May 1995


Martino v. Metropolitan Dade County
20 Fla. L. Wkly. D1085 (3d DCA 1995)

Once again an appellate court has found fundamental error in a closing argument where opposing counsel did not even object during the trial. Watch out for this trap. In this case, the argument was clearly improper -- the defense lawyer argued his on personal opinion of the case and argued that if the plaintiff won there would be a flood of lawsuits against the county. If the improper arguments were so obvious, opposing counsel should have objected. The court held that they were so prejudicial that they required a new trial even without objection. See also, e.g., Walt Disney World Co. v. Blalock, 19 Fla. L. Wkly. D1427 (5th DCA 1994); Al-site Corp. v. Della Croce,19 Fla. L. Wkly. D2600 (Fla. 3d DCA 1994); Sacred Heart Hosp. v. Stone, 20 Fla. L. Wkly. D444 (1st DCA 1995).

Attorneys Fees

American Reliance Ins. Co. v. Nuell, Baron & Polsky
20 Fla. L. Wkly. D1087 (3d DCA 1995)

A law firm representing itself in litigation against its insurer is entitled to fees under 627.428, but is not entitled to a contingency fee multiplier.

Collateral Estoppel

Stogniew v. McQueen
20 Fla. L. Wkly. S208 (Fla. 1995)

Answering a question certified from the Second DCA, the Supreme Court holds that a plaintiff in a malpractice case may not use the findings of the Dept. of Professional Regulation to estop the defendant from denying that he was negligent. The court finds there is no privity, and no mutuality of parties. While the plaintiff lost in this case, I think it is important to recognize that this decision is good because it preserves the rights of all parties to have civil litigation determined by juries, rather than administrative agencies.

Dram Shop

Persen v. Southland Corp.
20 Fla. L. Wkly. S218 (Fla. 1995)

The "dram shop" act, Section 768.125, which imposes liability on one who knowingly serves a habitual drunk, does not apply to a retail seller who sells to an adult alcoholic beverages in a closed container for consumption off the premises. In other words, the 7-11 is not liable under the statute for selling a case of beer to a habitual drunk.


Wells Fargo Guard Services, Inc. v. Nash
20 Fla. L. Wkly. D837 (Fla. 1st DCA 1995)

The plaintiff was mugged in the parking garage of a hospital. The defendant supplied security services pursuant to a contract with the hospital. The court held that it was reversible error to refuse to include the hospital on the verdict form. The theory of liability against the hospital is not discussed.

Hudson v. Moss
20 Fla. L. Wkly. D915 (Fla. 3d DCA 1995)

This was an action for the wrongful death of a child. The jury found the defendant 10 percent at fault, and the child’s father 90 percent at fault. The wrongful death act provides that "a defense that would bar or reduce a survivor’s recovery if he were the plaintiff may be asserted against him, but shall not affect the recovery of any other survivor."

Section 768.71(3) of the tort reform act provides that when a provision of the tort reform act conflicts with another statute, the other statute prevails. Consequently, despite Fabre, the mother’s damages could not be reduced by the percentage of fault of the father. See, e.g., Childer’s v. Schachner, 612 So.2d 699 (Fla. 3d DCA 1993).

However, since the child was dead, parent-child immunity does not bar the defendant’s contribution claim against the father, even though the father is not insured. See Joseph v. Quest, 414 So.2d 1063 (Fla. 1982) (no immunity to extent of insurance), Johnson v. School Board, 537 So.2d 685 (4th DCA 1989) (no immunity where child deceased).


FIGA v. Johnson
20 Fla. L. Wkly. D1016 (4th DCA 1995)

The court rejects FIGA’s contention that it cannot be liable for costs, where costs were covered under the policy of the insolvent insurer, and FIGA stands in the shoes of the insurer.

Fireman’s Rule

Potts v. Johnson
20 Fla. L. Wkly. D1006 (3d DCA 1995)

A police officer was injured in the defendant’s back yard when he stepped into a grass covered hole. The court construes 112.182, which abolished the fireman’s rule, giving fire fighters and police officers the status of invitee when they lawfully enter the premises of another in the discharge of their duties. The court holds that the officer’s status must be determined with reference to the law of search and seizure and the warrant requirement.

Since the officer in this case did not have a warrant to search the back yard, and no exception to the warrant requirement applied, the had only the status of a licensee. Summary judgment for the defendant was affirmed where the officer did not allege willful or wanton behavior by the defendant or that the defendant knew of his presence and failed to warn of a known danger.


Pasteur Health Plan v. Salazar
20 Fla. L. Wkly. D1083 (3d DCA 1995)

Using the kind of reasoning usually applied in insurance cases, the court strictly construes an exclusion in the HMO plan against the HMO. The exclusion of care for injuries resulting from motor vehicle accidents does not apply to injuries sustained by a passenger of a three wheel all terrain cycle.

Ambiguities are to be construed in favor of the patient. A three wheeled cycle is not a motor vehicle under Florida statutes, and would not be covered under motor vehicle insurance. Congratulations to Robert Fiore for winning this important decision.

Insurance -- Bad Faith

State Farm v. Laforet
20 Fla. L. Wkly. S173 (Fla. 1995)

In 1982, the legislature enacted 624.155, creating a cause of action for first party bad faith. In McLeod v. Continental Ins. Co., 591 So.2d 621 (Fla. 1992), the Supreme Court held that the insurer could not be held liable under the statute for an excess judgment in an uninsured motorist case; it reasoned that the insurer must cause the excess judgment and the excess judgment must injure the insured.

The legislature then enacted 627.727(10), providing for damages in a UM first party bad faith action that included the total amount of the claimant’s damages, whether caused by the insurer or by a third party tortfeasor. The statute explicitly stated that it was intended to be remedial, to reaffirm existing legislative intent (in other words, McLeod was wrong), and was retroactive to the effective date of 624.155.

The court held that, despite the legislative intent, 627.727(1) could not apply retroactively because it imposes a penalty.

That’s the bad news. The good news is that the court rejected the insurer’s argument that the "fairly debatable" standard should be adopted in bad faith cases. Under the "fairly debatable" standard, an insurer would be liable for bad faith only if the disputed claim was not "fairly debatable". Although the standard was mentioned in dicta in Imhof v. Nationwide Mut. Ins. Co., 643 So.2d 617 (Fla. 1994), the court recedes from that language. It holds that the fairly debatable standard is inapplicable in both first party and third party cases.

The proper standard in both kinds of cases is the standard set out in 624.155: "not attempting in good faith to settle claims when, under all the circumstances, it could and should have done so, had it acted fairly and honestly toward its insured and with due regard for his interests."

Insurance -- Health

State Farm Mut. Auto. Ins. Co. v. Sauer
20 Fla. L. Wkly. D811 (4th DCA 1995)

Innocent misrepresentations made by an applicant for health insurance are not material if the insurer would have issued the policy if the true facts were known. Where the evidence is conflicting, the issue of materiality is for a jury.

Insurance -- UM

Krawzak v. GEICO
20 Fla. L. Wkly. D813 (Fla. 4th DCA 1995)

In an excellent opinion written by Judge Pariente, the fourth DCA rejects the decision of the fifth DCA in Colford v. Braun Cadillac, Inc., 620 So.2d 780 (Fla. 5th DCA 1993), rev. denied, 626 So.2d 1367 (Fla. 1993) and certifies conflict to the Supreme Court.

The Fifth District in Braun had held that in an underinsured motorist case where coverage was not in dispute, the court should prohibit the plaintiff from mentioning the existence of insurance in front of the jury, and everyone would pretend that counsel for the insurer was co-counsel for the tortfeasor. This court holds that that procedure is dishonest and that an insurer who is lawfully sued by a plaintiff must be disclosed to the jury in its actual status as a party defendant. The court points out that the fifth DCA’s result is contrary to the policy of full disclosure and honesty recently set forth in Dosdourian v. Carsten, 624 So.2d 241 (Fla. 1993). The non-joinder statute, 627.7262, was never intended to cover UM cases.

Brahmbhatt v. Allstate
20 Fla. L. Wkly. D820 (Fla. 4th DCA 1995)

The court holds that an appeal was frivolous where the appellant sought reversal of a summary judgment that held there was no UM coverage where the plaintiff was murdered when he stopped to assist some people standing near a disabled vehicle and they shot him and stole his car. The court held that the appeal was frivolous because there was clearly no coverage under Race v. Nationwide, 542 So.2d 347 (Fla. 1989), and the appellant did not ask the court to ask the supreme court to revisit it.

Amica Mut. Ins. Co. v. Amato
20 Fla. L. Wkly. D894 (4th DCA 1995)

A vehicle owned by a self-insured municipality is not an uninsured motor vehicle. A policy provision excluding UM coverage for any "vehicle or equipment owned or operated by a self- insurer" is not contrary to public policy or Florida law. A vehicle is not uninsured or underinsured because of the statutory cap on damages under the sovereign immunity statute.

Allstate v. Langston
20 Fla. L. Wkly. S217 (Fla. 1995)

Plaintiff claimed UM benefits. Allstate admitted coverage but denied payment because of a dispute about the value of the claim. Plaintiff requested discovery of Allstate’s internal memos and standards regarding handling of UM claims, its claims manual, and correspondence with law enforcement and with entities hired to select IME doctors regarding plaintiff’s claim. The court held that certiorari was an appropriate remedy to prevent discovery when it has been affirmatively established that such discovery is neither relevant nor likely to lead to relevant evidence. However, irrelevant discovery does not automatically lead to the kind of irreparable harm that will justify certiorari. The court remanded for a determination of the relevance of the materials plaintiffs sought.

Jury Misconduct

De la Rosa v. Zequeira
20 Fla. L. Wkly S222 (Fla. 1995)

Adopting Judge Baskin’s dissent in the Third District, the court holds that plaintiff was entitled to a new trial where he discovered, after a defense verdict, that the jury foreman had withheld on voir dire the fact that he had been a defendant or plaintiff in six lawsuits. It did not matter that they were different kinds of litigation or that the question was addressed to the entire panel and not to the specific juror, and the juror merely failed to raise his hand.

Med Mal -- Causation

Zigman v. Cline
20 Fla. L. Wkly. D821 (Fla. 4th DCA 1995)

Where the plaintiff was injured in an automobile accident and alleged that the defendant negligently used a surgical technique which caused plaintiff’s paraplegia, and the defendant presented evidence that the plaintiff’s condition would have resulted from the automobile accident alone, it was reversible error to refuse to give the standard concurring cause instruction. The court holds that concurring causes need not occur at the same time.

Nordt v. Wenck
20 Fla. L. Wkly. D826 (3d DCA 1995)

It was not error to deny defendant’s motion for new trial or remittitur where the plaintiff presented evidence that, appropriate preventive treatment would have substantially lowered the probability that she would have developed clots, or the extensiveness of the clot that did develop, and that plaintiff’s history showed a better than 90% chance of developing clots and the failure to call in a specialist to prevent a clot fell below the standard of care. The court held this testimony was sufficient to meet the "more likely than not" causation standard of Gooding v. University Hospital Building, Inc., 445 So.2d 1015 (Fla. 1984).

The court also holds that it was not error to submit the issue of plaintiff’s comparative negligence to the jury where there was evidence that she failed to follow her doctor’s instructions regarding activity and smoking, and that her failure contributed to her injury.

Med Mal -- Limitations

Higgs v. Fla. Dept. of Corrections
20 Fla. L. Wkly. D1089 (1st DCA 1995)

The plaintiff, a prisoner, was injured in a fight. The prison medical officials did not take adequate X-rays and failed for several months to diagnose and treat several broken and crushed bones in his face. The prisoner continuously questioned his treatment but received assurances that his condition would improve. The court held that a genuine issue of material fact existed as to when the statute began to run.

Med Mal - Presuit

Tunner v. Foss
20 Fla. L. Wkly. D974 (5th DCA 1995)

In what the court described as "a nightmare scenario for participants in current health care plans", the defendant allegedly deliberately refused to refer the decedent to a specialist because it would have a negative economic impact on the doctor under the health care plan. The court decries the health care plans that pit a medical doctor’s economic self-interest against the welfare of patients, creating a conflict of interest between doctor and patient. Nonetheless, the court holds that these allegations fall under the medical malpractice act, and where there was no presuit compliance, the complaint must be dismissed.

Seat Belt

Safety Kleen Corp. v. Ridley
20 Fla. L. Wkly. D842 (Fla. 1st DCA 1995)

It was reversible error to refuse to give the defendant’s requested jury instruction based on 316.614(b), which makes it unlawful for any person to operate a motor vehicle unless restrained by a seat belt. The instruction would have told the jury that violation of this statute is evidence of negligence. Giving the standard seat belt instruction did not cure the error. 316.614(10) provides that violation of the statute "may be considered as evidence of comparative negligence in any civil action."

Osgood Industries, Inc. v. Schlau
20 Fla. L. Wkly. D883 (Fla. 2d DCA 1995)

It was error to direct a verdict on the seat belt defense where the plaintiff testified that she tried to use the seat belt but it jammed and she asked one of the defendants to help her with it; the defendant testified that the plaintiff never told her there was a problem with the seat belt and that the defendant had used that seat belt on several occasions, including the same evening, with no problem.

Punitive Damages

Simeon, Inc. v. Cox
20 Fla. L. Wkly. D1105 (5th DCA 1995)

Section 768.72 establishes conditions precedent for maintaining a punitive damages claim. This court holds that it does not require that a punitive damages claimant refrain from pleading a claim for punitive damages until the trial court grants leave after a hearing. Rather, the court concludes it to preclude discovery on the issue until the proper factual showing is made.

Service of Process

Frew v. Poole and Kent Co.
20 Fla. L. Wkly. D1065 (Fla. 4th DCA 1995)

Plaintiff moved to amend her complaint to add parties, attaching the proposed amended complaint to the motion. The court held that the statute of limitations was tolled on the date the motion with the amended complaint was filed. However, the complaint was properly dismissed as to those parties for failure to serve them within 120 days of the date the motion was filed.


Peterson v. The Morton F. Plant Hosp. Assoc.
20 Fla. L. Wkly. D993 (2d DCA 1995)

The plaintiffs settled with one defendant on the eve of trial, but at the time of trial had not yet finalized the documents or dismissed the settling defendant. The settling defendant did not appear at trial. The remaining defendants made the settlement a feature of the trial and argued to the jury that the plaintiffs had already been fully compensated by the settlement. The court distinguished Dosdourian v. Carsten, 624 So.2d 241 (Fla. 1993), which requires disclosure to the jury of Mary Carter agreements, because this was not a Mary Carter agreement. "The disclosure of the amount of this settlement clearly prejudiced the plaintiffs in this case".

Sovereign Immunity

Dept. of H.R.S. v. B.J.M.
20 Fla. L. Wkly. S188 (Fla. 1995)

This was an action by a guardian ad litem on behalf of a child who had been adjudicated delinquent and dependent, placed in HRS custody, and placed in what was essentially a "state sanctioned warehouse for troubled youth," rather than being provided treatment for his mental and emotional problems. The court held that HRS’s placement decisions were discretionary functions which were not subject to tort liability. HRS’s actions fell under category II of Trianon Park Condo. Assoc. v. City of Hialeah, 468 So.2d 912 (Fla. 1985) (enforcement of laws and protection of public safety). However, even under Category IV of Trianon (professional, educational and general services for the health and welfare of the citizens), HRS is immune "because of its broad discretion in exercising its placement authority."

The court distinguishes HRS v. Whaley, 574 So.2d 100 (Fla. 1991) (child assaulted in juvenile detention facility) and HRS v. Yamuni, 529 So.2d 258 (child abused while in own home under HRS supervision) because both cases involved caseworker level decisions about the child’s physical safety, not discretionary planning or judgment about choice of services.

The court reaffirms those decisions and says it will not hesitate to subject the agency to tort liability when its negligently conducted operational level activities expose children to specific foreseeable dangers that result in physical injuries to children.

McGhee v. Volusia County
20 Fla. L. Wkly. D853 (Fla. 5th DCA 1995)

Reversing the panel opinion, the court en banc holds that a county could not be responsible for the actions of a deputy sheriff who had arrested the plaintiff. The plaintiff told the deputy that he was no longer welcome in the plaintiff’s shop; the deputy responded by attacking and beating the plaintiff.

The court held that as a matter of law the deputy was acting outside the scope of his employment or in bad faith or with wilful and wanton disregard of human rights, safety or property.

This case does not bode well for police brutality cases.

Sunshine in Litigation

E.I.Dupont de Nemours v. Lambert
20 Fla. L. Wkly. D997 (2d DCA 1995)

The defendant produced documents to the plaintiffs which contained confidential and trade secret information, after the court issued a confidentiality order. Third parties filed motions under the Sunshine in Litigation Act, 69.081, for disclosure. The court ruled that it would hold a separate trial on the Sunshine issue, but no trial was ever held. Instead, the court ruled based on what he heard at the trial on the merits.

It was error for the judge to rule on the Sunshine issues without a hearing addressed to those issues, where all parties were preparing for and relying on a separate hearing.

Workers Comp Immunity

Kenann & Sons Demolition, Inc. v. DiPaolo
20 Fla. L. Wkly. D1009 (4th DCA 1995)

The head of a demolition company and the company were both immune under the worker’s comp law even though they allowed an unskilled, unprofessional, unlicensed scrap dealer to perform a demolition job which injured plaintiff. The Employer’s conduct did not amount to an intentional act designed to result in injury or death, or substantially certain to do so.

Compare Connelly v. Arrow Air, 568 So.2d 448 (3d DCA 1990), rev. denied, 581 So.2d 1307 (Fla. 1991) (aircraft intentionally & routinely overloaded and poorly maintained). The owner’s actions did not rise to the level of a first degree misdemeanor as required by the statute.

Ramos v. Univision Holdings, Inc.
20 Fla. L. Wkly. S220 (Fla. 1995)

A property owner must be a contractor or statutory employer and liable for securing workers compensation benefits in order to be entitled to worker’s comp immunity under 440.11. A property owner who hires a general contractor is not entitled to workers comp immunity.

Wrongful Death - Damages

Nat’l Railroad Passenger Corp. v. CSX Transp. Inc.
20 Fla. L. Wkly. D890 (4th DCA 1995)

An award of $2,842.500, including $400,000 to each of six adult children and one adult stepchild of the decedent, was not excessive and did not require a remittitur or new trial. There was extensive testimony about the closeness of the family and the impact on the survivors, including expert testimony. One of the survivors cried on the stand, and the court sent the jury out and observed that the crying was getting prolonged. He then called the jury back in and instructed them to disregard any feelings of sympathy. The appellate court held that the trial court took adequate steps to deal with any emotional outbursts. Moreover, the fact that equal amounts were awarded to all of the survivors did not show that the jury did not reach its verdict in a logical and reasonable manner.

Young v. St. Vincent’s Medical Center
20 Fla. L. Wkly. D1020 (1st DCA 1995)

This case involves a stillborn fetus which died as the result of being negligently punctured during a medical procedure performed to determine its maturity. The court certifies the question of whether a fetus is a person under the wrongful death act, 768.19. An extensive special concurrence surveys the law on this issue. It notes that 34 states have legislatively adopted such a cause of action, but Florida has not.