September 1997

Appeals -- Jurisdiction

Polk County v. Sofka
22 Fla. L. Wkly. S529 (Fla. 1997)

YOU CANNOT STIPULATE TO JURISDICTION OF THE SUBJECT MATTER. The trial court granted the defendant's motion for new trial. The parties subsequently entered into a settlement agreement providing that final judgment would be entered in favor of plaintiff, following which the defendant could seek appellate review of the trial court's prior refusal to dismiss, grant summary judgment or direct a verdict. The agreement also provided that the District Court had jurisdiction to hear the appeal. The Supreme Court held that the DCA had no jurisdiction because you cannot confer jurisdiction by stipulation.

Attorneys Fees

Miller v. Jacobs & Goodman, P.A.
22 Fla. L. Wkly. D1805 (Fla. 5th DCA 1997)

A contract between a law firm and its associates requiring the associates to pay the firm 75% of any fees they collect on any cases they take with them when they leave the firm is not void as against public policy. It does not place an undue burden on the client's freedom to choose legal representation. Lawyers are free to enter into agreements which provide for post termination allocation of fees. However, as a liquidated damages clause, the provision was unenforceable because of its failure to adequately measure damages, because the ultimate amount is unknown and the firm's damages were not limited to the 75%.

City of St. Petersburg v. S&E Contractors
22 Fla. L. Wkly. D2000 (Fla. 2d DCA 1997)

It is inappropriate to award attorneys fees under 57.105 (for lack of any justiciable issue) just because the action was barred by the statute of limitations. The statute of limitations is an affirmative defense that can be waived; nothing in the record showed that the plaintiff knew at the time of filing the complaint that the defendant would raise the defense.

Civil Rights

Garcia v. Reyes
22 Fla. L. Wkly. S501 (Fla. 1997)

The court holds that a child does not have a constitutionally protected liberty interest in family companionship under the due process clause that would allow a cause of action under 42 U.S.C. 1983 when the state unlawfully imprisons their father for 30 months. The court acknowledges that the right to family association and privacy in family decisionmaking has been given protection under the due process clause, see, e.g., Griswold v. Connecticut, 381 U.S. 479 (1965) (birth control); Santosky v. Kramer, 455 U.S. 745 (1982) (termination of parental rights); Stanley v. Illinois, 405 U.S. 645 (1972) (rights of unwed father). However, the court refuses to hold that deprivation of such a right is actionable under 1983, absent permanent physical separation of the parent and child, such as allegations of unlawful killing of the parent.

Evidence -- Expert

Horton v. Channing
22 Fla. L. Wkly. D1828 (Fla. 1st DCA 1997)

In Angrand v. Key, 657 So,2d 1146 (Fla. 1995), the Supreme Court held that it was error for a trial court to rule that it had no discretion to exclude the testimony of a grief expert, and that such testimony could be admitted or excluded in the trial court's discretion depending on the circumstances of the particular case. Here the court holds that it was not error to admit the testimony of a grief expert who was actually involved in the therapy of the plaintiff family.

U.S. Fire Ins. Co. v. The Meridian of Palm Beach Condo Assoc.
22 Fla. L. Wkly. D1941 (Fla. 4th DCA 1997)

It was error to admit expert testimony to assist in construing an insurance policy where the policy was not ambiguous.

Erwin v. Todd
22 Fla. L. Wkly D2016 (Fla. 5th DCA 1997)

At last some reality in the area of what are ironically called Independent Medical Examinations. The court upholds an order granting a new trial based on erroneous admission of testimony of the defense expert. The defense expert's testimony was improperly used as a conduit for the records of another doctor who had examined the plaintiff for an insurance company. The trial court ruled that the records of the insurance company doctor were inadmissible because they were "untrustworthy because the medical examination was performed for an insurance company."

Because the insurance company doctor's records were not admissible and the insurance company's doctor was not allowed to testify, it was improper to convey the content of those records through the testimony of the defense expert.

It was also improper to allow the defense expert to bolster his own testimony by referring to an article in a medical journal and reading a portion to a jury. Such material may only be used for impeachment.


Hasburgh v. WJA Realty
22 Fla. L. Wkly. D1783 (Fla. 4th DCA 1997)

Any error in allowing the inclusion of an unidentified nonparty on the verdict form was harmless because the jury found that the defendant was not negligent.

This decision does not state whether negligence and legal causation were separate questions on the verdict form. If the verdict form, like most, simply asks whether there was negligence of the defendant that was a legal cause of injury to the plaintiff, then I disagree with this decision. A jury could have incorrectly found that the nonparty's actions were an intervening efficient cause. Therefore, the error should not be treated as harmless.

Insurance -- Bad Faith

Lageman v. Furman
22 Fla. L. Wkly. D1936 (Fla. 4th DCA 1997)

The court upholds a settlement agreement between the insured tortfeasor and the injured plaintiff in which the insured assigned to the plaintiff its claims against the insurer and agent, in exchange for a covenant not to execute against the insured. The timing of the execution of the documents was not important where the agreement not to execute and the assignment of the insured's cause of action were dependent promises given contemporaneously. The covenant not to execute is not the equivalent of a release and satisfaction; therefore the insured did have something of value to assign because the judgment against the insured remained of record so the insured still had a cause of action against the insurer which it could assign. Compare Fidelity & Cas. Co. of New York v. Cope, 462 So.2d 459 (Fla. 1985) (satisfaction of judgment left no cause of action against insurance company for insured to assign) with Florida Ins. Guar. Ass'n v. Giordano, 458 So.2d 453 (Fla. 3d DCA 1986) (covenant not to execute left judgment against insured on books; therefore insured could assign cause of action against insurer).

Insurance -- Duty to Defend

Mason v. Florida Sheriff's Self Insurance Fund
22 Fla. L. Wkly. D1952 (Fla. 5th DCA 1997)

The insurance company had no duty to defend because the deputy sheriff's actions were outside the scope of his employment where he confronted the plaintiff with an arrest warrant at her home and demanded sex in exchange for not serving the warrant. The policy provided coverage for assault and battery, but excluded rape, and was not ambiguous. Public policy also precludes coverage for one's own intentional misconduct. (If this is so, how can insurance companies sell policies that cover assault and battery?)

Insurance -- Disability

Berkshire Life Ins. Co. v. Adelberg
22 Fla. L. Wkly. S513 (Fla. 1997)

Answering a question certified from the United States Court of Appeals for the Eleventh Circuit, the court holds that when the term "occupation" is not defined in an occupational disability insurance policy, and the policy states that total disability means "your inability to engage in your occupation," the term "your occupation" refers to precisely and only the work in which the insured is engaged at the time of the injury. The court rejects a construction that would have denied the insured benefits unless the insured was unable to do any work requiring similar skills and producing a comparable income.

Insurance -- Exclusion

Martinez v. Bankers Insurance Co. 22 Fla. L. Wkly. D2063 (Fla. 2d DCA 1997)

The homeowners insurance policy issued by the defendants contained a "business pursuits" exclusion. The plaintiffs brought their child to the insured's home to play with the insured's grandchild while the plaintiffs worked at the defendant's tomato grading business which they ran out of their home. The plaintiff's child was injured while playing with a tomato grading machine used in the insured's business. The plaintiffs alleged negligent supervision by the insureds. The court held that a question of fact was presented as to whether the negligent supervision was the proximate cause of the injury, and whether the child was on the insured's premises for the purpose of allowing his father to work in the insured's business; therefore, it was for the jury to decide whether the business pursuits exclusion applied.

Purrelli v. State Farm Fire & Cas. co.
22 Fla. L. Wkly. D2099 (Fla. 2d DCA 1997)

An umbrella policy which contained a clause providing coverage for specified intentional torts, but also excluded coverage for intentional acts was ambiguous. The ambiguity had to be resolved in liberally in favor of the insured. Therefore it was error to enter summary judgment in favor of the insurer finding no coverage.


Whitehurst v. Camp
22 Fla. L. Wkly. S527 (Fla. 1997)

The trial court correctly set the post judgment interest rate at the statutory rate rather than the rate set forth in the agreement of the parties where the contract did not provide a specific interest rate to apply to a judgment entered on the contract. The cause of action is extinguished by and merges in the judgment. The court overrules Gevertz v. Gevertz, 608 So.2d 129 (Fla. 3d DCA 1992).

Judgment Lien

Robinson v. Sterling Door & Window Co.
22 Fla. L. Wkly. D1814 (Fla. 1st DCA 1997)

A judgment becomes a lien on real estate in any county when a certified copy is recorded in the official records of the county, but only if the judgment contains the address of the person who has the lien. 55.10(1), Florida Statutes. Including the names and addresses of the attorneys is not enough. Under this case, when you get a judgment in favor of a client, you should include the client's address in the judgment.

Med Mal -- Expert

Padgett v. Sims
22 Fla. L. Wkly. D2094 (Fla. 1st DCA 1997)

An expert witness who practiced internal medicine and specialized in medical oncology and hematology was qualified under 766.102(2)(a) to testify against a family practice physician on the prevailing professional standard of care in diagnosing colon cancer.

Med Mal -- Limitations

Warren v. Shands Teaching Hospital
22 Fla. L. Wkly. D1959 (Fla. 1st DCA 1997)

Where a complaint and a presuit notice are simultaneously filed and served within the applicable statute of limitations, it is error to dismiss the complaint with prejudice. The plaintiff may subsequently file an amended complaint even after expiration of the statutory period asserting compliance with the presuit requirements. The filing of the amended complaint relates back to the date of filing of the original complaint. See HCA v. Lindberg, 571 So.2d 446 (Fla. 1990). This decision elevates substance over form and is consistent with the Supreme Court's decision in Kukral v. Mekras, 679 So.2d 278 (Fla. 1996) holding that the med mal statute should not be used as a technicality to keep legitimate claims out of court.

Offer of Judgment

MX Investments, Inc. v. Crawford
22 Fla. L. Wkly. S530 (Fla. 1997)

A defendant who has made an offer of judgment pursuant to 768.79 is not entitled to attorneys fees where the plaintiff takes a voluntary dismissal without prejudice.

Bailey v. Chamblee
22 Fla. L. Wkly. D1966 (Fla. 2d DCA 1997)

An offer of judgment was not invalid even though it was not verified and did not contain a certificate of service.

McMullen Oil Co. v. ISS International Service System, Inc.
22 Fla. L. Wkly. D1998 (Fla. 2d DCA 1997)

An offer of judgment which states that it is made pursuant to "all applicable Florida Statutes and the Florida Rules of Civil Procedure" is not sufficiently specific. Moreover the offer is impermissibly conditional where it was for $50,001 "plus interest, costs and attorney fees as the court may award." The purpose of the offer of judgment rule and statute is to bring an end to litigation; this offer would require further litigation of costs and fees. An offer which contains conditions not permitted by the statute and which will not allow immediate enforcement upon acceptance is invalid.

O'Brien v. Russell
22 Fla. L. Wkly. D2070 (Fla 3d DCA 1997)

The defendant made an offer of judgment twelve days before trial. The court held that the plaintiff could not accept the offer after the trial resulted in a defense verdict.

Premises Liability

Pivar v. Baptist Hospital of Miami, Inc.
22 Fla. L. Wkly D1973 (Fla. 3d DCA 1997)

In this action by a patient arising out of a slip and fall in a hospital, the court reverses summary judgment even though the patient could not identify what she slipped on on the bathroom floor, and the hospital offered no evidence about the condition of the floor at the time of the fall. A hospital must exercise toward the patient "such reasonable care as the patient's known condition may require, the degree of care being in proportion to his known physical and mental ailments."

Privilege -- Attorney - Client

The American Tobacco Co. v. State of Florida
22 Fla. L. Wkly. D1777 (Fla. 4th DCA 1997)

In the State's case against the tobacco companies, the court decides for the first time the procedure for demonstrating that attorney-client communications are not privileged because they come under the crime-fraud exception. Section 90.502(4)(a) provides that there is no lawyer-client privilege when "the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew was a crime or fraud.

The court holds that "the party seeking discovery must present evidence which, if believed by the fact-finder, would be sufficient to support a finding that the elements of the crime-fraud exception were met." In determining whether the exception applies, the court must conduct an adversarial proceeding where each party can present evidence and argument on whether the evidence presented, if believed by the fact finder, would be sufficient to support a finding that the elements of the crime-fraud exception were met.

After the party seeking discovery has made a prima facie showing that the exception applies, the party asserting the privilege should have the opportunity to give a reasonable explanation of the conduct or communication. If the court accepts the explanation as sufficient to rebut the evidence, the privilege remains. However, if after considering and weighing the explanation the court does not accept it, then a prima facie case exists as to the exception and the privilege is lost.

In weighing the evidence and rebuttal evidence in determining whether the evidence, if believed by the trier of fact, would support a finding of fraud, the court should use a preponderance of the evidence standard.

I find this case very confusing, and the standard very difficult to apply. Where such an important privilege is involved (even if it's being used by the "bad guys"), I think the standard should be clearer.


Nelson v. Wiggs
22 Fla. L. Wkly. D1914 (Fla. 3d DCA 1997)

Narrowly construing Johnson v Davis, 480 So.2d 625 (Fla. 1985), the court holds that a seller had no duty to disclose to a buyer that the property (in the East Everglades) was prone to seasonal flooding where the buyer was a contractor and visited the county building department and reviewed the original building permit and plans before the purchase. The special flood criteria applicable to the house were available at the building department.

The duty to disclose only applies where the seller knows of facts materially affecting the value of the property which are not readily observable and are not known to the buyer. The court discusses Gilchrist Timber Co. v. ITT Rayonier, Inc., 22 Fla. L. Wkly. S365 (Fla. 1997), and points out that it involved a negligent misrepresentation by the seller, and not just inaction by the seller as in Nelson. A buyer is required to investigate any information furnished by the seller that a reasonable person in the buyer's position would investigate. A buyer must take reasonable steps to ascertain the material facts relating to the property and to discover them if they are reasonably ascertainable. I doubt this is the last work on Gilchrist and comparative fault in negligent misrepresentation cases.


Savino v. Florida Drive In Theatre Mgmt., Inc.
22 Fla. L. Wkly. D1930 (Fla. 4th DCA 1997)

Following a growing line of decisions refusing to tolerate perjury and fraud on the court, the 4th district upholds the dismissal with prejudice of plaintiff's claim, where plaintiff lied about his educational history, produced a fake diploma, and lied to his treating doctor causing the doctor to incorrectly evaluate whether the plaintiff's average intelligence was the result of brain damage rather than his normal state. A party may lose his right to have the court adjudicate his claim by engaging in a scheme calculated to interfere with the court's ability to impartially adjudicate it. This principle applies equally to defendants. See Tramel v. Bass, 672 So.2d 78 (Fla. 1st DCA), rev. denied, 680 So.2d 426 (Fla. 1996); Figgie International v. Alderman, 22 Fla. L. Wkly. D1721 (Fla. 3d DCA 1997).

Service of Process

Warren v. Shands Teaching Hospital & Clinics 22 Fla. L. Wkly. D1959 (Fla. 1st DCA 1997)

It was error to dismiss a complaint under Rule 1.070(i) for failure to show good cause for failure to serve process within 120 days of filing where the trial court failed to consider the factors set out in Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1994) with regard to the issue of good cause. Kozel involved the failure to serve an amended complaint within the time required by the court. The Kozel factors include (1) whether the attorney was willful, deliberate or contumacious, rather than negligent or inexperienced; (2) whether the attorney had been previously sanctioned; (3) whether the client was personally involved in the misconduct; (4) whether the delay prejudiced the opposing party; (5) whether the attorney offered reasonable justification; and (6) whether the delay created significant problems of judicial administration. The Fourth District has refused to apply Kozel to cases involving Rule 1.070(i). Stahl v. Evans, 691 So.2d 1184 (Fla. 4th DCA 1997).

Fern, Ltd. v. Road Legends, Inc.
22 Fla. L. Wkly. D1979 (Fla. 4th DCA 1997)

Where the defendant moved to quash service of process and submitted a supporting affidavit which contained facts which, if true, would justify quashing the service, the defendant was entitled to an evidentiary hearing, not just submission of competing affidavits and arguments. See, e.g., Linville v. Home Savings of America, 629 So.2d 295 (Fla. 4th DCA 1993), for a discussion of the inadequacy of argument of counsel as a substitute for evidentiary hearing. But see Centennial Ins. Co. v. Fulton, 532 So.2d 1329 (Fla. 3d DCA 1988) (court may in some circumstances accept uncontradicted representations of officer of the court).

Bice v. Metz Constr. Co.
22 Fla. L. Wkly. D1988 (Fla. 4th DCA 1997)

If service is effected before the expiration of 120 days, even if it is invalid service, it is improper to dismiss pursuant to Fla. R. Civ. P. 1.070(i).

Settlements -- Confidentiality Agreements

Scott v. Nelson
22 Fla. L. Wkly. D2007 (Fla. 1st DCA 1997)

Many defendants are insisting on confidentiality agreements as part of settlements. They then try to use such agreements to conceal relevant evidence about negligent practices or defective products. The First District here holds such agreements to be contrary to public policy. The court refuses to enforce a confidentiality agreement made by the defendant with a plaintiff in another case.

The agreement in the prior case prohibited the plaintiff in that case or her attorneys from responding in any way to any inquiry with regard to the facts of her claim against the defendant. The court held that the plaintiff in the present case was entitled to take the deposition of the plaintiff in the prior case where the testimony was potentially relevant to the present case. The plaintiff was not seeking information about the terms of the settlement, but factual information which "may be relevant and admissible" in the present case.

Despite the trial court's discretion to oversee discovery matters, and despite the "strong public policy favoring settlement of disputed claims and policy which dictates that confidentiality agreements not be regarded lightly, we find that to prevent any discovery based upon a settlement agreement would result in a defendant being able to buy the silence of witnesses with a settlement agreement when the facts of one controversy may be relevant to another."

The court quotes Kalinauskas v. Wong, 151 F.R.D. 363, 365-66 (D. Nev. 1993): "[S]ettlement agreements which suppress evidence violate the greater public policy." The court does not mention the Florida Sunshine in Litigation Act, 69.081, Florida Statutes (Supp. 1990). Subsection (3) of that statute provides:

Except pursuant to this section, no court shall enter an order or judgment which has the purpose or effect of concealing a public hazard or any information concerning a public hazard, nor shall the court enter an order or judgment which has the purpose or effect of concealing any information which may be useful to members of the public in protecting themselves from injury which may result from the public hazard.

Under 69.081(4), any agreement which has the purpose of such concealment is contrary to public policy and unenforceable. See ACandS, Inc. v. Askew, 597 So. 2d 895 (Fla. 1st DCA 1992).

Scott v. Nelson
22 Fla. L. Wkly. D1818 (fla. 1st DCA 1997)

In a related decision apparently in the same case, the court holds that the plaintiffs were not entitled to the unsealing of the records in the prior case. The sealing was done pursuant to court order. The order was entitled to a presumption of correctness. The failure of the order to contain factual findings did not defeat that presumption since the findings are required only for appellate review. If the plaintiffs could not prove the order was incorrect, then they must prove that there is a substantial material change in circumstances so that under the law it is error to keep the records sealed, or demonstrate a compelling necessity for the records and the unavailability of other means for obtaining the information sought.

An open question that occurs to me is whether the plaintiffs, once they are able to depose the plaintiff in the earlier case, may come back and try again to prove that the order was incorrect.

Sovereign Immunity

Brown v. State Dept. of Corrections
22 Fla. L. Wkly. D1820 (Fla. 1st DCA 1997)

It was an abuse of discretion to dismiss the plaintiff's claim against the state without leave to amend where there was a possibility that the State had waived the notice requirement of 768.28(6)(a) of the sovereign immunity statute. Waiver occurs when there is "an investigation followed by action in relation to the claimant that would lead a reasonable person to conclude that further notice is unnecessary or causes such person to act or fail to act to his injury." The allegations must be specific.

Don't rely on this case. Serve your notice on the government entity and on the Department of Insurance within the time required by the statute.

Bowden v. Henderson
22 Fla. L. Wkly. D2102 (Fla. 2d DCA 1997)

A chink in the armor of sovereign immunity arises out of the unusual facts of this case. The court held that a wrongful death action could be asserted on behalf of the survivors of a passenger who was killed by the negligence of the drunk driver of the car in which he was a passenger. The deceased was also drunk; the police had stopped them and arrested the original driver, then allowed a drunk passenger to take over the driving and proceed on. If the police knew or should have known that the driver and passengers were drunk but allowed them to drive away, a special relationship could have arisen, creating a duty of care.

Summary Judgment

DiPaolo v. Rollins Leasing Corp.
22 Fla. L. Wkly. D2048 (Fla. 5th DCA 1997)

Watch out for this procedural trap!!! Before the hearing on the defendant's motion for summary judgment, the plaintiff filed a motion for leave to amend the complaint. The trial court granted summary judgment but at the same time specifically reserved ruling on the motion for leave to amend. Several months later, the court held a hearing and denied the motion for leave to amend. The plaintiff appealed. This court dismissed the appeal because once the summary judgment was entered and the time for filing a motion for rehearing and appeal period had run, the trial court had no further jurisdiction. A pending motion to amend does not extend the trial court's jurisdiction after entry of final judgment. Judge Sharp, dissenting, argues that this is a "jurisdictional trap into which the appellant has fallen" and that "it should always be our goal to give every person coming before the court their 'day in court.'" Because the trial court expressly reserved ruling on the motion to amend at the time of the entry of the summary judgment, the dissent argues that the summary judgment was not final.

Daeda v. Blue Cross & Blue Shield of Florida, Inc.
22 Fla. L. Wkly. D2061 (Fla. 2d DCA 1997)

The trial court improperly considered unauthenticated documents attached to the defendant's memorandum in support of its motion for summary judgment. Therefore, the order granting summary judgment had to be reversed.

Voir Dire

Goutis v. Express Transp. Inc.
22 Fla. L. Wkly. D2081 (Fla. 4th DCA 1997)

It was not an improper "golden rule" argument to ask a prospective juror what she would do if her husband were injured and disabled like the plaintiff. "The question did not ask the juror to identify with [the plaintiff's] personal circumstances. It asked what the juror's own personal circumstances were, which is the very reason for voir dire -- to know whether something in the juror's personal experience is relevant to the issues to be tried in the case." The court also holds that other arguments that were made were either proper, or were not grounds for new trial because no objection was made.

Workers Comp Immunity

Sotomayor v. Huntington Broward Associates, L.P.
22 Fla. L. Wkly. D1940 (Fla. 4th DCA 1997)

A premises owner was not entitled to workers comp immunity for injuries to a security guard employed by an independent contractor, where the owner was neither a contractor nor a statutory employer liable for securing workers compensation benefits to the security guard. The defendant in this case was under no contractual duty to provide its tenants with a security guard. Assuming a common law duty, the court holds that discharging a duty imposed by common law alone is insufficient to entitle the defendant to immunity.

Florida Insurance Guaranty Assoc. v. Revoredo
22 Fla. L. Wkly. D2023 (Fla. 3d DCA 1997)

Giving a technical construction to 440.10 rather than interpreting it consistently with the legislative intent and the right of access to courts, the court holds that the plaintiff's decedent, an employee of the subcontractor, was a statutory employee of the contractor, and that the exclusive remedy for his wrongful death was the workers compensation statute, even though neither the subcontractor nor the defendant contractor had secured payment of workers compensation benefits for the employee. The statute states that "if both subcontractor and contractor fail to secure coverage then the contractor has an employer's liability to the subcontractor's injured employee for purposes of an action for statutory benefits or damages at law or in admiralty."

I believe that denying a common law cause of action where no workers comp benefits are secured is a denial of the right of access to courts under Article I, 21 of the Florida Constitution. The provision of workers compensation benefits is the quid pro quo for the statutory immunity enjoyed (and often exploited) by employers. A statute that takes away the right of access to courts is only constitutional if it provides an adequate alternative remedy. E.g., Kluger v. White, 281 So.2d 1 (Fla. 1973). As Judge Shevin points out in his concurring opinion here, the statute as construed in this case leaves the plaintiff with no remedy.

Wrongful Death -- Damages

Diaz v. CCHC-Golden Glades Ltd.
22 Fla. L. Wkly. D1763 (Fla. 3d DCA 1997)

Sometimes compromises make bad law. In Vildibil v. Johnson, 492 So.2d 1047 (Fla. 1986), the Florida Supreme Court interpreted the Florida Wrongful Death Act to preclude recovery of pain and suffering by the parents of an adult child. The legislature reacted by amending 768.21 to allow such recovery by both the parents of an adult child and the adult child of a parent, if there is no surviving spouse or minor children. However, in order to obtain passage over the objections of the medical lobby, the statute excluded medical malpractice wrongful death claims from such recovery. Thus, if and adult child is killed by medical negligence, there is still no recovery by the child's parents.

In this case, the Third District (Judge Schwartz, joined by Judge Cope and Judge Levy), has gone out of its way to note the unfairness of this exclusion. Reluctantly upholding the denial of recovery in this case, and calling the results "unfortunate", the court states in a footnote, "Because there is no contention that section 768.21(8) is itself invalid ... we note, but do not pass upon that possibility."

It is extremely rare for a court to go out of its way to comment on the possibility that a statute it is construing is unconstitutional where that issue has not been raised by the parties. The court seems to be inviting a challenge.