in Dosdourian v. Carsten, 624 So.2d 241 (Fla. 1993), encouraging full disclosure before the jury. The court notes that in Dosdourian it took "a strong stand against charades in trials."

Jury Trial

Baron Auctioneer, Inc. v. Ball
21 Fla. L. Wkly. D1334 (Fla. 4th DCA 1996)

Where a jury trial had properly been requested, and the defendant's lawyer withdrew shortly before trial, it was error to hold a nonjury trial simply because nobody objected. Once a jury trial has properly been requested, it cannot be waived except by the consent of all parties, evidenced by an affirmative act.

Med Mal -- Discovery

Community Psychiatric Centers of Fla. v. Bevelacqua
21 Fla. L. Wkly. D1191 (Fla. 4th DCA 1996)

This is not a malpractice case, but it is one of the first interpreting Amente v. Newman, 653 So.2d 1030 (Fla. 1995). The plaintiff, a patient at a psychiatric hospital, was injured when a chair he was sitting on collapsed. At plaintiff's request, the court ordered the hospital to release the names and addresses of former patients who witnessed the incident or were involved in a prior similar incident unless those patients filed a written objection within ten days. The court held that, in contrast to Amente, the plaintiffs' need for the information here did not outweigh the other patients' right to privacy.

Colonial Medical Specialties v. United Diagnostic Laboratories
21 Fla. L. Wkly. D1325 (Fla. 4th DCA 1996)

This is not a malpractice case either, and the requesting party didn't get the discovery here, either. It was a dispute between two medical labs, one of which did some blood testing for the other, regarding payment for some of the work. The court held that neither the nature of the dispute nor the fact that the party seeking the patient names had some of the information in its files already negated the privacy rights of the patients whose personal information was sought. The court did not order an in camera inspection and did not order the identifying information deleted from the records. While the identifying information is what the party was seeking, it failed to show its need for the information sufficient to override the privacy rights of the non-party patients.

Med Mal Presuit

Kukral v. Mekras
21 Fla. L Wkly. S251 (Fla. 1996)

The defendant doctor and hospital negligently applied undiluted acid to the plaintiff's genitals during a procedure to remove genital warts, causing serious burns. Plaintiff served notices of intent which did not have verified written corroborating expert opinions attached. The plaintiff did not separately serve the doctor's employer, the Miami Urology Institute, Inc. The plaintiff sent out unverified corroborating expert opinions, and finally set out verified expert opinions, before the statute of limitations ran. The trial court dismissed the plaintiff's claim, after the statute of limitations had run. The Supreme Court reversed. The court held that the failure to comply with the presuit requirements is not jurisdictional. All of the parties engaged in pretrial discovery and had a full and fair opportunity to investigate the claim before the initiation of suit and well within the statutory limitations period. The affidavits were served before presuit discovery was completed.

The "statutory scheme must be interpreted liberally so as not to unduly restrict a Florida citizen's constitutionally guaranteed access to the courts, while at the same time carrying out the legislative policy of screening out frivolous lawsuits and defenses." "We hold that the plaintiffs' compliance with the presuit investigation requirements of chapter 766 prior to filing suit and within the statute of limitations period constituted sufficient compliance with the presuit notice and investigation requirements of the statute."

The court also rejects the doctor's employer's contention that it should be dismissed because plaintiffs failed to serve a separate notice of intent on it. Fla. R. Civ. P. 1.650(b) provides that notice served by certified mail serves as notice to "any other prospective defendant who bears a legal relationship to the prospective defendant receiving the notice." Since the employer bears a legal relationship to the doctor, notice to the doctor served as notice to his employer. Does this mean you can afford to get sloppy with your presuit compliance? Of course not. You should still serve every potential defendant and include your corroborating affidavit, and cooperate diligently in presuit discovery. However, it's good to know that the Supreme Court is looking at the purpose of the statute, and will show some mercy when you've complied with that purpose.

Hebebrand v. Arrien
21 Fla. L. Wkly. D1159 (Fla. 4th DCA 1996)

Reaffirming its decision in Karr v. Sellers, 668 So.2d 629 (Fla. 4th DCA 1996), the court holds that if the defendant has not complied with reasonable presuit investigation, the trial court may not strike the defendant's answer. According to this case, the court may only strike the defendant's "response" to the notice of intent. While the court may award attorneys fees and costs, this really leaves the plaintiff without much of a remedy for the defendant's failure to comply with presuit requirements.

Negligence -- Duty

Shurben v. Dollar Rent-A-Car
21 Fla. L. Wkly. D1317 (fla. 3d DCA 1996)

A rental car agency had a duty to warn a foreign tourist, who was shot while in the rental car, of foreseeable conduct in light of its knowledge of repeated attacks on tourists in rental cars in Dade County. In addition, if Florida law applies to the travel agency, the travel agency also had a duty to warn if it had knowledge.

Offer of Judgment

Eagleman v. Eagleman
21 Fla. L. Wkly. D1192 (Fla. 4th DCA 1996)

In a small victory for common sense, the court holds that the defendant's offer of judgment of $100 did not bear any reasonable relationship to the damages claimed or to a reasonable and realistic assessment of liability and therefore was not made in good faith. "The spirit of the offer of judgment statute is to encourage litigants to resolve cases early to avoid incurring substantial amounts of court costs and attorney's fees. ... [T]rial courts should view with considerable skepticism nominal offers which bear no reasonable relationship to damages and which are not founded upon a reasonable and realistic assessment of liability. Such nominal offers cannot advance the statutory purpose of encouraging settlement, but instead serve no purpose other than to lay a predicate for a subsequent award of attorney's fees as occurred here."

Premises Liability

Foster v. Po Folks
21 Fla. L. Wkly. D1180 (Fla. 5th DCA 1996)

Reversing a summary judgment for the defendant in a negligent security case, the court holds that the defendant's manager's affidavit that there had never been any assaults or robberies on the premises since the defendant took over the premises was insufficient where the plaintiff showed that there had been a shooting shortly before the defendant took over the property and that there had been 37 police calls, several of which involved suspicious persons and theft.


Ellis v. Henning
21 Fla. L. Wkly. D1332 (Fla. 4th DCA 1996)

The trial court's expression of dissatisfaction with the behavior of an attorney or client does not, by itself, require recusal. However, where the attorney general filed a response to the petition for writ of prohibition expressing disagreement with the version of facts contained in the in the affidavits supporting the recusal motion, the judge must be recused. The judge cannot take sides in the recusal controversy and should leave it to the opposing party to oppose the petition. While filing a response is not per se grounds for recusal, "it is decidedly dangerous for the judge to do so."

Seat Belt

Ridley v. Safety Kleen Corp.
21 Fla. L. Wkly. S232 (Fla. 1996)

Answering a question certified by the third district, the court holds that "a claim that a plaintiff failed to wear a seat belt and that such failure was a contributing cause of plaintiff's damages should be raised as an affirmative defense of comparative negligence."

The court also holds that if evidence is presented concerning a violation of the seat belt statute, 316.614, and that the violation contributed to the plaintiff's injuries, then Florida Standard Jury Instruction 4.11 on violation of a traffic regulation as evidence of negligence should be given. Instruction 6.14 should no longer be used, and the jury should not consider the issue of whether failure to use the seat belt constitutes failure to mitigate damages.

The court specifically prohibits double dipping -- reducing the plaintiff's recovery once for comparative negligence and then again for failure to use the seat belt. The jury should consider all of the plaintiff's negligence, including the failure to use a seat belt, and attribute a "single percentage" of negligence to the plaintiff. This calculation of the percentage of comparative negligence should then be reflected on the verdict form and used to reduce the total jury award in a single calculation.


Humana Health Plans v. Lawton
21 Fla. L. Wkly. D1299 (Fla. 5th DCA 1996)

Section 641.31(8) formerly provided that an HMO had the right to reimbursement from any settlement a subscriber received from a third party tortfeasor. (The statute has since been amended to allow only for recovery of the collateral sources recovered less a pro rata share of attorneys fees and costs). Here the settlement of a tort suit was structured so that, after allocation of attorneys fees and costs, there was not enough left over to cover all of the plaintiff's damages. The court held that the insurer had the right to intervene in a hearing on a petition to approve the settlement agreement.

Summary Judgment

Lubarsky v. Sweden House Properties
21 Fla. L. Wkly. D1256 (Fla. 4th DCA 1996)

It was reversible error to enter summary judgment for the defendant and deny plaintiff's motion for a continuance of the summary judgment hearing in a premises liability case. The plaintiffs had not yet been able to depose the corporate principal of the lessor in a premises liability case. The plaintiffs had been unable to determine whether the landlord exercised sufficient possession and control over the leased premises, pursuant to a provision in the lease allowing it to inspect the premises, and had been diligent in seeking the deposition of the corporate principal.

Voir Dire

Perry v. State
21 Fla. L. Wkly. D1260 (Fla. 4th DCA 1996)

Ah, the eternal struggle between justice and judicial economy. In a ringing affirmation of the trial lawyer's right and duty to conduct an adequate voir dire, the court holds that it was reversible error to cut off voir dire based on a time limitation imposed by the court, and to prevent the attorney from questioning prospective jurors about their attitude toward the defendant's theory of the case. See Lavado v. State, 492 So.2d 1322 (Fla. 1986). Trial courts have discretion in the amount of time they may allow but it is an abuse of discretion to allow time that is inadequate to give the lawyer enough information to intelligently exercise peremptory challenges and challenges for cause. Noting that the trial took two weeks, the court observed that "another half hour would not have been unduly taxing, and could well have obviated reversal on this issue. This principle has been applied in civil cases, too. See, e.g., Knapp v. Shores, 550 So.2d 1155 (3d DCA 1989) (fifteen minutes insufficient), overruled on other grounds, Bulldog Leasing v. Curtis, 19 Fla. L. Wkly. S54 (Fla. 1994); Cohn v. Julien, 574 So.2d 1202 (3d DCA 1991).

Worker's Compensation Immunity

Castillo v. Huell
21 Fla. L. Wkly. D1147 (3d DCA 1996)

The plaintiff's husband was killed in a traffic accident while riding in the bed of a company truck driven by another employee. The employees were en route from a roofing job site to the company's office, as part of a company-established transportation system. The workers would come to the office and be driven to and from the job site in the employer's truck. The workers were paid by the hour from the time they arrived at the office until the time they returned there. The court held that the plaintiff's claim against the employer for negligence was barred by worker's comp immunity, and that the "going and coming" rule did not provide an exception because worker's comp "almost always" applies when the employee is traveling on a public road between two portions of the employer's premises.

Perez v. Publix Supermarkets, Inc.
21 Fla. L. Wkly. D1200 (Fla. 3d DCA 1996)

The 1993 amendments to the worker's compensation law, limit the definition of injuries "arising out of" the employment to those in which "work performed in the course and scope of employment is the major contributing cause of the injury or death. 440.02(32), Florida Statutes. Joining the First DCA, the court held that this amendment does not change the premises exception to the coming and going rule to broaden the employer's tort liability. Where the plaintiff was injured when she slipped in water on the employer's premises after clocking out, the employer was entitled to worker's comp immunity. See also Vigliotti v. K-Mart Corp., 21 Fla. L. Wkly. D957 (Fla. 1st DCA 1996).

The court states that there is nothing in the legislative history of the worker's comp amendments that indicates the legislature intended to broaden the employer's tort liability. The problem with this decision is that, constitutionally, how can the plaintiff's ability to recover worker's comp for an injury be taken away without allowing the plaintiff access to courts for that injury? See Fla. Const. Art. I 21. Historically, the only reason that the worker's comp statute was held constitutional when it took away the right to sue the employer was that it provided an adequate alternative remedy. See Kluger v. White, 281 So.2d 1, 7 n.11 (Fla. 1973). If that remedy no longer exists, then how can the statute be constitutional?

Clark v. Gumby's Pizza
21 Fla. L. Wkly. D1337 (Fla. 1st DCA 1996)

The plaintiff, who was a pizza delivery person, was attacked while delivering pizza to a college campus. He sued his employer, alleging that the employer intentionally misled him about the danger of late night delivery to the campus dorms. The court held the employer was entitled to immunity because its actions did not amount to an intentional tort. The court says the standard requires "virtual certainty" of injury.