May 2003


Shea v. Global Travel Marketing, Inc.,
28 Fla. L. Weekly D1009 (Fla. 4th DCA 2003)

The plaintiff’s former wife took their son on a safari. The mother signed a release and arbitration agreement before the start of the safari. Unfortunately, the son was killed as a result of the negligent operation of the safari. The court held that the child’s mother could not bind the child to an agreement to arbitrate, and the father, who did not sign the release and arbitration agreement, could not be required to arbitrate the claim. Florida’s public policy favors protection of minors, requiring court approval in many situations before their rights may be waived by a parent. The court specifically excludes non-profit entities, their employees and volunteers, from this holding.

Attorneys Fees – Charging Lien

Kirschner v. Biritz
28 Fla. L. Weekly D1051 (Fla. 5th DCA 2003)

An attorney representing a client on a contingency basis in a personal injury case, who withdrew because the client was “difficult,” was not entitled to any fee when the case was settled by another lawyer. Where withdrawal is upon the attorney’s own volition, he forfeits his right to compensation unless the client’s conduct makes continued representation legally impossible, or would cause the attorney to violate an ethical rule.

Evidence – Impeachment

Tucker v. Allstate
28 Fla. L. Weekly D1031 (Fla. 2d DCA 2003)

In a UM action, it was error to allow the insurer to impeach the insured with a collateral matter: she had altered the date on the accident report and showed it to her employer as an excuse to explain her absence from work. The evidence had no relevance to the issues being tried and served only to reflect poorly on her character. See, e.g., DeSantis v. Acevedo, 528 So.2d 461 (Fla. 3d DCA 1988) (in negligence action against roofing company, error to permit cross examination of plaintiff about misconduct during his employment, which was only marginally, if at all, relevant to facts of the case).

Evidence – Hearsay

State v. Brocca
28 Fla. L. Weekly D968 (Fla. 3d DCA 2003)

Section 90.803(24), Florida Statutes, provides a hearsay exception for an out of court statement by an elderly person or disabled adult describing an act of abuse, neglect or exploitation, unless the circumstances indicate a lack of trustworthiness. The court holds the provision unconstitutional as applied in a criminal case because it violates a defendant’s right to confront witnesses, and certifies the question to the Florida Supreme Court as once of great public importance.


Ramos v. Preferred Medical Plan, Inc.
28 Fla. L. Weekly D961 (Fla. 3d DCA 2003)

The trial court improperly entered summary judgment in favor of an HMO where there were genuine issues of material fact as to whether the doctor was acting as the HMO’s apparent agent when he negligently performed surgery on the plaintiffs’ child. See Villazon v. Prudential Health Care Plan, Inc., 28 Fla. L. Weekly S267 (Fla. 2003). The plaintiffs selected a doctor from the HMO’s preferred provider list, and that doctor referred them to the surgeon.

The court held apparent agency must be analyzed with reference to these questions: (1) whether the HMO holds itself out as the provider of health care without informing the patient that the care is given by independent contractors; (2) whether the patientknew or should have known that the physician was an independent contractor; (3) whether the patient relied on the HMO to provide health care services, not on a specific physician.

The HMO’s literature included statements that the HMO would coordinate all of the members’ medical needs; that the primary care physician would “ensure the continuity and quality of care;” and informed them that they cannot see a specialist without a referral from their primary care doctor. The court stated these facts would “lead a reasonable person to concluded that Preferred had undertaken to be the provider of health care services” and that the doctor “was acting on its behalf.” The literature also stated that the doctors who were not employees were independent contractors. The court held the language was not clear enough to dispose of the apparent agency issues because it did not advise the members of “who is an employee and who is not.” The medical consent form, which was in English and stated that all doctors were independent contractors, was not sufficient to defeat all issues of material fact. Finally, the plaintiff relied on the HMO to provide health care services, and to provide this surgeon, through their primary care physician.

Impact Rule

Rivers v. Grimsley Oil Co.
28 Fla. L. Weekly D931 (Fla. 2d DCA 2003)

The impact rule barred the plaintiff’s claim for negligent infliction of emotional distress, where the plaintiff, an invitee, alleged that as a result of the defendant’s negligent security, she was a victim of an armed robbery. She was not physically injured but suffered serious psychological injury, which was treated with various medications. The court held that the side effects from the medications did not satisfy the impact rule.

Insurance – Bad Faith

Farinas v. Florida Farm Bureau General Ins. Co.
28 Fla. L. Weekly D1023 (Fla. 4th DCA 2003)

In this horribly tragic case, five teenagers were killed and seven others were severely injured in a traffic accident. The insurance company exhausted the limits by settling some of the claims, and filed a declaratory action against the insured to determine whether it had any further duty to defend the insured after exhausting limits. The injured plaintiffs intervened and ultimately filed third party bad faith claims against the insurer. The court held that, where there are multiple injuries and limited coverage, the insurer may exhaust coverage by settling some of the claims, but if it does so, it still must comply with the requirements of Boston Old Colony Insurance Co. v. Gutierrez, 386 So.2d 783 (Fla. 1980): advise the insured of settlement opportunities; advise of the probable outcome of the case; warn of the possibility of an excess judgment and advise the insured of any steps he might take to avoid it; investigate the facts; give fair consideration to a reasonable settlement offer; and settle, if possible, where a reasonably prudent person, faced with the possibility of paying the entire recovery, would do so.

Therefore, the insurer in this case was required to fully investigate all of the claims, keep the insured informed of the claim resolution process, and minimize the magnitude of possible excess judgments. While the insurer may settle some claims to the exclusion of others, it must do so in keeping with its duty of good faith. Whether it has done so is a jury question. Here, there were jury questions as to whether the insurer’s quick settlement with three of the claimants was reasonable; whether its rejection of global settlement options contemplated the best interests of the insured; whether it adequately investigated all of the claims; and whether it properly rejected advice of legal counsel and strategies proposed by its own employees.

Insurance – Estoppel

Florida Municipal Insurance Trust v. Village of Golf
28 Fla. L. Weekly D900 (Fla. 4th DCA 2003)

Even though the insurance policy excluded coverage under the pollution exclusion, the insurance company can be estopped to deny coverage if it negligently investigated a claim before suit is filed, and the insured is prejudiced. The insurer does not have to undertake the defense of a lawsuit in order to be estopped. Here, the insurer received a claim that crops were damaged, allegedly by chlorine leaking from the insured’s plant. The insurer negligently failed to investigate whether the leak actually caused the damage, and did not send a reservation of rights letter. When it denied coverage more than a year later, it was too late for the insured to do a proper investigation on what caused the damage. This presented a jury question on estoppel.

However, it was error to instruct the jury on 627.426(2)(a), which requires an insurer to provide the insured written notice of a coverage defense within 30 days after it knew or should have known of the defense. The statute applies to defenses to coverage that otherwise exists, not a complete lack of coverage for the loss sustained.

Insurance – UM

Stadelman v. Johnson
28 Fla. L. Weekly D957 (Fla. 4th DCA 2003)

Section 627.727(9), Florida Statutes (2001) requires UM insurers to provide notice to the insured of any coverage limitations, and to file revised premium rates with the Department of insurance prior to initially providing limited UM coverage. Summary judgment was improperly entered in favor of the insurer where the insured raised this statute in their reply to affirmative defenses, and the insurer did not establish that it complied with the statute.

However, the motorcycle the insured was riding at the time of the accident was an “auto” as defined in the policy, so if the insurer complied with the statute, an exclusion for injuries “while occupying an auto owned by you or a relative which is not insured for uninsured motorist coverage under this policy” would be applicable.


Physicians Healthcare Plans, Inc. v. Pfeifler
28 Fla. L. Weekly S370 (Fla. 2003)

In Broward County, the court uses a system of assigning retired (“senior”) judges to preside over medical malpractice and other “complex litigation” cases where it is expected the trial will be longer than three weeks. Some of the judges are from other circuits. The court held that the successive assignment of senior judges does not constitute a de-facto permanent assignment. In order to determine whether theassignment is improper, the court must consider the successive nature of the assignment, the type of case covered and the practical effect of the assignment. The chief judge’s power to make such appointments is not restricted to “emergencies.”

Med Mal – Causation

Goolsby v. Qazi
28 FLW D917 (Fla. 5th DCA 2003)

A doctor’s negligent failure to diagnose may be a legal cause of the plaintiff’s injury even if a subsequent treater testifies he would have “shrugged off” the correct diagnosis. The court disagrees with Ewing v. Sellinger, 758 So.2d 1196 (Fla. 4th DCA 2000), and agrees with Munuz v. South Miami Hospital, Inc., 764 So.2d 854 (Fla. 3d DCA 2000): “it is not for the defendants, who putatively vilated their standard of care by failing to warn, to argue that their not doing so had no effect on the situation, where their doing the appropriate thing would have removed all doubt.”

Med Mal – Sovereign Immunity

Rayburn v. Orange Park Medical Center, Inc.
28 Fla. L. Weekly D990 (Fla. 1st DCA 2003)

Section 240.215, Florida Statutes immunizes hospitals from vicarious liability for the actions of employees or agents of the Board of Regents, if they provide patients with “separate written conspicuous notice” that care will be provided by Board of Regents’ employees and liability is limited, and the patient acknowledges receipt of notice in writing (unless excused because of an emergency). The hospital was not entitled to immunity where the notice was not separate and conspicuous. The notice was included on the admissions form “in one of six identically laid out paragraphs; the paragraphs are equally spaced; there is no border; nothing distinguishes one paragraph from any other on the page.” The legislative intent is to assure that patients are aware of the status of the medical personnel who are treating them.

Offer of Judgment

Barnes v. The Kellogg Company
28 Fla. L. Weekly D1031 (Fla. 2d DCA 2003)

Fla. R. Civ. P. 1.442 (c)(3) requires that a joint proposal for settlement “state the amount and terms attributable to each party.” Despite this language, the court holds that, where the plaintiff sustained damages that could not be apportioned between the two defendants, and the defendant retailer was strictly liable for the alleged latent manufacturing error of the defendant manufacturer, it was permissible for the defendant to propose a joint settlement, the terms of which contemplate a settlement with both defendants.

Summary Judgment

England v. Seminole Walls & Ceilings Corp.
28 Fla. L. Weekly D919 (Fla. 5th DCA 2003)

Rule 1.510(c) provides that an affidavit in opposition to a motion for summary judgment may either be mailed five days before the hearing or delivered to the movant’s attorney no later than 5:00 p.m., two business days prior to the hearing. The court holds that delivery under this rule may be by fax. “Delivery” under rule 1.510(c) includes delivery by fax as allowed in rule 1.080(b). Thus, it was error to refuse to consider an affidavit in opposition to summary judgment on the grounds that it was untimely where it was timely faxed to opposing counsel, who acknowledged receiving it, even though it was not mailed five days prior to the hearing. Note that Rule 1.080(b) requires faxing with a cover sheet containing the sender’s name, firm, address, phone number, fax number and the number of pages transmitted.


State of Florida Dept of Transportation v. Florida Commission on Human Relations
28 Fla. L. Weekly D944 (Fla. 1st DCA 2003)

The public employees whistle-blower act, 112.3187(9)(f) provides for temporary reinstatement of the employee if certain conditions are met. Here, the court holds that the employee was entitled to reinstatement even though the Florida Commission on Human Relations did not provide the employer with notice of the claim within three working days, or file a request for reinstatement within 15 days of filing the complaint as required by 112.31895. The statute does not provide any remedies when the agency fails to meet statutory time requirements. The legislative intent is merely a direction to the FCHR to handle complaints expeditiously and seek relief for the employee where it is warranted. The legislative purpose would not be served if FCHR’s missing a deadline were allowed to defeat an employee’s claim.

Dahl v. Eckerd Family Youth Alternatives, Inc.
28 Fla. L. Weekly D974 (Fla. 2d DCA 2003)

The private sector whistle-blower act, 448.101-105, could provide relief to a former employee of a private rehabilitative school for juvenile offenders operated pursuant to a contract with the Department of Juvenile Justice. The public sector act is not the exclusive remedy for employees of independent contractors of state agencies. The contractor was not entitled to sovereign immunity.