Arbitration – Nursing Homes
Laizure v. Avante at Leesburg
Case No. SC10-2132 (Fla. Feb. 14, 2013)
An arbitration agreement signed by the decedent requires his estate and survivors to arbitrate their wrongful death claims with the nursing home. A wrongful death action is derivative of the decedent’s rights. The estate and heirs stand in the shoes of the decedent for purposes of whether the defendant is liable and are bound by the decedent’s actions and contracts with respect to defenses and releases.
The court declined to address whether the arbitration agreement in this case was unconscionable.
Indiana Lumbermen’s Mut. Ins. Co. v.
Pennsylvania Lumbermen’s Mut. Ins. Co.,
Case No. 4D-11-3822 (March 6, 2013)
The assignee of an insured, just like the insured, is entitled to court-awarded fees under section 627.428, Fla. Stat., when the insurer would not have paid the proper amount of the claim but for the litigation. This applies even when the assignee is an insurance company.
Earth Trades, Inc. v. T&G Corp.
Case No. SC10-1892 (Fla. Jan. 24, 2013)
A party’s knowledge that a contractor or subcontractor does not hold the state-required license to perform the construction work of the contract is legally insufficient to establish the defense that the parties stand in pari delicto.
Ortiz v. Regalado
2013 WL 765008 (Fla. 2d, DCA March 1, 2013)
The statutory cap on damages protecting a person who entrust a vehicle to another, section 324.021(9)(b)(3), does not protect an owner from vicarious liability for the negligence of another co-owner. The statute provides:
3. The owner who is a natural person and loans a motor vehicle to any permissive user shall be liable for the operation of the vehicle or the acts of the operator in connection therewith only up to $100,000 per person and up to $300,000 per incident for bodily injury and up to $50,000 for property damage.
The court held that the defendant did not “loan” the car to the co-owner because the co-owner had just as much right to possession of it as the defendant. The court certified the following question to the Supreme Court:
DOES SECTION 324.021(9)(b)(3) APPLY TO LIMIT THE AMOUNT OF DAMAGES ONE CO–OWNER OF A VEHICLE MUST PAY WHEN THE OTHER CO–OWNER OPERATES THEIR JOINTLY OWNED VEHICLE NEGLIGENTLY AND INCURS DAMAGES PAYABLE TO A THIRD PARTY?
In addition, the court held that the defendant’s liability was limited by the percentage of fault of the tortfeasor for whom he was vicariously liable. For a discussion of the contribution issue involved, see the companion case of Claudio v. Regalado, discussed elsewhere in this issue.
Economic Loss Rule
Tiara Condo. Ass’n, Inc. v. Marsh & McLennan
Case No. SC10-1022 (Fla. March 7, 2013)
Receding from prior cases, the Supreme Court limits the application of the economic loss rule to cases involving products liability.
The economic loss rule is a judicially created doctrine prohibiting tort actions to recover extracontractual damages by those who are in contractual privity. It bars a tort action when the defendant has not breached a duty apart from the breach of contract. In the products liability context, the doctrine allows recovery only for damages to person or to property other than the defective product itself.
Fabre - Contribution
Claudio v. Regalado
2013 WL 765007, Case No. 2D11-1073 (March 1, 2013)
In a case arising out of a horrible accident involving injury to and death of multiple family members, the defendant asserted a contribution claim under section 768.31, Fla. Stat., against one of the plaintiffs. The court held that the negligent plaintiff’s recovery had to be reduced by her own negligence and, in addition, by the amount of the defendant’s contribution claim. The contribution claim should be decided in the same action as the main claim.
The court certified the following questions to the Florida Supreme Court:
AFTER THE EFFECTIVE DATE OF CHAPTER 2006–6, SECTION 1, AT 191–92, LAWS OF FLORIDA, IS A DEFENDANT PRECLUDED FROM RAISING A CLAIM FOR CONTRIBUTION IN A SUIT ALLEGING NEGLIGENCE VIA A COUNTERCLAIM OR A THIRD–PARTY CLAIM?
IF THE ANSWER TO THE ABOVE QUESTION IS YES, AND UNDER THE CIRCUMSTANCES OF THIS CASE, MUST JUDGMENT FINDING THE DEFENDANT PARTIALLY AT FAULT BE PAID IN FULL BY THE DEFENDANT REGARDLESS OF THAT DEFENDANT'S PARTIAL FAULT BEFORE THE DEFENDANT IS ENTITLED TO CONTRIBUTION FROM THE PLAINTIFF/CO–TORTFEASOR?
Pino v. The Bank of New York
Case No. SC11-697 (Fla. Feb. 7, 2013)
When a defendant alleges fraud on the court as a basis for seeking to set aside
a plaintiff’s voluntary dismissal, the trial court has jurisdiction to
reinstate the dismissed action only when the fraud, if proven, resulted in the
plaintiff securing affirmative relief to the detriment of the defendant and,
upon obtaining that relief, voluntarily dismissing the case to prevent the trial
court from undoing the improperly obtained relief. Any affirmative relief the
plaintiff obtained against the defendant as a result of the fraudulent conduct
would clearly have an adverse impact on the defendant, thereby entitling the
defendant to seek relief to set aside the voluntary dismissal pursuant to Florida
Rule of Civil Procedure 1.540(b)(3). Where the plaintiff does not obtain affirmative
relief before seeking the dismissal, measures other than
reinstating the dismissed action exist to protect against a plaintiff’s abuse of the judicial process. The trial court does not have authority to strike the notice of voluntary dismissal in such a circumstance.
University of Miami v. Great American Assur. Co.
2012 WL 616156 (Fla. 3d DCA Feb. 20, 2013)
A plaintiff sued the University and Magicamp for the drowning death of a child on the University campus while the child was participating in the camp. The court held that, where there was a conflict of interest between the University and Magicamp, because each alleged that the other was at least partly at fault, the insurance company was required to appoint separate counsel for the University. Therefore, the University was entitled to indemnification for the attorney’s fees it incurred in defending the action.
“In defense of both co-defendants, Great American's counsel would have had to argue conflicting legal positions, that each of its clients was not at fault, and the other was, even to the extent of claiming indemnification and contribution for the other's fault. In so doing, legal counsel would have had to necessarily imply blame to one co-defendant to the detriment of the other. On these facts, we believe this legal dilemma clearly created a conflict of interest between the legal defenses of the common insureds sufficient to qualify for indemnification for attorney's fees and costs for independent counsel.”
Albelo v. Southern Oaks Ins. Co.
2013 Wl 440199 (Fla. 3d DCA Feb. 6, 2013)
The Third DCA awarded 57.105 fees against the insurer, and reversed a summary judgment in its favor. The insurer’s argument that the insured was required to petition the probate court to determine her own competence and have a guardian appointed before she could proceed was frivolous.
Delmonico v. Traynor
Case No. 10-1397 (Fla. Feb. 14, 2013)
The litigation privilege, does not provide absolute immunity from liability to an attorney for alleged defamatory statements the attorney makes during ex-parte, out-of-court questioning of a potential, nonparty witness in the course of investigating a pending lawsuit. Instead, a qualified privilege instead applies to ex-parte, out-of-courtstatements, so long as the alleged defamatory statements bear some relation to or connection with the subject of inquiry in the underlying lawsuit. A qualified privilege requires the plaintiff to establish express malice. However, where the statements do not bear some relation to or connection with the subject of inquiry in the underlying lawsuit, the defendant is not entitled to the benefit of any privilege—either absolute or qualified.
Moody v. Lawnwood Med. Ctr., Inc.
Case No. 4D-11-3879 (Fla. 4th DCA March 6, 2013)
Reversing a summary judgment in favor of the defendant hospital the court held that the plaintiffs’ release of two doctors did not release the hospital for vicarious liability for the doctors’ negligence. The releases specifically stated that the hospital was not released and that all claims against the hospital were preserved.
In addition, there was a genuine issue of material fact as to whether the hospital had a non-delegable duty to provide competent care to the plaintiffs’ child. An issue of fact existed regarding the hospital admission form and particularly “whether the mother viewed, received, signed or otherwise acquiesced to certain provisions purportedly discharging the hospital from liability for the acts of independent contractor physicians.”
The provision on the form stated that “ Most or all of the health care
professionals performing services in the hospital are independent contractors
and are not hospital
agents or employees. Independent contractors are responsible for their own actions, and the hospital should not be liable for the acts or omissions of any.”
Apparently because of the dispute over whether the mother even saw the admission form, the court did not address the significance of the unusual language, “most or all.”
Woodward v. Olson
2013 WL 645908 (Fla. 2d DCA Feb. 22, 2013)
In a medical malpractice action alleging the defendant failed to notify the plaintiff, on three separate occasions, of a radiologist’s findings, and to order follow-up testing, the continuing tort doctrine did not extend the statute of repose for each of three discrete incidents of malpractice until the last incident.