May 1996

Argument -- Improper

Klose v. Choy
21 Fla. L. Wkly. D844 (Fla. 4th DCA 1996)

It was reversible error to allow argument to the jury about the effect their verdict might have on the defendant doctor's reputation.

Forman v. Wallshein
21 Fla. L. Wkly. D917 (Fla. 3d DCA 1996)

It was not reversible error for defense counsel to call the plaintiff a liar in closing argument where there was a "ample evidentiary basis on which to dispute the credibility of the plaintiff." The court limits its prior decisions that disapproved such arguments to arguments where there was no basis in the evidence.

It also was not an abuse of discretion for the trial court to allow defense counsel to use the words "I think" as a figure of speech, rather than as a personal opinion.

Baptist Hospital v. Rawson
21 Fla. L. Wkly. D1023b (Fla.1st DCA 1996)

This is yet another case finding "fundamental error" in closing arguments to which the opposing lawyer did not object. Among other things, the lawyer gave his personal opinion and told the jury about a dream he had in which he woke up as a paraplegic like the plaintiff. He also called the defense "ridiculous" and an "insult" to the intelligence of the jury and the legal system. He discussed facts not in evidence, including a discovery violation by the defense and later luckily finding a missing document because "something happened that said 'the good guys are going to win this time'", and a discussion of how willing doctors usually are to testify for each other.

While these arguments are excessive, it seems to me that if they were so prejudicial, the defense lawyer should have objected.

Sutton v. Ashcraft
21 Fla. L. Wkly. D887 (Fla. 5th DCA 1996)

A defendant "bought off" the collateral source provider's right of reimbursement. The court held that, nevertheless, the defendant was not entitled to a setoff because under 768.76 there is no setoff for a collateral source as to which a right of subrogation exists. In addition, payment under the "med pay" provision of a liability policy is not within the statutory definition of a collateral source, so there is no setoff for "med pay" payments, either.

Dangerous Instrumentality

Lavender v. Northeast Transp., Ltd.
21 Fla. L. Wkly. D968 (Fla. 5th DCA 1996)

The defendant, a New Hampshire car rental agency, rented a car which was driven to Florida where it was involved in an accident caused by the boyfriend of a person listed on the rental contract as an additional driver. The court held that the boyfriend's tortious act in Florida was sufficient to establish in personam jurisdiction over the defendant. The agency is vicariously liable for negligent operation of its vehicle by the boyfriend of the additional listed driver, because his driving the car did not constitute a conversion.


Hanft v. Church
21 Fla. L. Wkly. D841 (Fla. 3d DCA 1996)

It really is a colossal waste of time to refuse to agree to vacate a default where the defendant clearly was guilty only of excusable neglect. Here, the defendant wa served on the last day before leaving for a vacation in Europe. He thought it was a records subpoena, not a summons, and left the papers for his office staff to respond to. He returned on the 21st day but the plaintiff had already sent the default papers in to the clerk. The clerk entered the default and the trial judge refused to vacate it. The appellate court held that excusable neglect was demonstrated and the defendant acted with due diligence by moving to vacate the default 22 days after service.

Discovery -- Sanctions

Tramel v. Bass
21 Fla.L.Wkly. D935 (Fla. 1st DCA 1996)

The defendant sheriff produced an edited videotape of the incident in which the plaintiff was arrested, concealing several seconds of tape which contradicted the defendant's deputy's story about what happened. The defendant moved for summary judgment based on the edited videotape. The plaintiff, through a public records request, obtained an unedited copy, showing what really happened. The trial court made detailed factual findings and struck the defendant's pleadings and entered a default against him. The First DCA affirmed.

The court held that even though the defendant had not violated any court orders, the court had the inherent authority to impose the severe sanctions when a fraud has been perpetrated on the court. The sanction was reasonable in light of the defendant's willfulness. "[I]n the case of the intentional alteration of evidence, the most sever sanctions are warranted as much for their deterrent effect on others as for the chastisement of the wrongdoing litigant."

U.S. Fire Ins. Co. v. C. & C. Beauty Sales
21 Fla. L. Wkly. D1090 (Fla. 3d DCA 1996)

The court refuses to reverse a trial court order imposing the sanction of default on a defendant who repeatedly refused to comply with discovery, in spite of the defendant's contention that the disputed document was eventually produced, and that another disputed document did not exist. The court was unwilling to interfere with the trial court's findings of fact and noted the detailed factual findings made by the trial court.

However, the court held that the damages were not liquidated and had to be determined by a jury.

Economic Loss Rule

Standard Fish Co. v. Douglas Enterprises
21 Fla. L.Wkly. D909 (Fla. 3d DCA 1996)

The plaintiff's action for negligence in the cold storage of fish, resulting in spoilage of the fish, was barred by the economic loss rule because the plaintiff had a contract with one of the defendants and therefore had a contractual remedy, where the only damage was to the property that was the subject of the contract and there was no personal injury involved. While the language of this case appears broad, the only issue on appeal was whether the negligence claims were barred. The other claims, including fraud in the inducement, remain pending below.

The Third District has not been entirely clear about what claims are barred by the economic loss rule and what claims are not. See HTP, Ltd. v. Lineas Aereas Costarricenses 20 Fla. L. Wkly. D2086 (Fla. 3d DCA 1995), holding that a claim for fraud in the inducement is not barred by the economic loss rule. Compare, e.g., Burke v. Napieracz, 21 Fla. L. Wkly. D754 (Fla. 1st DCA March 25, 1996); Monco Enterprises, Inc. v. Blackwell, 21 Fla. L. Wkly. D755 (Fla. 1st DCA March 25, 1996) (independent tort claims not barred by economic loss rule). The issue of the scope of the economic loss rule is pending before the Supreme Court in Woodson v. Martin, 663 So.2d 1327 (Fla. 2d DCA 1995).

Evidence -- Impeachment

Little Bridge Marina v. Jones Boat Yard
21 Fla. L. Wkly. D839 (Fla. 3d DCA 1996)

It was reversible error to allow the defendant to impeach the plaintiff's representative with the fact that he had been a criminal defense attorney who "got [criminals] off." A witness "should not be chastised for laboring in an occupation that serves to breathe life and meaning into the Sixth Amendment."

Experts -- Discovery

Klose v. Choy
21 Fla. L. Wkly. D844 (Fla. 4th DCA 1996)

Where there was confusion at the expert's deposition about the scope of the opinions he would offer at trial, it was error to exclude his testimony when he offered a wider range of opinions than counsel had represented during his deposition that he would offer. The expert had in fact disclosed all of the opinions at the deposition. A better solution could have been reached by an adjournment for further deposition of the expert. See Binger v. King Pest Control, 401 So.2d 1310 (Fla. 1st DCA 1981).

Auto Owners Ins. Co. v. Clark
21 Fla. L. Wkly. D848 (Fla. 4th DCA 1996)

It was error to allow plaintiff's neurosurgeon to give testimony about a treatment session which occurred after the discovery deadline, and to formulate a permanent impairment rating after testifying when he had not rated the plaintiff's impairment when he was deposed.


Slawson v. Fast Food Enterprises
21 Fla. L. Wkly. D846 (Fla. 4th DCA 1996)

This is the excellent decision I wrote about in the last Update, holding that in a negligent security case, the intentional tortfeasor does not go on the verdict form. Since the statute is in derogation of the common law, it must be strictly construed. 768.81(4)(b) says, "This section does not apply ... to any action based upon an intentional tort...." The court certified the question to the supreme court. The court also held that, if a non-party is placed on the verdict form, the plaintiff is entitled to have the jury instructed about the effect this will have on the plaintiff's recovery.


Frappier v. Wishnov
21 Fla. L.Wkly. D1099 (Fla. 4th DCA 1996)

The court clears a narrow path for plaintiffs through the jungle of HMO group plans and ERISA preemption. The court holds that, where an HMO plan is covered by ERISA, claims that the HMO was vicariously liable for the negligence of the physicians (under agency and apparent agency theories) are not barred by ERISA preemption. However, claims of direct negligence, corporate liability and implied contract would be preempted.


Rockman v. Barnes
21 Fla. L. Wkly. D1120 (Fla. 1st DCA 1996)

Conflicting with the Fourth District's decision in Palm Beach County School Board v. Montgomery, 641 So.2d 183 (Fla. 4th DCA 1994), this court holds that interest in a personal injury case runs from the date of the judgment, not from the date of the verdict.

Legal Malpractice

Smith v. Graham
21 Fla. L. Wkly. D947 (Fla. 1st DCA 1996)

A law firm does not have standing to seek an injunction against an attorney formerly employed by the firm based on alleged violations by the former employee of ethical rules. The ethical rules to not create a cause of action. The court certified the question to the supreme court in light of Chandris v. Yanakakis, 20 Fla. L. Wkly. S603 (Fla. 1995). (Chandris held that a fee agreement which violated the rules is not enforceable).

Med Mal -- Limitations

Damiano v. McDaniel
21 Fla. L. Wkly. D852 (Fla. 4th DCA 1996)

This is another sad HIV infection case. The plaintiff was a victim of tainted blood. The court holds that the plaintiff's claim was barred by the statute of limitations because the plaintiff did not file suit within four years of the transfusion, even though the disease did not manifest itself until after the statute of limitations had run. The court certified to the supreme court whether the statute of repose is unconstitutional as applied, as a violation of the right of access to courts.

Med Mal -- Presuit

Foshee v. Health Management Assoc., Inc.
21 Fla. L. Wkly. D1127 (Fla. 5th DCA 1996)

The plaintiff held that she was wrongly restrained in a mental health facility in violation of the Baker Act. The court held that plaintiff's claim for false imprisonment did not have to be submitted to the med mal presuit requirements.

Nursing Homes

Estate of Schwartz v. H.B.A. Management, Inc.
21 Fla. L. Wkly. D1093 (Fla. 4th DCA 1996)

On rehearing, this court adheres to its prior ruling at 20 Fla. L. Wkly. D1093 (Fla. 4th DCA 1995), reported in the January 1996 Case law Update, that it was error to prohibit plaintiff's lawyers from having ex parte communications with the defendant nursing home's former employees. The court disagrees with Barfuss v. Diversicare Corp. of America, 656 So.2d 486 (Fla. 2d DCA 1995), and agrees with the Third District's decision in Reynoso v. Greynolds Park Manor, Inc., 659 So.2d 1156 (Fla. 3d DCA 1995).

It was also error for the trial court to require the plaintiff to produce notes from plaintiff's counsel's ex parte communications with the former employees, since the notes were protected by the work product privilege.

Res Judicata

Dalbon v. Women's Specialty Retailing Group
21 Fla. L. Wkly. D1095 (Fla. 4th DCA 1996)

Where the plaintiff filed a federal civil rights action alleging both federal and state claims, and the federal action was dismissed on statute of limitations grounds, plaintiff's attempt to bring suit in state court on state law theories that had not been raised in the federal action was barred by res judicata.

The court distinguishes Andujar v. National Prop. & Cas. Underwriters, 659 So.2d 1214 (Fla. 4th DCA 1995), because in Andujar, the plaintiff had asserted only federal claims in the federal court action.

Service of Process

Sneed v. H. B. Daniel Constr. Co.
21 Fla. L. Wkly. D969 (Fla. 5th DCA 1996)

Plaintiff served the wrong person. The person served actually was a former resident agent and director of the defendant corporation. The court quashed service of process, and the plaintiff served a correct person after the 120 days had run. The trial court dismissed the action. The Fifth DCA reversed, holding that the service on the incorrect person satisfied the purpose of rule 1.070(i) by attempting to efficiently moving the case through the courts. The Third district reached a similar result in Caban v. Skinner, 648 So.2d 251 (Fla. 3d DCA 1994).

Sovereign Immunity

Polk County v. Sofka
21 Fla. L. Wkly. D974 (Fla. 2d DCA 1996)

An allegation that the county created a known dangerous condition when it accepted a subdivision road but failed to install a stop sign, yield sign or any other warning of a dangerous intersection stated a claim for a negligent omission at the operational level. The county was not immune from liability for a complete failure to warn of the danger at an unmarked intersection. The court certifies to the Supreme Court the following question:

Although a governmental agency's decision whether to install a traffic control device is normally a planning level decision, protected by sovereign immunity, may that immunity be lost if government action creates a dangerous condition resulting in a duty to warn and the failure to install any warning results in a breach of that duty?

Lemonik v. Dade County
21 Fla. L.Wkly. D1085 (Fla. 3d DCA 1996)

It was error to enter summary judgment in favor of the defendant county because the plaintiff failed to serve a copy of the summons and complaint on the Department of Insurance within the statute of limitations. Section 768.28(7) requires service on the Department of Insurance. However, the court holds that the defendant county waived this argument by failing to raise it in its responsive motion or answer to the complaint. The court distinguishes Menendez v. North Broward Hospital District, 537 So.2d 89 (Fla. 1988) because the plaintiff here did give timely written notice to the defendant and the Department before filing suit; while service on the Department of Insurance is mandatory, the statute does not set any time limit for doing it.

Of course, you should make it a practice to serve the Department of Insurance at the same time you serve the government defendant. Who knows what the Supreme Court would do with this issue?