November 2001

Amendment of Pleadings

Vanderberg v. Rios
26 Fla. L. Weekly D25 #48 (Fla. 4th DCA 2001)

Rule 1.190(a) allows a party to amend a pleading “once as a matter of course at anytime before a responsive pleading is served ....” The court holds that a motion to dismiss is not a responsive pleading; consequently the plaintiff could file an amended complaint without first obtaining leave of court, and it was error for the trial court to dismiss the case on the grounds that the original complaint failed to state a cause of action.


Contractor’s Management Systems of NH, Inc, v. Acree Air Conditioning
26 Fla. L. Weekly D2420 (Fla. 2d DCA 2001)

A contract provision that required arbitration of “any dispute concerning this Agreement” did not apply to claims under the Florida Deceptive and Unfair Trade Practices Act, 501.201, Florida Statutes.

Civil Rights

Woodham v. Blue Cross and Blue Shield of Florida, Inc.
26 Fla. L. Weekly D2196 (Fla. 3d DCA 2001)

The court certifies to the Supreme Court:

Whether a claimant must pursue the administrative remedies provided in section 760.11(7), Florida Statutes, when the claimant has filed a complaint under the Florida Civil Rights Act with the Florida Commission on Human Relations and the Equal Employment Opportunity Commission jointly and has received an EEOC “dismissal and Notice of Rights” stating: “based upon its investigation, the EEOC is unable to conclude that the information obtained establishes violations of the statutes. This does not certify that the Respondent is in compliance with the statutes. No finding is made as to any other issues that might be construed as having been raised by this charge.”?

The original opinion in this case, 26 Fla. L. Weekly D1360 (Fla. 3d DCA 2001) held that resort to administrative remedies is required in these circumstances. The court has not changed its mind but has certified the question. Judge Ramirez, joined by Judges Cope and Gersten, concurs in the certification but dissents from the result, citing Cisko v. Phoenix Medical Products, 26 Fla. L. Weekly D1851 (Fla. 2d DCA 2001). There, the court held: “the EEOC’s finding that “the EEOC is unable to conclude that the information obtained establishes violations of the statutes” does not amount to a finding that there is not reasonable cause to believe that a violation of the Act has occurred. Without such a finding, Cisko is not bound by the thirty-five-day restriction in section 760.11(7). The only restriction on Cisko’s civil action was that she filed her civil action after the FCHR’s 180-day determination period expired, but before the applicable statute of limitations expired”

Dangerous Instrumentality

Dockery v. Enterprise Rent-A-Car Co.
26 Fla. L. Weekly D2215 (Fla. 4th DCA 2001)

Where plaintiff proves that a rental car company rented out a vehicle and consented to its operation beyond its own immediate control, plaintiff has established a prima facie case of vicarious liability under the dangerous instrumentality doctrine. Susco Car Rental System of Florida v. Leonard, 112 So.2d 832 (Fla. 1959). The burden then shifts to the insurance company to prove that the rented vehicle was stolen or converted before the accident, if the insurer wants to be absolved of vicarious liability. The burden is not on the plaintiff to prove that the vehicle was not stolen.

Evidence — Hearsay — Business Records

Vereb v. Sardoni
26 Fla. L. Weekly D2327 (Fla. 5th DCA 2001)

The trial court did not err in excluding from evidence a portion of the plaintiff’s physical therapy records which stated that the “mechanism of injury” was “Repetitive Activity: Heavy Labor Overuse.” There was no evidence of the source of the information, and 90.803(6)(b) excludes evidence in the form of an opinion or diagnosis contained in medical records unless it would be admissible under the expert witness rules if the person whose opinion is recorded were to testify directly.

Evidence — Opening the Door

Sheffield v. Superior Insurance Co.
26 Fla. L. Weekly S706 (Fla. 2001)

When a trial court unequivocally denies a motion in limine and rules that it will admit evidence over a party’s objection, the party does not waive the objection by introducing the evidence to minimize its impact. This is sometimes called “anticipatory rehabilitation” or a “preemptive strike.” Here, the trial court erroneously ruled in limine that it would admit evidence of the insured’s receipt of collateral source benefits provided by her employer in an uninsured motorist case. See Gormley v. GTE Products Corp., 587 So.2d 455 (Fla. 1991) (“a landmark decision that the trial court ignored”). The plaintiff did not waive the error by introducing the evidence herself in her case in chief.

Although not the basis for the court’s decision, the parties stipulated that the plaintiff would have a standing objection to the evidence and would not have to contemporaneously object to preserve the error. Defendants may try to use that as a basis to distinguish this case. However, the court’s reasoning is broader than that. “[O]nce the party is faced with the knowledge that the jury will hear the evidence, it is legitimate trial strategy for a party to introduce the evidence at trial in an attempt to mitigate the harm and diffuse the prejudicial impact of the evidence. In many cases, the only way to attempt to minimize the ‘dynamite’ impact of the adverse evidence will be to question the jury about it in voir dire, discuss it in opening statement, and thereafter introduce the evidence. ... We hold that once a trial court makes an unequivocal ruling admitting evidence over a movant’s motion in limine, the movant’s subsequent introduction of that evidence does not constitute a waiver of the error ....”

Ex Parte Communication

Del’Ostia v. Strasser
26 Fla. L. Weekly D2448 (Fla. 4th DCA 2001)

The trial judge, all counsel and a court reporter left the courtroom to discuss an objection posed by the plaintiff, leaving the defendant on the witness stand. The defendant used the opportunity to joke or converse with the jury. The court held that this unrecorded conversation could not be considered harmless and required a new trial.


Jones v. Williams Pawn & Gun, Inc.
26 Fla. L. Weekly D2444 (Fla. 4th DCA 2001)

Section 790.17, Florida Statutes, makes it a crime to sell a weapon to a person of unsound mind. The court holds that the statute is not unconstitutionally vague as applied to a mentally retarded person who was incapable of caring for himself or his affairs, who used the gun the defendant sold to him to shoot the plaintiff’s husband. The statute gives a person of ordinary intelligence a definite warning of what conduct is prohibited. The term “unsound mind” may be subject to differing interpretations, but that does not make it vague. The statute gives notice that it is a violation to sell a firearm to a person like the person who shot the plaintiff’s husband. Whether the pawn shop knew or should have known about his mental abilities when it sold him the gun was relevant only to negligent entrustment, but not to the plaintiff’s strict liability claim.

Insurance — Attorneys’ Fees

Scottsdale Insurance Co. v. Haynes
26 Fla. L. Weekly D2227 (Fla. 5th DCA 2001)

The court certifies to the Florida Supreme Court the following question of great public importance:
Can an insured recover reasonable attorney’s fees as “damages” from its liability insurer when the attorney’s fees were awarded to a prevailing plaintiff pursuant to 400.429, Florida Statutes, against the insured, and the insurance contract provides the insurer “will pay on behalf of the insured all sums which the insured shall become obligated to pay as damages because of injury to which the insurance applies caused by a medical incident which occurs during the policy period”?

Insurance — Bad Faith

Rosen v. Florida Insurance Guaranty Association
26 Fla. L. Weekly S611 (Fla. 2001)

The plaintiff in a legal malpractice action settled with the defendant; the defendant consented to a judgment against it which would never be recorded, would create no liens and could not be executed. The agreement provided that it was not intended to prejudice the plaintiff’s potential claim against the defendant’s insurer, and that the dismissal of the plaintiff’s underlying lawsuit would not impair the judgment or the plaintiff’s right to pursue a lawsuit against the insurer. The defendant agreed to pay the plaintiff a limited amount, and plaintiff would attempt to collect the remainder from the insurer, and would release the defendant or file a notice of satisfaction at the conclusion of the case.

The court held that the settlement agreement was a “covenant not to execute”, not a release, did not release the defendant’s insurer, and did not preclude the plaintiff’s claim against the defendant’s insurer. Note that this is technically not a bad faith case, but a breach of the insurer’s contractual duties — FIGA can’t be liable for bad faith, but can be held liable for breach of its duty to defend.
The court ruled that its holding in Fidelity & Casualty Co. v. Cope, 462 So.2d 459 (Fla. 1985) was narrow: “if an excess judgment has been satisfied, absent an assignment of that cause of action prior to satisfaction, a third party cannot maintain an action for a breach of duty between an insurer and its insured.” “The key to whether Cope applies is whether the underlying claim continues to exist after the settlement agreement.”

Insurance — Disability

Strama v. Union Fidelity Life Insurance Co.
26 Fla. L. Weekly D2210 (Fla. 1st DCA 2001)

The worker’s compensation concept of “permanent total disability” cannot be read into a disability insurance contract which provided coverage if the insured was unable to engage in “any occupation” for which he was reasonably qualified. The court holds that the term “any occupation” is not synonymous with the term “any employment” in the comp statute, and is ambiguous in the circumstances of this case. The insured’s ability to engage in part time work does not necessarily demonstrate his ability to engage in an occupation.

Med Mal — Arbitration

North Miami Medical Center v. Prezeau
26 Fla. L. Weekly D2194 (Fla. 3d DCA 2001)

In a multi-party med mal case, the defendant doctors offered to arbitrate under 766.207, but the defendant hospital did not. The plaintiff arbitrated with the doctors. The hospital argued that it was entitled to cap its damages pursuant to 766.207(7)(b), because it was only vicariously liable for the negligence of parties who had submitted to arbitration, and those parties were entitled to the cap. The court rejected the hospital’s argument, holding that the benefit of the cap is “solely reserved for a defendant who is conceding liability and participating in arbitration. This benefit is part of the statutory scheme to encourage the arbitration of medical negligence claims.” The court distinguishes Doig v. Chester, 776 So.2d 1043 (Fla. 5th DCA 2001).

Negligence — Duty

Levy v. Florida Power & Light
26 Fla. L. Weekly D2265 (Fla. 4th DCA 2001)

FP&L did not owe a duty to a noncustomer who was killed in an intersection because a traffic signal was inoperative due to the power company’s failure to provide “adequate safe-guards against such interruptions of power at busy and dangerous intersections.” The court also holds that the negligence of the driver who hit the plaintiff’s child was a superseding intervening cause which relieved the power company of any liability.

Nursing Home

Blanchard v. Central Park Lodges (Tarpon Springs), Inc.
26 Fla. L. Weekly D2288 (Fla. 2d DCA 2001)

An evidentiary hearing was required before the trial court could order arbitration under a nursing home contract, where the plaintiff disputed the authenticity of the contract, and contended that the defendant it was suing was not a party to the contract. If the defendant was able to establish that the contract was authentic, the trial court would have to hold an evidentiary hearing on whether the contract was procedurally and substantively unconscionable.

Offer of Judgment

Cahuasqui v. U.S. Security Ins. Co.
26 Fla. L. Weekly S651 (Fla. 2001)

After oral argument, the court has decided it did not have jurisdiction to review this case, in which the Third District held, over Judge Fletcher’s dissent, that the offer of judgment statute applies in PIP cases. See 760 So.2d 1101.

Parents’ Consortium Claim

Cruz v. Broward County School Board
26 Fla. L. Weekly S721 (Fla. 2001)

When a child has sustained a permanent total disability, an award to a parent for loss of filial consortium (loss of the comfort, society, love, affection and companionship of their child) does not extend beyond the child’s age of majority. At common law, a parent was not entitled to any such recovery. Previously, the court had recognized parents’ claims for economic damages through the end of the child’s minority. In United States v. Dempsey, 635 So.2d 961 (Fla. 1994), the court allowed claims for loss of filial consortium, but did not discuss the time span for which the damages could be recovered. Noting that parents are not entitled to claim any damages when an adult child incurs personal injuries due to the tortious act of another, the court held that damages for loss of filial consortium due to an injury to a minor should not extend beyond the child’s minority.

Privilege — Waiver

TIG Insurance Corp. v. Johnson
26 Fla. L. Weekly D2493 (Fla. 4th DCA 2001)

Rule 1.280(B)(5) requires a party claiming a privilege and withholding materials from discovery, to “make the claim expressly and ... describe the nature of the documents, communications or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.” This is often called a “privilege log.” The failure to prepare a privilege log waives the privilege. The trial court properly compelled production of letters between the insurer and its attorney where the insurer failed to prepare a privilege log.

Service of Process

Shurman v. Atlantic Mortgage Investment Corp.
26 Fla. L. Weekly S574 (Fla. 2001)

Where the defendant is in prison at the time of service of process, substitute service on his wife at home where he resided before incarceration is not valid because it is not his usual place of abode. The usual place of abode is where one is actually living at the time of service.

Sovereign Immunity

Provident Management Corp. v. City of Treasure Island
26 Fla. L. Weekly S641 (Fla. 2001)

The limitations on liability in 768.28, Florida Statues, do not apply to a claim for wrongful injunction, where the trial court did not require the city to post an injunction bond. The court notes that, if the bond had been posted, the city would have been liable up to the amount of the bond, because a bond is like a contractual obligation for which sovereign immunity has been waived.

Sunshine in Litigation

Novartis Pharmaceuticals Corp. v. Carnoto
26 Fla. L. Weekly D2441 (Fla. 4th DCA 2001)

The trial court did not depart from the essential requirements of law, causing irreparable harm to the petitioner, by ruling that it would resolve pretrial public hazard issues raised under the Sunshine in Litigation Act, 69.081, Florida Statutes, rather than defer hearing until after resolution of this products liability lawsuit. The Sunshine in Litigation Act prohibits concealment of a public hazard.