October 2014

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Attorneys’ Fees - 57.105

Pomeranz & Landsman Corp. v. Miami Marlins Baseball Club, L.P.,
143 So.3d 1182 (Fla. 4th DCA Aug. 13, 2014)

The trial court had no jurisdiction to grant a motion for fees pursuant to §57.105, Fla. Stat., that was not filed until after the plaintiff voluntarily dismissed the case.

Phillips v. Garcia,
Case No. 3D13-262, 2014 WL 3930138 (Fla. 3d DCA Aug. 13, 2014)

A police officer was not entitled to fees under §57.105, Fla. Stat., after obtaining summary judgment against the plaintiff in a malicious prosecution case, merely because he prevailed on his immunity defense. The defendant did not establish that the plaintiff’s claims had no merit; he proved only that he was entitled to avoid them.

Evidence - Daubert

Florida Bar Code and Rules of Evidence Committee

In 2013, the Legislature adopted changes to §90.702, Fla. Stat., incorporating the Daubert standard.

As with every evidence rule, it is not entirely clear whether this rule is substantive or procedural. The Legislature has the power to make substantive changes to the law, but only the Florida Supreme Court has the power to enact procedural rules. The Third District has ruled that the changes are procedural and may be applied retroactively. Perez v. Bell South Telecommunications, 138 So.3d 492 (Fla. 3d DCA 2014). On October 16, the Supreme Court denied review of Perez. However, an all writs petition on the same rule is still pending in the Supreme Court with no ruling yet on whether the Court will accept jurisdiction. Lopez v. Perez, Case No. SC14-1021.

Usually, but not always, the Supreme Court will adopt a change to the evidence rules to the extent it is procedural, to avoid conflicts. See In re Amendments to Florida Evidence Code, 144 So.3d 536 (Fla. 2014). Last week, the Florida Bar Code and Rules of Evidence Committee voted to recommend to the Court that it should not adopt the Daubert changes. This recommendation goes next to the Florida Bar Board of Governors

Adams v. Laboratory Corp. of America,
760 F.3d 1322 (11th Cir. July 29, 2014)

The standard of care opinion of the plaintiff’s expert, a professor of pathology at Johns Hopkins, based on a widely accepted methodology and grounded in the available physical evidence, was admissible. The expert personally reviewed the slides that were sent to the defendant laboratory, applied an established diagnostic system, and used her extensive experience in the field to assess whether the failure to identify abnormal cells fell below the standard of care.

The District Court had rejected the expert’s opinion under Daubert because she did not use the “blinded review” standard contained in the “litigation guidelines” created by industry groups.

The 11th Circuit reversed. The court rejected the trial court’s reliance on the “litigation guidelines”. Those guidelines did not set standards for examining slides for purpose of diagnosis and treatment, but were specifically addressed to litigation situations.

Daubert and Kumho do not allow courts to delegate to potential defendants decisions about when and how they may be held civilly liable for their mistakes.”

Insurance - Bad Faith

Geico Gen. Ins. Co. v. Paton,
Case No. 4D12-4606, 2014 WL 4626860
(Fla. 4th DCA Sept. 17, 2014)

The plaintiff, who had already proven her damages in the underlying uninsured motorist case, was not required to prove them again in the first party bad faith trial, even though the judgment in the underlying case was limited to the policy limits. Section 627.727(10), Fla. Stat. says: “The damages recoverable from an uninsured motorist carrier in an action brought under §624.155 shall include the total amount of the claimant's damages, including the amount in excess of the policy limits...”

In the underlying case, the plaintiff obtained a verdict in excess of the policy limits. The trial court limited the amount of the judgment to the policy limits. Geico paid the policy limits, did not move for a new trial and did not appeal the judgment in the underlying case.

Geico argued in the bad faith case that the excess verdict in the underlying case should not be treated as conclusive evidence of the plaintiff’s damages, contending that to do so would deny Geico due process, the right to appeal, and the right of access to courts.

The court rejected Geico’s arguments based on the wording of §627.727(10), prior Supreme Court decisions and Geico’s failure to challenge the damage award after the first trial or in this appeal.
The underlying trial establishes the liability of the uninsured plaintiff and the plaintiff’s damages in the underlying accident. Both of these are prerequisites to the bad faith suit. “Absent a determination of the existence of liability on the part of the uninsured tortfeasor and the extent of the plaintiff's damages, a cause of action cannot exist for a bad faith failure to settle.” Blanchard v. State Farm, 575 So.2d 1289, 1291 (Fla. 1991).

The court rejected the reasoning of Judge Altenbernd’s concurring opinion in Geico v. Bottini, 93 So.3d 476 (Fla. 2d DCA 2012). Unlike that concurring opinion, this court believes that the excess verdict is reviewable on appeal from the final judgment in the underlying case, even when the judgment is limited to the amount of the policy limits.

“Forcing retrial of a plaintiff's damages at a first party bad faith trial, as Geico urges, is such bad policy that we do not glean even a hint of its existence in any case the Supreme Court has decided in this area.”

Geico has moved for rehearing, rehearing en banc and certification.

Safeco Ins. Co. v. Beare,
Case No. 4D13-3104, 2014 WL 4626851
(Fla. 4th DCA Sept. 17, 2014)

The trial court did not abuse its discretion in abating, rather than dismissing, a bad faith claim pending litigation of the underlying uninsured motorist claim.

To satisfy the “irreparable harm” jurisdictional requirement for certiorari, Safeco claimed that it was irreparably harmed by the trial court’s decision because it deprived Safeco of the opportunity
to remove the case to federal court. Although it ruled against Safeco on the merits, the court agreed that denial of the opportunity for removal constituted irreparable harm. The First and Fifth DCAs have held that denial of the opportunity to remove does not constitute irreparable harm. Safeco Ins. Co. v. Rader, 132 So.3d 941, 946 (Fla. 1st DCA 2014); Cont’l Baking Co. v. Vincent, 634 So.2d 242, 244 (Fla. 5th DCA 1994).

Geico Gen Ins. Co. v. Cammarata,
Case No. 4D13-185, 2014 WL 4327948
(Sept. 3, 2014) (en banc)

Where the insurer’s liability for coverage, and the extent of the insureds’ damages, have been determined, the insureds’ claim for bad faith under §624.155, Fla. Stat., is ripe. Those two requirements may be established when a settlement (including, as here, settlement via the appraisal process) determines liability for coverage and the amount of the insured’s damages. The insured is not required to also prove that the insurer breached the contract before the bad faith claim is ripe.

GEICO Cas. Co. v. Barber,
Case No. 5D14-427, 2014 WL 3966053
(Fla. 5th DCA Sept. 19, 2014)

In an uninsured motorist case, where damages exceed the policy limits, the right of the insured to establish the total amount of damages, as a prelude to a bad faith case, has been established by the Florida Supreme Court. State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So.2d 55 (Fla. 1995).

Here, after refusing for years to pay the UM claim, the insurer filed a motion for entry of a confessed judgment. The trial court entered a final judgment for the policy limits, but then granted the insured’s motion to file a second amended complaint for a declaratory judgment, apportionment of liability and total damages. The trial court denied the portion of the insured’s motion asking for leave to amend to assert a claim for bad faith. The court held that, once the insurer filed its motion for confession of judgment, the trial court lacked jurisdiction to permit the insured to amend the complaint. Following its own decision in Safeco Ins. Co. v. Fridman, 117 So.3d 16 (Fla. 5th DCA 2013), rev. granted, 2014 WL 1659750 (Fla. April 14. 2014), the court held that the plaintiff could litigate damages in the bad faith case.

Judge Sawaya, dissenting, argued that the court should have permitted the amendment to plead a bad faith claim, as the First DCA did after the insurer tendered policy limits in Safeco v. Rader, 132 So.3d 941 (Fla. 1st DCA 2014).

Insurance - Dec Action

Star Ins. Co. v. Dominguez,
141 So.3d 690 (Fla. 2d DCA June 25, 2014)

The nonjoinder statute, §627.4136, Fla. Stat., barred a declaratory judgment action brought by the claimant to determine coverage for the underlying wrongful death action, even though it was severed from the wrongful death case. The statute makes a judgment against the insured a condition precedent before anyone other than the insured may bring an action against the insurer.

Insurance - Homeowners

Heylin v. Gulfstream Prop. & Cas. Co.,
Case No. 5D13-82, 2014 WL 4648969 (Fla. 5th DCA 2014)

An intentional act exclusion, combined with a severability clause, created an ambiguity that had to be resolved in favor of coverage. Therefore, the policy provided coverage for a claim that the parents of a minor negligently supervised the minor, who allegedly committed a battery, even though there was no coverage for the minor for the battery. The severability clause required the insurance to apply separately to each insured

Linares v. Universal Prop. & Cas. Co.,
141 So.3d 719 (Fla. 3d DCA 2014)

In a claim for homeowners’ insurance coverage for hurricane damage to the plaintiffs’ home, the cause of action accrued, for limitations purposes, when the insurer sent a letter to the plaintiffs denying their claim in plain, unambiguous language, not earlier when the insurance company sent a letter stating that the claim was below the deductible, but that, if the insureds discovered any additional damage or information, they should forward it to the insurance company for consideration.


Roden v. R.J. Reynolds Tobacco Co.,
145 So.3d 183 (Fla. 4th DCA 2014)

When the plaintiff died after the commencement of the lawsuit, the action could be amended to assert a wrongful death claim by the personal representative. The claim for wrongful death, filed after expiration of the two year wrongful death statute of limitations, related back to the filing of the original complaint.

Med Mal - Burden of Proof

Saunders v. Dickens,
Case No. SC12-2314, 2014 WL 3361813 (Fla. July 10, 2014)

A defendant doctor cannot insulate himself from liability for negligence by presenting the testimony of a subsequent treating physician that, if the defendant doctor had not been negligent, the subsequent doctor would not have done anything different.

To allow such a defense tactic would put the burden on the plaintiff “to somehow prove causation by demonstrating that a subsequent treating physician would not have disregarded the correct diagnosis or testing, contrary to his or her testimony and irrespective of the standard of care for the defendant physician. To require the plaintiff to establish a negative inappropriately adds a burden of proof that simply is not required under the negligence law of this State.”

Here, the defendant’s closing argument, based on such testimony, that the plaintiff had not met his burden of proof of causation, misled the jury about the burden of proof and required a new trial.

Med Mal - Experts

In re Amendments to Florida Evidence Code,
144 So.3d 536 (Fla. 2014)

The Supreme Court declined to adopt, to the extent it is procedural, §766.102(12), Fla. Stat., which would require an expert testifying on the standard of care to be licensed under Florida law or possess an expert witness certificate issued by the applicable state agency. The Court based its decision on concerns raised by commenters that the provision would be unconstitutional, would have a chilling effect on the ability to obtain expert witnesses, and would be prejudicial to the administration of justice. The Florida Bar Board of Governors had voted 34-5 to recommend that the Court reject the statute.

Med Mal - Presuit Authorization

Murphy v. Dulay,
Case No. 13-14637, 2014 WL 5072710
(11th Cir. Oct. 10, 2014)

Reversing the U.S. District Court, the 11th Circuit held that the presuit authorization requirements of §766.1065, Fla. Stat., are not preempted by HIPAA.

The statute requires a prospective plaintiff in a medical negligence claim, as part of presuit, to provide a signed authorization form allowing the defense to obtain documents and conduct ex parte interviews with the plaintiff’s medical providers on matters pertinent to the medical negligence claim. The statute authorizes the defendant, his insurer, his attorney, and his consulting expert to share information.

HIPAA requires that any authorization to disclose protected information be revocable. Under §766.1065, the authorization can be revoked but revocation renders it void ab initio, which can result in a statute of limitations problem for the plaintiff. The court rejected the argument that this creates a conflict with HIPAA. “The HIPAA regulations do not require that a person be able to revoke an authorization free of any consequences; they just require that an authorization be revocable.”

In addition, requiring the plaintiff to identify providers to whom the authorization does not apply does not violate HIPAA. The breadth of the authorization does not violate HIPAA‘s specificity requirements. The fact that the authorization is combined with a presuit notice does not make it a prohibited “compound authorization.”

Although HIPAA prohibits using an authorization for release of information as a condition for receipt of medical benefits or health treatment, the court says it does not prohibit other kinds of conditions.

The court held the authorization is not involuntary because plaintiffs “voluntarily choose to seek redress for grievances through Florida’s judicial system. ... An individual retains the choice whether to file suit, and therefore whether to sign the authorization form.”

“Accepting arguendo that one of HIPAA’s goals is to ensure that waivers of privacy protections are made knowingly and voluntarily, the Florida statute does not interfere with that goal .”


Moxley v. U-Haul of Fla.,
Case No. 2D13-4163, 2014 WL 4851690
(Fla. 2d DCA Oct. 1, 2014)

A settlement of a deceased driver’s estate’s wrongful death claim against U-Haul did not release the driver’s estate’s claims against U-Haul for breach of its contractual duty to defend and indemnify the driver against the claims of others injured in the accident. Broad language in one paragraph of the release was limited by language in another paragraph describing “the claim” as pertaining to the death of the driver. The release did not mention a duty to defend against other claims against the driver that had not yet even been filed.

Workers Comp Immunity

VMS, Inc. v. Alfonso,
Case No. 3D13-1044, 2014 WL 4723565
(Fla. 3d DCA Sept. 24, 2014) (en banc)

Receding from Catalfumo Constr. LLC v. Varela, 28 So3d 963 (Fla. 3d DCA 2010), the Third District en banc held that a contractor was not estopped from asserting worker’s comp immunity.
The contractor hired a subcontractor for part of the work. That subcontractor hired a second subcontractor. The second subcontractor hired the plaintiff. The plaintiff was injured on the job when hot tar was spilled on him.

The second subcontractor did not purchase worker’s comp coverage. The contractor and the first subcontractor did purchase worker’s comp coverage, but did not notify their carriers of the incident. The plaintiff did not file a worker’s comp claim, but sued the contractor and the first subcontractor.
The court held that the general contractor and the first contractor had no obligation to notify their carriers of the plaintiff’s injury, and that they were entitled to worker’s comp immunity.

“Because section 440.11(1) of the Florida Statutes makes the liability to secure compensation imposed by section 440.10(1) the exclusive form of liability imposed by Chapter 440 on an employer, once an employer acquires and maintains workers' compensation insurance for the benefit of its employees, it becomes immune from suit.”

A contractor who sublets part of its work to a subcontractor is immune from suit by the subcontractor’s employees when coverage has been secured by the subcontractor. The contractor’s liability to secure coverage for the subcontractor’s employees in the event the subcontractor fails to do so immunizes the contractor from suit by the employees. The court held that the contractor has no obligation to ensure actual payment of benefits to the subcontractor’s employee.

R.L. Haines Const. Co. v. Santamaria,
Case October 2014No. 5D13-1937, 2014 WL 4648522
(Fla. 5th DCA Sept. 19, 2014)

The plaintiff did not satisfy the intentional tort exception to workers comp immunity. Section 440.11(1)(b) requires the plaintiff to show, among other things, that the employer deliberately intended to injure the employee, or that the employer engaged in conduct that the employer knew, based on prior accidents or on explicit warnings specifically identifying the danger, was “virtually certain” to cause injury or death to an employee.

A column fell on the employee after the employer required work to resume after only 44 hours of curing of the epoxy securing the anchor bolts, although 72 hours of curing was required. There was no evidence of prior similar accidents, and other columns that were subject to the same shorter curing time did not fall.