November 1997

Amendment -- Relation Back

Kozich v. Shahady
22 Fla. L. Wkly. D2251 (Fla. 3d DCA 1997)

The plaintiff’s amendment of his legal malpractice complaint to add the defendant’s former P.A. as a defendant related back to the original complaint. The former P.A. was mentioned in the original complaint using the term “f/k/a”; had an identity of interest with the original parties; had the same address, phone and fax numbers, and many of the same officers and shareholders; receive service of process through the same person at the same address; and was represented by the same attorney. The court also notes that the defendant waited until 6 days after the statute of limitations expired to raise the issue.

Appeals -- Filing Fees

Stacy v. Ricci
22 Fla. L. Wkly. D2341 (Fla. 4th DCA 1997)

When a notice of appeal is filed, the filing fee is not jurisdictional. However, the appellant still must pay it, even if the appeal is voluntarily dismissed. This court holds the appellate lawyer personally responsible for the payment of the fee.


Sas v. Phoenix Graphics, Inc.
22 Fla. L. Wkly. D2309 (Fla. 3d DCA 1997)

Where two of the parties had agreed to arbitration, the trial court should have allowed other defendants to participate in the arbitration.

Argument -- Improper

DeFreitas v. State
22 Fla. L. Wkly. D2462 (Fla. 4th DCA 1997)

There is still such a thing as fundamental error in closing argument, even in the 4th DCA. Here, the prosecutor, among other things, made golden rule arguments, compared the defendant to O.J. Simpson, and improperly cross examined the defendant in a manner calculated to elicit an angry reaction, then made remarks about the defendant’s demeanor on the witness stand.

Attorneys Fees -- Charging Lien

Carbonic Consultants, Inc. v. Herzfeld & Rubin
22 Fla. L. Wkly. D2245 (Fla. 3d DCA 1997)

A law firm was not entitled to a charging lien where it had withdrawn from the case not because of any conduct of the client, but because the firm member with expertise in the area had left the firm and the firm had decided not to replace him.

Gaebe, Murphy, Mullen & Antonelli v. Bradt
22 Fla. L. Wkly. D2506 (Fla. 4th DCA 1997)

A law firm gave timely notice and perfected its lien by filing the lien prior to dismissal of the case or entry of final judgment.

Collateral Sources

Standard Jury Instruction -- Civil Cases -- 6.13
22 Fla. L. Wkly. S642 (Fla. 1997)

The court has revised the standard instructions on collateral sources to conform to the legislature’s repeal of 627.7372, which had made collateral source setoffs a jury issue in auto cases. The repeal applies to causes of action accruing after October 1, 1993.

Comparative Negligence

Valente v. Resort Enterprises, Inc.
22 Fla. L. Wkly. D2277 (Fla. 2d DCA 1997)

It was error to submit the issue of comparative negligence to the jury where the defendant did not plead comparative negligence, but only pled that the plaintiff’s negligence was the sole cause of the accident.

Prime Hospitality Corp. v. Simms
22 Fla. L. Wkly. D2399 (Fla. 4th DCA 1997)

The plaintiff was entitled to a directed verdict on the affirmative defense of comparative negligence where she entered her motel room after seeing a clean-cut, neat man in the corridor, and he followed her into her room and raped her. The plaintiff was not negligent in unlocking her door just because there was a man in the corridor.

Conflict of Laws

Deemer v. Budget Rent-A-Car Systems
22 Fla. L. Wkly. D2496 (Fla. 1st DCA 1997)

Where the accident occurred in Florida, but the defendants were driving a van they rented in Texas, Texas had the more significant relationship on the issue of vicarious liability, and Texas law, rather than Florida law, determined that issue. The court refuses to apply the Florida dangerous instrumentality doctrine, apparently ignoring Florida’s strong public policy reasons for using that doctrine to protect those injured on its roads.

Discovery -- Privacy

Berkeley v. Eisen
22 Fla. L. Wkly. D2252 (Fla. 4th DCA 1997)

The trial court erroneously compelled the defendant investment company to produce the addresses of non-parties who were clients of the defendants who had participated in trades of risky stocks with the defendant where the plaintiff did not demonstrate a need for the information which outweighed those non-parties’ privacy rights. Plaintiff could obtain the same information through costly search services and private investigators. The defendant had no standing to waive these non-parties’ privacy rights. See Article I, 23, Fla. Const. Cf. Amente v. Newman, 653 So.2d 1030 (Fla. 1995) (right to records of other similar patients, with names redacted, where plaintiffs demonstrated potential relevance).

Economic Loss Rule

Comptech Int’l, Inc. v. Milam Commerce Park, Ltd.
22 Fla. L. Wkly. D2192 (Fla. 3d DCA 1997)

This was a suit by a tenant against a landlord alleging negligence in selecting a contractor to construct improvements to the premises, and violations of the building code, alleging damage to the lessee’s business computers. The court holds that the computers were “fundamentally related” to the commercial endeavor contemplated by the lease, and that the plaintiff should have included the risk of damage to them in the lease negotiations. Consequently, the plaintiff’s claim was barred by the economic loss rule. The court also holds that claims for statutory violations of the building code are barred by the economic loss rule because the damages are no different from those that could have been claimed in a contract action.

In a well reasoned dissent, Judge Cope argues (1) where a landlord through its own negligence damages a tenant’s personal property within the leased premises, and where the exculpatory clause in the lease does not exculpate the landlord for its own negligence, the economic loss rule should not bar the claim; and (2) the economic loss doctrine cannot bar a statutory cause of action. See Rubio v. State Farm, 662 So.2d 956 (Fla. 3d DCA 1995), rev. denied, 667 So.2d 252 (Fla. 1996) (economic loss rule cannot bar statutory bad faith action because “courts cannot willy nilly strike down legislative enactments.”)

Employment Discrimination

Milano v. Moldmaster
22 Fla. L. Wkly. D2455 (Fla. 4th DCA 1997)

Where an employee has timely filed a discrimination complaint with the Florida Commission on Human Relations, and the commission fails to take action on the complaint within 180 days as required by statute, the one year statute of limitations begins to run at the conclusion of the 180 day period. The commission’s failure to act on the complaint is treated as a determination of the complaint.

Full Faith and Credit

Fry v. Hoechst Celanese Chem. Group, Inc. 22 Fla. L. Wkly. D2371 (Fla. 5th DCA 1997)

A judgment that is not final is not entitled to full faith and credit. A judgment in a class action is not binding on a class member who has opted out of the class.

Insurance -- Duty to Defend

American Empire Surplus Lines Ins. Co. v.
Gold Coast Elevator, Inc.

22 Fla. L. Wkly. D2204 (Fla. 4th DCA 1997)

The insurer attempted to defend the insured under a reservation of rights, arguing the insured failed to timely notify it of the claim.However, the claims administration statute, 627.426(2) requires the insurer to retain, within 60 days, “independent counsel which is mutually agreeable to the parties.” The insurer retained a law firm to defend the insured, and the insured did not object. The court held this was insufficient, and the insurer was required to at least consult with the insured about whom to retain, and obtain the insured’s agreement. Because it failed to do so, it could not deny coverage. Further, because the insurer’s actions were tantamount to a refusal to defend, the insured was entitled to make a reasonable settlement of the claim without voiding the coverage.

Insurance -- Exclusions

Progressive Ins. Co. v. Wesley
22 Fla. L. Wkly. D2277 (Fla. 2d DCA 1997)

Where the child’s father had primary residential custody with the parents sharing the parental responsibility, the child, who was killed in a car wreck, was not excluded from the mother’s policy under an exclusion of “relatives” defined as “a person living in your household and related to you by blood, marriage or adoption.” The term was ambiguous and had to be construed in favor of coverage.

Westmoreland v. Lumberman’s Mutual
22 Fla. L. Wkly. D2389 (Fla. 4th DCA 1997)

The court finds that the term “arising out of” the use of an automobile in an exclusion in a homeowner’s policy was ambiguous, and had to be construed against the insurer. Therefore the insurer was required to provide a defense to a premises liability claim where the decedents died from carbon monoxide poisoning after a car was left running in an enclosed garage. The court collects cases in which the phrase has been given varying constructions.

Insurance -- UM

Woodall v. Travelers Indem. Co.
22 Fla. L. Wkly. S614 (Fla. 1997)

A cause of action for underinsured motorist coverage accrues on the date of the accident giving rise to the claim, not after settlement with the tortfeasor’s liability carrier. The court treats the claim more like a tort claim than a breach of contract claim.

In this case, however, the statute was tolled because the policy precluded the insured from bringing suit until after the limits of liability have been exhausted under all bodily injury liability policies. I find this reasoning a little difficult to square with the anti-tolling discussion in the Sullivan case. But I think this case is the better-reasoned on the tolling issue.

Allstate Indem. Co. v. Diaz
22 Fla. L. Wkly. D2246 (Fla. 3d DCA 1997)

The UM carrier admitted coverage and admitted the accident in which the plaintiff was injured. It did not assert a threshold defense. The court ruled in limine that the defendant was not entitled to introduce evidence regarding permanency. The defense expert, Dr. Glatzer, violated the order. The court instructed the jury to disregard his statement. The jury awarded past and future economic damages but no pain and suffering.

The court first holds that the plaintiff’s motion in limine should have been denied because the issue of permanency was relevant to the issue of damages. Therefore, even though Dr. Glatzer violated the order in limine, the order granting new trial was reversed, and the verdict was reinstated. The court makes no mention of the problem of awarding significant economic damages for medical bills, but nothing for the attendant pain and suffering. This issue is presently pending in the Supreme Court in Allstate v. Manasse.

Jurisdiction -- Longarm

Roldos v. Americargo Lines, Inc.
22 Fla. L. Wkly. D2174 (Fla. 3d DCA 1997)

An Ecuadoran who purchased goods at regular intervals from a Florida corporation which shipped the goods to Ecuador, and failed to pay, did not have sufficient minimum contacts to satisfy due process requirements. The payments were regularly made in Miami through a corresponding bank account. The court held this was not sufficient contact with Florida for Florida to have personal jurisdiction over him.


The Fulton County Administrator v. Sullivan
22 Fla. L. Wkly. S578 (Fla. 1997)

In holding that the statute of limitations is not tolled by the fraudulent concealment of the identity of the tortfeasor, a divided Court seems to have gone much farther than it had to in strictly limiting the fraudulent concealment doctrine.

The court first notes that the fraudulent concealment doctrine was judicially created, and applied only to concealment of the cause of action, not concealment of the identity of the tortfeasor. The court then goes on, however, to review the enactment of 95.051, Florida Statutes, in 1974. That statute specifically lists bases for tolling the statute of limitations. It lists fraudulent concealment of the plaintiff’s injury in medical malpractice actions, but does not list fraudulent concealment in other actions. Moreover, 95.051(2) states, “No disability or other reason shall toll the running of any statute of limitations except those specified in this section, ... the Florida Probate Code, or the Florida Guardianship Law.”

The court holds that this provision does not allow the tolling of the statute of limitations in cases where the tortfeasor fraudulently conceals his or her identity. The court states, “The statute specifically precludes application of any tolling provision not specifically provided for by the legislature.”

What’s really scary about this decision is that the Court admits that “enforcing the statute of limitations under the facts of this case requires an unjust result.” Nevertheless, the Court allows that unjust result to occur. In the latest issue of the AFTL Journal, Victor Tipton discusses his theories of why allowing that unjust result is an unconstitutional denial of the right of access to courts and due process of law.

The Court also holds that, even though the defendant did not move for judgment notwithstanding the verdict after the verdict, the issue was preserved, because the defendant raised it at the close of the plaintiff’s case, at the close of all the evidence, and in a timely motion for new trial.

Justice Anstead’s dissent, joined by Justice Kogan and Justice Grimes, points out that the equitable doctrine of fraudulent concealment has been a part of Florida law for many years and, although the statute has been in effect for more than twenty years, the fraudulent concealment doctrine has been applied to many cases outside the medical malpractice area. He points out that “the common element [of such cases] is that deception by the defendant will not be tolerated,” and that statutes will not be interpreted literally when to do so “would lead to an unreasonable or ridiculous conclusion.”

The result was particularly unreasonable in this case because the defendant was found to have murdered the decedent and then concealed his identity. “[I]n certain situations the equitable doctrine of fraudulent concealment should be available despite the laudable public policy rationale underlying statutes of limitations. This case exemplifies, writ large, why that doctrine must remain a viable tool through which a court administers justice.”

Wood v. Eli Lilly & Co.
22 Fla. L. Wkly. S680 (Fla. 1997)

Consistent with its decision in Sullivan, although, oddly, the court did not cite Sullivan, the court holds that the statute of limitations in a DES case began to run when the plaintiff knew, or reasonably should have known of their injury, not on the date that the court approved the doctrine of market share liability in Conley v. Boyle Drug Co., 570 So.2d 275 (Fla. 1990), even though, before that date, the plaintiffs could not pursue their claims because they could not identify the manufacturer of the DES.

Standard Jury Instructions -- Civil Cases 3.8g
22 Fla. L. Wkly. S641 (Fla. 1997)

The Supreme Court has approved new standard instructions and a verdict form on the statute of limitations defense in med mal cases. The Committee notes that “In some cases, it may be necessary to insert the name of a person other than the claimant. The committee expresses no opinion as to whose knowledge may trigger the statute of limitations. See, e.g., Stone v. Rosenthal, 665 So.2d 276 (Fla. 4th DCA 1995); Arthur v. Unicare Health Facilities, 602 So.l.2d 596 (Fla. 2d DCA 1992).


City of Delray Beach v. Kessler
22 Fla. L. Wkly. D2298 (Fla. 4th DCA 1997)

Where the city attorney had signed a mediation settlement agreement but it had not been approved by the city commission, and the plaintiffs had not signed it, the agreement was not binding on the city. Rule 1.730 requires the agreement reached in mediation to be signed by the parties and their counsel. The court strictly enforces that rule. This is a good reason to insist that the defendant personally attend the mediation, not just participate through counsel.

Medical Malpractice -- Arbitration

Franzen v. Mogler
22 Fla. L. Wkly. D2451 (Fla. 4th DCA 1997)

St. Mary’s Hospital, Inc. v. Phillipe
22 Fla. L. Wkly. D2470 (Fla. 4th DCA 1997)

The medical malpractice arbitration statute, 766.207, et seq., provides that, where the parties agree to arbitration, a $250,000 cap applies to noneconomic damages. This court has decided that in a wrongful death action, the personal representative is the claimant to whom the cap applies; thus, the total noneconomic damages that may be awarded is $250,000. The number is not multiplied by the number of survivors. The court certifies the following question to the Supreme Court:

When the alleged medical negligence results in the death of the patient, does the cap on non-economic damages of $250,000 per incident in a voluntary arbitration under 766.207 apply to each beneficiary under the Wrongful Death Act, or does the $250,000 cap apply in the aggregate to include all Wrongful Death Act beneficiaries.

Medical Malpractice -- Expert

Stewart v. Price
22 Fla. L. Wkly. D2352 (Fla. 1st DCA 1997)

It was reversible error to exclude the testimony of the plaintiff’s expert on standard of care on the grounds that the expert was an expert in internal medicine but the defendant claimed he was a general practitioner, where the defendant held himself out as a specialist in internal medicine.

Premises Liability

Publix Super Market, Inc. v. Sanchez
22 Fla. L. Wkly. D2173 (Fla. 3d DCA 1997)

In establishing liability of a grocery store in a slip and fall case, violation of the store’s own policy may not be enough, depending on what the policy is. Here, the plaintiff proved only that the store violated its own policy in leaving unattended a demonstration table where samples of cake were given out. The operation was not inherently dangerous, and the plaintiff failed to prove that the store had actual or constructive knowledge of the piece of cake on the floor. There was no evidence as to how long the cake had been on the floor or who dropped it.


D.J. Spencer Sales v. Clampitt
22 Fla. L. Wkly. D2421 (Fla. 1st DCA 1997)

It was error to enter summary judgment in favor of the middle driver against the rear driver in a three car collision, based on the presumption that the rear driver was at fault. The rear driver’s testimony that the middle driver suddenly stopped and that her brake lights did not come on was sufficient to overcome the presumption and create a jury issue.

Products Liability

Juno Industries, Inc. v. Bielawski 22 Fla. L. Wkly. D2509 (Fla. 5th DCA 1997)

This court seems to revive the doctrine of assumption of risk where the plaintiff’s employer pressure tested the defendant’s pipe in contravention of the manufacturer’s specifications, where they had agreed to a specific testing method. The court refused to hold the manufacturer strictly liable.


Ashley v. Gersten
22 Fla. L. Wkly. D2452 (Fla. 4th DCA 1997)

It was error to dismiss the plaintiff’s complaint with prejudice for refusal to sign settlement documents when ordered to do so by the court. The sanction is not commensurate with the offense, and the court failed to make any finding of willfulness. The court may appoint someone to sign the document for the plaintiff.

Walicki v. Waste Management, Inc.
22 Fla. L. Wkly. D2477 (Fla. 2d DCA 1997)

It was error to dismiss the complaint as a sanction for the attorney’s failure to file letters of administration as ordered, even though the record showed seven years of dilatory conduct by counsel, where there was no evidence that the plaintiff personally engaged in the misconduct or contributed to the delay. See Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1994) for a list of factors the court should consider in imposing sanctions.

State Farm v. Bravender
22 Fla. L. Wkly. D2506 (Fla. 4th DCA 1997)

An order awarding attorneys fees for a discovery violation under Rules 1.280 and 1.380 is not appealable as a final order of contempt, where it is not in the form of a final judgment for which the clerk may issue execution. Nor is it reviewable by certiorari.

Service of Process

Warren v. Shands Teaching Hospital
22 Fla. L. Wkly. D2498 (Fla. 1st DCA 1997)

The court certifies conflict with the fourth district on whether the factors listed in Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1993) should be applied to the dismissal of a complaint for failure to serve process within 120 days under Rule 1.070.

Sovereign Immunity

Simpson v. City of Miami
22 Fla. L. Wkly. D2313 (Fla. 3d DCA 1997)

Because 741.30(9)(b), Florida Statutes, requires that the violator of a domestic violence injunction “shall be held in custody until brought before the court as expeditiously as possible”, the city could be liable if the police officer first held the violator in his police cruiser, and then released him, after which the violator murdered the deceased. The concurring opinion of Judge Shevin explains that the statute created a special relationship between the decedent and the police, which created a duty of care. He persuasively argues that this is necessary if the domestic violence statutes are to provide victims with any real protection.

Venue -- Forum Non Conveniens

Carenza v. Sun Int’l Hotels
22 Fla. L. Wkly. D2300 (Fla. 4th DCA 1997)

Where the plaintiff was injured in the Bahamas, it was error to dismiss on the grounds of forum non conveniens where the defendant presented no affidavits or other sworn proof in support of its motion, and the trial court did not make findings balancing the factors required by Kinney System, Inc. v. Continental Ins. Co., 674 So.2d 86 (Fla. 1996).

Verdict Forms

McElhaney v. Uebrich
22 Fla. L. Wkly. D2293 (Fla. 4th DCA 1997)

Pity the poor jurors who have to fill out today’s itemized verdict forms. They are getting as complicated as tax returns. Here, the jury became confused. It added the past lost earnings damages and future lost earnings damages and put the total in the line for present value. The court held that the jury’s intent was clear -- they intended to award the total of the past plus the present. Consequently, the verdict was sufficient to support the judgment in that amount. The court said, “This case presents a classic example of why the requirements of section 768.77, Florida Statutes (1995) prescribing the use of itemized verdicts, are so unmanageable.” The court held that the jury was entitled to give the plaintiff an award for lost earning capacity based on what she could earn on the open market, not what she actually earned helping her husband in his business.

Wrongful Death -- Damages

Stewart v. Price
22 Fla. L. Wkly. D2352 (Fla. 1st DCA 1997)

The court upholds 768.21(8), Florida Statutes against an equal protection challenge. That is the section that limits who can recover damages in a med mal wrongful death case, treating the adult children of med mal victims differently from other wrongful death plaintiffs. The amendment to the statute granted some adult children a right to recover, but subsection (8) excludes adult children from recovery