March 1995


Fisel v. Wynns
20 Fla. L. Wkly. D465 (5th DCA 1995)

The court certifies to the Florida Supreme Court the question whether changing conditions in Florida have altered public policy as announced in Shelby v. Bullock, 287 So.2d 18 (Fla. 1973) so that a livestock owner may now be liable for injuries resulting when his livestock wanders through an open gate, and the reason the gate is open is unknown.

Wipperfurth v. Huie
20 Fla. L. Wkly. S109 (Fla. 1995)

The dangerous instrumentality doctrine does not apply to an action against a dog owner under 767.04, Florida Statutes. The statute holds dog owners strictly liable, with a few specific exceptions if the dog is provoked. Consequently, the independent contractor exception defense to the dangerous instrumentality doctrine is inapplicable and cannot be asserted against the plaintiff who was bitten by the defendant’s dog while the dog was being boarded at a kennel for obedience training.

Additionally, the term "owner" in the statute does not include a kennel owner or veterinarian who undertakes the care, custody and control of the dog pursuant to an agreement with the dog’s owner. Therefore, the kennel owner is only liable for negligence. However, since this case arose, the statute has been amended so that owner now includes anyone "harboring, keeping or having control or custody" of the animal. The amended statute did not apply retroactively to the facts of this case.


Sacred Heart Hosp. v. Stone
20 Fla. L. Wkly. D444 (1st DCA 1995)

As we’ve discussed, the courts are really cracking down on attorneys’ arguments, even when there is no objection. In this case, the plaintiff’s attorney argued that the defense’s theory of the case was "ridiculous", that the testimony presented by the defense was "ridiculous", and that he thought the third party in the accident did an exception job in avoiding fatalities. He also told the jury about a comment the plaintiff made about one of the witnesses while walking out of court, and made frequent comments about his own opinion of the case and the evidence. Even though there were many allegedly improper comments and only two objections, the court holds that the cumulative effect amounts to fundamental error.

Plaintiffs’ lawyers in particular have to really watch themselves under this line of cases. The defendants seem to be creating a trap by not objecting at a time when the court can give a curative instruction or prevent further improper argument, and then raising the issue for the first time on appeal as fundamental error. There is a whole new line of cases finding fundamental error in these circumstances.

You should take care not to say "I think", "I believe", or any similar phrase that can be construed as stating your own opinion or vouching for your client’s case.

Attorneys Fees

Searcy, Denney, Scarola, Barnhart & Shipley, P.A. v. Poletz
20 Fla. L. Wkly. S126 (Fla. 1995)

Where an attorney handling a case on a contingency basis is fired without cause, he is entitled to be paid on a quantum meruit basis if the client ultimately recovers. The Rowe lodestar method does not apply where the fee will be paid by the client who received the services. In determining the proper amount of the award, the court must consider all relevant factors surrounding the professional relationship in order to ensure that the award is fair to the attorney and the client, not just the time involved and a reasonable hourly rate. The factors listed in Fla. Bar Rule 4-1.5(b) are a "starting point", but the weight to be given each is within the court’s discretion. The court may also consider factors such as the fee agreement, the reason the attorney was discharged, the actions taken by the attorney or client before or after the discharge, and the benefit actually conferred on the client.

Blizzard v. GEICO
20 Fla. L. Wkly. D599 (1st DCA 1995)

The decedent died while a passenger in a car insured by GEICO, and the estate filed a claim and then a complaint for declaratory judgment against GEICO. The court entered a declaratory judgment requiring GEICO to pay the benefits to the estate, but found that GEICO timely paid the benefits within thirty days of reasonable proof of loss. On that basis, the trial court denied attorneys fees. The court reversed. It held that the insurer’s good faith is irrelevant; if the dispute is within 627.428 and the insurer loses, the insured is always entitled to the attorneys fees.


Pages v. Dominguez
20 Fla. L. Wkly. D594 (4th DCA 1994)

Denying certiorari, the court holds that it was not a departure from the essential requirements of law for the trial judge to refuse to consolidate two cases that arose out of the same accident, where one case involved death and the other involved severe and permanent brain damage. The cases involve different elements of damages and testimony involving a seat belt defense applicable to only one plaintiff. The court notes that the apportionment of fault may be different due to this defense. The appellate court recommends that the cases be transferred to the same judge and consolidated for discovery on liability only.

Impact Rule

Gonzalez v. Metropolitan Dade County Public Health Trust
20 Fla. L. Wkly. S101 (Fla. 1995)

The plaintiffs’ baby died and the hospital and funeral home negligently mishandled the body, as a result of which the plaintiffs buried the wrong baby and learned several months later that their own baby had never been buried. The court held that the plaintiffs’ had no claim for damages for emotional distress absent physical injury or willful or wanton misconduct. The court declined to recede from the impact rule or to adopt Restatement (Second) of Torts 868, even though it recognized that the impact rule has been abrogated in more than 30 states.

R.J. v. Humana of Florida, Inc.
20 Fla. L. Wkly. S103 (Fla. 1995)

The impact rule applies to bar a claim for negligent misdiagnosis of HIV, where the plaintiff did not have HIV, but the plaintiff may have a cause of action if he can establish that he suffered bodily injury from unnecessary treatment with, for example, toxic drugs such as AZT. The mere touching by the doctor or taking of blood would not be enough.

Note that the impact rule does not apply where the defendant’s conduct is "outrageous" -- whatever the court may construe that to mean.

Insurance -- Intervention

Humana Health Plans, Inc. v. Durant
20 Fla. L. Wkly. D426 (Fla. 4th DCA 1995)

The trial court correctly denied Humana’s motion to intervene in its HMO member’s wrongful death claim three weeks before trial, because it would have delayed the trial. However, it was error to deny Humana’s motion for post-trial intervention where Humana had a claim for reimbursement for medical care it had provided to the decedent. See Union Central Life Ins. Co. v. Carlisle, 593 So.2d 505 (Fla. 1992). The court also holds that any proceedings to reduce the judgment because of collateral sources must be considered in conjunction with Humana’s claim for reimbursement.

In a related case, the court held that it was error for the probate court to strike Humana’s claim against the estate as untimely and to deny its motion for extension of time to file a late claim where the estate never served Humana with a notice of administration, and the court never gave Humana an evidentiary hearing on its claim. Humana Medical Plan, Inc. v. Estate of Durant, 20 Fla. L. Wkly. D429 (Fla. 4th DCA 1995). The statute contains a specific notice requirement. 733.2.2(4)(a)

Insurance -- UM

GEICO v. Douglas
20 Fla. L. Wkly. S113 (Fla. 1995)

The court seems here to be trying to straighten out the confusion it has created in the UM area by some recent decision. A policy provision excluding coverage where the named insured was operating a vehicle owned by him but not insured under the policy did not apply where the insurer did not comply with the provisions of 627.727(9) requiring that an insurer give notice to the insured and obtain a knowing acceptance of limited coverage, and file revised rates with the insurance commissioner.

The court is receding from its decision in Nationwide Mut. Fire Ins. Co. v. Phillips, 640 So.2d 53 (Fla. 1994) because "that decision failed to give effect to 627.727(9)".

The court also recedes from the language in World Wide Underwriters v. Welker, 640 So.2d 46 (Fla. 1994) that courts have consistently tied uninsured motorist coverage to the applicability of liability insurance. Rather, the court adopts Justice Shaw’s dissent in Valiant Ins. Co. v. Webster, 567 So.2d 408 (Fla. 1990), which stated that UM coverage focuses on the injured individual, rather than the accident. The court thus revitalizes Mullis v. State Farm Mut. Auto. Ins. Co., 252 So.2d 229 (Fla. 1994).

If the insurance company wants to limit the broad UM coverage available under Mullis, it has to provide the notice required and file the revised premium rates with the insurance commissioner.

Foremost Ins. Co. v. Warmuth
20 Fla. L. Wkly. D429 (4th DCA 1995)

The court may assess taxable costs against the uninsured motorist carrier in excess of the amount of the policy limits. It is still the public policy of this state to provide the injured person with the same recovery as would have been available if the tortfeasor had been adequately insured.

The court points out what should be obvious, but too often is ignored: that "Florida’s uninsured motorist law is designed to benefit and protect injured persons, and is thus not for the benefit of the insurance companies."

Warren v. The Travelers Ins. Co.
20 Fla. L. Wkly. D504 (1st DCA 1995)

The decedent was killed while a passenger in a car involved in a single-car accident. Her estate recovered under the liability provisions of the policy and then sought recovery under the uninsured motorist provision of the same policy. The insurance company denied coverage because the definition of an uninsured motor vehicle excluded vehicles insured under the policy. The court held that coverage was required because exclusions to UM coverage are not enforceable if the injured person is covered by the bodily injury liability provisions of the policy. The court cited Mullis v. State Farm, 252 So.2d 229 (Fla. 1971) and Travelers Ins. Co. v. Chandler, 569 So.2d 1337 (Fla. 1st DCA 1990).

The court certified the question to the Supreme Court.

Jury Selection

Stripling v. State
20 Fla. L. Wkly. D412 (Fla. 3d DCA 1995)

The defendant waived his objections to the trial court’s restrictions on voir dire by accepting the jury upon the selection of the twelfth juror without renewing his objection.

Med Mal

Humana of Fla. Inc. v. McKaughan
20 Fla. L. Wkly. D565 (2d DCA 1995)

The plaintiffs filed a malpractice action in circuit court alleging that their baby suffered a neurological injury after the immediate post-delivery period, and therefore that the injury was not covered by the Birth-Related Neurological Injury Compensation Plan, 766.301-316. The defendants raised the exclusivity of the Plan as a defense. The court held that the circuit court did not have to automatically abate the action and refer it to an administrative hearing officer for a threshold determination of whether the injury was covered by the Plan. The circuit court had jurisdiction to determine whether the injury fell under the plan.

The court certified to the Supreme Court the question of whether an administrative hearing officer has exclusive jurisdiction to determine whether the injury is covered by the Plan.

Central Fla. Regional Hosp., Inc. v. Wager
20 Fla. L. Wkly. D633 (5th DCA 1995)

The Fifth DCA also rules that the circuit court has sole jurisdiction to determine whether the injuries were such that they fell under the Plan. Where plaintiff filed suit in circuit court and requested jury trial, the issue should be submitted to the jury and, if the jury finds that the injuries were neurologically related, the jury should be instructed to proceed no further and the trial court must then dismiss the action.

Med Mal -- Peer Review

Palm Beach Gardens Comm. Hosp. v. O’Brien,
20 Fla. L. Wkly. D579 (4th DCA 1995)

It was error to require a hospital to produce a list of prior incidents in which complaints were made about two defendant doctors’ treatment of patients at the hospital. The court holds that this information is protected by the peer review privilege under 766.101(5), even though plaintiffs asserted a claim under 766.10(1) for the hospital’s liability for assuring the competence of its staff.

Premises Liability

Grier v. Metropolitan Dade County
20 Fla. L. Wkly. D617 (3d DCA 1995)

The court affirms summary judgment for the county where the plaintiff fell when her shoe caught on a surveyor’s nail which had been protruding from the street for more than two years. The county did not create the condition and first became aware of it when plaintiff fell. The protrusion of 1/4 inch was too small to put the county on constructive notice. Judge Schwartz dissented, arguing that this was a classic jury issue.

Punitive Damages

Schropp v. Crown Eurocars, Inc.
20 Fla. L. Wkly. S128 (Fla. 1995)

A corporation may be held liable for punitive damages either (1) where it is vicariously liable for willful and malicious actions of an employee with a finding of independent negligent conduct of the corporation or (2) where there is direct liability of the corporation based on the willful and malicious actions of its managing agents. Where the jury exonerated the managing agent, there was no legal basis for punitive damages under the managing agent theory. The court rejected the plaintiff’s argument that there is a third theory under which punitive damages may be awarded, without specifying what that theory is.

However, in a concurring opinion by Justice Wells, joined by Justices Shaw, Kogan and Anstead (looks like a majority to me!), the concurring justices state that "punitive damages can be recovered against a corporation on the basis that the corporate policy of the corporation provides a basis for the punitive damages even though the particular officers or agents of the corporation responsible for the policy are not discovered or identified."

Beverly Enterprises-Florida Inc. v. Maggiacomo
20 Fla. L. Wkly. D620 (2d DCA 1995)

Allegations that a nurse’s aid forcibly removed a nursing home resident’s diamond ring, resulting in bruising to the resident’s finger, supported only by the resident’s medical chart which stated that the ring was missing and the finger was bruised and a police report which stated that an employee was a suspect, were not sufficient to support punitive damages.

Spoliation of Evidence

Miller v. Allstate
20 Fla. L. Wkly. D409 (3d DCA 1995)

This shows how very difficult it is to prevail on a spoliation of evidence theory when someone has destroyed your evidence. This court holds that it is mandatory to sue both the manufacturer and the person who destroyed the evidence.

The car owner sued her insurer, alleging that the insurer breached an agreement to preserve the wrecked car and thereby denied the plaintiff of the opportunity to sue the manufacturer for products liability. The court held that the plaintiff should have joined the manufacturer in the suit. Where a viable means to pursue the underlying products liability claim exists, that cause of action must be pursued before, or with, the spoliation of evidence claim. The court held that the plaintiff’s claim against the manufacturer was viable here because the car was only a few months old at the time of the accident, she operated the car in a normal fashion on the night of the accident, and she felt the accelerator stick, which caused loss of control and a collision. The court held that this evidence would have been sufficient to go to the jury on the products liability claim. See Cassisi v. Maytag Co., 396 So.2d 1140 (Fla. 1st DCA 1981).

The two claims should have been tried together. Since the plaintiff failed to sue the manufacturer, it was not error for the trial court to direct a verdict. The court in this decision clarifies its prior decision in Miller v. Allstate Ins. Co., 573 So.2d 24 (Fla. 3d DCA 1990), rev. denied, 581 so.2d 1307 (Fla. 1991), an important and leading case on the issue of spoliation of evidence.

Workers Comp Immunity

Holmes County School Board v. Duffell
20 Fla. L. Wkly. S110 (Fla. 1995)

Plaintiff, a school custodian, was injured when he was pinned between two school buses while assisting in a school bus evacuation drill. He settled his worker’s comp claim with the school board, and sued the school board for the negligence of the bus driver. The court held that neither the worker’s comp statute nor the sovereign immunity statute precluded his action where the negligent employee was engaged in unrelated work. Injured workers, both public and private, have a statutory right to accept worker’s comp benefits and at the same time pursue a civil action against the negligent co-employee assigned to unrelated works, and under the sovereign immunity statute, the exclusive remedy for an injury inflicted by a public employee is by an action against the governmental entity.