May/June 1998

Apparent Agency

Izquierdo v. Hialeah, Hospital, Inc.
23 Fla. L. Wkly. D994 (Fla. 3d DCA 1998)

Neither the patient’s subjective beliefs nor the doctor’s actions are sufficient to create vicarious liability of the hospital on the theory of apparent agency where there was no action by the hospital creating the appearance of an agency relationship. The doctor was a pediatrician provided to the plaintiff by the hospital after the birth of her baby, pursuant to the hospital’s contract with her HMO. I really think the hospital should have some responsibility for that.

Attorneys Fees

Sunshine Boating Center, Inc. v. Heuer
23 Fla. L. Wkly. D965 (Fla. 4th DCA 1998)

Filing a general denial, failing to respond to requests for admissions, and a resulting summary judgment do not support an award of attorneys fees under 57.105


Kaplan v. Berenson
23 Fla. L. Wkly. D1147 (Fla. 4th DCA 1998)

Statements made about an attorney in a letter to the Florida Bar are absolutely privileged and cannot form the basis for a defamation suit.

Destruction of Evidence

St. Mary’s Hospital v. Brinson
23 Fla. L. Wkly. S245 (Fla. 1998)

The court dismissed review as improvidently granted, thus allowing the decision of the 4th DCA to stand. The 4th DCA upheld a judgment in favor of the plaintiff based on the defendant hospital’s destruction of the device that allegedly caused the plaintiff’s child’s death, and the hospital’s refusal to turn over information ordered by the court. That decision appears at 685 So.2d 33 (Fla. 4th DCA 1996). DeLong v. A-Top Air Conditioning Co. 23 Fla. L. Wkly. D1133 (Fla. 3d DCA 1998)

The trial court properly dismissed plaintiff’s personal injury action with prejudice where the plaintiff inadvertently lost a piece of “relevant and material” evidence and the defendants demonstrated their “inability to completely set forth their defense without having had the opportunity to examine and test the lost evidence.” Note that this was not the intentional destruction of evidence, but inadvertent. See St. Mary’s Hospital v. Brinson, 685 So.2d 33 (Fla. 4th DCA 1996). For a discussion of the intentional destruction of evidence (where the innocent party is not required to prove the complete inability to prove its case) see Figgie International v. Alderman, 698 So.2d 563 (Fla. 3d DCA 1997), rev. dismissed, 703 So.2d 476 (Fla. 1997).

Discovery — Sanctions

Elder v. Norton
23 Fla. L. Wkly. D991 (Fla. 2d DCA 1998)

The trial court should not have dismissed the plaintiff’s claim as a sanction for discovery abuses by her attorney where there was no evidence that the plaintiff participated in the abuses.

Stillwell v. Stillwell-Southern Walls
23 Fla. L. Wkly. D995 (Fla. 5th DCA 1998)

It was error to strike a party’s pleadings as a sanction for discovery violations where the party’s attorney withdrew, the party was elderly, had surgery and was unable to travel, and his wife was hospitalized and died in the interim, and the party had retained new counsel who appeared on the day of the hearing.

Economic Loss Rule

Hofrichter v. Zuckerman & Vanditti, P.A.
23 Fla. L. Wkly. D992 (Fla. 3d DCA 1998)

Where the plaintiff claimed that the defendant embezzled trust funds, the economic loss rule does not bar the plaintiff’s claims. The torts of conversion, civil theft and constructive fraud constitute independent torts and are not barred by the economic loss rule.

Stallings v. Kennedy Electric
23 Fla. L. Wkly. D1087 (Fla. 5th DCA 1998)

The court holds that the economic loss rule does not bar a statutory claim for violation of the building code. Section 553.84, Florida Statutes provides for a cause of action for violation of the building code “notwithstanding any other remedies available.” The court certifies conflict with the contrary holding by the Third District in Comptech Int’l, Inc. v. Milam Commerce Park, Ltd., 22 Fla. L. Wkly. D2192 (Fla. 3d DCA 1997). The decision in Comptech contains a strong dissent by Judge Cope.

In a decision on rehearing that has not yet been reported in the weekly, the Third District recently adhered to its decision in Comptech. One of these two cases is surely headed to the Supreme Court.

The Ocean Ritz of Daytona Condominium v. CGV Associates, Ltd.
23 Fla. L. Wkly. D1089 (Fla. 5th DCA 1998)

The economic loss rule bars a claim by a condominium association, on behalf of the condo unit owners, against the consulting architect employed by the engineering company employed by the developer, resulting from negligent inspections and preparation of disclosure statements prepared in connection with the conversion of the apartments to condominiums. The court holds that the economic loss rule bars a negligence action in the context of a third-party beneficiary of a professional consultant’s contract when the plaintiff is seeking to recover only economic losses. The court holds that the rule applies even though the third party beneficiary is not in a position to protect himself in the contract because he is not involved in the negotiations.

Emotional Distress

Sheraton Key Largo v. Roca
23 Fla. L. Wkly. D1129 (Fla. 3d DCA 1998)

The plaintiff was injured in a work-related accident and made a worker’s comp claim. The employer refused to authorize emergency surgery necessary to avoid further problems including incontinence and suicidal depression, even though the doctors testified that the surgery was necessary and work related. The court held that the plaintiff’s sole remedy was under the worker’s comp statute and she could not sue for intentional infliction of emotional distress.

Experts — Discovery

Orkin Exterminating Co. v. Knollwood Properties, Ltd.
23 Fla. L. Wkly. D1090 (Fla. 5th DCA 1998)

The trial court properly ordered the defense expert to provide plaintiff with the identity of cases in which the expert had testified, either in deposition or at trial, during the past three years. The defense asserted that no list identifying the cases exists, and that the only source documents the expert has are “financial or business records.” The court rejects the defense’s contention that because of this the order would violate Fla. R. Civ. P. 1.280(b)(4)(A)(iii)4 and Elkins v. Syken, 627 So.2d 517 (Fla. 1996). The court holds that “if the expert is only able to supply the information by providing financial or business documents, it is appropriate to order it done.”

Experts— Impeachment

Beerman v. Rollar
23 Fla. L. Wkly. D975 (Fla. 4th DCA 1998)

The trial court did not err in refusing to allow the plaintiff to cross examine the defendant’s expert, Dr. Petti, about 40 to 50 files in which he had served as an expert for defense counsel and whether in each case he found no permanent injury. The trial court ruled that he could be asked how many times he “examined a plaintiff or defendant” and how many times he ever contradicted another doctor (as he did in this case), but could not be asked his opinion in each particular case. This court affirmed and held this limit on cross examination was not an abuse of discretion because the expert’s prejudice was already established by his testimony that he had testified extensively for defendant’s counsel. Moreover, the prejudice of allowing testimony about 40 to 50 files would outweigh the probative value. The court distinguishes Secada v. Weinstein, 563 So.2d 172 (Fla. 3d DCA 1990), because the excluded testimony in Secada was not cumulative.

Forum Non Conveniens

Owens-Corning Fiberglass v. Ballard
23 Fla. L. Wkly. D1077 (Fla. 4th DCA 1998)

The trial court properly denied the defendant’s motion to dismiss for forum non conveniens where the defendant waited to move to dismiss until three years into the litigation, shortly before the scheduled trial.

Insurance — Health

Liberty Care Plan v. Dept. Of Insurance
23 Fla. L. Wkly. D1134 (Fla. 1st DCA 1998)

The sale of a health plan membership which entitles the member to purchase home health care from a specific provider at discounted rates whenever the member chooses is not the sale of health insurance and is not regulated by the Department of Insurance, even though it meets the general definition of “insurance” -- “a contract whereby one undertakes to indemnify another or pay or allow a specified amount or a determinable benefit upon determinable contingencies”. Because the definition of “health insurance” is more specific, and this plan does not meet the definition of health insurance, the insurance department cannot regulate it.

Insurance — Non-renewal

United States Fire Ins. Co. v. Southern Security Life Ins. Co.
23 Fla. L. Wkly. D996 (Fla. 5th DCA 1998)

Section 627.4133(1), Fla. Stat., requires an insurer to give the named insured at least 45 days written notice of non-renewal. The court holds that the purpose of the notice requirement is to enable the insured to find coverage elsewhere before the policy runs out, and that therefore the statute applies to any material change in the terms and conditions of a policy, such as the elimination of one kind of coverage. Absent a notice to the contrary, the insured is entitled to assume that the renewal policy has the same terms as the original policy. Notice in the policy is not enough.

Negligence Per Se

Newsome v. Haffner
23 Fla. L. Wkly. D1114 (Fla. 1st DCA 1998)

The “open house party” statute, 856.015, Florida Statutes, provides that “no adult having control of any residence shall allow an open house party to take place at said residence if any alcoholic beverage or drug is possessed or consumed at said residence by any minor ...” where the adult knows about it and fails to take reasonable steps to prevent it. The court holds that violation of this statute is negligence per se, and that an adult could be held liable for a drunken minor’s self-inflicted gunshot wound. A claim of negligence per se is created “when a penal statute is designed to protect a class of persons, of which the plaintiff is a member, against a particular type of harm.” The court holds that the statute imposes a duty of care on social hosts and creates a civil cause of action for a statutory violation. The court also rejects the argument that the self-inflicted gunshot was so extraordinary as to be unforeseeable.

Offer of Judgment

Teague v. Estate of Hoskins
23 Fla. L Wkly. S232 (Fla. 1998)

Section 733.707, Florida Statutes, categorizes eight different kinds of debts of an estate and sets the priority in which they are to be paid. The Court holds that attorneys fees awarded under the offer of judgment rule are “costs” under the statute, classified as 'Class 1' and entitled to the highest priority. As the dissent points out, this puts such fees ahead of medical and funeral expenses and the needs of the dependents.

Weesner v. United Services Automobile Assoc.
23 Fla. L. Wkly. D1049 (Fla. 5th DCA 1998)

The court, without any lengthy analysis, rejects the insured’s argument that 627.428, the insurance attorneys fees statute, precludes an award of attorneys fees under the offer of judgment statute. This issue is also the subject of two scholarly opinions, by Judge Murray Goldman of the Dade County Circuit Court, and Judge Linda Singer Stein, of the Dade County Court, who reached the opposite conclusion, based on the purpose of 627.428. Judge Edward Newman has recently ruled that he will certify the question to the Third District as one of great public importance, so maybe we will have a decision soon on this important issue.

I believe that allowing the insurer to obtain attorneys fees from an insured under this statute is contrary to the policy behind 627.428, which is intended to enable insureds to pursue their claims against their insurers, which generally have more resources and money than insureds. The offer of judgment statute is particularly inappropriate in PIP cases, in my opinion, because those claims are supposed to be promptly and virtually automatically paid. Use of the offer of judgment would allow insurers to strong-arm PIP claimants into settling for less than they deserve.

The court also rejects the argument that a $100 offer was not made in good faith, where the insurer, after taking the plaintiff’s deposition, had good reason to believe that it had no liability.

Judge Dauksch dissents from that finding.

Crowley v. Sunny’s Plants, Inc.
23 Fla. L. Wkly. D1128 (Fla. 3d DCA 1998)

A general offer made to two defendants is valid even when it does not individually name the defendants. Here, both defendants were represented by the same attorney and insurance company, and there was no conflict of interest between them; one was vicariously liable for the negligence of the other and therefore they were jointly and severally liable for the damages. Further, the offers were open for the full 30 days; any withdrawal of the offers after that time expired was a nullity and the plaintiffs were still entitled to their attorneys fees.

Premises Liability

Kaufman v. Schmahl
23 Fla. L. wkly. D1012 (Fla. 4th DCA 1998)

Where the lease provided that the tenant would hold the landlord harmless from all claims, and that the landlord covenanted to keep the premises in “good structural repair”, it was error to enter summary judgment in favor of the landlord where the plaintiff submitted an expert affidavit establishing that the dangerous condition, which injured the planitiff, was a structural condition which violated both the building code and the building plans.

Privilege— Psychotherapist

Westmoreland v. Carrero
23 Fla. L. Wkly. D965 (Fla. 4th DCA 1998)

Section 90.503(4)(c) provides an exception to the psychotherapist-patient privilege, after a patient’s death, in any proceeding in which any party relies on the condition as an element of the party’s claim or defense. Here, the deceased and her family died from carbon monoxide poisoning after a car was left running in their garage. The defendant pled as an affirmative defense that an intervening cause or negligence caused the deaths. The court held that the defendants were not entitled to the deceased’s psychiatric records for her treatment because they had not pled that the deceased’s condition was an element of their defense. This decision is rather cryptic, and I wonder whether the deceased’s depression can ever be an “element” of the defense.

Privilege — Self Incrimination

Brancaccio v. Mediplex Management
23 Fla. L. Wkly. D958 (Fla. 4th DCA 1998)

The plaintiff, a psychiatric patient, alleged that the defendants negligently evaluated and treated him and that, but for the negligence, he would not have committed a murder. He had once been convicted, but the conviction was reversed for a new trial based on his right to an instruction on an involuntary intoxication defense. In this civil action, he gave the required presuit notice, but refused to give a presuit statement, asserting the privilege against self incrimination. The trial court dismissed the civil action because of his invocation of the Fifth Amendment. This court reversed, holding that where the statute of limitations had run on the civil case, and the criminal proceedings had a “reasonably foreseeable end in sight”, the court in the civil action should ordinarily await the outcome of the criminal case before deciding whether dismissal is required because of the prejudice to the defendant caused by the delay.

Punitive Damages

Owens-Corning Fiberglass Corp. v. Ballard
23 Fla. L. Wkly. D1077 (Fla. 4th DCA 1998)

This case addresses two important issues concerning punitive damages. The award of punitive damages did not violate due process where, even though the defendant’s conduct occurred outside of the state, it was tortious in all fifty states. The court distinguishes BMW of North America, Inc. v. Gore, 116 S Ct. 1589 (1996), where the conduct punished was not unlawful in the state where it was committed.

Section 768.73(1) makes an award of punitive damages more than three times the amount of compensatory damages presumptively excessive, unless the plaintiff shows by clear and convincing evidence that it is not excessive in light of the facts and circumstances presented to the trier of fact. Even though the punitive damages here were 17 times the amount of the compensatory damages, they were not against the manifest weight of the evidence in light of the reprehensible nature of the defendant’s conduct and the damage done to the plaintiff. The award would not bankrupt Owens-Corning and was less than 2% of the company’s net worth. The court certifies this issue to the Supreme Court.

Service of Process

Schupak v. Sutton Hill Associates 23 Fla. L. Wkly. D1148 (Fla. 4th DCA 1998)

The service of process on the doorman of the defendant’s apartment building did not comply with 48.031(1) where there was no evidence that the defendant was in the apartment at the time or that he was evading service.

Sovereign Immunity

Sams v. Oelrich
23 Fla. L. Wkly. D1042 (Fla. 1st DCA 1998)

Reversing a summary judgment in favor of the sheriff, the court holds that the sheriff created a zone of risk when he took an arrestee to the emergency room for treatment of injuries sustained during an escape attempt, where the arrestee was young, not seriously injured, and in good enough shape to attempt another escape. Having created the zone of risk, the sheriff had a duty to use reasonable care to protect those forced to occupy the emergency room in close proximity to the arrestee, including reasonable care to control the escapee’s movements. The sheriff could be liable to victims in the emergency room who were injured by the arrestee in another escape attempt.

Betancourt v. City of Miami
23 Fla. L. Wkly. D1132 (Fla. 3d DCA 1998)

The plaintiff’s notice of claim to the city was barred because he did not present the claim in writing within three years as required by 768.26(6)(a). The city was not estopped from raising the defense of failure to give timely notice merely because it investigated the incident, where it did not give the plaintiff any assurances that formal notice was not required.