La Cava & Jacobson, P.A.

Florida Law Weekly – June 29, 2018

Bechtel Corporation v. Batchelor – (3rd DCA)

In this premises liability action, the Bechtel Corporation Court held that the Trial Court erred in denying the defendant’s motion for directed verdict where there was insufficient evidence that the defendant exercised possession and control of the premises required to satisfy a premises liability claim. The Bechtel Corporation Court agreed that where more than one person is under a duty to maintain the premises, liability is predicated upon the person who has control of egress and ingress and not ownership of the property. Given that no witnesses testified that the defendant had controlled the property, the Trial Court should have granted a directed verdict.

La Cava & Jacobson, P.A.

Florida Law Weekly – June 22, 2018

Wallace v. Keldie – (1st DCA)

The Court held that the Trial Court did not abuse its discretion by dismissing a personal injury suit for fraud upon the court where the plaintiff fraudulently concealed his history of chronic low back pain by falsely testifying about his medical history during deposition. According to medical records, seven months prior to the accident at issue, the plaintiff slipped and fell off a stepladder resulting in pain radiating into his left leg. Additionally, a medical records from an emergency room visit 9 days after the accident at issue reflected that the plaintiff stated that his back pain began a long time ago and it was made worse by the first accident. The court did not accept the plaintiff’s explanation that a poor memory caused his memory loss or that his testimony was influenced by heavy drinking or medications.

La Cava & Jacobson, P.A.

Florida Law Weekly – June 1, 2018

City of Coral Gables v. Blanco – (3rd DCA)

In this case, the Court held that it did not have jurisdiction to review a non-final Order where the Trial Court found that the City, as a matter of law, was not entitled to sovereign immunity at the Motion to Dismiss stage.  The Trial Court found that the City failed to establish that sovereign immunity was self-evident under the facts as pled.  This case reinforces the standing rule of the Courts of Appeal that at the Motion to Dismiss stage, sovereign immunity is not an appealable issue unless the Trial Court holds, as a matter of law, that the party is not entitled to sovereign immunity.

La Cava & Jacobson, P.A.

Florida Law Weekly – May 25, 2018

Rodriguez v. Nicolitz, M.D.  – (1st DCA)

In this medical malpractice case, the Rodriguez Court held that the Trial Court properly dismissed an action against an ophthalmologist upon finding that the Affidavit of the Plaintiff’s expert, an infectious disease specialist, was inadequate to satisfy pre-suit notice requirements. The Rodriguez Court specifically found that the expert did not practice in the same specialty as the Defendant.

La Cava & Jacobson, P.A.

Florida Law Weekly – May 18, 2018

Rodriguez v. City of South Miami –  (3rd DCA)

In this case, utilizing its Certiorari jurisdiction, the Rodriguez Court, reversed a Trial Court Order compelling the Plaintiff to sign a document authorizing the release of his mental health records to the Defendant.  The Rodriguez Court held that the records were protected by the psychotherapist-patient privilege and the City failed to show that the Plaintiff placed his mental health status at issue.  In its opinion, the Rodriguez Court looked to Florida Statute § 90.503(2) which establishes the privilege.  The City’s argument with respect to entitlement was that the Plaintiff had filed a Motion to Dissolve a Temporary Restraining Order and in paperwork the Plaintiff noted that he was stable and taking his medication.  The Rodriguez Court found that this statement alone did not permit the waiver of the privilege.

Domino’s Pizza v. Wiederhold – (5th DCA)

In this wrongful death case, the Court held that a statutory survivor and specifically, a surviving spouse, in order to be qualified to bring the suit and to receive benefits pursuant to Florida law, needed to be married to the decedent at the time of his death and not at the time of the injury.

La Cava & Jacobson, P.A.

Florida Law Weekly – May 11, 2018

Lamb v. State – (4th DCA)

In this case, the Lamb Court addressed whether a Facebook live video was admissible in the criminal context as evidence of guilt.  The Court went through a detailed analysis with respect to how the video was obtained by the police, as well as presented at trial.  Specifically, the State introduced the testimony of a police digital forensic examiner to authenticate the video.  As part of this process, the witness authenticated the video by its distinctive characteristics.

The Lamb Court held that the Trial Court properly authenticated and allowed the video to be presented to the jury.  The Lamb Court recognized that authentication is a very low threshold which was met by the witness visiting the Facebook page and downloading the live video.

La Cava & Jacobson, P.A.

Florida Law Weekly September 30, 2016

Saterbo v. Markuson (Fla. 2d DCA):  In this automobile accident case, the Court addressed the enforceability of  a joint proposal for settlement.  The plaintiff filed a lawsuit against the driver of the car for direct negligence and the owner of the vehicle, which is a vicarious liability claim.   The proposal for settlement did not apportion the amount due to each defendant.  The Trial Court denied the plaintiff’s request for attorneys’ fees pursuant to the proposal for settlement, finding that the failure to apportion violated Florida Rule of Civil Procedure 1.442.  The Trial Court also found that the proposal was ambiguous because it failed to account for the fact that there was a statutory liability cap of damages applicable to the vehicle owner, thus making it impossible to decide whether or not to accept it.


The Second District Court of Appeal reversed, citing to Florida Rule of Civil Procedure 1.442(c)(4) which provides that, ““when a party is alleged to be solely vicariously … liable, whether by operation of law or by contract, a joint proposal made by or served on such a party need not state the apportionment or contribution as to that party.”   The defendants  argued that because the owner could be held liable for amounts above the statutory cap, the owner’s liability was not solely vicarious and therefore, Rule 1.442(c)(4) did not apply.  The Second District disagreed, stating, “The focus of the exception contained in rule 1.442(c)(4) is not whether a party is liable for the full amount of damages, but rather, it is whether the claims against the party are direct claims or solely claims of vicarious or other forms of indirect liability.”     The Second District also disagreed that the proposal was ambiguous because of the cap, relying on the finding of the Florida Supreme Court in State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So.2d 1067, 1079 (Fla.2006), where it recognized that with proposals for settlement, “it may not be possible to eliminate all ambiguity and, therefore, that the rule ‘merely requires that the settlement proposal be sufficiently clear and definite to allow the offeree to make an informed decision without needing clarification.’”

La Cava & Jacobson, P.A.

Florida Law Weekly March 15, 2015

Millard Mall Services Inc. vs. Bolda (4th DCA)

In this case, the Court addressed the issue of whether incident reports and other documents prepared following a slip and fall incident were subject to discovery. The plaintiff argued that she could overcome the work product privilege asserted by the defendant. Specifically, the plaintiff sought all records and incident reports regarding her incident as well as any other substantially similar acts or occurrences on the defendant’s property within the past three years, any and all documents concerning maintenance or cleaning of the subject premises at the time of the incident and documentation regarding maintenance of the premises by outside companies. In objecting on the basis of work product, the defendant submitted affidavits stating that the documents (which included quarterly safety committee reports) were not discoverable because they included photographs, notes of discussions surrounding the incidents and mental impressions. The trial court ordered the production of documents. The Fourth District Court of Appeal quashed that Order.

Conducting an analysis with respect to when work product materials may be produced, the Court noted that Florida Rules of Civil Procedure 1.280(b)(4) provides that any party may obtain work product materials prepared in anticipation of litigation only upon a showing that the party seeking the discovery has the need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the material by other means. The Court noted that pursuant to the Florida Rules of Civil Procedure, the party seeking the discovery must show that documentation sought contains relevant information. Only when the showing can be made will the Court order the documents to be turned over. The rationale behind the work product doctrine was noted to be that one party should not be entitled to prepare his case with the investigative work product of his adversary where the same or similar information is available through ordinary discovery procedures. Additionally, the Court noted that work product protections extend to information gathered in anticipation of litigation by corporate non-attorney employees. Importantly, the Court noted that even where a report is routinely prepared it may still qualify as work product. Ultimately, the Court found that because the plaintiff had been permitted to use the ordinary tools of discovery to obtain the information she needed, she was not entitled to the defendant’s documents.

La Cava & Jacobson, P.A.

Florida Law Weekly March 1, 2015

Harold vs Sanders (2d DCA): In this case, the Court addressed the issue of the timeliness of a request for a trial de novo following nonbinding arbitration. Factually, the Court noted that the arbitration was completed and thereafter, the Final Judgment was mailed to the parties in conformance with the arbitrators decisions. The Final Judgment noted that no party filed a request for trial de novo within 20 days of service of the arbitration decision. On the day the Trial Court entered its Final Judgment, an objection the arbitration decisions was filed and the demand for trial de novo was made. The Second District found that Florida Rule of Civil Procedure 1.090(e), extends the time for a party to request a trial de novo by five days when a Court Order regarding a nonbinding arbitration decision is served by mail. Because of the service by U.S. Mail, the plaintiff was permitted to a trial de novo as the request was made within the additional five days.

Russell Post Properties Inc. vs Leaders Bank (3d DCA): In this case, the trial court denied a request for attorneys’ fees pursuant to a rejected proposal for settlement which noted that if accepted, the plaintiff shall dismiss with prejudice any and all claims it may have against the defendant and shall execute a general release in favor of the defendant. Notably, the release was not attached to the proposal. Following trial, the plaintiff received an award that was much less than the amount offered in the proposal for settlement, prompting the defendant to seek attorneys’ fees and costs. As no release was attached to the proposal, the Trial Court found that an ambiguity existed regarding the proposal.

The Appellate Court held otherwise. It noted that pursuant to the Florida Supreme Court’s opinion in State Farm Mutual Auto Insurance Company vs Nichols, 932 So.2d 067 (Fla. 2006), the Florida Rules of Civil Procedure did not require that a release of all claims be attached to a proposal for settlement if the terms of the proposal itself provided a summary of the terms of the release. To satisfy this requirement, the proposed release must eliminate any reasonable ambiguity regarding its scope. In the case before it, the Appellate Court found that the proposal for settlement satisfied these requirements.

La Cava & Jacobson, P.A.

Florida Law Weekly – January 23, 2015

Schwartz v. Wal-Mart, (5th DCA) – In this case, the Court of Appeal reversed the Trial Court’s Order granting a Motion for a New Trial on damages in a case involving an incident were the Plaintiff was struck in the back by an ornamental pumpkin while shopping at Wal-Mart. As a result of the incident, she sustained injuries and sought immediate medical attention. While Wal-Mart admitted that the incident occurred, it contested that the incident cause the injuries. In support of this defense, Wal-Mart presented the testimony of a Biomedical Engineer who opined that the degree of force exerted when the pumpkin struck the Plaintiff was well below the injury producing threshold.

After the jury returned a verdict of no damages, the Plaintiff filed a motion for a new trial, citing the general rule that in instances where a jury finds that a Plaintiff was not injured, the Plaintiff is still entitled to recover any expenses for medical examinations and diagnostic testing that was reasonably necessary to determine whether the incident caused her injuries. The Court agreed with this general principal, but noted that one exception occurred where the jury was presented with conflicting medical opinions with respect to causation. In light of the fact that Wal-Mart presented expert testimony that conflicted with the Plaintiff’s case on this issue, the Appellate Court found that the jury was entitled to award zero damages, and that the Plaintiff was not entitled to a new trial.