November 2013

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Appellate Procedure

In Re Amendments to the Florida Rules of Judicial Administration
and the Florida Rules of Appellate Procedure

Case No. SC13-1670, 2013 WL5878859 (Fla. Oct. 31, 2013)

In accordance with the Florida Legislature’s enactment of §43.44, Fla. Stat., the Supreme Court has adopted amendments to Rule of Appellate Procedure 9.340(a), and Rule of Judicial Administration 2.205(b)(5), abolishing terms of court and allowing an appellate court to recall its mandate within 120 days of issuance.


Fi-Evergreen Woods, LLC v. Robinson
Case No. 5D12-1742, 2013 WL 5493462 (Fla. 5th DCA Oct. 4, 2013)

The fact that an arbitration agreement was signed by the nursing home resident’s husband, but not by the nursing home resident, did not necessarily preclude the enforcement of the agreement against the resident. An evidentiary hearing is required to determine whether the husband had authority to sign for his wife.

Spivey v. Teen Challenge of Fla., Inc.,
Case No 1D12-4377, 2013 WL 5584237 (Fla. 1st DCA Oct. 11, 2013)

The mother of the decedent in a wrongful death case was bound by the religious arbitration agreement her late son had signed as part of a drug rehabilitation program. Judicial enforcement of the agreement did not violate her federal or state constitutional rights.

Hernandez v. Colonial Grocers, Inc.
Case No. 2D11-3415, 2013 WL5762986 (Fla. 2d DCA Oct. 25, 2013)

The Fair Labor Standards Act provides for attorneys' fees to a prevailing plaintiff only, not to a prevailing defendant. The arbitration agreement in this case required the parties to initially bear the costs of arbitration equally, with the prevailing party entitled to reimbursement of its share of costs and reasonable attorneys fees. The court held that this was a sufficient chilling effect to defeat the remedial purpose of the federal statute, because it exposed the employee to liability to which he could not be exposed if he were able to sue in court under the statute. Therefore, the agreement was unenforceable.

Attorneys - Conflict of Interest

Anheuser-Busch Companies, Inc. v. Staples,
Case No. 1D13-1038, 2013 WL 5567497 (Fla. 1st DCA Oct. 9, 2013)

An attorney could not represent a defendant in a worker’s personal injury claim and also represent the worker’s employer with respect to a worker’s compensation lien.

Attorneys’ Fees

ASAP Services, LLC v. S A Florida Int’l, LLC,
Case No. 3D13-606, 2013 WL 5566680 (Fla. 3d DCA Oct. 9, 2013)

Rule 1.525, Fla. R. Civ. P. requires a motion for attorneys’ fees to be filed no later than 30 days after a judgment that concludes an action as to any party. The court holds that a post judgment motion to set aside a default judgment does not toll the time for filing the motion for fees.

In Re Buggs,
Case No. 1D12-3836, 2013 WL 5575041(Fla. 1st DCA Oct. 9, 2013)

Where an attorney and client seek approval of a fee contract for a straight 40% fee instead of the standard, graduating rates under Fla. Bar Rule 4-1.5(f)(4)(B)(ii), the court must approve it if the client’s signature of the waiver of rights form was knowing and voluntary. The trial court erred in denying the petition without holding a hearing or making any factual findings.

Directed Verdict - Reweighing Expert Testimony

Friedrich v. Fetterman & Assocs.,
Case No. SC11-2188, 2013 WL 5745617 (Fla. Oct. 24, 2013)

The District Court of Appeal impermissibly reweighed the testimony of the plaintiff’s expert in setting aside a verdict and ordering direction of a verdict for the defendant. The plaintiff was seriously injured when a chair he was sitting in in the defendant’s office collapsed. Both sides’ experts said the chair was defective because of a weak joint. The plaintiff’s expert testified that a proper examination of the chair should have disclosed the defect. On cross examination, he testified that it was possible to perform the examination and not find the defect. The Fourth DCA found the expert’s testimony legally insufficient to support the “more likely than not” standard of causation. The court reversed the decision of the District Court of Appeal and remanded for reinstatement of the judgment, because the jury was presented with conflicting testimony as to whether the negligence probably caused the injury and whether the injury would not have occurred but for the negligence. The DCA should not have substituted its judgment for that of the trier of fact. See also Cox v. St. Joseph’s Hosp., 71 So.3d 795 (Fla.2011) (reversing DCA decision reweighing expert testimony).


McClure v. Publix Supermarkets, Inc.
Case No. 4D13-1220, 2013 WL 5924982 (Nov. 6, 2013)

Over a dissent, the court held on certiorari that the trial court did not depart from the essential requirements of law in compelling the plaintiff’s deposition in a slip and fall case prior to requiring the defendant to disclose its security video of the incident. The court distinguished Target v. Vogel, 41 So.3d 962 (Fla. 4th DCA 2010). In Target, the same court held that a store’s security video of the incident was not work product and that the trial court did not abuse its discretion in requiring disclosure of the video prior to the plaintiff’s deposition. The Target court emphasized the policy of preventing surprise and trickery in litigation. The McClure court emphasized that the decision either way is within the trial court’s discretion.

This case should be read as only a case on the limits of appellate review of the discretion of the trial court, and not as setting a hard and fast rule that the plaintiff cannot see the video of the incident until after her deposition. Target is still good law.

The First DCA denied cert citing Target in Dollar General Corp. v. Babcock, 75 So.3d 434 (Fla. 1st DCA 2011). Target also has been cited by a federal magistrate in Schulte v. NCL (Bahamas) Ltd., 2011 WL 256542 (S.D.Fla. 2011).

Insurance - Bad Faith

Geico Gen. Ins. Co. v. Pruitt,
Case No. 3D12-1928, 2013 WL 5338778 (Fla. 3d DCA Sept. 23, 2013)

In this procedurally complex case, the court dismissed Geico’s appeal because the orders it was appealing were not final and not appealable. Geico was not entitled to immediate appellate review of an order striking Geico’s defenses, and a partial summary judgment ruling that a Coblentz agreement was valid, where the bad faith claim remained pending.

A Coblentz agreement is an agreement for a consent judgment between an injured plaintiff and an insured tortfeasor where the insurer has breached its duty to the insured. See Coblentz v. American Sur. Co. of N.Y., 416 F.2d 1059 (5th Cir. 1969). The agreement must be made in good faith, and the summary judgment found that it was made in good faith. Because the bad faith claim against the insurer was still pending between the parties, the court held that the summary judgment was not appealable.

The court also denied Geico’s request to order the trial court to sever the bad faith causes of action and enter final judgment on the declaratory counts.

Insurance - Bad Faith - Longarm Jurisdiction

Betzoldt v. Auto Club Group Ins. Co.
Case No. 2D12-5368, 2013 WL5762982 (Fla. 2d DCA Oct. 25, 2013)

Florida had longarm jurisdiction over the insurance company, and the insurance company had sufficient minimum contacts with Florida, to satisfy due process. This was a Michigan policy issued to a Michigan driver who injured someone in a car crash in Florida. The insurer only issues insurance policies in Michigan to Michigan drivers. The third party bad faith complaint alleged that the insurer breached its duty to the insured by, among other things, failing to obtain (and, by inference, to deliver to the Florida claimant), affidavits regarding the insured’s other insurance. The court noted that the policy provided coverage to the insured in all 50 states, and presumably, the insured paid a higher premium for it. Thus, the insurer contracted to cover a risk in Florida. The court cited Virginia Farm Bureau Mutual Insurance Co. v. Dunford, 877 So. 2d 22, 23 (Fla. 4th DCA 2004), which also involved a third party bad faith claim. The Court distinguished Meyer v. Auto Club Insurance Ass'n, 492 So. 2d 1314 (Fla. 1986), which involved a PIP claim.

Insurance - Homeowners - Contractor’s overhead

Juvonen v. United Prop. & Cas. Ins. Co.
Case No. 4D12-230, 2013 WL 5729808 (Oct. 23, 2013)

In Trinidad v. Fla. Peninsula Ins. Co. (Trinidad II), 121 So.3d 433 (Fla. July 3, 2013), the Florida Supreme Court held that, “an insurer’s required payment under a replacement cost policy includes overhead and profit, where the insured is reasonably likely to need a contractor for the repairs, because the insured would be required to pay costs for a general contractor’s overhead and profit for the completion of repairs.” Here, the insurer tried to distinguish Trinidad II on the grounds that it was decided under a different version of §627.7011, Fla. Stat., but the court found no meaningful distinction.

Insurance - Homeowners - Exclusion

Alfa Mut. Ins. Co. v. Thornton,
Case No.3D13-0551, 2013 WL 5735282 (Fla. 3d DCA Oct. 23, 2013)

An exclusion in a homeowner's insurance policy excluded coverage for bodily injury arising out of the insured’s care or custody of an animal not owned by the insured. The court held the exclusion was not ambiguous. The court said the exclusion applied to exclude coverage for injuries to a claimant riding on a motor scooter who collided with the leash of a dog the insured was walking for a neighbor.

Insurance - Nonjoinder Statute

Beazley Ins. Co. v. Banerjee,
Case No. 4D13-1019, 2013 WL 5538714 (Fla. 4th DCA Oct. 9, 2013)

In a personal injury action, the trial court departed from the essential requirements of law in allowing the plaintiff to add the defendant’s insurer as a party in a declaratory judgment count. The order violated the nonjoinder statute, §627.4136(1), Fla. Stat., because the plaintiff had not yet obtained a settlement or verdict against the insured.

Insurance - PIP - Constitutionality - Standing

McCarty v. Myers
Case No. 1D13-1355, 2013 WL 5744435 (Fla. 1st DCA October 23, 2013)

Providers had no standing to challenge the new limitations on PIP (including the "medical emergency" limitation and the exclusion of licensed massage therapists and acupuncturists) as a denial of the right of access to courts. If anyone's right of access to court was being violated, it was the insureds', not the providers'. The court reversed a temporary injunction.

Judges - Disqualification

M.B. v. S.P.,
Case No. 2D12-3136, 2013 WL 5663193 (Fla. 2d DCA Oct. 18, 2013)

The trial judge should have disqualified himself, and a new trial was required, where, at a sidebar, plaintiff’s counsel noticed that judge had written himself a note mocking the plaintiff’s injuries (“Bag lady with shits (full of). Barfer, too.” ). Plaintiff’s counsel objected, moved for disqualification and moved for mistrial. The judge told plaintiff’s counsel it was “none of your damn business.” The Second District held that the plaintiff was deprived of a fair trial. “ Litigants have the right to have their cases heard in a [calm] and dispassionate environment before an impartial judge and have their rights adjudicated in a fair and just manner.”

Jury Selection

Matarranz v. State,
Case No. SC11-1617, 2013 WL 5355117 (Fla. Sept. 26, 2013)

A juror should be excused for cause if there is any reasonable doubt about the juror’s ability to be impartial.

The court distinguishes between prospective jurors’ expressions of bias or doubt that are based on misunderstandings of the law or of the legal process, and those that “stem from firmly held beliefs that will not be altered during voir dire ,” based on personal life experiences. While the court and counsel may engage a juror in a dialogue about the law and legal process, a juror may not be rehabilitated where the opinions expressed are based on the juror’s firmly held beliefs. Prospective jurors should not be hounded or embarrassed into saying they will be fair when there is a reasonable doubt about their ability to do so.

A juror’s opinions that come from the juror’s underlying beliefs cannot be “rehabilitated.”

“The true test of the fixedness of an opinion in the mind of a juror is not whether the opinion will readily yield to the evidence. ... The test is whether the juror possesses the state of mind necessary to render a verdict in accordance with the evidence and not based upon preconceived opinions. Moreover, if an individual takes the additional step of admitting concern that he or she may be biased, an expression of such sentiment must necessarily inform a court's analysis of juror partiality”

Here, the juror expressed bias in favor of the state while recounting an incident that had happened to her, and should have been excused for cause, not embarrassed into saying that she could be fair.

The court also held that the defendant preserved the issue by using a peremptory challenge on the juror, exhausting his peremptory challenges and then asking for additional peremptories, listing jurors he would use them on, and then renewing the objection before the jurors were sworn. One of the objectionable jurors sat on the jury. “[A]fter moving to strike a juror for cause, ... counsel is [not] required to again list the juror by specific name a second time who should have been initially removed for cause, but was not. ...” After using a peremptory challenge to remove this particular juror, counsel did not have to list her name again when he renewed his objections.

This is a really inspiring opinion by Justice Lewis, quoting both Jefferson’s First Inaugural Address and Atticus Finch’s closing argument in Harper Lee’s novel, To Kill a Mockingbird:

"I'm no idealist to believe firmly in the integrity of our courts and in the jury system—that is no ideal to me, it is a living, working reality. Gentlemen, a court is no better than each man of you sitting before me on this jury. A court is only as sound as its jury, and a jury is only as sound as the men who make it up."

A majority of the Court also joined in Justice Labarga’s concurring opinion which emphasized the importance of not pressuring or embarrassing jurors to say that they changed their mind.

A juror's fairly expressed, honestly held belief that he or she cannot be fair based on an unfortunate past life experience—and not simply based on a misunderstanding of the law—is not so easily overcome simply because counsel and the court manage to extract promises of fairness after much questioning. Such a process does not necessarily dispel the reasonable doubt that appertains to the juror's initial honest statement of his or her personal feelings and beliefs.

Med Mal - Ex Parte - HIPAA

Murphy v. Dulay,
Case No. 4:13cv378-RH/CAS, 2013 WL 5498140 (N.D. Fla. Sept. 25, 2013)

Judge Hinkle in the Northern District of Florida has found that the new provision in the medical malpractice statute, §7661065(3)(E),, Fla. Stat., requiring the potential plaintiff to sign a release authorizing treating physicians to have ex parte contact with defense counsel, violates, and is preempted by, HIPAA.

The new statute requires a notice of intent to “be accompanied by an ‘authorization’ signed by the plaintiff that, among other things, allows the defendant—or the defendant’s attorney, insurer, or adjuster—to conduct ex parte interviews of the plaintiff’s other healthcare providers, limited to matters pertinent to the potential medical-negligence claim.”

The HIPAA regulations provide that, with certain exceptions: “A standard, requirement, or implementation specification adopted under this subchapter that is contrary to a provision of State law preempts the provision of State law.” 45 C.F.R. § 160.203.

The regulations under HIPAA also provide that “Except as otherwise permitted or required by this subchapter, a covered entity may not use or disclose protected health information without an authorization that is valid under this section. When a covered entity obtains or receives a valid authorization for its use or disclosure of protected health information, such use or disclosure must be consistent with such authorization.” 45 C.F.R. § 164.508(a)(1) (emphasis added).

The court held that an authorization pursuant to the new Florida statute was not “valid” because the patient’s signature did not show actual consent, it only showed compliance with a mandatory requirement of state law. The court stated:

The Florida statute is an attempt not to comply with the federal requirements but to circumvent them—to allow ex parte interviews without consent and without the court or administrative order (or opportunity to obtain a ruling) that federal law requires. The Florida statute purports to reach this result by requiring the patient to sign an “authorization,” but the authorization is a charade; the only entity granting authority, in any meaningful sense, is the state itself, not the patient

The court also held that the plaintiff had standing to challenge the statute in a declaratory judgment action because he had a potential malpractice claim which he would pursue if he were not required to provide the authorization, but would not pursue if he were required to provide the authorization. There was a reasonable possibility that if an ex parte interview occurred, private medical information would be disclosed that was not related to the plaintiff’s medical malpractice claim.

New Trial - Damages - Preservation of Issue

Hernandez v. Gonzalez,
Case No. 4D12-1810, 2013 WL 5807814 (Fla. 4th DCA Oct. 30, 2013)

It was undisputed that the plaintiffs were taken to the emergency room from the accident scene. Ordinarily, that should entitle them to a directed verdict on damages, because they are entitled to recover at least for any diagnostic testing that was reasonably necessary to determine whether they were injured in the accident. See, e.g., Sparks-Book v. Sports Authority, Inc., 699 So. 2d 767 (Fla. 3d DCA 1997); Blanford v. Polk Cnty., 410 So. 2d 667, 669 (Fla. 2d DCA 1982); Peek v. Stevens, 395 So. 2d 617, 617-18 (Fla. 5th DCA 1981); Ridenour v. Sharek, 388 So. 2d 222, 224 (Fla. 5th DCA 1980). But the plaintiffs failed to make a motion for directed verdict during the trial. In addition, their attorney said in closing argument that if the jury found they weren’t injured, it could award them nothing. The court held that the plaintiffs waived their right to a new trial on damages.

Punitive damages

RJ Reynolds Tobacco v. Buonomo,
Case No. 4D10-3543, 2013 WL 5334590 (Fla. 4th DCA Sept. 25, 2013)

The punitive damages statute that was in effect when the cause of action accrued governed the award of punitive damages. Under that earlier version of the statute, the court was not required to reduce the punitive damages to three times the compensatory damages if “the claimant demonstrates to the court by clear and convincing evidence that the award is not excessive in light of the facts and circumstances which were presented to the trier of fact.”


Festival Fun Parks LLC v. Bellamy,
Case No. 4D12-82, 2013 WL 5729814 (Fla. 4th DCA Oct. 23, 2013)

The trial court erred in denying remittitur. The jury awarded exactly the amount for future care in a summary prepared by the plaintiff’s economist, which was based on five dorsal stimulator replacements over the course of the plaintiff’s life. However, the plaintiff’s medical expert testified at trial that only two replacements would be needed. Rather than ordering a new trial, the appellate court performed the calculation itself and ordered entry of judgment in the corrected amount.

Servicemembers’ Civil Relief Act

Higgins v. Timber Springs
Case No. 5D12-4806, 2013 WL 5849282 (Fla. 5th DCA Nov. 1, 2013)

The court reversed a foreclosure summary judgment that was entered against an active duty servicemember. The servicemember had filed a letter with a copy of his orders showing that he had been transferred to active duty in Pennsylvania. Although he technically did not fully comply with the Servicemembers’ Civil Relief Act, 50 U.S.C. App. §§ 501-597b, the court should have given him the opportunity to obtain the required evidence from his commanding officer, which would have entitled him to a stay. The SCRA is to be liberally construed.

Statute of Repose

RJ Reynolds Tobacco v. Buonomo,
Case No. 4D10-3543, 2013 WL 5334590 (Fla. 4th DCA Sept. 25, 2013)

In an Engle progeny case, the trial court erred in striking the tobacco company’s statute of repose defense on the plaintiff’s claims for fraud and conspiracy to commit fraud by concealment. The statute of repose is an individualized defense that must be decided on a case-by-case basis and is not foreclosed by Engle. The plaintiff must prove detrimental reliance on the tobacco company’s fraudulent misrepresentation within 12 years prior to filing the suit. See e § 95.031(2)(a), Fla. Stat.

Philip Morris USA, Inc. v. Hallgren,
Case No. 2D12-2549, 2013 WL 5663188 (Fla. 2d DCA Oct. 18, 2013)

In another tobacco case, the court reiterated that “a statute of repose runs not from the time a cause of action accrues, but from the date of a discrete act on the part of a defendant.” “The statute of repose begins to run on a claim for fraudulent concealment based on an ongoing pattern of concealment when the last act of concealment on which the plaintiff relied occurs.” With respect to the conspiracy claim, the critical date is the last date when an act was done in furtherance of the conspiracy.