March 1998

Appeals — Jurisdiction

Raysor v. Raysor
23 Fla. L. Wkly. D584 (Fla. 1st DCA 1998)

The notice of appeal must be timely filed. Mailing is not enough, even if the notice is delivered to the clerk’s post office box before the time for filing expires. The “mailbox rule” applies only to prisoners who cannot hand deliver the notice of appeal. A paper is deemed to be filed when it is delivered to the proper official and received by that official to be kept on file. In order to be timely, a notice of appeal must be filed with the appropriate court within the required time. Merely mailing the notice or having it placed in a post office box within the required time is not sufficient.


Cooper v. Fine
23 Fla. L. Wkly. D341 (Fla. 4th DCA 1998)

Plaintiff, who guaranteed a promissory note in connection with a corporation’s purchase of some stock, did not have to arbitrate a dispute over the note, where the note and the guaranty did not contain any arbitration provision, even if the stock purchase agreement did. As to the parties to that agreement, however, the question of whether the conditions precedent for arbitration were fulfilled is for the arbitrator, not for the court.

Temple Emanue-El of Greater Ft. Lauderdale v. Tremarco Ind., Inc.
23 Fla. L. Wkly. D346 (Fla. 4th DCA 1998)

Plaintiff’s agreement with their roofer did not contain an arbitration clause, but the manufacturer’s warranty for the roofing material did. The court held that the plaintiff was not required to arbitrate its dispute with the roofer.

Monsour v. Balk
23 Fla. L. Wkly. D366 (Fla. 2d DCA 1998)

Where a contract requires arbitration of all claims between the parties, arbitration is not waived by a party filing a motion to set aside a judgment or a motion to dismiss an action under the contract.

Argument — Improper

Murphy v. International Robotics Systems, Inc.
23 Fla. L. Wkly. D447 (Fla. 4th DCA 1998)

The defendant’s closing argument that the plaintiff wanted to “cash in a lottery ticket in this litigation” was improper and unethical. If plaintiff had objected, it could have been reversible. However, it did not constitute fundamental error. Therefore, the court affirmed because there was no objection. However, the court suggests that the Bar should take action. The court “hopes that a litigant considering an appeal tho this court, whose best hope for reversal is unobjected-to argument of counsel, will carefully consider whether it is worth the cost.” The moral of the story is, if you think the argument is really that prejudicial, object; move for mistrial; ask for curative instruction.

Attorney Fees

Alvarado v. Cassarino
23 Fla. L. Wkly. D530 (Fla. 2d DCA 1998)

This court holds, incorrectly, I think, that the court cannot enhance the fee both for the result obtained and for the contingency risk multiplier. I think that Florida Patients Compensation Fund v. Rowe, 472 So.2d 1144 (Fla. 1985) and Standard Guaranty Ins. Co. V. Quanstrom, 555 So.2d 828 (Fla. 1990) require the court to consider both factors. The court certifies the question to the Supreme Court.

Collateral Source

Allstate Ins. Co. V. Rudnick
23 Fla. L. Wkly. D497 (Fla. 4th DCA 1997)

The UM statute provides, in 627.727(1), that UM coverage “shall not duplicate the benefits available to an insured under ... personal injury protection benefits ...”. The court holds that the UM insurer is not entitled to a setoff for PIP and medpay coverage for benefits that have not already been paid or “actually incurred and owed at the time of trial.” The court certifies conflict with Kokotis v. DeMarco, 679 So.2d 296 (Fla. 5th DCA 1996), rev. denied, 689 So.2d 1068 (Fla. 1997).

Holt v. King
23 Fla. L. Wkly. D498 (Fla. 4th DCA 1998)

The same court holds that an insured tortfeasor is entitled to a setoff for PIP when the claimant is uninsured in contravention of the no-fault laws. The court certifies the question.

Giannou v. Peck
23 Fla. L. Wkly. D630 (Fla. 4th DCA 1998)

The court certifies to the supreme court the following question:

Whether the term “paid or payable” in 627.736(3) should be defined as “that which has been paid or presently earned and currently owing”, so that the statutory language of 627.736 will not be interpreted to permit any remaining personal injury protection benefits to be used for set-offs or for future collateral sources.

Dangerous Instrumentality

J.R.Brooks & Son v. Quiroz
23 Fla. L. Wkly. D617 (Fla. 3d DCA 1998)

A corporation was vicariously liable for the negligence of the owner/driver of a car because the corporation was the equitable owner even though the car was titled in the name of the driver. The corporation purchased the truck for the personal and business use of the driver, the son of the owner of the corporation. The corporation did not sell the car to the son, and did not make a gift of it to him; the corporation paid the insurance on the vehicle and may have received the proceeds of the collision coverage after the accident.

Baptista v. Enterprise Leasing
23 Fla. L. wkly. D618 (Fla. 3d DCA 1998)

The owner of an automobile, a rental company, was not liable for the negligence of a valet parking attendant to whom the renter had turned over the car.

Brown v. National Car Rental
23 Fla. L. Wkly. D619 (Fla. 3d DCA 1998)

The Florida Dangerous Instrumentality doctrine applies to a claim by a Florida resident, injured in Florida by a car that was rented in Georgia by a Georgia resident who was driving at the time of the accident. Florida had the more significant relationship to the issue. The car rental company also did business in Florida and promoted itself to Florida tourists.


CAC-Ramsay v. Mull
23 Fla. L. Wkly. D576 (Fla. 3d DCA 1998)

The court reaffirms that if a defendant wants a Fabre defendant on the verdict form, the defendant must present legally sufficient evidence of the fault of the Fabre defendant.

Forum Non Conveniens

Ground Improvement Techniques v. Merchants Bonding Co.
23 Fla. L. Wkly. D464 (Fla. 5th DCA 1998)

Dismissal based on forum non conveniens must be based on record evidence, either in the form of affidavits or live testimony, unless it is “evident from the allegations appearing on the face of the complaint.”

Insurance — Bad Faith

United Services Automobile Association v. Jennings
23 Fla. L. Wkly. D583 (Fla. 1st DCA 1998)

Pursuant to Cunningham v. Standard Guaranty Life Ins. Co., 630 So.2d D584 (Fla. 1994), the parties stipulated that it would not be necessary for the plaintiff to obtain an excess judgment before pursuing the bad faith action, and that the stipulation would serve as the equivalent of an excess judgment in accordance with Cunningham. The insurer then objected to discovery of the claim file based on attorney-client and work product privilege. The court held that the plaintiff still stands in the shoes of the insured and is entitled to the claim file. The court certified to the Supreme Court the following question:

Whether the fact that a third party bad faith claim has been brought pursuant to a Cunningham stipulation rather than an excess judgment makes any difference when attorney-client and work product privileges are asserted during discovery in the bad faith action as to material contained in the claim file.

Insurance — UM

Medina v. Peralta
23 Fla. L. Wkly. D454 (Fla. 3d DCA 1998)

In Government Employees Insurance Co. V. Krawzak, 675 So.2d 115 (Fla. 1996) the Supreme Court held that it was reversible error to conceal from the jury in a UM case that the UM carrier was a party. Here the Third District correctly holds that that error cannot be harmless, because, as the Supreme Court recognized, what happened in Krawzak was a “charade” with “unknown consequences” capable of “adversely affect[ing] the rights of the insured.” The court certifies conflict with Furtado v. Walmer, 673 So.2d 568 (Fla. 4th DCA 1996).

Jurisdiction — Personal

Babcock v. Whatmore
23 Fla. L. Weekly S97 (Fla. 1998)

Florida Rule of Civil Procedure 1.140(b) provides, in part, that “no defense or objection is waived by being joined with other defenses or objections.” A party who timely raises the issue of lack of jurisdiction over the person does not waive jurisdiction by defending the case on the merits. However, the court holds, a party can waive an objection to lack of jurisdiction over the person by seeking affirmative relief.

Here, the court holds that moving for relief from judgment under Rule 1.540 on grounds either (1) that the judgment is void for lack of notice, or (2) that the judgment has been satisfied, is not the kind of action that invokes the jurisdiction of the court and waives the objection to personal jurisdiction. There is no waiver of personal jurisdiction by such action because it is logically consistent with the initial defense of lack of jurisdiction. As an example of the kind of conduct that may constitute a waiver, the court identifies filing a permissive counterclaim. The court does not address, for example, whether filing a compulsory counterclaim would constitute a waiver of jurisdiction.

The court specifically disapproves language in the decision of the district court suggesting that once an objection to personal jurisdiction is raised, it is preserved for all purposes even if affirmative relief is sought.

Legal Malpractice

Turner v. Anderson
23 Fla. L. Wkly. D329 (Fla. 3d DCA 1998)

A client who knowingly commits perjury on the advice of counsel cannot sue the attorney for the bad advice. The client’s guilt is equal in degree to that of the attorney. Limitations

Hearndon v. Graham
23 Fla. L. Wkly. D652 (Fla. 1st DCA 1998)

The court certifies to the Supreme Court the following question:

Where a plaintiff in a tort action based upon child abuse alleges that she suffered from traumatic amnesia caused by the abuse, does Fulton County Admin.v. Sullivan, 22 Fla. L. Wkly. S578 (Fla. 1997) preclude judicial recognition of the tolling of the statute of limitations based upon the doctrine of delayed discovery recognized in chapter 92-102, Laws of Florida?

Chapter 92-102 amended 95.11(7) to allow an action for intentional torts based on abuse to be brought “within 4 years from the time of discovery by the injured party of both the injury and the causal relationship between the injury and the abuse...”.

Sullivan abolished equitable tolling, except in med-mal cases. I have heard from Roy Wasson, who represented the Academy in Sullivan, that the Supreme Court has granted rehearing in Sullivan and asked for supplemental briefing on whether Florida law or Georgia law applies in that case.

Med Mal — Discovery

Pusateri v. Fernandez
23 Fla. L. Wkly. D636 (Fla. 2d DCA 1998)

Amente v. Newman, 653 So.2d 1030 (Fla. 1995) allowed a plaintiff to discover redacted records of a defendant doctor’s other patients with similar conditions where the doctor had testified that he used the same methods with all of his patients with similar conditions. The court here holds that such discovery is not allowed when the doctor has not made statements similar to those made in Amente, and has simply denied the allegations of the complaint and asserted affirmative defenses. Although plaintiffs might be able to get the documents later in the litigation, the record at this stage fails to support their production. The court plainly suggests that the request may be premature rather than improper.

Med Mal — Duty

CAC-Ramsay, Inc. v. Mull
23 Fla. L. Wkly. D576 (Fla. 3d DCA 1997)

The plaintiff first went to see the defendant doctor at the defendant corporation’s clinic for abdominal pain. She was not a member of defendant’s HMO; the surgery was not performed at the clinic, and she saw the doctor at his own private office and not at the clinic. The clinic did not authorize the surgery and did not pay for it, nor did the clinic bill for the surgery. The court held the clinic could not be held responsible for the doctor’s negligent performance of the surgery. The court distinguishes Orlando Regional Medical Center v. Chmielewski, 573 So.2d 876 (Fla. 5th DCA 1990), rev. denied, 583 So.2d 1034 (Fla. 1991), which involved negligent emergency room medical care at the defendant hospital.

Med Mal — Presuit

Otto v. Rodriguez
23 Fla. L. Wkly. D404 (Fla. 4th DCA 1998)

Another trap. Where a prospective med mal defendant fails to provide full and complete medical records, the requirement of a corroborating affidavit is waived under 766.204(2). This does not mean that the requirement of presuit notice is also waived. Here, the plaintiff’s complaint was dismissed because the plaintiff filed it the day before the statute of limitations ran without complying with presuit notice requirements, even though the defendant failed to produce complete medical records.

The court acknowledges that this is a “harsh sanction” but affirms. It seems to me the wrong party is being sanctioned here. See Kukral v. Mekras, 679 So.2d 278 (Fla. 1996) (“the medical malpractice statutory scheme must be interpreted liberally so as not to unduly restrict a Florida citizen’s constitutionally guaranteed access to the courts.”) I think a better resolution of this case would be to stay the action and order the parties to engage in 90 days of investigation and discovery.

Hagan v. Smith
23 Fla. L. Wkly. D451 (Fla. 3d DCA 1998)

Courts seem more reluctant to impose such “harsh sanctions” on defendants for failure to comply with presuit. Here, defendant failed to comply with presuit investigation requirements because the defendant faxed the notice of intent to his attorney, and it was misplaced by an associate who either did not appreciate its significance or assumed that an original had been mailed to lead counsel. The investigation was conducted immediately upon discovery of the notice (after suit was filed), and plaintiff was not prejudiced. This decision probably is consistent with the Supreme Court’s holding in Kukral v. Mekras, 679 So.2d 278 (Fla. 1996).

Nondelegable Duty

Garcia v. State Department of Natural Resources
23 Fla. L. Wkly. D569 (Fla. 3d DCA 1998)

Plaintiff was injured in a diving accident when he struck his head on debris on the ocean bottom which had been left there after the demolition of the South Beach pier. The State owned the beach area but never formally designated South Beach as a public swimming area nor did the State ever operate, maintain or control South Beach as a swimming area.

The court held that “any body of water held out to be a public swimming area, and/or commonly used by the public as a swimming area may give rise to liability for its owner, even if that area was not formally designated as a public swimming area.” Therefore, the State had a nondelegable duty to maintain the area in a safe manner. Even though it was the City that maintained it, the State remained liable. The performance of the duty can be delegated, but not the responsibility for it. Moreover, the duty is operational level, for which the State is not immune.

Nursing Homes

Beverly Health & Rehab Serv. Inc. v. Freeman
23 Fla. L. Wkly. D533 (Fla. 2d DCA 1998)

This case demonstrates the kinds of problems that are inherent in nursing home cases, where the client is already very old and very sick. Here, the jury found that the nursing home violated the patient’s rights under Chapter 400, but found that the violations caused no damages. The court held it was not error to fail to award nominal damages where the plaintiff did not request an instruction on nominal damages. Because it is so hard for a jury to put a number on the value of the loss of dignity that a nursing home patient can suffer as a result of a violation of these rights, you really ought to think about asking for an instruction on nominal damages.

Offer of Judgment

DeSalvo v. Scottsdale Ins. Co.
23 Fla. L. Wkly. D430 (Fla. 1st DCA 1998)

The insured prevailed against the insurer, but did not beat the offer of judgment. Under 627.428, the plaintiff would have been entitled to all his attorneys fees if not for the offer of judgment. The issue in this case was the effect of the offer of judgment on the award of attorneys fees.

The court held that the insured was precluded only from recovering fees and costs incurred after the offer of settlement, and was entitled to fees and costs up to that time. Moreover, in determining whether the insured beat the offer, the court was required to add in the amount of attorneys fees and costs into the amount of plaintiff’s recovery. The offer of judgment expressly included attorneys fees and costs, so those had to be included in the calculation.

Privilege — Psychotherapist-Patient

Melody v. State of Fla. Dept. Of Health & Rehab. Serv.
23 Fla. L. Wkly. D561 (Fla. 4th DCA 1998)

A minor in HRS custody sued HRS for negligence. She alleged that HRS moved her more than 20 times, exposing her to risk of foreseeable physical and sexual abuse, excessive medication, restraint, denial of communication with family and friends, and having HRS personnel countermand treatment directives of licensed health care providers. The trial court granted HRS’s motion to direct the plaintiff to sign a release authorizing counsel for HRS to discuss the child and her mental health treatment with her various mental health providers. The court held that the plaintiff did not have to sign an open-ended release that could be interpreted as covering all mental health care providers. At most, HRS would be entitled to confer only with those doctors for whose negligence HRS would be vicariously liable in this case. See Acosta v. Richter, 671 So.2d 149 (Fla. 1996); Public Health Trust of Dade County v. Franklin, 693 So.2d 1043 (Fla. 3d DCA 1997).

Punitive Damages

Ryder Truck Rental, Inc. v. Partington
23 Fla. L. Wkly. D406 (Fla. 4th DCA 1998)

It was error to grant summary judgment to defendant on punitive damages where the evidence was conflicting on whether the employer knew the employee was intoxicated when he allowed the employee to take the car. The employee’s blood alcohol level was sufficient to create a question of fact on whether the employer was “independently at fault.” However, the fact that the drunk employee was a job foreman did not make him a managing agent for purposes of imposing direct liability for punitive damages.

Brooks v. Rios
23 Fla. L. Wkly. D518 (Fla. 3d DCA 1998)

A defendant against whom punitive damages are sought cannot challenge on appeal the excessiveness of the punitive damages awarded unless the defendant has presented evidence at trial of its net worth.

Fostock v. Lampasone
23 Fla. L. Wkly. D630 (Fla. 4th DCA 1998)

Defendant, who did not respond to the complaint and allowed a default to be entered against him, waived his right to object to plaintiff’s pleading of punitive damages.


Mosley v. American Medical International, Inc.
23 Fla. L. Wkly. D445 (Fla. 4th DCA 1998)

Plaintiff signed a release that specifically discharged the owners of the building where his original injury occurred. The release also contained boilerplate language which released the rest of the world for everything arising out of the original incident. At the time, plaintiff was unaware of any medical malpractice that aggravated his original injury. The court held that “intent of the parties in signing the general release was not subject to an adverse summary final judgment” in favor of the allegedly negligent health care providers. Nor could the release inure to the benefit of two subsequent allegedly intentional tortfeasors on plaintiff’s claim for fraud and conspiracy to commit fraud.

Relief from Judgment

DiPiazza v. Palm Beach
23 Fla. L. Wkly. D369 (Fla. 2d DCA 1998)

Be careful when dismissing one defendant if you intend to continue your case against other defendants. Here, the plaintiff stipulated to dismissing only one defendant, but the dismissal was entered as to both defendants. The court held that the plaintiff might obtain relief from that clerical error under Fla. R. Civ. P. 1.540(a), but that he had the burden of proving that the settlement did not include the other tortfeasor. The court also held that, because 1.540(a) was applicable, the motion did not have to be brought within one year. Whew!


Seal Products v. Mansfield
23 Fla. L. Wkly. D319 (Fla. 3d DCA 1998)

A settlement was binding even though the parties never signed a stipulation where counsel for the defendant corporation’s guarantor wrote to the plaintiff’s counsel confirming the payment schedule and began making payments under that schedule, and the plaintiff accepted the payments and dismissed his treble damage claim as agreed. The conduct waived any requirement that the settlement be reduced to writing.

Drucker v. Riley
23 Fla. L. Wkly. D624 (Fla. 4th DCA 1998)

A settlement agreement with a doctor and his insurer did not include his P.A., where there was no evidence the P.A. agreed to be bound by the settlement. Therefore, it was error to enforce the settlement against the P.A. This is a reminder to dot all your I’s and cross all your T’s.

Sham Pleadings

Estapa v. Giller
23 Fla. L. Wkly. D572 (Fla. 3d DCA 1998)

The plaintiff sued the wrong party. He named an attorney personally instead of his P.A. in a suit for return of a deposit for a closing that did not go through. The trial court struck the complaint as a sham. The court held that it was error to strike the pleading, because it was not “clearly and indisputably false.” The proper procedure was to permit amendment of the complaint to name the proper party. This is a nice opinion by Judge Shevin that refuses to elevate form over substance.

Wrongful Death — Survivors

Mizrahi v. North Miami Medical Center, Ltd.
23 Fla. L. Wkly. D321 (Fla. 3d DCA 1998)

Section 768.21(8), Florida Statutes, provides that adult children of a deceased cannot recover for mental pain and suffering with respect to claims for medical malpractice, even though adult children can recover in other wrongful death cases. The Third District holds that this provision is constitutional, agreeing with the First District’s decision in Stewart v. Price, 22 Fla. L. Wkly. D2352 (Fla. 1st DCA 1997).