November 1996


Lowder v. Economic Opportunity Family Health Center, Inc.
21 Fla. L. Wkly. D2217 (Fla. 3d DCA 1996)

The trial court did not err in precluding plaintiff’s counsel from arguing that the jury should draw an adverse inference from the defendant’s failure to call a former employee, who had been the plaintiff’s treating physician. (The court also correctly declined a jury instruction.) The former employee was equally available to both parties as a witness, unlike a current employee.

The court also holds that it was not error to allow the defense counsel to use phrases such as “I think” in closing argument because they were used as figures of speech, and not for improper vouching or expressions of personal opinion.

Owens-Corning Fiberglass Corp. v. Crane
21 Fla. L. Wkly. D2224 (Fla. 3d DCA 1996)

Plaintiff’s counsel’s speaking objections during defense counsel’s closing argument in which he accused defense counsel of “fabrication of evidence” constituted fundamental error.

Birth Related Neurological Injury

The Board of Regents of the State of Florida v. Athey
21 Fla. L. Wkly. D2046 (Fla. 1st DCA 1996)

The court again certifies to the Supreme Court the question: Whether 766.316, Florida Statutes requires that health care providers give their obstetrical patients pre-delivery notice of their participation in the Florida Birth Related Neurological Injury Compensation Plan, as a condition precedent to the providers’ invoking NICA as the patients’ exclusive remedy.

The court already certified this question, and it is pending in the Supreme Court. See the January, 1996 Update for cases from the Fifth and Fourth DCAs on this issue.

Civil Rights

Garcia v. Reyes
21 Fla. L. Wkly. D2161 (Fla. 4th DCA 1996)

The court certifies the question whether children have a constitutionally protected liberty interest in family companionship under the due process clause of the fourteenth amendment that would allow a cause of action under 42 U.S.C. 1983 when the state unlawfully imprisons their father for thirty months. See the July, 1996 Update for a discussion of the original opinion, which said there is no cause of action, with a sensible dissent by Judge Pariente.

Comparative Negligence

Hardee v. Cunningham & Smith
21 Fla. L. Wkly. D2138 (Fla. 4th DCA 1996)

The plaintiff’s comparative negligence was properly submitted to the jury where the plaintiff elected to use a self service car wash in a high crime area at night while no employees were present. It think it may be a bit much for a business which holds itself open to the public to say it should be relieved of its responsibility to protect its business invitees because they should have known better than to patronize the business.


Allstate Ins. Co. v. Manasse
21 Fla. L. Wkly. D2102 (Fla. 4th DCA 1996)

Where the jury found a permanent injury, awarded plaintiff past noneconomic damages and past and future medical expenses, but did not award any future noneconomic damages, the verdict was inadequate as a matter of law. The court certifies the question to the Supreme Court, and also certifies the question whether the plaintiff must object before the jury is discharged to preserve this issue. In the Third District, the rule has been that you must object before the jury is discharged to preserve an objection that the verdict is inconsistent, but not to preserve the issue of whether it is adequate. See Cowart v. Kendall United Methodist Church, 476 So.2d 289 (Fla. 3d DCA 1985).

Dog Bite

Sanzare v. Varesi
21 Fla. L. Wkly. D2101 (Fla. 4th DCA 1996)

The court sua sponte withdrew its opinion affirming a summary judgment against a homeowner’s association in a dog bite case and reversed, holding that genuine issues of material fact remained about the defendant’s knowledge of the dog’s presence and its vicious propensities, as well as the defendant’s ability to control the dog’s presence. The court relied on its decision in Barrwood Homeowners Assoc. Inc. v. Maser, 21 Fla. L. Wkly. D1255 (Fla. 4th DCA 1996), and distinguished its decision in Tran v. Bancroft, 648 So.2d 314 (Fla. 4th DCA 1995), which involved injuries caused by the dog off the premises of the landowner.

Dram Shop

Tobias v. Osorio
21 Fla. L. Wkly. D2286 (Fla. 4th DCA 1996)

The trial court erred in allowing the defendant bar to claim at trial that it had a good faith belief that the minor to whom it served alcohol was of legal drinking age, based on the minor’s appearance and false identification, where the bar did not plead the defense and did not prove all the elements at trial, but instead attempted to prove that the minor had gotten the alcohol someplace else.

Economic Loss Rule

HTP Ltd. v. Lineas Aereas Costarricences, S.A.
21 Fla. L. Wkly. S447 (Fla. 1996)

The economic loss rule does not bar claims for fraud in the inducement. It does not bar any claims for torts independent of the breach of contract. The court rejects the decision of the Second District in Woodson v. Martin, 663 So.2d 1327 (Fla. 2d DCA 1995) (en banc).

Roy Wasson and Sheila Wolfson Moylan wrote an excellent amicus brief on behalf of the AFTL in these cases. Sheila was very ill while she worked on this case and passed away shortly after the brief was completed. This decision is part of her legacy. Sheila was a talented appellate lawyer with a generous heart. I miss her.

Woodson v. Martin
21 Fla. L. Wkly. S447 (Fla. 1996)

Reversing the decision of the Second District en banc, the Supreme Court holds that the economic loss rule does not bar a claim for fraud in the inducement against a real estate agent representing the sellers.

Polygard, Inc. v. Jarmco, Inc.,
21 Fla. L. Wkly. S453 (Fla. 1996)

Further refining its decision in HTP, the Supreme Court approves the decision of the Fourth DCA in this case. In its brief opinion, the Court merely states that the decision below is approved. The decision below, Jarmco, Inc. v. Polygard, Inc., 668 So.2d 305 (Fla. 4th DCA 1996), was discussed in the March, 1996 Update.

The Fourth DCA held that the plaintiff’s claim for fraud in the inducement was not barred by the economic loss rule, but that claims for negligence, negligent misrepresentation, and unfair and deceptive trade practices were barred, either by the economic loss rule or by specific contractual provisions limiting damages to reimbursement of the purchase price. The decision is troubling because it seems to limit the effect of HTP. It is especially troubling because one of the claims eliminated is a statutory claim specifically created by the legislature.


Olson v. Cole Construction
21 Fla. L. Wkly. D2158 (Fla. 2d DCA 1996)

This case involves the application of 768.81, Florida Statutes, and Wells v. Tallahassee Memorial Medical Center, 659 So.2d 249 (Fla. 1995) to a situation involving a settlement with another tortfeasor, some comparative negligence attributed to the plaintiff, and a collateral source setoff.

The Second District appears to hold:

(1) Since the defendant and the plaintiff were each found ten percent at fault, the plaintiff’s share of fault did not exceed that of the defendant; therefore the defendant is jointly and severally liable for all of the economic damages. This is an application of the portion of 768.81(3) which states: “with respect to any party whose percentage of fault equals or exceeds that of a particular claimant, the court shall enter judgment with respect to economic damages against that party on the basis of the doctrine of joint and several liability,” although the court does not cite that section of the statute.

(2) Since the defendant was found only ten percent at fault, the defendant is responsible for only ten percent of the noneconomic damages.

(3) The defendant is not entitled to any setoff against the noneconomic damages for any settlement.

(4) The defendant is entitled to a setoff against the economic damages for the portion of the settlement attributable to the economic damages (calculated as a percentage of the verdict).

(5) The defendant is entitled to have the economic damages portion of the judgment reduced by the amount of the collateral source.

(6) The defendant is also entitled to have that amount further reduced by ten percent (the percentage of the plaintiff’s comparative fault) of the total economic damages. The court calculates this amount based on the total amount of economic damages, not on the amount after setoff or reduction by the collateral source.

This is one of only a handful of reported decisions of which I am aware which applies the Supreme Court’s decision in Wells. See also Wiggins v. Braman Cadillac, 21 Fla. l. Wkly. D612 (Fla. 3d DCA 1996); Cohen v. Richter, 21 Fla. L. Wkly. D367 (Fla. 4th DCA 1996). This is the first one to my knowledge to discuss the application of a collateral source reduction.

Forum Non Conveniens

E.I. DuPont De Nemours & Co. v. Fuzzell
21 Fla. L. Wkly. D2303 (Fla. 2d DCA 1996)

The Second District refuses to apply the federal doctrine of forum non conveniens to a request for a change of venue to elsewhere within the state. The court notes that the Third District is in conflict. Westchester Fire Ins. Co. v. Fireman’s Fund Ins. Co., 673 So.2d 958 (Fla. 3d DCA 1996).

Insurance -- Misrepresentation

Carter v. United of Omaha Life Ins.
21 Fla. L. Wkly. D2259 (Fla. 1st DCA 1996)

Where the insurer’s health insurance application form required the insured to state that the representations were true to the best of the insured’s knowledge and belief, it was error to grant summary judgment to the insurer based on a prior undisclosed medical condition of the insured. The “knowledge and belief” language --chosen by the insurer-- creates a standard less stringent than that contained in 627.409(1), Florida statutes, and controls over the statutory language.

Insurance -- PIP

Martinez v. Fortune Ins. Co.
21 Fla. L. Wkly. D2229 (Fla. 4th DCA 1996)

Section 627.736(4)(b), Florida Statutes, requires a PIP insurer to pay the benefits within thirty days of receipt of the claim, rather than within thirty days of receipt of medical verification of the claim.

Insurance -- UM

Orion Ins. Co. v. Cox
21 Fla. L. Wkly. D2016 (Fla. 4th DCA 1996)

The plaintiffs signed rejections of uninsured motorist coverage. The rejection form signed by the plaintiff wife was on the letterhead of another company, not the defendant with whom she had the coverage. The plaintiff wife testified that she did not care what company she had insurance with. The court held that the waiver was valid for the defendant insurer, even though it was on a form with the logo of another company.

Woodall v. Travelers Indemnity Co.
21 Fla. L. Wkly. D2044 (Fla. 1st DCA 1996)

In State Farm v. Kilbreath, 419 So.2d 632 (Fla. 1982), the Supreme Court held that the cause of action against an uninsured motorist carrier accrued at the time of the accident. This court certifies to the Supreme Court the question of whether the rule of Kilbreath applies when the policy contains a “no action/exhaustion” clause providing that payment will be made only after the limits of liability have been used up under all applicable bodily injury liability policies. Cf. State Farm v. Lee, 21 Fla. L. Wkly. S335 (Fla. 1996) (cause of action for PIP accrues when insurer breaches its duty to pay, not on date of accident); Blanchard v. State Farm, 575 So.2d 1289 (Fla. 1991) (cause of action for UM bad faith accrues after excess judgment has been obtained).


Grantham v. Blount, Inc.
21 Fla. L. Wkly. D2121 (Fla. 2d DCA 1996)

The plaintiff in this product liability case could not stop the running of the statute of limitations by filing a complaint against “John Doe” when he was unable to determine the correct name of the manufacturer at the time of the filing of the complaint.

Med Mal -- Limitations

Mangoni v. Temkin
21 Fla. L. Wkly. D207 (Fla. 4th DCA 1996)

In an action for failure to notify the plaintiff of a cyst in her brain shown by a CT scan, the failure to disclose the cyst could also serve as concealment sufficient to extend the statute of repose.

Med Mal -- Presuit

Paulk v. National Medical Enterprises, Inc.
21 Fla. L. Wkly. D2105 (Fla. 4th DCA 1996)

Plaintiffs sued several psychiatric hospitals alleging that the defendants operated the hospitals as a criminal enterprise, defrauding patients by billing them for meaningless extended stays and assigning release dates based on the date of expiration of their insurance benefits. The court held that the plaintiffs were required to comply with the medical malpractice presuit requirements of chapter 766 because the case could not be proved without proving the prevailing professional standard of care. Judge Stone dissented, arguing that these were not medical negligence claims, but claims for intentional misconduct.

Negligence -- Foreseeability

Christian v. Overstreet Paving Co.
21 Fla. L. Wkly. D2035 (Fla. 2d DCA 1996)

It was error to grant summary judgment in favor of the owner of a truck where the plaintiffs were injured by the truck, which had just been stolen, after the defendant’s employee left the keys in the ignition. The court held that there were genuine issues of material fact, including the location of the truck when it was stolen, and foreseeability.

Offer of Judgment

Special’s Trading Co. v. International Trading Group
21 Fla. L. Wkly. D2055 (Fla. 4th DCA 1996)

The voluntary dismissal of a case after an offer of judgment does not preclude an award of attorney’s fees under the offer of judgment statute.

Peer Review

Century Medical Centers v. Marin
21 Fla. L. Wkly. D2184 (Fla. 3d DCA 1996)

The court has limited the peer review privilege to some extent by allowing the plaintiff to discover patient complaints. The court holds that the patient complaints, and the identity of witnesses who can substantiate the facts underlying them, are not subject to the peer review privilege. Although this is a breach of contract case, by a doctor against an HMO, the principle should apply in malpractice cases as well.


Special’s Trading Co. v. International Trading Group
21 Fla. L. Wkly. D2055 (Fla. 4th DCA 1996)

In the absence of conflict among the districts, the decision of any district court of appeal is binding on trial courts throughout the state. Pardo v. State, 596 So.2d 665 (Fla. 1992).


McCloud v. Swanson
21 Fla. L. Wkly. D2289 (Fla. 4th DCA 1996)

The plaintiff rear ended the defendant. There was positive evidence that the defendant came from nowhere, suddenly changed lanes in front of the plaintiff, and then unexpectedly stopped. The court held that it was error to direct a verdict for the defendant; the positive evidence dissipated the presumption of negligence of the plaintiff driver who hit the defendant from behind. Where there is some evidence of negligence of the lead driver, the issue of fault is for the jury.

Product Liability

Sponco Mfg. v. Alcover
21 Fla. L. Wkly. S365 (Fla. 1996)

Earlier, the court granted review of Sponco Mfg. v. Alcover, 656 So.2d 629 (Fla. 3d DCA 1995), in which the Third DCA affirmed the entry of a default against a defendant in a products case which had negligently destroyed the product before the plaintiff had an opportunity to examine it. After oral argument, the court concludes that “jurisdiction was improvidently granted” and dismisses the petition for review. This leaves the Third DCA’s decision as binding precedent. See the July, 1995 Update.

Ragans v. Miriam Collins Palm Beach Laboratories Co.
21 Fla. L. Wkly. D2123 (Fla. 2d DCA 1996)

The plaintiff was injured when she incorrectly mixed some hair dye ingredients and they exploded. The court held that the adequacy of the warnings on the product and in the leaflet accompanying it was a question for the jury, where the warnings did not specify the explosive consequences of making a mistake in the mixture. Where a warning is not accurate, clear and unambiguous, the issue is for the jury.

Rules of Judicial Administration Amendments to the
Florida Rules of Judicial Administration

21 Fla. L. Wkly. S467 (Fla. 1996)

The Supreme Court has adopted several significant changes:

Rule 2.030 allows the Chief Justice of the Supreme Court to extend time deadlines in Florida Statutes and Rules of Court in the event of an emergency that requires closure of the courts, such as Hurricane Andrew. The Court did this after Andrew; this allows the Chief Justice alone to do it.

Rule 2.050 requires all administrative orders and local rules to be indexed and recorded; the court declines to enact the portion of the proposed rule that would render unrecorded orders and rules unenforceable.

Rule 2.065 sets up notice requirements to persons with disabilities for compliance with the ADA.

Rule 2.135 provides that the Rules of Appellate Procedure control when rules conflict in appellate proceedings.

The court rejected proposed changes to Rule 2.070 regarding transcripts, including a proposal that would have allowed the use of compressed formats for transcripts (6 pages to a page) for court records. Court reporters may provide the compressed format on request for the lawyers, but the court doesn’t’ want to have to read the darn things in that obnoxious teeny tiny type, so transcripts filed with the court will have to be in full format.


Cardona v. Metro Dade Transit Agency
21 Fla. L. Wkly. D2178 (Fla. 3d DCA 1996)

A “high-low” agreement to which all defendants agreed, which provided that plaintiff would recover no more than $100,000 and no less than $15,000, was enforceable. It was not a Mary Carter Agreement, which would have been void under Dosdourian v. Carsten, 624 So.2d 241 (Fla. 1993), because it did not pit one defendant against another defendant. Thus, when the jury came back with a zero verdict, it was error for the trial court to enter judgment in accordance with the verdict and to refuse to enforce the agreement.

Statute of Repose

Owens-Corning Fiberglass Corp. v. Crane
21 Fla. L. Wkly. D2224 (Fla. 3d DCA 1996)

Owens-Corning Fiberglass Corp. v. Rivera
21 Fla. L. Wkly. D2274 (Fla. 3d DCA 1996)

It would be an unconstitutional denial of access to courts to apply the statute of repose to an asbestos claim where the injury did not manifest itself until after the running of the statute of repose.

Verdict Forms

Firmani v. Grant
21 Fla. L. Wkly. D2243 (Fla. 5th DCA 1996)

The trial court did not abuse its discretion in denying the defendant’s request to have a special interrogatory on the issue of permanency in an auto case. The trial court has broad discretion in determining the contents of the verdict form. The court asks the Committee on Standard Jury Instructions in Civil Cases to consider making such an interrogatory part of the standard verdict form.