May 2002


ITT Hartford Ins. Co. v. Owens
27 Fla. L. Weekly S360 (Fla. 2002)

Where the court grants an additur, it must give the defendant an option of rejecting the additur and having a new trial. Where it is obvious that the jury made an error as to only one item of damages, the new trial may be limited to that element.


Sears Authorized Termite and Pest Control, Inc. v. Sullivan
27 Fla. L. Weekly S384 (Fla. 2002)

A provision in a pest control contract required arbitration of “any controversy or claim ... arising out of or related to the interpretation, performance or breach of any provision of this agreement.” It also prohibited the award of “indirect, special or consequential damages or loss of anticipated profits.” The court held that the provision requires arbitration of a claim for personal injuries and damages resulting from spider bites, where the clear intent of the contract was to control spiders and other pests. The court distinguished Siefert v. U.S. Home Corp., 750 So.2d 633 (Fla. 1999), because “the cause of action rests upon the failure to perform the agreement.” In Siefert the tort claim “neither relie[d] on the agreement nor refer[red] to any provision within the agreement, but “relate[d] to duties wholly independent from the agreement.” The court also distinguished Terminix International Co. v. Michaels, 668 So.2d 1013 (Fla. 4th DCA 1996), where the claim arose from the use of ultrahazardous chemicals.

Always look to the specific language of the arbitration clause. The one in this case is particularly expansive, and the court’s decision, therefore, may not apply to cases with narrower arbitration clauses.

Foundation Health v. Garcia-Rivera
27 Fla. L. Weekly D981 (Fla. 3d DCA 2002)

The trial court properly certified a class of doctors who contracted to provide services for the HMO, even though some of the doctors had arbitration clauses in their contracts. It was a proper exercise of the court’s discretion to determine that a class action was preferable to multiple individual arbitration proceedings.


Med Mal – Informed Consent

Gouveia v. Phillips
27 Fla. L. Weekly D 930 (Fla. 4th DCA 2002)

The plaintiff, an artist, claimed that the defendant amputated his fingers without his informed consent; that he was intoxicated and under the influence of drugs when the doctor obtained his consent; and that the doctor did not disclose that amputation was a possibility when he obtained his consent to surgery. Although the court held that it was proper to exclude the plaintiff’s expert from testifying about the standard of care for obtaining informed consent, when he testified in his deposition that he would not offer such an opinion, the plaintiff was not required to present expert testimony to support the claim that he did not give any consent at all. The court distinguishes cases in which a patient claims no consent was given from cases in which the patient challenges the medical judgment of the physician in choosing what to disclose to obtain consent. “No medical expert testimony is required to sustain an ages-old claim for performing surgery with the patient’s consent.” See Zaretsky v. Jacobson, 99 So.2d 730 (Fla. 3d DCA 1958). This is simply a claim for battery. Although the court’s reasoning is sound, I still recommend getting an expert’s opinion before embarking on such a case.

Med Mal – Limitations

Burbank v. Kero
27 Fla. L. Weekly D901 (Fla. 5th DCA 2002)

Reversing a summary judgment in favor of a defendant, the court holds that the combined effect of filing a petition for automatic 90-day extension plus the serviceof notices of intent tolled and extended the running of the statute of limitations as to another defendant to whom notice was given during that time period. During the 90-day tolling period, the plaintiff for the first time received records indicating the identity of the additional doctor, and promptly served a notice of intent on him before the time expired. The concurring opinion notes that one of the first defendants failed to timely provide the plaintiff with medical records. That defendant was the employer of the additional doctor. The concurrence suggests that the failure to provide the records should estop the employee doctor from asserting the statute of limitations. Judge Griffin points out:

[A]n entire statutory scheme has set up a series of barriers to [plaintiff’s] ability to file suit within the shortened statute of limitations; it has affirmatively created a set of dire personal penalties for both the lawyer and the client who dares to file suit without having thoroughly investigated and without having an adequate basis to assert a medical malpractice claim. The only countervailing responsibility on the part of the physician protected by these impediments is to turn over the victim’s medical records.

It’s good to see a judge who has a handle on what all of the medical malpractice “reforms” have done to the right of access to courts. Cf. North Lakeland Pain & Trauma, Inc. v. Benson, 27 Fla. L. Weekly D296 (Fla. 2d DCA 2002), reversing an award of fees to a plaintiff who had to sue to get a copy of her medical records, because the statutes don’t authorize it. But see 57.105, Florida Statutes, which, the court says, the plaintiff failed to plead.

Offer of Judgment

White v. Steak and Ale of Fla., Inc.
27 Fla. L. Weekly S331 (Fla. 2002)

Taxable costs, attorneys fees and prejudgment interest incurred before the offer was made are included in calculating the amount of the “judgment obtained” for purposes of determining whether the party who made the offer is entitled to an award of fees under 768.79, Florida Statutes. The term “judgment obtained” is the net judgment entered, plus any post-offer collateral source payments received or due as of the date of the judgment, plus any post-offer settlement amounts by which the verdict was reduced. Common sense and fairness require the inclusion of all these amounts indetermining whether the plaintiff beat the offer, because in deciding whether to accept the offer, the plaintiff must evaluate not only the amount of the verdict, but also costs, fees and prejudgment interest “to which the party would be entitled if the trial court entered the judgment at the time of the offer or demand.”

Amisub v. Hernandez
27 Fla. L. Weekly D919 (Fla. 3d DCA 2002)

The plaintiff served an offer of judgment after the case was dismissed, but while an appeal was pending. The appellate court reversed the dismissal of the case. The plaintiff subsequently obtained a judgment that “beat the offer.” The court held that the offer was timely and affirmed the award of fees against the defendant. However, the court held that the plaintiff was not entitled to a multiplier, even though three law firms rejected the plaintiff’s case before this lawyer accepted it, and even though the case eventually became overwhelming for the lawyer to handle. If you are only taking a difficult case because of the possibility of obtaining a multiplier, you should explain that in your fee agreement.

Jamieson v. Kurland
27 Fla. L. Weekly D955 (Fla. 2d DCA 2002)

It was error to award fees to a defendant pursuant to an offer of judgment where the offer stated that it was for “Two Hundred and 00/100 Dollars ($1,000.00).” The offer failed to comply with the requirement that it state the total amount. The offer also required a confidentiality agreement and a general release and stipulation for dismissal with prejudice, but then stated “there are no non-monetary terms.” The court held that the offer failed to comply with the requirements of Rule 1.442 that the offer state the total amount and state with particularity all non-monetary terms. The court held it was immaterial that the plaintiff never attempted to accept the offer.

Privilege – Waiver

Nationwide Mutual Fire Ins. Co. v. Hess
27 Fla. L. Weekly D1005 (Fla. 5th DCA 2002)

The defendant’s failure to provide a privilege log asserting specific privileges as to specifically described documents waived the privilege except as to requests for attorney-client communications that were privileged on the face of the request. This is the second recent case to find waiver in the failure to submit a privilege log as required by Rule 1.280(b)(5). See TIG Ins. Corp. v. Johnson, 799 So.2d 339 (Fla. 4th DCA 2002).

Products Liability

Scheman-Gonzalez v. Saber Mfg Co.
27 Fla. L. Weekly D829 (Fla. 4th DCA 2002)

The plaintiff’s husband was killed when he tried to mount a 16-inch tire on a 16.5 inch wheel assembly. The tire exploded. The tire fit as easily on the larger rim as it did on the smaller, correct rim, but did not seat properly when inflated. The court reversed summary judgments entered in favor of the manufacturers of the tire and of the rim. Genuine issues of fact remained as to both defendants concerning the duty to warn of the particular danger of explosion caused by mounting a 16 inch tire onto a 16.5 inch rim, whether the warning that was given was adequate, whether the decedent knew or should have known of the particular danger of explosion resulting from the mismatch, and whether a lack of adequate warning proximately caused the explosion.

There was also a question of fact as to the existence of a design defect in the tire. The court cites the Third Restatement of Torts: Products Liability (1998), 2(b)which states that a product is defectively designed “when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design” and as a result the product is “not reasonably safe;” or “when the foreseeable risks of harm ... could have been reduced or avoided by the provision of reasonable instructions or warnings” rendering the product “not reasonably safe.”

This case cites the Third Restatement’s “alternative design” language. I believe that “alternative design” was not a requirement under the Second Restatement and that the Third Restatement unfortunately seems to have added this. This case should not be read as adding this requirement to Florida law. Florida law, as I understand it, is still Restatement, Second, 402A, adopted in West v. Caterpillar Tractor, 336 So.2d 80 (Fla. 1976):

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
     (a) the seller is engaged in the business of selling such a product, and
     (b) it is expected to and does reach the user or consumer without substantial change in the condition in
          which it is sold.
(2) The rule stated in Subsection (1) applies although
     (a) the seller has exercised all possible care in the preparation and sale of his product, and
     (b) the user or consumer has not bought the product from or entered into any contractual relation
          with the seller.(emphasis added).

Please be on guard against this as you litigate products liability cases, so that this requirement does not seep into Florida law. (Judge Goldman warned us about this several years ago at a DCTLA meeting – it seems to be happening just as he anticipated). In this case, I don’t think the court held that the plaintiff has to meet the “alternative design” requirement, and the dicta is unfortunate.

Also significant in this case is that the court held that the manufacturer of the tire rim, a component part of the assembly, could be held liable for the defective product (1) if the component was itself defective or (2) if the manufacturer of the component substantially participated in the integration of the component into the design of the product and the integration of the component causes the product to be defective.


Stanberry v. Escambia County
27 Fla. L. Weekly D860 (Fla. 1st DCA 2002)

Where the trial court grants a remittitur, the appellate court does not have jurisdiction to review it until the trial court enters a final judgment.

Successor Tortfeasors

Caccavella v. Silverman
27 Fla. L. Weekly D838 (Fla. 4th DCA 2002)

When you settle with some but not all of the tortfeasors, you have to be extremely careful. Here, the court holds that, because the plaintiff released the first negligent doctor without expressly preserving the claim against the subsequent treating doctor, the plaintiff’s claim against the second doctor was barred. The court points out that a subsequent tortfeasor is not a joint tortfeasor. Recent decisions from this court have caused some confusion in this area. See Letzter v. Cephas, 792 So.2d 481 (Fla. 4th DCA 2001).

It has long been the law in Florida that an initial tortfeasor is responsible for subsequent injuries caused by medical negligence in treating the injuries caused by the tortfeasor. Stuart v. Hertz Corp., 351 So.2d 703 (Fla. 1977). Here, as in Letzter, the court certifies two questions:

(1) Has the doctrine of Stuart v. Hertz been abrogated by [768.81, Florida Statutes]?

(2) Does Stuart v. Hertz apply when the initial cause of action is one in medical malpractice and both the initial and subsequent tortfeasors are sued in the same action?

The Supreme Court has granted review in Letzter, so this one probably will go up too. I don’t think Stuart v. Hertz has been abrogated. See D’Amario v. Ford Motor Co., 806 So.2d 424 (Fla. 2001) (reiterating the Stuart v. Hertz rule in holding that principles of comparative fault concerning apportionment of fault as to the cause of the underlying crash will not ordinarily apply in crashworthiness or enhanced injury cases.)

Survival of Actions

Kash N’ Karry Food Stores, Inc. v. Smart
27 Fla. L. Weekly D956 (Fla. 2d DCA 2002)

Where a plaintiff dies while a cause of action is pending, the cause of actions survives. 46.021, Florida Statutes. However, Rule 1.260(a) requires substitution of the appropriate party “within 90 days after the death is suggested on the record.” The failure to move for substitution within the required time requires dismissal.

Work Product

Gardner v. Manor Care of Boca Raton, Inc.
27 Fla. L. Weekly D837 (Fla. 4th DCA 2002)

This Court holds that the trial court properly required the plaintiff to list any “particular AHCA survey which the plaintiff contends is relevant, and the manner in which the plaintiff contends that the same has relevance,” and any “documents from the various personnel files that were produced which the plaintiff contends are relevant ... [and] the basis for these documents’ relevance.” This sounds to me like pure opinion work product. It also appears to conflict with Smith v. Florida Power & Light Co., 632 So.2d 696 (Fla. 3d DCA 1994), in which the court held “an attorney’s evaluation of the relative importance of evidence falls squarely within the parameters of the [work product] privilege.”