Case Law

La Cava & Jacobson, P.A.

Florida Law Weekly – October 4, 2013

Zebhyr Haven, Health and Rehab Center v. Hardin (2d DCA): In this case, the Second District Court of Appeal held that the trial court erred in denying a nursing home’s motion to compel arbitration on the grounds that the arbitration agreement, which required the Plaintiff to pay 40% of the costs of arbitration, was substantively unconscionable and impossible to perform. The trial court agreed that it was impossible for the Plaintiff to pay this amount in arbitration and accordingly, denied the motion to compel arbitration. The Second District Court of Appeal reversed, holding that this argument could not support the trial court’s decision because the risk associated with agreeing to the arbitration provision (that being the payment of arbitration costs) was foreseeable when the agreement was made. The Second District Court of Appeal noted that this is true even where the performance becomes impossible after execution of the agreement. The Second District Court of Appeal further noted that the Plaintiff failed to establish how performance of the contract was impossible. Finally, the Second District Court of Appeal held that because the Plaintiff failed to present evidence of procedural unconscionability (which is also required to establish that an arbitration agreement should not be enforced), the trial court was bound to enforce the arbitration provision.

Notably, it does not appear that the Plaintiff made any argument that the arbitration agreement was void as against public policy as argued in Franks v. Bowers, 116 So.3d 1240 (Fla. 2014), providing further support in opposition to the argument that the Franks Court declared all private medical malpractice arbitration agreements void as against public policy.

La Cava & Jacobson, P.A.

Florida Law Weekly August 9, 2013

Publix Supermarkets Inc. v. Marisol Santos, (3d DCA): In this slip and fall case, Publix filed a Petition for Writ of Certiorari to quash the Trial Court’s discovery order that instructed Publix to provide the plaintiff with all incident reports and information relative to any similar occurrences in Publix stores throughout the State of Florida. The Appellate Court granted the Petition and quashed the Order, finding that the discovery request provided the plaintiff with carte blanche access to irrelevant discovery. The case involved an incident where the plaintiff allegedly slipped on “old wet spinach or some other transitory substance.” The plaintiff sought discovery of all slip and fall incidents at the specific store where she fell for all dates three years prior to her accident. After being advised by Publix that no other similar incidents occurred at that store, she sought to depose a Publix representative and requested information regarding all incidents relative to any similar incidents over the same time frame at any Publix store in the State of Florida. Publix moved for a protective order, contending that pursuant to the standards set forth in Fla. Stat. 768.0755, it did not have to produce all of this information because it was not necessary for the plaintiff’s case. The Trial Court disagreed.

The Appellate Court quashed the Trial Court’s Order. In doing so, it concluded that pursuant to Fla. Stat. 768.0755, (which requires the Plaintiff to prove actual and/or constructive notice of the dangerous condition), the information sought by the plaintiff was not required to establish her case. The Appellate Court specifically stated that the Florida legislature, in enacting Fla. Stat. 760.0755, required plaintiffs to establish notice with respect to the “business establishment” where the incident occurred.

La Cava & Jacobson, P.A.

From the July 12, 2013 edition of Florida Law Weekly

FI-Evergreen Woods LLC v. The Estate of Virginia Vrastil (5th DCA): This is a wrongful death case where the decedent was admitted to a nursing home. At the time of admission, paperwork was signed, including an arbitration agreement. Following the decedent’s death, the personal representative of the Estate sued the nursing home for breach of fiduciary duty and violations of Fla. Stat. 415.1111. The defendant nursing home moved to stay the proceedings to compel arbitration. The Trial Court, without conducting a hearing and without determining whether the arbitration agreement had been entered into, denied the motion to compel arbitration, ruling that the arbitration agreement proffered by the defendant limited the statutory remedies available to an injured nursing home resident and as result was void as against public policy. The initial argument on appeal was that the Trial Court erred in not conducting an evidentiary hearing as required by Florida Statute 682.03 (1). The Appellate Court agreed and remanded the matter back to the Trial Court.

The Court of Appeal then addressed the plaintiff’s argument with respect to the arbitration agreement being void as against public policy. The Court of Appeal found that the provisions of the arbitration clause did not violate public policy. The Court of Appeal went into great detail in distinguishing the arbitration agreement before it versus the agreement presented to Florida Supreme Court in Shotts v. OP Winterhaven, Inc., 86 So. 3d 456 (Fla. 2011), which was found to be void. Specifically, the Court of Appeal found that the arbitration agreement before it did not limit any of the plaintiff’s statutory remedies. Because of this, the Court of Appeal found that none of the grounds relied upon by the Trial Court sporting its finding that the proffered arbitration agreement was void as against public policy. The Court of Appeal further found that the other arguments brought by the plaintiff, mainly the limitations on discovery and the costs associated with arbitration, did not render the agreement void as against public policy.

La Cava & Jacobson, P.A.

June 28, 2013 edition of Florida Law Weekly

Rodriguez v. Miami-Dade County, Florida (Florida Supreme Court) The Florida Supreme Court held that the District Court of Appeal erred in finding that it had certiorari jurisdiction to review an order denying the County’s motion for summary judgment on the basis of sovereign immunity. In this case, the Plaintiff filed suit against Miami-Dade County alleging that he was negligently shot by a police officer responding to a burglar alarm at his place of business. The Third District Court of Appeal found that it could review the denial of the motion for summary judgment via a petition for writ of certiorari and at the conclusion of argument, found that the County was entitled to sovereign immunity as matter of law. The Florida Supreme Court disagreed, finding that Miami-Dade County could not show irreparable harm, one of the elements required for certiorari jurisdiction. The Florida Supreme Court explained that there are very few categories of non-final orders, such as those denying summary judgment, that will satisfy the elements required for certiorari jurisdiction.

The Florida Supreme Court reiterated its position that the continuation of litigation and ensuing costs is not enough to show irreparable harm. Based on this holding, if a motion for summary judgment on this issue is denied, the argument that needs to be made for review is that there can legally be no case brought against the individual seeking immunity based on statutory law, not the facts as applied to the law itself.

Kelly v. Bank United (4th DCA). In this case, the Court held that the trial court erred in refusing to rehear a motion for summary judgment. The Defendant bank filed a motion for summary judgment and scheduled the hearing. On the day of the hearing, Plaintiff’s attorney was unable to attend due to a secretarial scheduling error (which was evidenced by affidavit.) The Defendant’s attorney immediately requested a rehearing based on excusable neglect which was denied. The opinion cites to another case where the Fourth District Court of Appeal held that an attorney’s failure to appear due to secretarial error constituted excusable neglect. JJ K International Inc. v. Shibbaran, 95 So. 2d 66 (Florida 4th DCA 2008).

R.J. Reynolds tobacco Company and Lorillard Tobacco Company v. Sury (1st DCA). The Court holds that where a party pleads a cause of action for negligence as well as cause of action for intentional tort, where a jury finds for the Plaintiff on both theories, there is no reduction of damages for comparative fault pursuant to 768.81. In this case, it appears that the Court relied upon the parties agreement to the verdict form as well as the consistent position by the Plaintiff that there would be a set-off for findings other than those regarding intentional torts. In light of the fact that the intentional tort was pled, argued, and proved to the jury, the Court held that set off for comparative fault was inapplicable.

Maggolc v. Robertson (3d DCA): The Court held that with respect to awards of past lost earnings and future lost earning capacity, the Plaintiff was not required to submit any corroborative evidence in support of the award, such as income tax returns. The Court noted that there is no requirement that a claim for lost past earnings must be supported by documentary evidence. In this case, the Court held that a Plaintiff’s unsupported testimony was all that a jury was required to consider in awarding damages for past and future lost earnings.

State Farm v. Joerg (2d DCA): In this case, the Trial Court ruled that evidence of past medical expenses must reflect the lower Medicare reimbursement amounts because of the Plaintiff’s participation in the program due to his disability. However, the Trial Court did not allow State Farm to introduce evidence of future medical expenses as reduced under the Medicare program. State Farm appealed this ruling and the Second District Court of Appeal agreed, reversing the award. As this was an issue of first impression, the Court relied on the Florida Supreme Court ruling in Florida Physicians Insurance Reciprocal v. Stanley, 452 So.2d 514 (Florida 1984), which held that evidence of free or low-cost services from governmental or charitable agencies available to anyone with disabilities is admissible on the issue of future damages. The Court held that Stanley survived the 1986 Tort Reform and Insurance Act with respect to this issue. The case also discusses other cases where reductions are not permitted.

Terry Tsafatinos and Sigma TAF Management Inc. v. Family Dollar Store of America (2d DCA): In this case, Mr. Tsafatinos (property owner) leased his premises to Family Dollar. An employee of Family Dollar slipped and fell on an uneven concrete floor and following that injury, Family Dollar provided worker’s compensation benefits to him. The employee filed a Complaint against the property owner and its property manager. In response, the property owner filed a third-party complaint against Family Dollar for common law indemnity. One of the elements of common law indemnity is that the party seeking indemnity be vicariously liable for the party it is seeking indemnity from. The trial court entered an order dismissing the claim for vicarious liability.

The Second District Court of Appeal upheld the trial court’s order, stating that the property owner could not be vicariously liable for the negligence of Family Dollar. The DCA stated that a landlord and/or property owner is not liable for injuries to third persons that result from dangerous conditions on the property because liability is not predicated on the ownership of the property, but rather on the failure of the possessor of the property to use due care in maintaining it. Thus, if a property owner/lessor completely surrenders possession and control of a premises to tenant/lessee, the property owner/lessor will not be liable for injuries to third persons who occupy the property. In light of this, because the property owner could not be vicariously liable, the cause of action could not stand.

La Cava & Jacobson, P.A.

From June 14, 2013 edition of Florida Law Weekly

Sterling Financial and Management, Inc. v. Meriusz Gitenis (4th DCA): Property manager not liable for injuries to an independent contractor working on the property. In Florida, the general legal proposition is that a property owner is not liable for injuries to an independent contractor working on the property because the independent contractor is aware of the hazards on the property associated with his work. This case extends the protections afforded to owners to property managers working on behalf of the owner.

Allstate Insurance Company v. Marotta (4th DCA): New trial ordered based on improper argument by Plaintiff’s counsel that Defendant Insurance Company denied accepting responsibility and improper examination of Defendant’s expert by Plaintiff’s counsel. At trial, defense counsel objected to Plaintiff’s counsel’s argument that Allstate denied the claim despite the undisputed medical evidence in the case. Plaintiff’s counsel, again over objection, also argued that Allstate’s experts were “paid opinion Courtroom doctors”. The 4th DCA held that these arguments, taken cumulatively, warranted a new trial.

Lenore Carvajal and State Farm v. Pentland (2d DCA): Trial Court erred in failing to grant a motion for new trial when the Plaintiff testified regarding the carrier’s failure to take responsibility for the claim. Before trial, the insurer filed a motion seeking to preclude all evidence or argument pertaining to any failure of the insurance company to comply with its insurance policy obligations because the claim at trial was for negligence stemming from an auto accident, and not a claim for breach of contract. The Trial Court agreed, and in violation of the motion, the Plaintiff testified that the insurance company failed to pay her bills or take responsibility for providing coverage. The comments were immediately objected to, and the Trial Court told the jury to disregard the comment. Then, during closing argument, Plaintiff’s counsel referred to the testimony. The Trial Court denied all motions for mistrial based on the comments by the Plaintiff and her attorney. The Second District Court of Appeal disagreed and ordered a new trial, holding that the statements and arguments shifted the case from one for auto negligence to one for bad faith and improper claims handling, neither of which were issues as trial.