March 1996

Judge Natalie Baskin

Trial lawyers and their clients have lost a great friend with the passing of Judge Natalie Baskin of the Third District Court of Appeal. Judge Baskin sat on that court for almost my entire career. She wrote many important opinions, including the Third District’s decision in Fabre, later unfortunately overturned by the Supreme Court. I will miss her quiet dignity, her compassion, and her firm stand for individual rights, access to court, and due process of law.

Fundraiser for Legal Services of Greater Miami

Once again the Dade County Trial Lawyers Association is joining with twenty other voluntary bar associations to raise money for Legal Services of Greater Miami, Inc. Legal Services provides free legal assistance to poor people in civil cases. They have lost about one third of their funding in the recent budget cuts, and expect to lose more. They desperately need our help. The event will be a cocktail party and silent auction, on May 23, at the beautiful Hotel Intercontinental, which is generously donating the room and the food. You will be receiving invitations next month. I hope to see you there.


Airstar, Inc. v. Gubbins
21 Fla. L. Wkly. D477 (Fla. 4th DCA 1996)

The trial court should not have granted an additur under 768.043 where there was a zero verdict and there was evidence from which the jury could have found that the plaintiff’s condition was due to a previous accident or to old age. The additur statute does not allow the court to sit as a seventh juror with veto power. (This is the statute providing for remittitur and additur in actions arising out of the operation of a motor vehicle).

Poole v. Veterans Auto Sales
21 Fla. L. Wkly. S69 (Fla. 1996)

The court declines to determine whether 768.74, the general remittitur/additur statute, is constitutional under article I, 22 of the Florida Constitution; however, the court notes that the statute should not alter the longstanding principles applicable to granting new trials on damages. The trial judge is still not allowed to sit as a seventh juror or to substitute his factual determinations for those of the jury.

Argument -- Improper

Muhammad v. Toys R Us, Inc.
21 Fla. L. Wkly. D1420 (Fla. 1st DCA 1996)

A new trial was required in a products liability case where the defense in closing told the jury that the plaintiff had settled with the manufacturer, even though the trial court gave a curative instruction and the plaintiff did not move for mistrial. Moreover, the defense gave an improper closing argument which injected personal opinion, accused plaintiff of perpetrating a fraud on the court and on the jury, suggested that the plaintiff’s expert who testified by deposition did not bother to testify in person because his opinion was so ludicrous, and compared facts in the case to his own personal experience.

Norman v. Gloria Farms
21 Fla. L. Wkly. D385 (Fla. 4th DCA 1996), rehearing en banc denied, 21 Fla. L. Wkly. D339 (Fla. 4th DCA 1996)

The panel opinion found fundamental error in a closing argument in which the defense told the jury that a verdict for the plaintiff would end hog hunting in Okeechobee County and subject them to condemnation in their community. There was also a jury misconduct issue, discussed below. The denial of rehearing en banc contains a powerful debate in concurring and dissenting opinions about when an improper argument by counsel constitutes fundamental error. Judge Stone’s concurrence cites Borden v. Young, 479 So.2d 850 (Fla. 3d DCA 1985), rev. denied, 488 So.2d 832 (Fla. 1986), urging more control by trial judges over the argument of counsel. Judge Farmer, in dissent, cites LeRetilley v. Harris, 354 So.2d 1213 (Fla. 4th DCA), cert. denied, 359 So.2d 1216 (Fla. 1978) for a more limited judicial role, allowing reversal only when the arguments "were of such sinister influence as to constitute irreparable and fundamental error", striking at substantial justice or fundamental rights. He urges skepticism when the appellant wasn’t bothered enough at trial to object.

The DCAs are in great conflict over this issue, which ultimately will have to be decided by the supreme court. See Judge Altenbernd’s opinion on Hagan v. Sun Bank, 21 Fla. L. Wkly. D212 (Fla. 2d DCA 1996).


Nico Leasing, Inc. v. Viacao Barao de Maua Ltda.
21 Fla. L. Wkly. D462 (Fla. 3d DCA 1996)

It was error to refuse to set aside a default which was "improperly secured without notice after the plaintiff became aware that the defendant was or would be represented by counsel and desired actively to defend the case."

Debello v. Faske
21 Fla. L. Wkly. D467 (Fla. 3d DCA 1996)

Don’t get too excited if your opponent doesn’t show up for trial. The trial judge erroneously defaulted the defendant when he failed to show up at the beginning of the trial. Even if the defendant’s absence is not excusable, the plaintiff must be put to his proof against a defendant who has answered.

Economic Loss Rule

McDonough Equipment Corp. v. Sunset Amoco West, Inc.
21 Fla. L. Wkly. D461 (Fla. 3d DCA 1996)

The plaintiff, a gas station operator, contracted with the defendant to remove and replace the gas station’s underground tanks. The contract provided that the defendant would not be liable for any incidental damages. The defendant was negligent, resulting in contamination of groundwater which the plaintiff had to expend money to clean up. The plaintiff sued the defendant for negligent performance of the contract. The court held that the claim was barred by the economic loss rule. The plaintiff "may not recover in tort purely economic losses in the form of contractually delegated clean-up costs in the absence of evidence of personal injury or independent property damage." (I’m not sure why the contamination of the surrounding area does not qualify as independent property damage). I think this case relies heavily on the fact that the contract specifically allocated such risks.

Jarmco. Inc. v. Polygard, Inc.
21 Fla. L. Wkly. D478 (Fla. 4th DCA 1996)

The plaintiff, a boat builder, sued a dealer for damages arising from the dealer’s sale of defective resin. The dealer sued the distributor for contribution. The court held that the rule does not bar claims for fraud in the inducement. However, the court held that other tort claims, including negligent misrepresentation, deceptive and unfair claims practices, and negligence were barred.

The court held that the plaintiff’s use of the resin to make a finish for boats which was unusable did not satisfy the requirement of damage to other property which would take the case out of the bar of the economic loss rule.

The resin seller’s claim against the distributor is limited to its contract remedies, which clearly limited the distributor’s liability to the costs of the goods sold.

As it did in TGI Development v. CV Reit, Inc., 665 So.2d 366 (Fla. 4th DCA 1996), the court certified conflict with Woodson v. Martin, 663 So.2d 1327 (Fla. 2d DCA 1995), which is currently pending in the Supreme Court.


Blum v. Pension Investors Corp. 21 Fla. L. Wkly. D400 (Fla. 3d DCA 1996)

ERISA does not preempt an action for legal malpractice regarding professional advice concerning the requirements for federal income tax benefits with regard to funds distributed from an employee pension plan. The court notes that the case law regarding ERISA preemption is a mess. This case has a good collection of the various decisions attempting to ascertain the scope of ERISA preemption. The court also states its reluctance to allow preemption where ERISA itself would provide no remedy and thus the defendants would be immunized from all liability for tortious conduct which caused damage to the plaintiff.

Excessive Force

City of Miami v. Sanders
21 Fla. L. Wkly. D463 (Fla. 3d DCA 1996)

The court refuses to recognize a cause of action for negligent use of excessive force for injuries resulting from a lawful arrest. The only cause of action for excessive force in a lawful arrest is battery. Law enforcement officers have a complete defense to an excessive force claim if the officer "reasonably believes [the force] to be necessary to defend himself or another from bodily harm while making the arrest." 776.05(1), Florida Statutes.

However, the court recognizes that in a proper case a separate negligence claim based on a distinct act of negligence may be brought against a police officer in conjunction with a claim for excessive use of force.

Experts -- discovery

State Farm Fire & Cas. Co. v. Snyder
21 Fla. L. Wkly. D465 (Fla. 3d DCA 1996)

This one paragraph opinion appears to be about discovery regarding defendant’s medical experts. The court held that the plaintiff is entitled to discovery of computer printouts readily available from State Farm. However, the experts’ 1099 forms are not discoverable.


Southern Bell Telephone & Telegraph Co. v. Florida Dept. of Transportation
21 Fla. L. Wkly. D391 (Fla. 3d DCA 1996)

The court, on motion for clarification, takes out some dicta that defendants were using to argue that a defendant who had gotten out on a summary judgment finding no liability could still go on the verdict form.

The court now expressly holds that "If a defendant wants a Fabre defendant on the verdict form, the defendant must see to it that there is legally sufficient evidence in the record from which the jury can find that the Fabre defendant was at fault. If there is no such evidence, the defendant is not entitled to have the Fabre defendant placed on the verdict form. Again, if the Fabre defendant is exonerated because there is no evidence of fault, that defendant does not go on the verdict form." (emphasis in original)

Therefore, a defendant has standing to appeal a summary judgment in favor of a codefendant.

This decision was reached after an extraordinary effort by Joel Perwin to appear as an amicus on behalf of the Academy after the decision had already been written. Joel filed a motion for leave to appear and a motion for clarification, both of which the court granted.

Shufflebarger v. Galloway
21 Fla. L. Wkly. D392 (Fla. 3d DCA 1996) (en banc)

A defendant who settled was erroneously left off the verdict form. The jury found against the remaining defendant. The court held that a new trial was required, but that the evidence would be limited to the issue of the negligence, if any, of the non-party. The jury will be instructed that as a matter of law, the defendant was negligent, and that it should determine whether the nonparty was also at fault and, if so, whether his negligence was a legal cause of damage to the plaintiffs. If so, the jury will be instructed to apportion the fault. I don’t understand how the jury can make an apportionment without also receiving evidence on the fault of the defendant, and I hope the opinion is clarified.

Cohen v. Richter
21 Fla. L. Wkly. D347 (Fla. 4th DCA 1996)

This case implements Wells v. Tallahassee Memorial, 659 So.2d 249 (Fla. 1995). The trial court reversed a judgment for application of a setoff in accordance with the Wells formula. Briefly stated, under Wells, the following steps must be taken:

1. The settlement must be apportioned between economic damages and noneconomic damages in the same proportion as the jury did in the verdict.

2. That portion of the settlement that constitutes economic damages is set off against the economic damages portion of the verdict.

3. As to noneconomic damages, the plaintiff gets whatever portion is attributable to the defendant in the verdict with no setoff. For example, if the jury finds a particular defendant 90 percent liable, the plaintiff get a judgment for 90 percent of the noneconomic damages against that defendant. There is no setoff against that amount.

The court in Cohen reversed a judgment for application of the Wells formula, noting that Wells had not been decided at the time of the trial court’s decision.

Thus, Cohen stands for the proposition that Wells applies retroactively to cases that were in the pipeline at the time it was decided.

Cohen also deals with the relationship between the Fabre and Wells decision and the offer of settlement statute, 45.061 (now repealed; see 768.79). The appellate court instructed the trial court to consider, whether in light of the reduction of the judgment by the setoff, the defendant unreasonably rejected the plaintiff’s offer of settlement.

Note that, unlike 45.061, under 768.79, the reasonableness of the rejection is relevant only to the amount of the fees, not to whether they should be awarded at all. TGI Fridays v. Dvorak, 20 Fla. L. Wkly. S436 (Fla. 1995). However, this case can be used for the proposition that the setoff should be considered before deciding whether an offer has been unreasonably rejected.

The offer of judgment statute and rule keep getting more and more complicated. Now, we have to take into account setoffs for settlements with joint tortfeasors in determining whether to accept or reject an offer of judgment.

Insurance -- Misrepresentation

Strickland Imports, Inc. v. Underwriters at Lloyds
21 Fla. L. Wkly. D422 (Fla. 1st DCA 1996)

It was error to direct a verdict against the insured pursuant to 627.409, concerning misrepresentations, where the trial court failed to consider a policy provision that allowed the insurer to void the policy only for intentional misrepresentations.

Insurance -- UM

Hassen v. State Farm
21 Fla. L. Wkly. S102 (Fla. 1996)

In 1992, the legislature amended 627.727(6). The amendment requires a UM carrier which refuses permission for the insured to settle with the tortfeasor to either pay the amount of the tortfeasor’s settlement offer or lose its subrogation rights. The Supreme Court held that the amendment is substantive and does not apply retroactively to a claim under a UM policy executed prior to the amendment’s effective date.

Atlanta Cas. Co. v. Evans
21 Fla. L. Wkly. D496 (Fla. 1st DCA 1996)

The plaintiff’s husband executed a valid rejection of uninsured motorist coverage. Subsequently they were divorced. The plaintiff then requested the insurer to delete her former husband as a named insured and to change her name on the policy, but to keep the “same coverage.” After that change, she was injured in an action with an uninsured motorist. The court held that the former husband’s rejection was valid at the time it was executed, and that, since the changes in the policy did not affect the bodily injury liability limits, the insurer was not required to again offer uninsured motorist coverage to the plaintiff absent a written request from her. Therefore, the husband’s rejection was still valid and there was no UM coverage.

Allstate Ins. Co. v. Thomas
21 Fla. L. Wkly. D423 (Fla. 4th DCA 1996)

There was no uninsured motorist coverage where the court determined that the passenger was not "occupying" the insured vehicle at the time he was hit. The passenger had been sent by his employer to assist a disabled truck by unloading the disabled truck, putting the cargo on the insured truck and carrying it on to its destination. At the time he was hit by a third, uninsured vehicle, he was standing near the disabled vehicle. The court holds that the appropriate test is the "relationship between the person and the [insured] vehicle, obviously of time and in distance with regard to the risk of alighting, that determines the specific coverage."

I have been retained to handle the motion for rehearing. I have moved for rehearing en banc, arguing that other courts have adopted a different test, focusing on the injured person’s intent with respect to the insured vehicle. See Industrial Fire & Cas. Ins. Co. v. Collier, 334 So.2d 148 (Fla. 3d DCA 1976); State Farm v. Yanes, 447 So.2d 945 (Fla. 3d DCA 1984); Fidelity & Casualty Co. of New York v. Garcia, 368 So.2d 1313, 1315 (Fla. 3d DCA), cert. denied, 378 So.2d 344 (Fla. 1979) (whether "the insured shows an intention, evidenced by an overt act based on that intention, to undertake a new direction or activity".)

Martin v. St. Paul Fire & Marine Ins. Co.
21 Fla. L. Wkly. D379 (Fla. 2d DCA 1996)

A specialty policy issued for a reduced premium and providing limited coverage for an antique car with limited highway usage is not required to provide UM coverage for accidents not involving the insured antique car. The insured’s son, a resident relative, was injured by an uninsured motorist while in a different car. The court upheld a policy endorsement that limited uninsured motorist coverage to claims of insureds who were actually occupying the insured antique car at the time of the accident. The court reaches this result because the car is not a "family automobile", distinguishing Mullis v. State Farm Mut. Auto. Ins. Co., 252 So.2d 229 (Fla. 1991). The insured bought a policy called an "Antique Automobile Insurance Policy" which insured only the antique car. Most of the premium was allocated to collision coverage. Even though the limitations in the policy were more restrictive than those allowed by 627.727(9), the court upheld them.

Jury Discrimination

Speights v. State
21 Fla. L. Wkly. D472 (Fla. 4th DCA 1996)

After the defendant in a criminal case struck a white male from the jury, the state raised a challenge under State v. Neil, 457 So.2d 481 (Fla. 1984), arguing that the strike was racially motivated. The defendant explained that he struck the juror because the juror had sat on eighteen cases including a recent murder trial. The defense believed that his experience made him a potential leader whose vote might be given greater weight by other jurors. The court upheld the plaintiff’s right to challenge on this basis. First, the court noted that the explanation does not have to be persuasive or plausible, but only facially valid. Second, possible leadership qualities based on past jury experience is a valid racially neutral reason. The court recognizes that trial lawyers don’t want any one juror to have a disproportionate say in the verdict.

Jury Misconduct

Norman v. Gloria Farms
21 Fla. L. Wkly. D385 (Fla. 4th DCA 1996), rehearing en banc denied, 21 Fla. L. Wkly. D339 (Fla. 4th DCA 1996)

One of the jurors had a brother who was an employee of the defendant’s liability insurer. He had two conversations with his brother during the trial, including one in which he told his brother that the defense lawyer was eating the plaintiff’s lawyer’s lunch. The court held that these contacts constituted overt acts which compromised the integrity of the process, and that a new trial was required.


Mizrahi v. Valdes-Fauli, Cobb & Petrey, P.A.
21 Fla. L. Wkly. D399 (Fla. 3d DCA 1996)

The two year statute of limitations for professional malpractice in 95.11(4) did not apply to an action against an attorney who allegedly was negligent only while acting as an escrow agent. An escrow agent is not a "professional" under the statute because a four year college degree is not required to serve as an escrow agent.

Ding v. Jones
21 Fla. L. Wkly. D382 (Fla. 2d DCA 1996)

This case was a wrongful death action. The plaintiff’s wife was killed, and he was injured, in an accident with a truck. The truck driver sued the plaintiff. The plaintiff counterclaimed for wrongful death, and also brought a cross claim against the leasing company which leased the car to him and a third party claim against the owner of the truck.

The court held that the truck driver had waived the statute of limitations as to the plaintiff by suing him. Thus, the plaintiff could counterclaim against the truck driver for wrongful death of his wife, but only for his own injuries as a survivor, and not for any damages accruing to the estate. The court also held that the cross-defendant and third party defendant had valid statute of limitations defenses which were not waived.

Med Mal -- Birth Related Neurological Injury

Florida Birth Related Neurological Injury Compensation Assoc. v. McKaughan
21 Fla. L. Wkly. S91

Sections 766.301-316, Florida Statutes, set up the Birth-Related Neurological Injury Compensation Plan to provide a no-fault method of compensating such injuries to new-born infants (providing limited benefits). It provides the exclusive remedy for such claims. The Supreme Court holds that when the plaintiff brings a malpractice action and the defendant raises the statutes as a defense, the court has jurisdiction to determine whether the claim is covered by the statutes, and therefore whether the health care provider is immune from suit.

This means that you can sue the health care provider and have the court determine the immunity issue. But watch out! While the statute of limitations for the tort action is tolled while an administrative proceeding is pending, the statute of limitations is not tolled for filing an administrative proceeding while the tort action is pending. As the court pointed out, "plaintiff faces the risk that the time for filing a NICA claim may expire while he is unsuccessfully litigating the exclusivity of the remedies afforded by the plan."

Med Mal -- Presuit

Pozniak v. Boswell
21 Fla. L. Wkly. D600 (Fla. 5th DCA 1996)

The court per curiam affirms the dismissal of the plaintiff’s case with prejudice for failure to comply with presuit discovery. Judge Dauksch, dissenting, says that the attorney claims he was about to give the discovery when he received the defendant’s notice of rejection. The trial judge should have exercised his discretion to impose some other sanction such as requiring the plaintiff’s attorney to provide full discovery at his own expense and to delay for a short time the requirement of any action on the defendant’s part until that was completed.

I believe Judge Dauksch is right. The Supreme Court has made it clear that the malpractice statute is supposed to filter out frivolous claims and promote settlement, not create obstacles for legitimate claims. See Patry v. Capps, 633 So.2d 9 (Fla. 1994). As Judge Dauksch notes, the statute is "rather one-sided," and the courts are enforcing it in a one-sided manner. Compare Karr v. Sellars, 21 Fla. L. Wkly. D186 (Fla. 4th DCA 1996) (reversing order striking defendant doctor’s pleadings for failure to include a corroborating affidavit with his rejection letter).

Offer of Judgment

Coast to Coast Real Estate, Inc. v. Waterfront Properties, Inc.
21 Fla. L. Wkly. D541 (Fla. 4th DCA 1996)

In a declaratory judgment action in which the plaintiff also sought damages, the offer of judgment statute applied. The fact that the plaintiff’s demand for judgment was improperly titled as an offer of judgment does not defeat the true character of the document.

Boardman Petroleum Inc. v. Tropic Tint of Jupiter, Inc.
21 Fla. L. Wkly. D470 (Fla. 4th DCA 1996)

In an action against a neighboring landowner for pollution of the plaintiff’s lands, the trial court erroneously added to the amount of the judgment the monetary value of injunctive relief in determining whether the plaintiff’s recovery exceeded the offer by more than 25 percent.

Service of Process

Maher v. Best Western Inn
21 Fla. L. Wkly. D443 (Fla. 5th DCA 1996)

The court per curiam affirms an order dismissing a complaint against one of the defendants for failure to serve within 120 days under Fla. R. civ. P. 1.070(i). The concurrence and dissent make clear that, although the plaintiff hired an investigator who was unable to find the defendant, the defendant was in fact listed in the phone book the whole time. Part of the problem may have been that the plaintiff did not move for an extension until after the 120 days had run.

West v. State Dept. of HRS
21 Fla. L. Wkly. D352 (Fla. 1st DCA 1996)

It was error to dismiss plaintiff’s complaint against HRS for failure to serve process on the Dept. of Insurance within 120 days. See 768.28(7), requiring service on the agency you are suing and on the Dept. of Insurance.

Sovereign Immunity

State of Florida Dept. of HRS v. Arnold
21 Fla. L. Wkly. D488 (Fla. 1st DCA 1996)

The trial court properly granted a new trial to a patient injured by another patient at the Florida State Hospital. The trial court erroneously struck the plaintiff’s allegation that he should not have been placed in the unit where he was attacked because it was contrary to hospital policy. The court distinguished Dept. of HRS v. B.J.M., 656 So.2d 906 (Fla. 1995), holding that HRS funding decisions are shielded by sovereign immunity, because here the plaintiff did not claim that staffing at the hospital was inadequate, but that the placement policy in effect at the time of the attack was violated. See also HRS v. Whaley, 574 So.2d 100 (Fla. 1991) (allowing claim by incarcerated juvenile who was attacked by fellow inmate in his cell).

The court also held that it was error to refuse to allow the plaintiff to rebut a hospital employee’s testimony that a specific page of the policy had not been approved by the hospital’s administration, which conflicted with the hospital’s response to plaintiff’s request for production of a "full and complete legible copy of policy and procedure" in effect at the time of the attack.

Smart v. Monge
21 Fla. L. Wkly. D455 (Fla. 2d DCA 1996)

A letter to the sheriff’s legal advisor which stated that the attorney was representing the plaintiff in connection with her son’s death, and requesting all available documents concerning the son including any investigation into his death, did not satisfy the notice requirement of 768.28(6) because it did not specifically state the intent to file a claim. The court holds that at a minimum the letter must identify the incident and notify the agency of a demand for compensation of the injury.

Worker’s Comp Immunity

Venezia v. Egan
21 Fla. L. Wkly. D555 (Fla. 5th DCA 1996)

This was an action by an employee of a subcontractor against the owner and operator of a crane which had been leased to the subcontractor. The plaintiff was injured as a result of the crane operator’s negligence while the plaintiff was giving hand signals to the crane operator. The court reversed a summary judgment that had been granted to the defendants on the basis of worker’s comp immunity under a borrowed servant theory. (The defendants contended that they were immune because the crane operator was the borrowed servant of the subcontractor.)

The court held that there is a presumption that the operator who was furnished with the leased crane was the general employee of the owner of the crane at the time of the accident. To overcome this presumption and make him the borrowed servant of the subcontractor, the defendants would have to show that a contract for hire existed between him and the subcontractor, and that the subcontractor had the power to control the details of the operator’s work. Absent such a showing, the presumption prevailed and the defendants were not entitled to summary judgment.

Congratulations to Roy Wasson for winning this one.

Baxter v. Hog Valley Volunteer Fire Dept.
21 Fla. L. Wkly. D365 (Fla. 5th DCA 1996)

The plaintiff, a paid professional Marion County fire fighter, was assigned by the County to work at another fire station, which was otherwise all volunteer. While working at the volunteer station, he was called to assist fire fighters from a second volunteer fire department in fighting a fire. He was injured by a blast of water which knocked off his protective breathing gear, causing permanent injuries. He sued the second volunteer fire department. The court held that the second volunteer fire department was not entitled to worker’s comp immunity. Under the contracts between the fire departments, the plaintiff remained an employee of the county, while the firefighters who worked for the second volunteer fire department worked for it, not for the county. See 440.02(15)(a) (applying to firefighters generally); 440.02(12)(d)3.a. (excluding volunteers to private nonprofit corporations from the definition of employee).