October 2002 #1


Gallardo v. Scott
27 Fla. L. Weekly D1709 (Fla. 5th DCA 2002)

This case is a fine example of a court refusing to allow the technicalities of a new statute to be used to trap an opposing party. As part of the 1999 Tort Reform Act, the legislature enacted 44.103, which provides for “Court-Ordered Non-Binding Arbitration.” But “non-binding” doesn’t always mean non-binding. Fla. R. Civ. P. 1.820 requires that a party who does not agree with the arbitrators’ decision must file a motion for trial de novo with the court within 20 days of service of the decision, or the decision may be enforced by the court. The decision is otherwise not supposed to be disclosed to the judge. The requirements of the statute and rule are not yet very well known and could pose a trap.

In this case, the judge ordered the parties to arbitration, but was not aware of the statute or the rules, which were not cited in the motion or order. The arbitrators, contrary to the rules, did not send their decision to the parties, but sent it to the court. The arbitrators’ decision was in favor of the defendants. Eventually, one of the defendants found the arbitrators’ decision in the court file and sent it to the other parties. More than 20 days after that, the defendant moved for entry of judgment in its favor on the grounds that the arbitrators’ decision was final because the plaintiff did not move for a trial de novo within 20 days. The trial judge granted the motion, noting that he was not even aware of the statute or rule, but expressing the belief that he had no choice.

The Fifth DCA reversed. The court held that, because of the number and seriousness of the procedural defects in the case, entry of judgment for the defendant was not required. “The legislature intended to create an entire statutory scheme that would permit the trial courts to make a beneficial use of the power to order arbitration as a prerequisite to trial. As devised, the legislature envisioned that the parties would have clear notice of what would occur and how and when it would occur.” In a footnote, the court questioned the professionalism of the defense lawyer for failingto alert plaintiff’s counsel to the statute.


Pulte Home Corp. v. Smith
27 Fla. L. Weekly D1851 (Fla. 2d DCA 2002)

In this toxic mold case, the plaintiffs alleged design, construction and manufacture of homes below the minimum state building code requirements resulting in water intrusion, toxic mold, and various personal injuries and property damage. The construction contracts contained arbitration provisions. The trial court must make individual determinations on the arbitrability of each claim. The court holds that the trial court improperly characterized the multiple, diverse claims as a single-issue matter concerning a public peril. The trial court should not have ruled on the motion to compel arbitration until it first addressed the motion to dismiss and any other motions directed at the sufficiency of the pleadings, the class certification, and the need for severance of parties an claims.

Attorneys’ Fees

Gahn v. Holiday Property Bond, Ltd.
27 Fla. L. Weekly D1822 (Fla. 2d DCA 2002)

The 1999 amendment to 57.105 substantively changed the standard for awarding fees. Fees may be awarded if evidence establishes that the party or attorney knew or should have known that the claim or defense was (a) not supported by material facts or (b) not supported by the application of existing law. The trial court was entitled to award fees against a defendant which refused to withdraw a motion to dismiss for lack of jurisdiction even after evidence disclosed in discovery made the defendant’s jurisdictional challenge completely untenable. The court remanded to allow the trial court to consider the amount of fees for litigating the motion to dismiss, and what the defense attorney knew or should have known about the defendant’s local contacts, business relationships and operations, to determine if fees should be awarded against the attorney personally. The court noted that the merit of the claim or defense can be measured when the claim or defense is asserted, or any time prior to trial.

Although the court does not mention it, the statute also says that “the losing party’sattorney is not personally responsible if he or she has acted in good faith, based on the representations of his or her client as to the existence of those material facts.” Moreover, the statute “does not apply if the court determines that the claim or defense was initially presented to the court as a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, as it applied to the material facts, with a reasonable expectation of success.”

Confidentiality Orders

Residence Inn by Mariott v. Cecile Resort Ltd.
27 Fla. L. Weekly D1697 (Fla. 20020)

A settlement agreement and confidentiality order entered in California did not bar discovery of California documents in Florida litigation. The trial court should examine the documents in camera and order them produced if they are relevant or reasonably calculated to lead to admissible evidence, if not otherwise privileged.

Conflict of Laws

Shaps v. Provident Life & Accident Ins. Co.
27 Fla. L. Weekly S710 (Fla. 2002)

Under Florida law, for purposes of conflict of law issues, the burden of proof in an insurance disability case is a procedural issue. It is not part of the substantive law of Florida. Therefore, in an action brought in Florida, the Florida burden of proof would apply in an action where the substantive law of some other jurisdiction governs the parties’ contract dispute.


Molina v. Watkins
27 Fla. L. Weekly D1835 (Fla. 3d DCA 2002)

The trial court erred in granting an ore tenus motion for default judgment where all parties had demanded jury trial on all issues, and the defaulted party had no prior notice of the motion.

Environmental Law

Easton v. Aramark Uniform And Career
27 Fla. L. Weekly D1802 (Fla. 1st DCA 2002)

Section 376.313(3), Florida Statutes creates strict liability for all damages resulting from a discharge or other pollution. It is not necessary to plead or prove negligence, and the plaintiff need not prove that the defendant, an adjoining landowner, caused the contamination on their own property.


United Services Automobile Association v. Goodman
27 Fla. L. Weekly S692 (Fla. 2002)

The trial court exceeded his authority in entering orders prohibiting defense counsel employed as full time insurance company staff counsel from using their individual firm names in pleadings and correspondence, and requiring them to disclose their insurance company affiliation in fling pleadings and other papers in litigation in the judge’s division. The Supreme Court has ultimate jurisdiction to adopt rules for the courts; the Bar is working on a proposed rule to deal with this issue.

Failure to Prosecute

Lisa S.A. v. Gutierrez
27 Fla. L. Weekly D1875 (Fla. 3d DCA 2002)

The pendency of another related action constitutes good cause for lack of record activity, and precludes dismissal for failure to prosecute.


Martinez v. Iturbe
27 Fla. L. Weekly D1793 (Fla. 3d DCA 2002)

Under 631.67, when an insurer becomes insolvent, “all proceedings in which the insolvent insurer is a party or is obligated to defendant a party in any court ... shall be stayed for six months.” The court held this requires a stay of the entire action, not just a stay as to the particular defendant.


Solomon v. Wellcare HMO
27 Fla. L. Weekly D1722 (Fla. 4th DCA 2002)

This case arises out of an HMO’s denial of authorization of a medically necessary claim for coverage on the ground that the condition was pre-existing. The court held that the medical malpractice presuit requirements were not applicable. The allegation that the procedure was medically necessary did not make it a medical malpractice claim. The plaintiff’s breach of contract claim called only for a determination of whether the condition was pre-existing under the contract. The plaintiff’s claims for fraudulent inducement, intentional infliction of emotional distress, and breach of the implied covenant of good faith dealt with alleged misrepresentations and maliciousness of decision to deny authorization, not with the rendering of medical care. There were no allegations in the complaint from which it could be determined as a matter of law that the HMO was “rendering” medical care or services as required to invoke the requirements of Chapter 766.


Butterworth v. Assi
27 Fla. L. Weekly D1645 (Fla. 1st DCA 2002)

The trial court improperly prevented the plaintiffs in a medical malpractice case from cross examining the defendant doctor about his failure of the basic medical science examination for a foreign medical student; his failure of a pharmacology course in medical school; his repeated failure of the board certification examination; and his completion of medical school in 7 years.

Insurance – Duty to Defend

Wright v. Hartford Underwriters Ins. Co.
27 Fla. L. Weekly D1806 (Fla. 4th DCA 2002)

An insurer which refuses to either cover or defend ins insured cedes control of the litigation to the insured, and the insured may proceed to settle the claim. Here, the insured settled the claim by waiving the defense of worker’s compensation, admitted liability, and agreed to a specified amount of damages; and assigned to the plaintiffs their right to recover under the policy. The court held that the insurance company was not entitled to raise any defense that the insured could have raised in the civil action; therefore there insurer could not rely on the worker’s comp immunity defense to deny coverage.

Longarm Jurisdiction

Homeway Furniture Co. v. Horne
27 Fla. L. Weekly D1636 (Fla. 2d DCA 2002)

Where the defendant’s only activity in Florida consisted of posting a website on the internet that could be viewed in Florida, and contracting with the plaintiff, a Florida resident, in another state, and assisting him in arranging shipping of the defendant’s product to Florida, there was no basis for longarm jurisdiction.

Rana v. Flynn
27 Fla. L. Weekly D1837 (Fla. 3d DCA 2002)

The trial court had personal jurisdiction over a doctor on a cruise ship who rendered allegedly inadequate care to the plaintiff while the ship was in Florida waters anddocked at the port of Miami. The court had jurisdiction over a defendant who allegedly committed a tort within the state.


Feldman v. Kritch
27 Fla. L. Weekly D1904 (Fla. 4th DCA 2002)

The trial court did not violation the confidentiality provisions of the mediation statute, 44.102, Florida Statutes, where the mediation resulted in a settlement agreement signed by the parties, and one of the parties subsequently claimed there was a mutual mistake. Here, the agreement required the defendant insurance company to pay $75,000 by a specific date; the insurance company argued that it was entitled to a $40,000 offset. The trial court properly considered evidence of what happened at the mediation to determine that the mistake was unilateral, not mutual, and therefore the written agreement was properly enforced.

Med Mal – Statute of Limitations

Woods v. Sapolsky
27 Fla. L. Weekly D1611 (Fla. 1st DCA 2002)

Holding that a misdiagnosis is evidence that a plaintiff did not have notice that the injury was caused by negligence until the plaintiff received a correct diagnosis, the court reversed dismissal of the plaintiff’s complaint. The complaint stated the date of the misdiagnosis, but not the date of the correct diagnosis. The Supreme Court has held that mere knowledge of the correct diagnosis is not enough to start the statute running. Ash v. Stella, 457 So.2d 1377 (Fla. 1984). “[T]here is an issue of fact as to whether notice that an inoperable, malignant tumor had been discovered did, in fact, put the respondent and his wife on legal notice that the tumor had existed at the time Dr. Ash treated Mrs. Stella and that Dr. Ash had been negligent in improperly diagnosing the problem. The etiology of malignancy is not well enough understood, even by medical researchers, that the courts should impute sophisticated medical analysis to a lay person struggling to cope with the fact of malignancy.”

Nursing Home – Discovery

Extendicare, Inc. v. Johnson
27 Fla. L. Weekly D1628 (Fla. 2d DCA 2002)

The trial court properly ordered the defendant nursing home to produce all licensing certification for employees who may have provided care to the decedent. With respect to other documents requested, such as disciplinary information, complaints, performance evaluations, and documents regarding the employees’ termination, the trial court should hold an in camera inspection of documents asserted to be privileged. The court must ensure the plaintiff access to information to which it is entitled, while safeguarding the privacy of present and former employees.

Offer of Judgment – Sovereign Immunity

City of Jacksonville v. Brooks
27 Fla. L. Weekly D1650 (Fla. 1st DCA 2002)

It looks like the offer of judgment statute is useless in sovereign immunity cases. The court holds that the $100,000 cap under the sovereign immunity statute includes attorneys fees. Fees cannot be awarded in excess of the cap.

Privilege – Waiver

Harley Shipbuilding Corp. v. Fast Cats Ferry Service
27 Fla. L. Weekly D1572 (Fla. 2d DCA 2002)

The defendant was not required to prepare a privilege log to preserve its claim for trade secret privilege, because it had already produced parts of the documents as to which it was asserting privilege. The court distinguishes TIG Ins. Corp. v. Johnson, 799 So.2d 339 (Fla. 4th DCA 2001), stating that, in TIG, “the court simply could not decipher whether claims of privilege had been waived by the party seeking protection without the aid of a privilege log.” In Harley, there were fewer documents and the defendant already had produced parts of them.


Kinser v. Crum
27 Fla. L. Weekly D1828 (Fla. 1st DCA 2002)

Pursuant to the parties’ settlement, a trial court may dismiss an action with prejudice but specifically retain jurisdiction to enforce the terms of the settlement agreement. The court follows Buckley Towers Condominium, Inc. v. Buchwald, 321 So.2d 628 (Fla. 3d DCA 1975) and certifies conflict with General Dynamics Corp. v. Paulucci, 797 So.2d 18 (Fla. 5th DCA 2001), which held that an action to enforce a settlement agreement had to be brought in a separate action, and which certified to the supreme court the question: “Does a court which approves a settlement agreement retain jurisdiction to enforce the terms thereof even if the remedy sought is outside the scope of the original pleadings?”

Splitting Causes of Action

Bettcher v. Wadsworth
27 Fla. L. Weekly D1629 (Fla. 2d DCA 2002)

Where the plaintiff obtained a small claims judgment and signed a release in connection with her property damage claim, which specifically preserved her personal injury claims, there was a question of fact as to whether the defendant waived the defenses of splitting of a cause of action and res judicata. “The rule against splitting causes of action is based on the principle that defendants should not be harassed by multiple lawsuits when all claims arise from an alleged wrong that could be litigated in a single action. The rule rests on principles of fairness and equity. . . . [S]trict compliance with the rule in automobile accident litigation under today’s law fails to accomplish these principles of fairness and equity.”