November 1999

Appeals - Two Issue Rule

Barth v. Khubani
24 Fla. L. Weekly S466 (Fla. 1999)

Where the defense pleaded three defenses that were complete defenses to plaintiff's claim, and the parties agreed to a general verdict form, the plaintiffs could not prevail on appeal where they challenged the instruction on only one of those three defense theories.


Seifert v. U.S. Home Corp.
24 Fla. L. Weekly S 540 (Fla. 1999)

Although arbitration is generally favored, the determination of whether an arbitration clause requires arbitration of a particular dispute rests on the intent of the parties; a party may not be forced to submit a dispute to arbitration that the party did not intend and agree to arbitrate. An agreement to arbitrate disputes "arising under or related to" their construction contract did not constitute an agreement to arbitrate the plaintiff's wrongful death claim arising out of a defective air conditioning system that picked up carbon monoxide from the garage and circulated it into the house, killing the decedent. "If ... the duty alleged to be breached is one imposed by law in recognition of public policy and is generally owed to others besides the contracting parties, then a dispute regarding such a breach is not one arising from the contract but sounds in tort. ... Therefore, a contractually imposed arbitration requirement ... would not apply to such a claim."

Here, the plaintiff's complaint did not rely on the contract, but alleged a breach of the defendant's duty to exercise reasonable care in designing, manufacturing and assembling new homes in a manner that would prevent the air conditioning unit from pulling in carbon monoxide from the garage and distributing it throughout the home.

Moreover, public policy supports this result because requiring the plaintiff to submit this claim to binding arbitration would deprive her of her rights to trial by jury, due process and access to the courts. "It is wrong to stretch contractual interpretations to uphold a purported arbitration agreement where such an agreement would waive constitutional rights." Therefore, absent express language in the contract mandating arbitration of this kind of dispute, the contract should not be construed to do so.

Economic Loss Rule

Comptech International, Inc. v. Milam Commerce Park
24 Fla. L. Weekly S507 (Fla. 1999)

Following its decision in Moransis v. Heathman, 24 Fla. L. Weekly S308 (Fla. 1999), the court holds that the economic loss rule does not bar a claim for violation of the building code under section 553.84. A judicially created rule cannot defeat a statutory cause of action. If the courts limit or abrogate such legislative enactments through judicial policies, separation of powers issues are created, which must be resolved in favor of the legislature's right to act in this area. The court further holds that a lessee's computers that were damaged as a result of the landlord's negligent building repairs are "other property" under the exception to the economic loss rule for damage to other property. See Saratoga Fishing Co. v. J.M. Martinac 7 Co., 520 U.S. 875 (1997). The economic loss rule applies where there is a product, the product damages only itself, and the losses are purely economic. The concurring opinion states that the court should expressly state that the economic loss rule is limited to product claims and should recede from AFM Corp. v. Southern Bell, 515 So.2d 180 (Fla. 1987).

Evidence - Relevance

Wall v. Alvarez
24 Fla. L. Weekly D2171 (Fla. 4th DCA 1999)

Even though the defendant admitted liability, the trial court abused its discretion in excluding photographs of the plaintiff's car to show that the accident was relatively minor; the evidence was relevant to the kind of injury usually sustained in a minor accident. The defendant was not required to support the evidence with testimony of a biomechanical engineer, as the trial court ruled. However, because a new trial was required on other grounds, the court cautions that the trial court must consider the admissibility of the photographs in their context in the new trial. Another recent decision to the same effect is Allstate v. Kidwell, 24 Fla. L. Weekly D2338 (Fla. 4th DCA 1999).


Porlick, Poliquin, Samara, Inc. v. Compton & Assoc.
24 Fla. L. Weekly D2121 (Fla. 3d DCA 1999)

A law firm hired an engineering firm to serve as an expert witness, but refused to pay the engineering firm's bill because it was excessive. The engineering firm sued, and the trial court found that the engineering firm's bill was excessive, reducing it by 25%. The court held that the law firm was the prevailing party for purposes of awarding attorneys fees under the contract.

Insurance - Duty to Cooperate

Scott Technologies, Inc. v. Reliance Ins. Co.
24 Fla. L. Weekly D2495 (Fla. 3d DCA 1999)

An insured whose fraud in discovery and destruction of evidence caused the trial court to enter a default against it as a sanction breached its duty of cooperation with its insurer, and was not entitled to coverage in the underlying case, where the insurer did not participate in the misconduct.

Plaintiffs' counsel seeking discovery sanctions should bear this in mind; make sure the defendant is financially able to compensate your client before you seek the ultimate sanction. It does not serve your client to seek a sanction that defeats your client's recovery.

Insurance - Homeowners

Passman v. State Farm
24 Fla. L. Weekly D2137 (Fla. 2d DCA 1999)

The statute of limitations for an action under a homeowners insurance policy begins to run when the insurer breaches its obligation to pay the insured's claim, not at the time the insured allegedly knows of the condition giving rise to the claim.

Insurance - PIP

Utvich v. Felizola
24 Fla. L. Weekly D2191 (Fla. 3d DCA 1999)

Because taxi cabs are exempt from the no fault statute, a taxi driver injured when he was rear-ended as he stopped to unload passengers did not have to prove permanency in order to claim pain and suffering damages.

Perez v. State Farm
23 Fla. L. Weekly D2355 (Fla. 3d DCA 1999)

In an action for PIP benefits where the insurer's only defense is that the medical treatment was not related, not reasonable or not necessary, the insurer must obtain, within thirty days of its receipt of written notice of the loss and of the amount of the loss, a medical report required under section 627.735(7) constituting reasonable proof that it is not responsible for payment. If the insurer obtains the report outside of the 30 day period, it cannot deny the claim. The claimant is not required to furnish all records within 30 days. See Fortune Ins. Co. v. Pacheco, 695 So.2d 394 (Fla. 3d DCA 1997) (en banc).

Amador v. United Automobile Ins. Co.
24 Fla. L. Weekly D2437 (Fla. 3d DCA 1999)

Where an insurance company scheduled an examination under oath of the insured more than thirty days after notice of the claim, it was not entitled to summary judgment on the ground that the insured failed to comply with a condition precedent by refusing to attend the examination under oath. The insurance company's policy requiring an examination under oath does not toll or extend the 30 day period in which the company must pay PIP benefits. If the insurer does not pay within the 30 day period, the insurer is in violation of the PIP statute on the 31st day and the insured is free to initiate a lawsuit. The court distinguishes cases where the failure to submit to an examination defeated the plaintiff's claim, because those were not PIP cases where the insurer had a statutory requirement to pay within 30 days. The court reiterates the purpose of the PIP statute to "guarantee swift payment;" consequently the statute places the burden on the insurer to authenticate the claim within 30 days of receipt.

Insurance - Rescission

Guarente-Desantolo v. John Alden Life Ins. Co.
24 Fla. L. Weekly D2401 (Fla. 4th DCA 1999)

Plaintiff sued her insurance company alleging wrongful denial of coverage for her breast cancer and wrongful rescission of her policy. The court reversed summary judgment for the insurer because a question of fact was presented as to whether the plaintiff could be responsible for material misrepresentation, where the insurance agent asked plaintiff the questions and wrote down her answers, and she signed without reading what he had written. There was also a factual issue as to whether the insurance agent was an agent of the insurance company where the insurer certified the agent as its licensed insurance agent, provided him with its application and information packed, accepted the insured's premium payments through the agent, and paid the agent a commission.


Fulton County Administrator v. Sullivan
24 Fla. L. Weekly ____ (Fla. 1999) (Citation not available at press time)

Two years ago, the Supreme Court caused a lot of discussion when it decided in this case that the statute of limitations in this wrongful death case was not tolled by the fraudulent concealment of the identity of the defendant, and, indeed, was not tolled by any fraudulent concealment in any case (other than medical malpractice, where the statute specifically provides for such tolling). The court granted rehearing, and now has withdrawn the opinion, holding that Georgia law applies to this case and therefore the tolling provisions of Florida law are not relevant to this case. In determining that Georgia law applies, the court applied the significant relationship test set out in Merkle v. Robinson, 737 So.2d 540 (Fla. 1999). The court declines to answer the question certified by the district court. The court reaffirms its prior holding that, where the issue was properly raised by motion for new trial, even though the defendant did not move for judgment in accordance with motion for directed verdict, the appellate court could order the trial court to enter a directed verdict.

Med Mal - Presuit

O'Shea v. Phillips
24 Fla. L. Weekly D2178 (Fla. 4th DCA 1999)

The proper test for determining whether a health care provider is entitled to presuit notice under section 766.106(2) is whether the defendant is directly or vicariously liable under the medical negligence standard of care under 766.102(1). Weinstock v. Groth, 629 So.2d 835 (Fla. 1993). The court holds that presuit notice is required where a claimant's cause of action is based on a health care facility's failure to exercise due care in fulfilling its duties under 766.110 to assure the competence of medical staff and personnel. Here, where the plaintiffs alleged that the defendant clinic knew of prior acts of sexual assault by one of its doctors, and negligently supervised or retained him, the plaintiffs were required to comply with presuit.

My advice is, if you have any doubt, comply with the presuit requirements, but don't rely on it to toll the applicable statute of limitations.

Negligence - Duty

Thompson v. Baniqued
24 Fla. L. Weekly D2271 (Fla. 1st DCA 1999)

A neighbor did not owe a duty of care to the plaintiff's three-year-old child who had come into the defendant's yard to play with the defendant's children and was struck by a car after leaving the yard and crossing the street; the defendant knew that the child had wandered into her yard to play but did not have custody of the child and did nothing to create a risk of harm to the child. The neighbor did not undertake to supervise the child by supervising her own children in the yard.

Florida Specialty, Inc. v. H2Ology, Inc.
24 Fla. L. Weekly D2406 (Fla. 1st DCA 1999)

A landowner abutting a public highway may have a duty toward passing motorists for creation of a dangerous, artificial condition on the highway. Where plaintiffs contended that defendants allowed a corrosive solution to flow onto a public street, causing damages to vehicles which drove through it, it was error to dismiss plaintiffs' complaint.

New Trial

Streacker v. Hinton
24 Fla. L Weekly D2124 (Fla. 1st DCA 1999)

After the jury came back with a finding of permanency but no noneconomic damages, the court sent them back to award noneconomic damages. The jury then asked if it could change another answer on the verdict form. The court told them no. This was error because when the court sent the jury back, the jury had the right to reconsider the entire verdict under Stevens Markets, Inc. v. Markantonatos, 189 So.2d 624 (Fla. 1966). Therefore, the court correctly granted a new trial.

Offer of Judgment

Spruce Creek Dev. Co. v. Drew
24 Fla. L. Weekly D2215 (Fla. 5th DCA 1999)

The plaintiffs' offer of judgment was not void for failure to apportion the amount of the offer between the plaintiffs. It should not matter to the defendant how the offer is apportioned between the plaintiffs; the defendant is entitled to releases from both if it accepts the offer. The offer is not void for failing to specifically mention the statute, section 768.79. Now that there is only one statute, implemented by Rule 1.442, the failure to mention one or the other is a technicality that does not affect the validity of the offer so long as one or the other is mentioned.

Donohoe v. Starmed Staffing
24 Fla. L. Weekly D2419 (Fla. 2d DCA 1999)

The trial court erroneously found that the defendant's offer of judgment was not made in good faith where the plaintiffs moved for an extension of time on the offer until they completed certain depositions, but they never had the motion heard. Plaintiffs contended that defendants acted in bad faith by repeatedly delaying depositions until after the deadline for accepting the offer had passed, but the evidence did not support that claim. The court does not say that this could not constitute bad faith, only that, if you claim it, you have to present evidence to prove it. The motion for enlargement did not toll the time because the plaintiff did not set his motion for hearing.

The moral of the story is, if you need more time for discovery after you get a proposal for settlement, don't just file your motion; set it for hearing and get it heard. If your opponent is delaying discovery, document your file; present evidence at a hearing about your efforts to take the depositions.

Product Liability

Cassoutt v. Cessna Aircraft Co.
24 Fla. L. Weekly D2321 (Fla. 1st DCA 1999)

Plaintiff alleged that defective airplane seat rails were manufactured as a separate, completed product by the defendant and intended to be sold as a separate, completed product for replacement of broken seat rails, in compliance with an Airworthiness Directive. Section 95.031(2) Florida statutes (1986), (repealed effective July 9, 1986) provides for tolling of the statute of repose where the component parts are separate "completed products". The statute must be strictly construed. The statute was tolled for injuries resulting from defects in the replacement seat rails when the replacement seat rails were purchased and installed in the aircraft.


Simmons v. Henderson
24 Fla. L. Weekly D2422 (Fla. 2d DCA 1999)

It was error to dismiss the plaintiff's personal injury action on the ground of misstatements she made in her deposition where the evidence showed that she was nervous, on medications, and had a below-average IQ, and misunderstood the questions. Her confusion did not constitute fraud on the court.

Service of Process

Thomas v. Silvers;
Shands Teaching Hospital and Clinics, Inc. v. Warren
24 Fla. L. Weekly S92 (Fla. 1999)

The amendment to rule 1.070(j) applies to actions pending on the date of its enactment, whether pending at the trial level or on appeal. The amendment allows the court to either direct service to be effective within a specified time or to dismiss the action or drop a defendant. If the plaintiff shows good cause or excusable neglect, the court shall extend the time for service for an appropriate period.


John Caddell Constr. Co. v. Mendez
24 Fla. L. Weekly D2116 (Fla. 3d DCA 1999)

The plaintiff's breast implants were ruptured when she was injured in a collision caused by the defendants. The trial court properly denied defendant's motion for setoff of the amount of her settlement from a breast implant class action, because the defendant in this case and the defendant in the class action were not joint tortfeasors, and the injuries were not the same.

Splitting Causes of Action

Froman v. Kirland
24 Fla. L. Weekly. D2199 (Fla. 4th DCA 1999)

After the trial court denied plaintiff's motion for leave to amend to add a fraud count, the plaintiff filed a second lawsuit, alleging fraud, then voluntarily dismissed the first lawsuit. Without prejudice. The trial court entered summary judgment in the second suit, reasoning that the plaintiff had impermissibly split his causes of action. The Fourth District reversed. Splitting causes of action is a an aspect of the doctrine of res judicata. One of the requirements for res judicata is an adjudication on the merits. Plaintiff's voluntary dismissal without prejudice was not an adjudication on the merits, so plaintiff did not split his causes of action.

Spoliation of Evidence

Builders Square, Inc. v. Shaw
24 Fla. L. Weekly D2166 (Fla. 4th DCA 1999)

An employer has a duty under section 440.39(7) to cooperate with an employee in the employee's claim against a third party tortfeasor; this duty includes the duty to preserve evidence. The court holds that where the employer knew that one of its ladders was involved in the employee's fall, even if it did not know which one, the employer should have consulted with its employee before disposing of any of its ladders. An employer can be charged with notice when the circumstances are such that it should have known that certain evidence could conceivably be critical to an employee's claim.

For purposes of the setoff statute, the court holds that the initial injury and the spoliation are "the same tort" and therefore the spoliator is entitled to a setoff for the employees settlement with the tortfeasor. However, where the jury was told of the settlement, over the employee's objection, the employer is not entitled to a setoff because the jury should be presumed to have considered the settlement in reaching its verdict.

Workers Comp Immunity

Deen v. Quantum Resources, Inc.
24 Fla. L. Weekly S489 (Fla. 1999)

A self-insured public utility which undertakes, pursuant to section 450.571, Florida Statutes (now section 624.46225) to provide workers' compensation coverage to a subcontractor working on its property is not entitled to workers' comp immunity under section 440.11 as to injuries sustained by an employee of the subcontractor resulting from the negligence of the public utility. The statute is only an authorization as to how workers comp coverage may be secured; it is not a grant of immunity as required by Jones v. Florida Power Corp., 72 So.2d 285 (Fla. 1954). It is the liability to secure compensation which gives the employer immunity from suit as a third party tortfeasor. His immunity from suit is commensurate with his liability for securing compensation; no more and no less. The court rejects the Third District's decision in Cartier v. Florida Power & Light Co., 594 So.2d 755 (Fla. 3d DCA 1991). The utility has no statutory liability for comp; only liability voluntarily assumed by contract.