September 2013

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Arbitration - Statute of Limitations

Raymond James Financial Services v. Phillips,
No. SC11-2513, 2013 WL 2096252 (Fla. May 16, 2013)

Florida's statute of limitations, §95.011, Fla. Stat., applies to arbitration proceedings, because an arbitration proceeding is within the statutory term "civil action or proceeding" found in §95.011.

Franks v. Bowers,
116 So.3d 1240 (Fla. 2013)

The Court invalidated an arbitration agreement, which the deceased signed prior to his surgery, in a medical malpractice, wrongful death case. The contract was void because it was against public policy contained in the arbitration provisions of the Medical Malpractice Act., §§ 766.207, et. seq., Fla. Stat.

The agreement required arbitration of any dispute, and limited noneconomic damages to $250,000 per incident, regardless of the number of claimants or defendants. In addition, the agreement did away with the concession of liability contained in the Medical Malpractice Act's arbitration provision.

The Court held that the legislature had carefully balanced competing interests, and that the damages provision and concession of liability in the statute provided important incentives for plaintiffs to agree to arbitrate. Because the provision in this agreement did away with these incentives, it violated public policy. The Court stated:

"The incentive provided to claimants to encourage arbitration is a necessary provision of the MMA. We therefore find that the Financial Agreement's avoidance of the incentive contravenes the intent of the statute and, accordingly, the public policy of this state. Because the Legislature explicitly found that the MMA was necessary to lower the costs of medical care in this State, we find that any contract that seeks to enjoy the benefits of the arbitration provisions under the statutory scheme must necessarily adopt all of its provisions."

The limitation of damages provision was not severable from the agreement to arbitrate. Consequently, the entire agreement was void.

The Court also held that the Federal Arbitration Act did not preempt the Court's conclusion that this particular arbitration provision was void, because the contract specifically made the Florida Arbitration Act applicable, and because "[t]here is no federal policy favoring arbitration under a certain set of procedural rules ..."; the Court's decision "does not impede the general enforceability of agreements to arbitrate".

Attorneys Fees

First Baptist Church of Cape Coral, Fla., Inc. v. Compass Constr., Inc.,
115 So. 3d 978 (Fla. 2013)

A hybrid fee agreement that provides an hourly billing rate and, as an alternative, a separate rate for court-awarded fees from another party, is valid. The agreement in this case provided for $170 per hour if paid by the client or its insurer. If the fee was paid by anybody else pursuant to court order, the rate would be $300 per hour or an amount determined by the court, whichever is higher.

The trial court correctly ruled that First Baptist could recover from Compass "a reasonable fee to be later determined by this [c]ourt even if that amount is greater than the amount [First Baptist's] counsel charged First Baptist Church." The Supreme Court upheld trial court's subsequent decision to award an hourly rate of $350 per hour.

The Court also held that, "the fact that an indemnity contract instead of a statute triggered payment of fees to the prevailing party in this case is immaterial to the clause's validity." The dissent explains the policy differences between statutory and contractual fees: "Unlike the enhancement-lodestar method of calculating fees in the statutory context, which relies on several policy and financial factors to develop a "reasonable" rate, the assessment of fees under the concept of indemnification is only concerned with reimbursing the prevailing party for expenses and costs actually incurred."


Corporate Representative Carriage Hills Condo., Inc. v. JBH Roofing & Constructors, Inc.,
109 So.3d 329 (Fla. 4th DCA 2013)

This case has a detailed discussion of procedure for the deposition of a corporation representative under Fla. R. Civ. P. 1.310(b)(6). A notice of deposition calling for a corporate party to produce a "corporate representative with the most knowledge of the allegations of the complaint" does not satisfy the requirement of the rule.

The rule allows the corporation to select and prepare a designee or designees without regard to his or her personal knowledge or lack thereof. The requesting party cannot insist on production of the most knowledgeable person. The corporation has a duty to prepare a witness or witnesses to testify about the collective knowledge of the corporation, not the knowledge of the witness personally. The witness is required to testify about "matters known or reasonably available to the organization." The corporation must prepare the designee from reasonably available information, whether from documents, past employees or other sources.

The corporation must prepare the witness to enable the witness to "give complete, knowledgeable, and binding answers on behalf of the corporation. ... If the deponent cannot answer questions regarding the designated subject matter, "the corporation has failed to comply with its [Rule 1.310(b)(6)] obligation and may be subject to sanctions...."

The notice must "designate with reasonable particularity the matter on which examination is requested." A reference to "the allegations in the complaint" is overly broad.

When a Rule 1.310(b)(6) deposition is properly noticed and conducted, the testimony of the designee "is deemed to be the testimony of the corporation itself" and is binding on the corporation. However, the deposition is not conclusive and may be contradicted by other evidence. But the corporation, like any other party, cannot repudiate or contradict by affidavit its previous deposition testimony to avoid a motion for summary judgment. There must be a credible explanation and reason for any discrepancy.

Forum Non Conveniens

Rabie Cortez v. Palace Resorts, Inc.,
No. SC11-1908, 2013 WL 3068147 (Fla. June 20, 2013)

The District Court misapplied the doctrine of forum non conveniens when it required the plaintiff, a California resident, to litigate a claim in Mexico against defendants who maintained their operational, managerial and marketing headquartered in Florida for allegedly negligent conduct that occurred in Florida.

The Court adopted Judge Rothenberg's dissent below stating that, even though the plaintiff was a citizen of California, not Florida, "[b]efore denying a United States citizen access to the courts of this country, the reviewing court must "require positive evidence of unusually extreme circumstances, and should be thoroughly convinced that material injustice is manifest.'"

The fact that the defendants are located in this state, "is one indication that it would be less burdensome for the defendants to defend suit in this country than it would be for [the plaintiff] to litigate in a foreign country."

"[T]he proper focus of the forum non conveniens inquiry and the analysis of the private interest factors is not to decide where the best location for bringing suit would be, but rather to analyze whether, after affording a strong presumption to the plaintiff's choice of forum and considering the balance of private conveniences, it is in the interest of Florida's courts to use their inherent power to decline to exercise jurisdiction over the dispute because Florida is an inconvenient forum. This recognition corresponds with our earlier clarification that public interest factors, including Florida's interest in the dispute, should always be considered as part of the forum non conveniens analysis."

Harmful actions originating in Florida, which may violate duties imposed by Florida law, are properly addressed in Florida courts.

Implied Warranties - Residential Construction

Maronda Homes, Inc. v. Lakeview Reserve Homeowners Ass'n, Inc.,
No. SC10-2292, 2013 WL 3466814 (July 11, 2013)

The implied warranties of fitness and merchantability apply to improvements that provide essential services to the habitability of a residence, including, here, water drainage and infrastructure in a large residential development. "[T]he defects in the real estate at issue here are part of a fundamental and essential support system for a complex infrastructure designed, constructed, and installed by the developers as a precondition to build the residential units and to obtain a certificate of occupancy for residential use. Due to their intricate, complex, and inherent underground positioning, these defects are more readily discoverable by the developers and less likely to be discovered by a typical homebuyer. These types of systems are absolutely essential to support the residential use of the residential units in the community and, therefore, fall within the purview of the type of complex defects for which the implied warranties are intended to provide protection." Even if not physically attached to the homes, the drainage system provides essential services to the homeowners and is therefore covered by the implied warranties.

The homeowners association had standing to bring suit against the developer for breach of the warranties.

Section 553.835, Fla. Stat. (2012) was enacted to reverse the effect of the decision of the district court of appeal in this case. The statute provides that, "There is no cause of action in law or equity to a purchaser of a home or to a homeowners association based upon the doctrine or theory of implied warranty of fitness and merchantability or habitability for damages to offsite improvements." Under the statute, a homeowner now must prove " (1) the claim is regarding a new home, (2) the claim is with regard to damage to the home or a structure or improvement on or under the home's lot, and (3) the complained of improvement or structure immediately and directly supports the habitability of the home." The court holds that the statute cannot apply retroactively to causes of action that accrued before its enactment.

Insurance - PIP

GEICO Gen. Ins. Co. v. Virtual Imaging Serv. Inc.,
2013 WL 3332385 (July 3, 2013)

Section 627.736(5)(a), Fla. Stat. (2008), allows an insurer to limit reimbursements for medical services rendered to an insured to the amounts in the Medicare fee schedules. However, it does not require the insured to use those limits; it requires only payment of "reasonable expenses." The Court holds that the insurer may not limit the reimbursement to those amounts without prior notice to the insured in the policy. The PIP statute provides that the Medicare fee schedules are one possible method of calculating reimbursements to satisfy the PIP statute's reasonable medical expenses coverage mandate, but does not provide that they are the only method of doing so.

Insurance - Property - Replacement Cost

Trinidad v. Fla. Peninsular Ins. Co.
No. SC11-1643 2013 WL 3333823 (Fla. July 3, 2013)

Under the 2008 version of §627.7011, Fla. Stat., an insurer's required payment under a replacement cost policy includes overhead and profit, where the insured is reasonably likely to need a general contractor for the repairs, because the insured would be required to pay costs for a general contractor's overhead and profit for the completion of repairs in the same way the insured would have to pay other replacement costs he or she is reasonably likely to incur in repairing the property. Because §627.7011, Florida Statutes (2008), and the replacement cost policy in this case, did not require the insured to actually repair the property as a condition precedent to the insurer's obligation to make payment, the insurer was not authorized to withhold, pending actual repair, its payment for replacement costs. Replacement costs are measured by what it would cost the insured to repair or replace the damaged structure on the same premises if the insured were to do so.

The decision below impermissibly allowed the insurer to single out overhead and profit from other replacement costs and withhold payment for only those costs. The Court ordered the case to be remanded to the trial court to determine whether the insured is reasonably likely to need a general contractor for the repairs that encompass his covered loss.

Jurors - Use of Electronic Devices

IN RE: Amendments to The Rules of Florida Judicial Administration-Rule 2.451 (Use of Electronic Devices),
No. SC12-764 2013 WL 3455625 (July 3, 2013)

The Court adopts new Rule of Judicial Administration 2.451, governing the use of electronic devices such as cell phones by jurors. The new rule allows the trial court to direct removal of electronic devices from jurors at any time, and requires them to be removed before deliberations. It also requires the court to give advance notice to the jurors.

Jury Instructions

In Re Standard Jury Instructions in Civil Cases - Report No. 12-02,
115 So. 3d 208 (Fla. May 23, 2013)

The Supreme Court has approved three amendments to the standard jury instructions in civil cases, and to the accompanying notes on use.

First, the Court amended instruction 201.2 (Introduction of Participants and Their Roles). The amended instruction explains the roles of the plaintiff and the defendant, directs counsel for the parties to introduce their clients to the jury, and accounts for the occurrence of pro se parties. In addition, the Court amended instruction 201.2, in light of Lamz v. Geico General Insurance Co., 803 So. 2d 593 (Fla. 2001), to provide for the introduction of a defendant uninsured or underinsured motorist insurance carrier where applicable. In Lamz, the Court held that plaintiffs are entitled to have their uninsured/underinsured motorist insurance carrier specifically identified as such, when the carrier has been properly joined as a defendant. Id. The Court also amended the accompanying Note on Use.

Second, the Court amended the closing instructions to remove some language that I never understood: "After you have decided what the facts are, you may find that some instructions do not apply. In that case, follow the instructions that do apply and use them together with the facts to reach your verdict." The Court also amend Model Instructions Nos. 1-6 consistent with the amendment to Section 700 (Closing Instructions).

Third, the Court amended the Note on Use to instruction 801.2 (Read-Back of Testimony) in two ways. First, the Note on Use makes clear that, while the decision whether to read back testimony is within the trial court's discretion, the trial court must not tell the jurors that they are prohibited from requesting a read-back of testimony. Johnson v. State, 53 So. 3d 1003 (Fla. 2010) (holding that, when preserved, it is per se reversible error for a trial judge to tell the jury that they are prohibited from requesting a read-back of testimony). Second the note on use requires that testimony read back to the jury must be done in open court and that transcripts or tapes of testimony must not be sent back to the jury room, and states that these matters are not discretionary.

In Re Standard Jury Instructions in Civil Cases - Report No. 12-01,
No. SC12-1566, 2013 WL 2349287 (May 30, 2012)

In addition to correcting some grammar and punctuation, the Court made substantive changes to several instructions.

Jury instructions 409.7 (Issues on Plaintiff's Claim - Fraudulent Misrepresentation), 409.8 (Issues on Plaintiff's Claim - Negligent Misrepresentation), and 409.9 (Issues on Plaintiff's Claim - False Information Negligently Supplied for the Guidance of Others), are each amended to clarify that causation is an element of the respective cause of action.

Jury instruction 501.1 (Personal Injury and Property Damages: Introduction) is amended to remove language applicable to wrongful death cases, as well as to add damages language pertaining to the claimant. These same amendments are also made to Model Instructions 2, 4 and 6. In addition, the Note on Use to instruction 501.1 is amended to clarify the circumstances when instructions 501.3 (Motor Vehicle No-Fault Instruction), 501.4 (Comparative Negligence, Non-Party Fault and Multiple Defendants), or 501.5 (Other Contributing Causes of Damages) should be used, and to explain that to complete the instructions for personal injury and property damages, the applicable parts of instructions 501.6 - 501.9 (Mortality Tables; Reduction of Damages to Present Value; Collateral Source Rule; Joint Liability of Joint Tortfeasors) are to be used.

The "Notes on Use for 502.1" to jury instruction 502.1 (Wrongful Death Damages: Introduction) is amended as follows. First, the amendment directs that applicable portions of instructions 502.1 - 502.4 (Wrongful Death Damages: Introduction; Wrongful Death Damages: Elements for Estate and Survivors; Wrongful Death Damages of Estate and Survivors: Separate Awards for Estate and Survivors; and Wrongful Death Damages: Elements when There Are No Survivors) should be used for wrongful death damage instructions, and that instructions 502.6 - 502.8 (Mortality Tables; Reduction of Damages to Present Value; and Liability of Multiple Tortfeasors) should be used to complete the instructions for wrongful death damages. The amendment also directs that instruction 502.5 (Comparative Negligence, Non-Party Fault and Multiple Defendants) be used if there is a comparative fault or Fabre issue.

The Court amends jury instruction "B. Punitive Damages" of Section 500 to include a "Note on Use for Punitive Damages Charges," applicable to the two punitive damages instructions, 503.1 (Bifurcated Procedure) and 503.2 (Non-Bifurcated Procedure).

New Trial - Service of Motion

JP Morgan Chase Bank, Nat'l Ass'n v. Bigley,
No. 3D12-995 (Fla. 3d DCA September 8, 2013)

Under Fla. R. Civ. P. 1.530(b), the relevant date for determining timeliness of a motion for new trial is the date of service, not the date of filing. The certificate of service creates a rebuttable presumption of the date of service.

Prior case law holds that a U.S. Mail cancellation stamp is not sufficient to rebut the date of service on a certificate of service. Distinguishing a private postage meter, such as Pitney Bowes, because it is in the control of the attorney, the court holds that "a private postage-meter mark, which places the postage and date stamp upon the envelope prior to its placement in the hands of the U.S. Postal Service for mailing, constitutes competent substantial evidence that can rebut the prima facie proof created by the date contained in a certificate of service."

New Trial - Standard of Review

Van v. Schmidt,
No. SC11-1467, 2013 WL 4734584 (Fla. September 4, 2013)

This is a very important case on the standard of review to be applied on appeal when a trial court enters an order granting new trial that is based on manifest weight of the evidence but also on issues of law.

On appeal, a trial court's conclusions of law in an order granting a new trial are not entitled to deference. A reviewing court can determine the legal issue just as well as the trial court. An an error involving a purely legal question can be as accurately reviewed from an appellate record as from the trial judge's bench. The trial judge does not have a "superior vantage point" for review of legal errors, as compared to other trial errors.

Where the order is premised, at least in part, on an error of law, the trial court's findings of fact and determinations of credibility (as opposed to its conclusions of law) are still entitled to the same deference as in orders that are not premised on an error of law, because of the trial court's superior vantage point of having been present during the entire trial.

When reviewing a trial court's order granting a new trial based on the manifest weight of the evidence:

(1) a reviewing appellate court may not focus on whether the jury verdict was supported by competent, substantial evidence, but rather on whether "reasonable persons could differ as to the propriety of the action taken," ... and (2) a trial court is not required to defer to the jury's weighing of conflicting testimony in considering the motion. Rather, in making its decision, the trial court "must necessarily consider the credibility of the witnesses along with the weight of all of the other evidence. The trial judge should only intervene when the manifest weight of the evidence dictates such action." ... In other words, it is the trial court's responsibility - not the district court's - to weigh the evidence, consider the credibility of the witnesses, and determine whether the jury "has reached an unjust decision on the facts."

If the order is based, at least in part, on legal error, the appellate inquiry then becomes whether the trial court would have granted a new trial but for the error of law. If the appellate court cannot determine whether the trial court would have granted a new trial but for the error of law, the proper remedy is to remand the case to the trial court for reconsideration in light of the correct legal principles. On the other hand, if the only way that the trial court could have reached the result of granting a new trial was based on the legal error, then the appellate court could properly reverse the trial court's order and remand for reinstatement of the jury's verdict.


Samples v. Fla. Birth-Related Neuro. Inj. Comp. Ass'n,
114 So. 3d 912 (Fla. 2013)

The NICA statute, §766.301, et seq., provides limited compensation through an administrative agency as the exclusive remedy for birth-related neurological injuries that are within the narrow scope of the statute. In a per curiam opinion by a divided court, the Supreme Court upheld the constitutionality of §766.31(1)(b)1, Fla. Stat. (2010), which provides for an award not exceeding $100,000 to the parents or legal guardians of an infant found to have sustained a birth-related neurological injury. The $100,000 cap applies regardless of the number of parents or guardians. The court held that the statute does not violate equal protection, is not void for vagueness, and does not violate the right of access to the courts.

Justices Polston and Canady concurred in the per curiam opinion. Justice Lewis concurred in result, and Justice Labarga concurred in result only. The other justices dissented. There does not appear to me to be a majority of the court joining in the reasoning of the opinion, so it is not clear what the impact will be on the constitutionality of the NICA statute as a whole, or other parts of it.


In Re: Code For Resolving Professionalism Complaints,
116 So. 3d 280 (Fla. June 6, 2013)

The Court adopts a new Code For Resolving Professionalism Complaints. The Court does not adopt new standards; instead, the Court incorporates existing standards, including the standards of behavior already contained in: (1) The Oath of Admission to The Florida Bar; (2) The Florida Bar Creed of Professionalism; (3) The Florida Bar Ideals and Goals of Professionalism; (4) The Rules Regulating The Florida Bar; and (5) the decisions of the Florida Supreme Court.

The procedures for making and resolving such complaints are set out in the Appendix to the Court's opinion. If the conduct complained of amounts to a violation of the Rules Regulating the Florida Bar, it may be referred for further action.

Sovereign Immunity

Rodriguez v. Miami-Dade County,
117 So. 3d 400 (Fla. June 27, 2013)

The trial court's denial of the County's motion for summary judgment on its claim that it was entitled to sovereign immunity as a matter of law for a police shooting, on the ground that there was no duty, was not reviewable by certiorari. The cost and expense of defending a lawsuit is not the kind of irreparable harm for which certiorari is the appropriate remedy. Certiorari may be granted only on a showing of: "(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal."

The trial court correctly declined to grant summary judgment under the "police emergency exception" to the waiver of sovereign immunity. The "police emergency exception" is an extremely narrow exception to the waiver of sovereign immunity. The Court states that it has never had the occasion to determine under what circumstances, if any, the police emergency exception would constitute a planning-level decision so as to render the responsible governmental entity immune from liability. It declines to do so in this case. Thus, the status and viability of such an exception is left undecided.

Wrongful Death - Abatement of Personal Injury Action on Death of Plaintiff

Capone v. Philip Morris USA, Inc.,
116 So. 3d 363 (Fla. June 13, 2013)

Section 768.20, Fla. Stat., provides, in pertinent part, that a wrongful death action shall be brought by the personal representative and that, "When a personal injury to the decedent results in death, no action for the personal injury shall survive, and any such action pending at the time of death shall abate."

The original plaintiff and his wife sued for personal injury and loss of consortium. After the plaintiff husband died, the plaintiff moved to amend to add the wife as personal representative as a party, and to plead in the alternative a wrongful death claim. Originally, the trial court denied leave to amend and dismissed the case. On rehearing, the trial court vacated the order dismissing the plaintiff's case and allowed the deceased Plaintiff's wife to amend her complaint and substitute herself as a party in her capacity as personal representative of her husband's estate.

"The District Court's subsequent determination that the personal injury action could not be amended, but was required to be dismissed and a completely new and independent wrongful death action commenced, was in error. This conclusion by the appellate court was based upon an interpretation of the word "abate" in section 768.20 that is inconsistent with both the express legislative intent behind the Act and the language specifically included by the Florida Legislature that the Act was to be liberally construed to accomplish that intent. See § 768.17, Fla. Stat. (2008)."

"[U]pon the death of a party plaintiff in a personal injury action, the personal representative of the decedent's estate may be added to the pending action as a party and, thereafter, shall have a reasonable opportunity to file an amended pleading that alleges new or amended claims and causes of action. We emphasize that it is permissible for a personal representative to pursue both a claim for survival damages and an alternative wrongful death claim where the cause of the decedent's death may be disputed by the parties."