November 1995


Hughes v. Unitech Aircraft Services
20 Fla. L. Wkly. D2483 (Fla. 4th DCA 1995)

When death occurs on the high seas, the Federal Death on the High Seas Act preempts any state wrongful death action. However, the state courts retain jurisdiction and may hear the DOHSA action. There was contrary authority in the third district. Bailey v. Carnival Cruise Lines, Inc., 448 So.2d 1090 (Fla. 3d DCA 1984). The fourth district now holds that Bailey is no longer good law after the U.S. Supreme Court decision in Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 106 S.Ct. 2485, 91 L.Ed. 2d 174 (1986). The court rejects the defendant’s argument that the Florida wrongful death act does not allow the bringing of a DOHSA action in a Florida court.


Elsass v. Hankey
20 Fla. L. Wkly. D2454 (Fla. 5th DCA 1995)

It was error to deny a mistrial where the defense attorney argued in closing that the defendant was not charged by the state trooper with causing the accident.

Assumption of Risk

Lenoble v. City of Fort Lauderdale
20 Fla. L. Wkly. D2438 (Fla. 4th DCA 1995)

The plaintiff was hit in the eye by a batted softball while pitching in a modified fast pitch game on a field owned by the city. He sued the city and the game officials. The trial court granted summary judgment based on assumption of risk. This court reversed. First, whether the plaintiff assumed the risk of being hit by a softball while playing on a field which was improperly laid out was for a jury. Second, whether the misplacement of the pitching rubber is a risk inherent in the game of fast pitch softball is also for the jury. The doctrine of express assumption of the risk only bars recovery for risks inherent in the contact sport itself. See Ashcroft v. Calder Race Course, Inc., 492 so.2d 1309 (Fla. 1986) (negligent placement of exit gap on race course not barred as a matter of law by express assumption of the risk).


Wetherington v. State Farm
20 Fla. L. Wkly. D2390 (Fla. 2d DCA 1995)

The court had no jurisdiction to order that a case pending outside its territorial jurisdiction be consolidated with a case pending before it. The cases involved two automobile accidents which occurred on different dates in different counties.

Except for the territorial problem, the usual rule is that cases involving successive tortfeasors should be consolidated, to avoid inconsistent verdicts. Lawrence v. Hethcox, 283 So.2d 41 (Fla. 1973). The court suggests that the appropriate procedure would have been to ask the supreme court to temporarily assign the judge to duty in the other circuit. Another possible procedure might be a motion for change of venue.

Courts -- Jurisdiction

Patterson v. Rivkind
20 Fla. L. Wkly. D2370 (Fla. 3d DCA 1995)

It is unconstitutional to assign a county court judge to perform circuit court work when the assignment is an exclusive and perpetual monthly assignment to hear all petitions for permanent and temporary domestic violence injunctions. The court certifies the question to the Supreme Court.

Damages -- Loss of Earning Capacity

W.R. Grace & Co.-Conn v. Pyke
20 Fla. L. Wkly. D2445 (Fla. 3d DCA 1995)

There is a lot of liberal case law on proof of loss of earning capacity. For example, someone who has never worked, or who is earning more than before the accident, may obtain an award of loss of earning capacity. Florida Greyhound Lines, Inc. v. Jones, 60 So. 2d 396, 398 (Fla. 1952); Cox v. Shelley Tractor & Equipment, Inc., 495 So. 2d 841 (Fla. 3d DCA 1986), quoting Allstate Ins. Co. v. Shilling, 374 So. 2d 611, 613 (Fla. 4th DCA 1979).

However, this case imposes a somewhat stricter view. While acknowledging that all that is required is "evidence of an injury and evidence which is sufficiently detailed to allow the trier of fact to quantify the loss of earning capacity," the court orders a directed verdict on this element of damages, reversing the $800,000 award for loss of earning capacity. At the time of trial, the plaintiff was still working at his prior job, although he testified that he was likely to get laid off.

The court held that a directed verdict was required because "the plaintiff introduced no evidence at trial to support a finding that he was totally disabled and could not earn any money following the trial." The verdict showed that the jury nonetheless found him totally disabled and awarded him more than he had ever earned for every year until he reached age sixty-five. Moreover, the jury failed to reduce the award to present value. The court held that the plaintiff failed to give the jury any basis to measure his loss of earning capacity. Apparently, there was no specific testimony about his ability or inability to perform his work.

I don’t think that this case requires you to have an economist in every case where you are claiming loss of earning capacity. But you do need to give the jury a basis for making its assessment -- e.g., the plaintiff used to be able to work 40 hours and now can only work 20; the plaintiff used to be able to perform all of his assigned tasks and now needs assistance to perform certain specific tasks, or something along those lines. In this case, to justify what appeared to be a total disability award, the court wanted evidence regarding the types of work for which the plaintiff was suited or the types of employment which may have been available but for his injury.


Demby v. English
20 Fla. L. Wkly. D2411 (Fla. 1st DCA 1995)

It was error to deny attorneys fees under 57.105 to the defendants in a defamation suit where the plaintiff was a public official, the alleged defamation was an expression of pure opinion which was not actionable, and the plaintiff sought an injunction, clearly not permitted by law. The alleged defamation had occurred in letters written by citizens to commissioners complaining about an animal control officer.

Insurance -- Duty to Defend

Providence Washington Ins. Co. v. Southern Guarantee Ins. Co.
20 Fla. L. Wkly. D2427 (Fla. 1st DCA 1995)

The insurer brought a dec action seeking a declaratory judgment that its duty to defend the insured had terminated when it exhausted its policy limits. The trial court denied the excess insurer’s motion to intervene. The court reversed, holding that the excess insurer had a sufficient interest to support intervention under Union Central Life Ins. Co. v Carlisle, 593 So.2d 505 (Fla. 1992) and U.S. Fire Ins. Co. v. Morrison Assur. Co., 600 So.2d 1147 (Fla. 1st DCA), rev. dismissed, 604 So.2d 489 (Fla. 1992). The intervention in this case benefits the insured, who otherwise might be left without a defense.

Insurance -- PIP

United Automobile Ins. Co. v. Zulma
20 Fla. L. Wkly. D2373 (Fla. 4th DCA 1995)

The insurance company cut off PIP benefits after the plaintiff failed to attend two IMEs. The failure was due to her inability to understand English. She thought she was supposed to schedule an appointment with her own doctor, which she did. Her own attorney was confused in communications with her and thought she had attended the IME. Plaintiff filed suit and the case was settled over a year later by payment of 100% of the PIP benefits demanded. The court awarded plaintiff attorneys fees, and this court affirms. Even though the insurer litigated the case in good faith, the law is clear that if an insurance company settles a claim during litigation, the insured is entitled to attorneys fees under 627.428. The insurer’s good faith is not a factor; if it chooses to litigate and then loses or settles, it is obligated for attorneys’ fees under the statute.

Insurance -- UM

Nationwide Mut. Fire Ins. Co. v. Olah
20 Fla. L. Wkly. D2392 (Fla. 2d DCA 1995)

Where a policy excludes from UM coverage any vehicle insured under the same policy, the fact that a family exclusion prevents liability coverage in a specific case does not make the vehicle an uninsured vehicle. Therefore, there is no UM coverage, even though there is no liability coverage for the particular case under the policy. The fact that the car was also covered under another policy which was inadequate to cover the damages did not make it uninsured or under insured. This is a very sad decision -- premiums were paid on two insurance policies and the plaintiffs still had no UM coverage.

Jury Selection

Link v. Wolpowitz
20 Fla. L. Wkly. D2487 (Fla. 4th DCA 1995)

It was not error to deny a challenge for cause to two jurors who first acknowledged that they believed that malpractice claims increased health care and insurance costs but, after further questioning by the trial judge, stated they could set aside their opinions and render a verdict based on the evidence and the law. The court holds that "abstractly held opinions" about a particular class of litigation does not disqualify a juror where the trial court is satisfied that the bias can be set aside. Fazzolari v. City of West Palm Beach, 608 So.2d 927 (Fla. 4th DCA 1992), rev. denied, 620 So.2d 760 (Fla. 1993). If this comes up in jury selection, you need to make a record showing that the jurors really can’t set it aside. (Good luck!)

Forte v. State
20 Fla. L.Wkly. D2489 (Fla. 3d DCA 1995)

Defense counsel objected to the disallowance of his peremptory challenge. The trial judge gave him the option of going forward with the panel or striking the panel. The defendant declined to strike the panel. The court held that the defendant waived the objection to the denial of the peremptory challenge by choosing to go forward with the panel containing the juror to whom he had objected. While striking the panel is not the preferred method, see Jefferson v. State, 595 So.2d 38 (Fla. 1993), apparently if that’s all the court offers you, you’re stuck with it.

Lemon Law

BMW of North America, Inc. v. Singh
20 Fla. L. Wkly. D2406 (Fla. 5th DCA 1995)

On rehearing en banc, the court holds that under the "lemon law", 681.04, Florida Statutes, the manufacturer has a statutory right to one last chance to repair the car after receipt of notice that the car has been out of service due to repairs by the manufacturer or its authorized service agent for more than 15 days, before the car has been out of service for 30 days. The court apparently accepted BMW’s argument that the consumer must notify the manufacturer after 15 days but before the expiration of 30 days. This seems like a pretty tricky procedure for a consumer protection statute.

Med Mal

Vause v. Bay Medical Center
20 Fla. L. Wkly. D2414 (Fla. 1st DCA 1995)

The deceased, a nurse, died after she accompanied a patient into a hyperbaric chamber, which was negligently operated. She sued, among others, the doctor who was responsible for the operation of the chamber. The trial court dismissed. The court of appeal reversed, and held that no privity between the nurse and the doctor was required in order to establish the doctor’s liability.

Other issues in this case are discussed infra in the section on workers comp immunity.

McDonald v. Medical Imaging Center
20 Fla. L. Wkly. D2440 (Fla. 4th DCA 1995)

Plaintiff, age 85, broke her hip and pelvis when she fell off an X-ray table after the technician turned her back on the plaintiff. The court held that the plaintiff was not entitled to a res ipsa instruction because she was able to adduce sufficient evidence of negligence. The plaintiff was conscious when her injury occurred and knew how it happened, and there was only one possible culpable defendant.

Med Mal -- Arbitration

Mogler v. Franzen
20 Fla. L. Wkly. D2486 (Fla. 4th DCA 1995)

What a mess! If you ever want to get really confused, take a walk through the med mal arbitration statutes, 766.207, et seq. And if you thought you could get a court to untangle it for you in a dec action, that avenue may now be limited, too, if you don’t seek it until after you’ve agreed to arbitration. This court holds that, by agreeing to binding arbitration, "the parties gave the arbitrators sole authority to determine their recoverable damages and waived the right to challenge the arbitrator’s award of damages, even if the arbitrators made an error of law." Consequently, the court had no jurisdiction to hear a dec action to resolve a dispute over what damages could be awarded in the arbitration.

This case should not preclude bringing a dec action before agreeing to arbitration.

Med Mal -- Birth Related Neurological Injures

Sierra v. Public Health Trust
20 Fla. L. Wkly. D2448 (Fla. 3d DCA 1995)

In dealing with the troubling issue of brain-damaged babies, watch out for this procedural trap.

Following a recent line of DCA cases, the plaintiffs sought a declaratory judgment that their baby suffered brain damage during birth as a result of medical malpractice, that they were not given the required statutory notice that the doctor was a participant in the Birth Related Neurological Injury Compensation Plan, and that the defendants therefore waived their right to the benefits of the plan. See Turner v. Hubrich, 20 Fla. L. Wkly. D2239 (Fla. 5th DCA 1994). The trial court denied the defendants’ motion to dismiss and then ruled that the action would be stayed until the plaintiffs exhausted their administrative remedies or filed their med mal action.

The plaintiffs then made the fatal mistake of asking the trial court to dismiss the action so that they could appeal. The court held that the plaintiffs could not appeal an order which they had asked the court to enter, and dismissed the appeal. However, the court noted that the trial court "abdicated its judicial duty" when it stayed the action.

Fla. Birth Related Neurological Injury Comp. Assoc. v.
Fla. Div. of Admin. Hearings

20 Fla. L. Wkly. D2355 (Fla. 1st DCA 1995)

Here’s another trap under this statute. What if you bring a claim under NICA and the agency decides the claim is not covered? In this case, the court rescued the baby from that dilemma.

The baby suffered asphyxia during birth and suffered physical impairment but not mental impairment. The parents filed a petition for compensation under the NICA act (766.301, et seq.) The hearing officer rejected NICA’s contention that the baby did not qualify for compensation because he did not suffer both physical and mental impairment. The First DCA affirmed. The court certified to the Supreme Court the following question:

In order to obtain coverage under the Florida Birth-Related Neurological Injury Plan as provided in 766.301-316, Florida Statutes, must an infant suffer both substantial mental and substantial physical impairment, or can the definition be construed to require only substantial impairment, mental and/or physical?

Med Mal -- Presuit

Liles v. Medfield
20 Fla. L. Wkly. D2462 (Fla. 2d DCA 1995)

In a sensible and fair decision, the court held that a complaint alleging failure to comply with the requirements of the Baker Act for involuntary commitment did not allege a medical malpractice claim. Therefore, it was error to dismiss it for failure to comply with med mal presuit requirements. The court compares it to a false imprisonment case, noting that not every wrongful act by a health care provider amounts to medical malpractice.

I think this decision is correct. However, until the Supreme Court resolves the issue, I recommend complying with presuit requirements anyway. You can state in your notice letter that you do not believe that presuit is required but that you are offering to do it anyway in an abundance of caution. However, don’t make the mistake of relying on the extensions of the statute of limitations under the med mal statute. If the presuit requirements don’t apply, the extensions won’t be likely to apply either.

Products Liability

K-Mart Corp. v. Kitchen
20 Fla. L. Wkly. D2336 (Fla. 4th DCA 1995)

The defendant sold a rifle to a buyer who was intoxicated after an all-day drinking spree. The buyer then shot his girlfriend, leaving her a paraplegic. The court held that, because there was no law against sale of a gun to a drunk, the seller could not be held liable to the third party he shot. However, the court certified the question to the supreme court.

In addition, the court held that, where the defendant had an internal policy against selling a gun to a visibly intoxicated person, the trial court should not have instructed the jury that violation of the policy was evidence of negligence. Instead, the court should have instructed the jury that an internal rule itself does not fix the standard of care. However, the internal standard is relevant, admissible evidence. See Steinberg v. Lomenick, 531 So.2d 199 (Fla. 3d DCA 1988).

Meyers v. Scoot-a-way Corp.
20 Fla. L. Wkly. D2492 (Fla. 3d DCA 1995)

Reversing a summary judgment for the defendant, the court holds that the lessor of a waverunner could be liable for injury to the lessee whose face hit the unpadded steering wheel area of the vessel after he encountered a large wave. The vessel was not "seaworthy" under 327.54(1), Florida Statutes, prohibiting the renting of any vessel which is not seaworthy.

Sovereign Immunity

Vann v. Dept. of Corrections
20 Fla. L. Wkly. S552 (Fla. 1995)

The state cannot be liable for the criminal acts of an escaped prisoner, because there is only a general duty to protect the general public, not a specific duty to protect individual members of the public.

Workers Compensation Immunity

Vause v. Bay Medical Center
20 Fla. L. Wkly. D2414 (Fla. 1st DCA 1995)

The deceased, a nurse, was employed in a public hospital’s obstetrics department, but also worked part time as an on call nurse in the hyperbaric department. She accompanied a patient into the hyperbaric chamber, operated by the hospital despite the hospital’s knowledge that it had no competent technical staff operating it. After gross negligence by the operator, the nurse died.

The court held that the action could not be dismissed on the theory that the plaintiff elected the remedy of worker’s comp, because that is an affirmative defense which cannot be decided on a motion to dismiss unless it appears on the face of the complaint. Moreover, although the hospital could not be sued in its capacity as the deceased’s employer, it could be sued as a surrogate for its negligent employees under the sovereign immunity act, which substitutes the government agency for the allegedly negligent employee.

Further, the action could properly be maintained under the "unrelated works" exception to worker’s comp immunity because the plaintiff was not, at the time of the incident, primarily assigned to the hyperbaric department. 440.11(1) provides an exception to immunity for employees "assigned primarily to unrelated works". The court holds that this provision is not limited to employees who are performing unrelated works at the time of the accident. See Holmes County School Board v. Duffell, 651 So.2d 673 (Fla.1995).

Subileau v. Southern Forming, Inc.
20 Fla. L. Wkly. D2447 (Fla. 3d DCA 1995)

Section 440.11(1) provides an exception to workers comp immunity for actions by a fellow employee or a manager if it amounts to a crime punishable by more than 60 days imprisonment. The court holds that this permits actions only for intentional acts "substantially certain" to injure a worker, or acts of "culpable negligence". The failure to place guardrails or other safety devices on an elevated worksite does not meet that test, even though the defendants had been cited several times for that particular OSHA violation.

J.B. Coxwell Contracting, Inc. v. Shafer
20 Fla. L. Wkly. D2359 (Fla. 5th DCA 1995)

This case, like the previous one, holds that failure to follow OSHA guidelines does not meet the criteria for denying workers comp immunity. As to an employer, the standard is an intentional tort. The court holds that standard was not met here. Judge Sharp dissented.