Case Law

La Cava & Jacobson, P.A.

Florida Law Weekly – March 15, 2019

Bellezza v. Menendez – 4th DCA
In this case, the 4th District Court of Appeal remanded a matter for new trial, finding that the attorney/client privilege prohibited the disclosure of the relationship between a plaintiff’s attorney and the plaintiff’s treating physician. In remanding the matter for new trial, the Court applied the Florida Supreme Court’s decision in Worley v. Central Florida Young Men’s Christian Ass’n, 228, So.3d 19 (Fla. 2017), which held that a lawyer’s payments to a plaintiff’s treating physician was not discoverable, and further recognized that the attorney/client privilege protects whether the plaintiff’s lawyer referred the plaintiff to a particular physician.

La Cava & Jacobson, P.A.

Florida Law Weekly – March 8, 2019

Kempton v. McComb. – 5th DCA
This case addresses Florida Statute §768.36, which creates an alcohol or drug defense. This defense completely bars a plaintiff’s recovery if, at the time the plaintiff was injured, the plaintiff was under the influence of alcohol or drugs such that his/her normal faculties are impaired and if, as a result of the influence, the plaintiff is greater than 50% at fault for his/her own harm. In this case, while the jury found that the plaintiff was more than 50% at fault and that his blood alcohol was above the legal limit, because the jury did not find that the plaintiff’s fault was due to the intoxication, the defense was not applicable.

La Cava & Jacobson, P.A.

Florida Law Weekly – March 1, 2019

Breger v. Robshaw Custom Homes, Inc. – 5th DCA
The Fifth District reversed a Trial Court Order enforcing a settlement and dismissing the complaint with prejudice.  Plaintiffs owned certain real property as joint tenants with the right of survivorship.  The Defendant entered into a contract with the Appellants to improve the property.  After completion, the Plaintiffs were not satisfied with the quality of the work, filing a lawsuit for breach of contract and negligence.   Plaintiffs each filed individual proposals for settlement, with the Defendants accepting one of them.  The Defendant believed that acceptance of one would end the lawsuit.  The Trial Court agreed, stating that the claims were “undifferentiated” and that settlement as to one Plaintiff was binding as to all.  The Fifth District disagreed, noting that acceptance must be a mirror image of the offer.   The Fifth District noted that the acceptance was not (as it included the other Plaintiffs) and further found that one Plaintiff could not bind the others to a settlement.

Younkin v. Blackwelder – 5th DCA 2019
In this case, the Fifth District held that a plaintiff was entitled to know the total number of times a defense firm has retained an expert to perform a Compulsory Medical Examination as well as the amounts paid to that physician.  The Court based this decision on Allstate Ins. Co. v. Boecher, where the Florida Supreme Court held that similar information with respect to an insurer’s relationship with an expert was discoverable.  The Fifth District also certified conflict with the Florida Supreme Court’s decision in Worley v. Central Florida YMCA, which held that the attorney-client privilege prohibited a defendant from obtaining discovery from a Plaintiff’s law firm regarding the number of times it referred clients to a particular physician.  As the Younkin Court noted, a plaintiff’s firm can refer all of its clients to the same physician and this information is not discoverable, yet the same protections are not afforded to Defendants.

La Cava & Jacobson, P.A.

Florida Law Weekly – February 8, 2019

Business Telecommunications Services, Inc. v. Madrigal, 3rd DCA
In this case, the Court denied the defendant certiorari relief from the Trial Court’s Order requiring the production of a surveillance video prior to the plaintiff’s deposition in a personal injury case.  In doing so, the Court noted the difference between surveillance conducted after the incident (to be used for impeachment purposes) and video taken at or near the time of the incident.

Cat Cay Yacht Club, Inc., v. Diaz, 3rd DCA
The Third District granted certiorari relief and quashed an Order granting the plaintiff’s motion for leave to file an amended complaint and assert punitive damages.  In doing so, the Court held that the Trial Court was required to make specific findings setting forth what evidence it considered sufficient to provide a reasonable basis for granting the amendment.  In doing so, the Court expressed that a Trial Court was required to “do more than just accept the allegations as true.”  Additionally, the Court noted that the Trial Court did not consider the fact that the issues raised may have been legally insufficient to permit punitive damages.

La Cava & Jacobson, P.A.

Florida Law Weekly – February 1, 2019

Davis v. Karr, 5th DCA

In this case, the Court addressed the issue of whether, under Florida’s Medical Malpractice Act, a presuit affidavit submitted by a plaintiff from a health care provider who does not specialize in the same field as the defendant nevertheless meets the statutory presuit investigatory requirements for filing a medical negligence suit.  In the case reviewed, the defendant was an orthopaedic surgeon.  The presuit expert affidavits provided by the plaintiff were executed by an emergency room physician, a radiologist and a nurse.  Defendant sought dismissal asserting that the three affidavits were insufficient to meet the statutory presuit requirements of Section 766.102(5)(a)1., Florida Statutes (2013), because none of the affidavits was from an expert witness specializing in his field of orthopaedic surgery.  The 5th DCA affirmed the dismissal, holding that the plain language of the statue required the presuit affidavit to be executed by a physician within the same specialty as the defendant.

Henry v. State, 4th DCA

In this case, the Court affirmed the Trial Court’s ruling that a photograph of a contact information screen on a cell phone was not inadmissible hearsay.  The Court explained that if the photograph was used to prove the defendant’s telephone number, it would be considered inadmissible hearsay.  However, the contact information screen addressed at trial was similar to an entry in an address book, which Courts have generally held to be non-hearsay when used for the limited purpose of proving association between the maker of the address book and another.

Middleton v. Don Asher & Assoc, 5th DCA

In this premises liability case, the 5th DCA reversed the Trial Court’s order granting summary judgment.  Plaintiff owned property where the incident occurred and had resided there for fifteen years. While walking on the defendant’s premises, plaintiff tripped on an uneven sidewalk and was injured. The opinion notes that the plaintiff had previously walked the property on several occasions and frequently passed the area where she fell. She then brought a negligence action against Appellees.  The Trial Court granted the motion for summary judgment, which argued that the condition of the sidewalk was open and obvious.   In response, plaintiff argued that even if the condition was open and obvious, an issue of fact remained as to whether the defendant should have anticipated that condominium residents would use the sidewalk and encounter the cracked and uneven concrete, requiring it to be inspected and repaired.   While the 5th DCA agreed that an uneven sidewalk was an open and obvious condition as a matter of law, because the issue of the defendant’s duty to maintain and repair existed, summary judgment was not appropriate.