September 2001

Attorney’s Fees — 57.105

Pappalardo v. Richfield Hospitality Services, Inc.
26 Fla. L. Weekly D1927 (Fla. 4th DCA 2001)

Section 57.105 was amended in 1999 as part of the “tort reform” act. Here the court, citing the amended statute but the cases under the older statute, holds that in order to award fees under the statute, the claim or defense must be so clearly devoid of merit on the facts and the law as to be untenable. Cf. Forum v. Boca Burger, Inc., 788 So.2d 1055 (Fla. 4th DCA 2001) (statute now applies to any claim or defense, not to entire action; standard under amended statute is: “ that the party and counsel ‘knew or should have known’ that any claim or defense asserted was (a) not supported by the facts or (b) not supported by an application of ‘then-existing’ law.”)


Roseman v. Town Square Association, Inc.
26 Fla. L. Weekly D1833 (Fla. 4th DCA 2001)

Consistent with a growing trend, the trial court did not err in bifurcating the trial and trying liability issues first, where the plaintiff’s injuries were not intertwined with the issue of whether the defendant negligently maintained the door that fell on the plaintiff, and there was no dispute over whether the incident actually occurred, where the plaintiff was struck, or how hard she was struck. The court distinguishes Scandinavian World Cruises Bahamas Ltd. v. Barone, 573 So.2d 1036 (Fla. 3d DCA 1991), because in that case the plaintiff suffered brain damage and testimony about her injury was necessary to explain some of her confusing and inconsistent testimony about the accident. I believe this decision is contrary to the policy against piecemeal litigation. See, e.g, Authors’ Comments to Fla. R. Civ. P. 1.270 (1967) “generally, justice requires that an action should not be handled piecemeal when it reasonably can be avoided ....”

Birth-Related Neurological Injury

Florida Birth-Related Neurological Injury Compensation Association v. Feld
26 Fla. L. Weekly D1877 (Fla. 4th DCA 2001)

NICA was required by statute to furnish doctors with forms providing patients with notice of the doctor’s participation in the NICA fund, and that the patient’s remedy for any injuries would be limited. The doctor jointed NICA, but NICA did not provide him the forms until eight months later. As a consequence, the doctor was denied immunity in a malpractice suit because he had not posted the form. The court held that the doctor was entitled to recoupment against NICA for his damages resulting from the loss of immunity, under a breach of contract theory.

Civil Rights

Flyer Printing Co. v. Hill
26 Fla. L. Weekly D1780 (Fla. 2d DCA 2001)

An employment agreement requiring arbitration of any legal dispute or controversy relating to the plaintiff’s employment, including any federal or state statutory claims, was not enforceable with respect to the employee’s claims under Title VII and the Florida Civil Rights Act, because it required the employee to bear half the fees and costs, contrary to the policies of those statutes. See Paladino v. Avnet Computer Technologies, Inc., 134 F.3d 1054 (11th Cir. 1998); Perez v. Globe Airport Security Services, Inc., 2001 WL 649497 (11th Cir. 2001). “An arbitration agreement containing provisions that defeat a federal statute’s remedial purpose is ... not enforceable.”

Wells Fargo Guard Services, Inc. v. Lehman
26 Fla. L. Weekly D1918 (Fla. 3d DCA 2001)

On rehearing, the court holds that the plaintiff’s complaint for employment discrimination was not premature where it was filed 180 days from his filing with the EEOC, even though the Florida Commission on Human Relations did not receive it from the EEOC until nearly 3 weeks after the EEOC received it. The EEOC and the FCHR have a work sharing agreement which the court recognizes as valid. Therefore, the EEOC is the FCHR’s agent for purposes of filing the claim, and the date it is received by the EEOC is the date it is received by the FCHR.

Damages — Permanency

Owen v. Morrissey
26 Fla. L. Weekly D1689 (Fla. 4th DCA 2001)

The jury found no permanency but awarded future economic damages for the remainder of the plaintiff’s life. The court held the award was inconsistent and excessive. The court also held that, because a jury has already decided that the defendants were negligent, and that issue is not intertwined with damages, but causation is, on remand the case should be treated as if the court directed a verdict. The jury is to determine only what damages, permanent and non-permanent, were caused by the negligence.

Dangerous Instrumentality

World Investment Corp. v. Diverna
26 Fla. L. Weekly D1913 (Fla. 3d DCA 2001)

The 1999 Tort Reform Act, in one of its many, many provisions, limited the application to rental cars of the dangerous instrumentality doctrine by amendments to 324.021(9). Be sure to read these provisions carefully when the defendants try to use them against you. Here, the court holds the provisions inapplicable because the defendant is not a rental car company as defined in the statute because it does not rent or lease vehicles to the general public.

Evidence — Frye Test

Rodriguez v. Feinstein
26 Fla. L. Weekly D1813 (Fla. 3d Dca 2001)

Applying Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) and Ramirez v. State, 651 So.2d 1164 (Fla. 1995), the court holds that it was error to exclude the plaintiff’s scientific evidence. The defendant’s own experts admitted that the lines of reasoning used by the plaintiffs’ experts were generally accepted by the scientific community as a means of establishing whether a particular drug causes birth defects. They disagreed only with his conclusions. Because the methodology was generally accepted in the scientific community, it was error to exclude the evidence. The court should not weigh between two legitimate but conflicting scientific views. That is for the trier of fact.

Evidence — Opening the Door

Michelin Tire Corp. v. Milbrook
26 Fla. L. Weekly D1910 (Fla. 3d DCA 2001)

The defendant opened the door to evidence about its policy of destroying documents, where the defendant stipulated that the specifications for the particular defective tire did not exist, but then made a big issue at trial about the plaintiffs’ lack of documentary evidence to support their case. I don’t understand why these companies call these policies “document retention policies” when really it is a policy for destroying documents. In any event, it was proper for plaintiff’s counsel to point to the defendant’s “document retention policy” a number of times during the trial.

Impact Rule

Holt v. Rowell
26 Fla. L. Weekly D2028 (Fla. 2d DCA 2001)

The court holds that, in a legal malpractice action in which the lawyers’ negligence resulted in an innocent plaintiff spending 10 days in jail, the impact rule prevented the plaintiff from recovering noneconomic damages for loss of liberty and resulting emotional and psychological harm. The court certifies the question to the supreme court. I disagree with this result because the restraint of being in prison should constitute sufficient impact.

Insurance — Appraisal

Ajmechet v. United Automobile Insurance Co.
26 Fla. L. Weekly D1816 (Fla. 3d DCA 2001)

Allstate Ins. Co. v. Martinez
26 Fla. L. Weekly D1681 (Fla. 3d DCA 2001)

When the insurer did not pay the insured’s claim for her stolen car, she sued the insurer. The insurer demanded appraisal. After the appraisers determined the amount, the carrier paid the award. The court held that the insured was entitled to attorneys’ fees under 627.428 because the payment was effected by the lawsuit. The court rejected the insurer’s argument that appraisal was a condition precedent to the lawsuit. The Martinez opinion certifies conflict with Hornstein v. State Farm, 736 So.2d 761 (Fla. 5th DCA 1999) and Florida Farm Bureau Cas. Ins. Co. v. Sheaffer, 687 So.2d 1331 (Fla. 1st DCA 1997)

Insurance — Bad Faith

Infinity Insurance Co. v. Berges
26 Fla. L. Weekly D1868 (Fla. 2d DCA 2001)

The surviving husband made a demand for settlement to an insurance company in connection with the wrongful death of his wife, who was killed in a collision with the insured. The husband had not yet been appointed personal representative of the wife’s estate. The claim included the claim of a minor. The offer required payment by a specified date, or, in the alternative, placement of the funds in an interest bearing account, and offered to work with the insurance company to obtain whatever court approval was necessary. Subsequently his attorney wrote to revoke the offer because the insurer had not paid within the time prescribed in the offer, and filed suit. The court held that the insurer could not be guilty of bad faith as a matter of law because the offer would not have protected the insured. The husband had not been appointed personal representative of his wife’s estate and had not obtained court approval of a settlement on behalf of his minor daughter. Because the insurer had “no reasonable opportunity to settle the claim,” it was not in bad faith as a matter of law. The court held that this was not a “reasonable opportunity to settle.” But see Powell v. Prudential, 584 So.2d 12 (Fla. 3d DCA 1991) (insurer’s duty to explore settlement opportunities); Government Employees Ins. Co. v. Grounds, 311 So. 2d 164 (Fla. 1st DCA 1975), cert. discharged, 332 So. 2d 13 (Fla. 1976). (insurer cannot defend its bad faith failure to attempt to settle the case by arguing that the plaintiff was a minor and court approval was required. “A settlement of a minor’s claim could never be accomplished if insurance companies took this attitude. All such settlements must necessarily be subject to court approval”); Boston Old Colony Ins. Co. v. Gutierrez, 386 So.2d 783 (Fla. 1980). (insurer has a duty to advise the insured of settlement opportunities and the probable outcome of a lawsuit and to warn him of the consequences of an excess judgment so that he might take whatever steps are available for his own protection).

Insurance — PIP

Kaklamanos v. Allstate
26 Fla. L. Weekly D1793 (Fla. 1st DCA 2001)

An insured is not required to pay his own bills prior to filing suit against his insurer for PIP and med pay benefits. An insured who incurs reasonable and necessary medical expenses on account of an automobile accident sustains losses and incurs liability for PIP and medpay purposes, whether or not the bills have been paid. The whole purpose of PIP is to enable the insured to pay such bills. The insured is entitled to sue a defaulting insurer for PIP and medpay benefits, even if he has not been sued by the medical provider. The insured’s right of action arises thirty days after notice to the insurer that reasonable and necessary medical treatment against which it has insured has resulted in a debt.

Loring v. Winters
26 Fla. L. Weekly D1841 (Fla. 2d DCA 2001)

The court has rejected the plaintiff’s argument, based on a strict reading of 627.737, that the plaintiff would be entitled to a jury instruction that he could recover damages for disability, disfigurement and loss of capacity for enjoyment of life, even if the jury found no permanent injury. The court rejected the argument that these elements of damages were different than “pain, suffering, mental anguish and inconvenience”, which are specifically mentioned in the statute. But see, Nales v. State Farm Auto. Ins. Co., 398 So. 2d 455 (Fla. 2d DCA 1981) (Even though jury found plaintiff did not meet no-fault threshold, plaintiff still was entitled to claim punitive damages, because 627.737(2) did not expressly exclude them); Capone v. Winn Dixie, 233 So. 2d 175 (Fla. 2d DCA 1970) (“Disability, mental anguish, and loss of capacity for the enjoyment of life are important elements of damages, and in the absence of instruction thereon, we cannot assume that the jury considered them” 233 So. 2d at 177. The court held that the instruction listing only pain and suffering did not encompass these other elements.); Powell v. Hegney, 239 So. 2d 599 (Fla. 4th DCA 1970) (reversible error to omit elements of disability, mental anguish and inability to lead a normal life from standard instruction on non-economic damages). Former DCTLA President Sean Domnick was instrumental in crafting this argument. Similar cases are pending in other DCA’s and the Academy has filed amicus briefs.

State Farm v. Jones
26 Fla. L. Weekly D1722 (Fla. 1st DCA 2001)

Answering a certified question from county court in a PIP case, the court says in an action for PIP benefits where the insurer’s only defense is that the medical treatment was not related, reasonable or necessary, the insurer does not have to obtain the report required under 627.736(7) within 30 days of receiving written notice of the fact of a covered loss and of the amount of the loss before it can defend on the basis that the bills are not reasonable, related or necessary. The court certifies conflict with Perez v. State Farm, 746 So.2d 1123 (Fla. 3d DCA 1999) currently pending in the Supreme Court.

Insurance — UM

Lamz v. GEICO
26 Fla. L. Weekly S519 (Fla. 2001)

This case continues the Court’s determined effort to get the truth to juries and to prevent “charades” and distortions at trial. See GEICO v. Krawzak, 675 So.2d 115 (Fla. 1996). The plaintiff joined their UM carrier in an action against the owner and driver of the car that caused the accident. The plaintiffs were entitled to have the jury know that the insurance company was the plaintiffs’ uninsured / underinsured carrier. It was reversible error to identify the insurance company as simply “the plaintiff’s insurance company”

Bassette v. Standard Fire Ins. Co.
26 Fla. L. Weekly D1670 (Fla. 2d DCA 2001)

The insured sued the insurer for UM benefits. The insurer asked the insured to sign a broad authorization allowing the insurer to obtain the insured’s medical records, and warning that refusal to sign “may result in denial of coverage.” The insured brought a dec action seeking a declaration that she could not be compelled to execute the authorization, which could result in ex parte communications with her health care providers. The court granted the insured’s motion for summary judgment in the dec action. The DCA held that the insured was entitled to fees for the dec action under 627.428. The insurer’s threat to deny coverage if the insured refused to sign made the dec action a coverage dispute. See Bell v. U.S.B. Acquisition Co., 734 So.2d 403 (Fla. 1999).


Major League Baseball v. Morsani
26 Fla. L. Weekly S465 (Fla. 2001)

Clearing up some of the confusion surrounding the original opinion in Fulton County Administrator v. Sullivan, 22 Fla. L. Weekly S578 (Fla. 1997), withdrawn and superseded, 753 So.2d 549 (Fla. 1999), the court holds that equitable estoppel may be applied to defeat a statute of limitations defense, even though 95.051 limits tolling of the statute to certain specified situations. Justice Wells’ concurring opinion points out that tolling and equitable estoppel are two different things. Estoppel is applicable where a wrongdoer, by word or conduct, willfully caused another “to believe in the existence of a certain state of things, and thereby induced him to act on this belief injuriously to himself, or to alter his own previous condition to his injury”. To rely on equitable estoppel, you should plead it in your reply to the affirmative defense.

Blumberg v. USAA Casualty Insurance Co.
26 Fla. L. Weekly S473 (Fla. 2001)

This case deals with the statute of limitations for negligence of an insurance agent in failing to procure insurance. After a theft loss which the insurer refused to pay, the plaintiff sued his insurance company for breach of contract in one count, and for promissory estoppel in a second count which alleged that the insurance agent was an agent of the insurance company and represented that there was coverage when there was not. The jury returned a verdict in favor of the insurance company on the contract count, and in favor of the insured on the promissory estoppel account, but awarded a small amount of damages. The plaintiff voluntarily dismissed his claim with prejudice before judgment was entered. He then sued the agent himself, alleging that the agent was the plaintiff’s agent for procurement of insurance coverage and breached his duty to procure coverage.

The court held that the statute of limitations against the agent for malpractice did not run until the conclusion of the breach of contract proceedings. “[A] negligence / malpractice cause of action accrues when the client incurs damages at the conclusion of the related or underlying judicial proceedings or, if there are no related or underlying judicial proceedings, when the client’s right to sue in the related or underlying proceeding expires.” If the malpractice action is filed prematurely, it can be abated or stayed pending completion of the underlying action.

However, the doctrine of judicial estoppel barred the plaintiff’s claim. He prevailed in the underlying proceeding on a theory that coverage existed based on promissoryestoppel; he could not dismiss that action and then sue on a theory that coverage did not exist. For another case involving a plaintiff who lost against an insurance company because of judicial estoppel, see Bailey v. State Farm, 26 Fla. L. Weekly D1739 (Fla. 4th DCA 2001).

Perez-Abreu v. Taracido
26 Fla. L. Weekly S492 (Fla. 2001)

The client’s cause of action against the lawyers for negligence in preparing stock purchase agreements did not accrue until the client’s litigation over the stock purchase agreements concluded. The court recedes from Edwards v. Ford, 279 So.2d 851 (Fla. 1973) to the extent it is inconsistent.

Fremont Indemnity Co. v. Carey, Dwyer, Eckhart, Mason & Spring
26 Fla. L. Weekly S546 (Fla. 2001)

In an action by an insurance company for legal malpractice in the handling of the defense of claims against the insurance company’s insured by negligently rejecting settlement offers, the statute of limitations did not begin to run until the conclusion of the underlying litigation the lawyers had been hired to defend

Negligence — Duty

Johnson v. Lance, Inc.
26 Fla. L. Weekly D1675 (Fla. 1st DCA 2001)

Reversing summary judgment in favor of an electric co-op, the court holds that, because the co-op installed and maintained streetlights, at least in part, for the benefit and safety of pedestrians walking along the roadway, it had a duty to exercise reasonable care in maintaining them for the protection of the pedestrians. It was reasonably foreseeable that pedestrians walking along the roadway could be in danger of physical harm if motorists could not see them because of the defendant’s failure to maintain streetlights.

Offer of Judgment / Proposal for Settlement

Alanwood Holding Co. v. Thompson
26 Fla. L. Weekly 1670 (Fla. 2d DCA 2001)

A proposal for settlement from two defendants, offering to settle all the claims of two plaintiffs for a specific lump sum was not valid because it did not specify the amount offered to each party.

Punitive Damages

Standard Jury Instructions, Civil Cases
26 Fla. L. Weekly S443 (Fla. 2001)

The Court has issued new standard jury instructions and model verdict forms on punitive damages, including bifurcated proceedings and non-bifurcated proceedings. The Notes on Use state that “Absent a timely motion, punitive damages issues are to be decided under a non-bifurcated procedure ...”.

Religious Immunity

Dewaard v. United Methodist Church
26 Fla. L. Weekly D1725 (Fla. 3d DCA 2001)

The church was not immune from suit for negligent supervision of a minister who allegedly molested a parishioner. However, the church was not vicariously liable because the minister’s actions were not within the course and scope of his employment and were not in any way designed, even in part, to further the interests of the church.

Successor Tortfeasor

Doubek v. Wal-Mart Stores, Inc.
26 Fla. L. Weekly D1878 (Fla. 4th DCA 2001)

A Wal-Mart employee on a ladder dropped a television on the plaintiff’s head. The jury apportioned 5% of fault to Wal-Mart and 95% to the plaintiff. The court held there was no evidence that the plaintiff did anything to contribute to the Wal-Mart accident; therefore the court should have directed a verdict in plaintiff’s favor on comparative negligence. Moreover, the court should have given an intervening cause instruction, “that the original tortfeasor is liable for any aggravation of the plaintiff’s injuries caused by subsequent medical treatment for those injuries.” Even though it was the plaintiff who presented the evidence of subsequent medical negligence before the jury, “the jury must be instructed that the original tortfeasor is liable for any aggravation of the plaintiff’s injuries caused by subsequent medical treatment for those injuries.” Although the plaintiff “opened the door,” the evidence was before the jury and the jury should have been instructed what to do with it. The court cites, among other cases, Stuart v. Hertz Corp., 351 So.2d 703 (Fla. 1977).

Sunshine in Litigation

Novartis Pharmaceuticals Corp. v. Carnoto
26 Fla. L. Weekly D1827 (Fla. 4th DCA 2001)

The Sunshine in Litigation Act, 69.081, Florida Statutes, prohibits any order concealing a public hazard. This was a products liability suit. The trial court did not depart from the essential requirements of law where it ruled that it would resolve public hazard issues, and thus determine whether the Sunshine in Litigation Act was applicable, prior to ruling on the defendant’s objections to discovery and determining whether to enter a protective order based on asserted privileges. The defendant wanted the court to wait until the conclusion of the case to make the public hazard determination.

Work Product

The Town Center @ Boca Raton Trust v. Hirokawa
26 Fla. L. Weekly D1818 (Fla. 4th DCA 2001)

In a negligent security case, it was error to reject the defendant’s work product objection without conducting an in camera inspection to determine whether the materials were in fact work product, after the defendant submitted an affidavit that the reports were made pursuant to the policies and procedures manual for the mall, in anticipation of litigation. The documents included mall security reports and police reports detailing criminal activity at the defendant’s mall and reports detailing the incident involving the plaintiff.

Workers Comp Immunity

EAC USA, Inc. v. Kawa
26 Fla. L. Weekly D1706 (Fla. 2d DCA 2001)

The courts appear to be acknowledging the Supreme Court’s intentional tort limitation on worker’s comp immunity in Turner v. PCR, Inc., 754 So.2d 683 (Fla. 2000). An employee was injured while removing foreign objects from a printing press while it was running. The manufacturer’s claim for contribution against an employer was not barred by worker’s compensation immunity where it alleged intentional actions substantially certain to result in injury to the employee. The complaint alleged that the employer removed a safety guard designed to prevent this type of accident, knowing that the absence of the safety guard created a dangerous condition, but intentionally disregarding that danger; and that the employer intentionally instructed the employee to engage in dangerous work practices including the procedure by which he was injured; and that they disregarded two notices from the manufacturer about available safety devices that would have prevented the injury.

Workers Comp Lien

Jones v. ETS of New Orleans, Inc.
26 Fla. L. Weekly S549 (Fla. 201)

The term “all court costs” in the workers’ comp lien statute, 440.39(3)(a), is not limited to taxable costs, but includes all reasonable costs incurred by the employee in preparing the claim against the third party tortfeasor. In determining equitable distribution of the plaintiff’s recovery from the third party tortfeasor, the court should first determine the employee’s net recovery by subtracting attorney’s fees and all reasonable costs from the gross recovery. The statute then provides that the employer or carrier “shall recover from the judgment or settlement, after costs and attorney’s fees incurred by the employee ... a percentage that the employee’s net recovery is of the full value of the employee’s damages.”