La Cava & Jacobson, P.A.

Florida Law Weekly – January 16, 2015

Hankerson vs. Wiley, (4th DCA) – In this case, the Hankerson Court held that the Trial Court was committed error when it allowed the Plaintiff to view a post-accident surveillance video of an auto accident before her deposition. The Hankerson Court relied on the Florida Supreme Court’ decision in Dodson v. Persell, 390 So.2d 704 (Fla. 1980), for the proposition that fairness requires that a defendant be permitted to depose a plaintiff before turning over a surveillance video. In rendering its opinion, the Hankerson Court created a bright line rule to be imposed uniformly in these situations. Specifically, the defendant possesses a surveillance video in a personal injury case, the defendant will be entitled to depose the plaintiff prior to producing the video.

Hall v. West And Shephard’s Beach Resort, (2d DCA) – In this case, the Hall Court was asked to review the Trial Court’s ruling that the Resort owed no duty of care to the Plaintiff in an automobile negligence claim. The Plaintiff suffered injuries when he was struck by a car driven by Mr. West, who had visited the Resort prior to the accident and drank alcoholic beverages. The Resort’s security personnel asked Mr. West to leave the premises and two hours later, his vehicle collided with the Plaintiff’s vehicle.

Mr. Hall attempted to hold the Resort liable for allowing a drunk patron to leave the premises. Based upon the Florida statute 768.125 (2008), the Trial Court found no duty was owed by the Resort. That statute provides that a resort can be liable if it furnishes alcohol to a person who is not of lawful drinking age or knowingly serves a person habitually addictive to the use of alcohol and beverages. As the record did not demonstrate that Mr. West was an underage drinker or habitually addicted to alcohol, the Trial Court found that no duty existed. The Hall Court rejected the Plaintiff’s argument that the Resort was negligent in allowing Mr. West to drive way while intoxicated. Recognizing that the Florida Legislature has set the boundaries of when an establishment owes a duty to the general public when a party is intoxicated, the Hall Court found that the Trial Court properly dismissed the claim.

Nucci v. Target Corp., (4th DCA)- In this premises liability case, the Nucci Court held that the Trial Court did not commit error in compelling the Plaintiff to provide photographs she posted on Facebook. Prior to conducting the Plaintiff’s deposition, Defense counsel viewed her Facebook profile and saw that it contained over 1,000 photographs. After the deposition, Defense counsel noted that some of those photographs had been deleted. Defendant moved to compel inspection of the Plaintiff’s Facebook profile, arguing that because the Plaintiff put her physical and mental condition at issue in the lawsuit, the information was discoverable. The Plaintiff responded that her intent was for her Facebook page to be private, and providing Target with access would invade that privacy right. The Trial Court ordered the Plaintiff to provide the names of all social media websites she was registered with and further required her to provide copies of all photographs posted on any social media website for two years prior to and after the date of loss.

On appeal, the Plaintiff argued that the Trial Court ruled incorrectly because the Defendant was relying on the mere hope of obtaining discoverable evidence from the social media outlets. She further argued that the information and the photographs were not relevant to her claims. The Nucci Court affirmed the Trial Court’s ruling and in doing so, held that photographs posted on social media sites are not privileged, nor or they protected by any right of privacy regardless of the privacy setting that the user may have established. The Nucci Court also held that by creating a Facebook account, a user acknowledges that her personal information would be shared with others.

Salazar v. Coello, M.D, (3d DCA) – In this medical malpractice case, the Salazar Court addressed the issue of whether the 90 day tolling of the statute of limitations applied only to the party who received the notice of intent, or whether it was applicable to all other likely defendants. The Salazar Court opined that based on its interpretation of the statutory language, the tolling of the statute of limitation as to all potential defendants was mandated and did not apply only to the party named in the original notice of intent.

La Cava & Jacobson, P.A.

Florida Law Weekly – January 9, 2015

Phillips v. Republic Financial Corporation, (5th DCA) – In this premises liability case, the Plaintiffs alleged that while performing repairs to the roof of a building, the Plaintiff fell through a skylight that was painted over, sustaining severe injuries. The Plaintiffs filed their lawsuit against the entity that owned the property and building, as well as various entities that leased the property and building. In affirming summary judgment for some of the Defendants, the Court noted that liability in a premises liability case does not depend on ownership, but rather, is predicated on the negligence of the possessor of the premises. As it is the possessor of the property who controls whether persons can come onto the property, the duty to warn of a dangerous condition on that property lies with the possessor.

La Cava & Jacobson, P.A.

Florida Law Weekly – January 2, 2015

Duong v. Ziadie, (4th DCA) – In this medical malpractice case, the Court addressed the adequacy of a proposal for settlement in a medical malpractice wrongful death claim that was brought by the Plaintiff acting in her capacity as guardian of her adult son who was rendered incapacitated. Plaintiff sought damages for her son’s pain and suffering as well as for the damages suffered by the son’s two minor children. The claims were brought against the son’s physician, the physician’s employer and other Defendants. A proposal for settlement was made to the physician only in the amount of $1,000,000 on behalf of the guardian and the two minor children, dividing the amounts to be paid to each.

The proposal was not accepted and the jury returned a verdict well in access of the proposal for settlement. The Plaintiff moved for attorney’s fees and the physician argued that the proposal itself was ambiguous. Specifically, the physician argued that an offer requiring acceptance of all three Plaintiffs’ claims deprived him of the ability to evaluate each claim individually as required by the Florida Rules of Civil Procedure. The Trial Court granted the motion, concluding that the offer was not ambiguous. The Duong Court agreed, opining that in this context, the “all or nothing” proposal was appropriate. The Duong Court specifically found that because the proposal broke down what part of the million dollar settlement would be paid to each of the claimants, the physician could evaluate each claim separately and determine both the reasonableness of the offer and the likelihood that the Plaintiffs would obtain, as to each claim, a verdict that would result in the enforcement of the proposal. The The Duong Court also held that there is no obligation each individual Plaintiff or claimant to make individual offers to the physician because imposing such a requirement could result in the settlement of the main claim and not the consortium claims.

Paduru v. Klinkenberg, (1st DCA)- This case involved an automobile accident with claims brought by the Plaintiff against the driver and owner of the at-fault vehicle. The Plaintiff filed a proposal for settlement naming the driver only, which provided that the Plaintiff would dismiss the case against both Defendants after the proposed amount was paid by the owner and/or his insurer. No proposal was specifically made to the owner of the at fault vehicle. The proposal was not responded to and following trial, the jury returned a verdict for the Plaintiff in an amount well above the amount offered in the proposal for settlement. Plaintiff then moved for an award of attorney’s fees and costs and in response, the driver argued that the proposal was invalid because it was unclear as to who would be released from liability and which claims would be dismissed upon payment. Additionally, the driver argued that the proposal contained a settlement condition over which she had no control.

While the Trial Court found the proposal to be valid, the Paduru Court disagreed. In doing so, the Paduru Court referred to Attorney’s Title Insurance Fund v. Gorka, 36 So.3d 646 (Fla. 2010), where the Florida Supreme Court held that a proposal for settlement must be structured in such a way so that the party to whom the offer was made can independently evaluate and settle his/her respective claim irrespective of another party’s decision. In doing so, the Paduru Court held that the proposal filed by the Plaintiff was invalid because it was predicated upon payment of the settlement by someone other than the party to whom the proposal was directed.

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.

La Cava & Jacobson, P.A.

From May 24, 2013 edition of Florida Law Weekly

Southern Baptist Hospital of Florida Inc. v. Johnston (4th DCA): This case, in a concurring opinion, discusses the pros and cons of Florida’s birth related Neurological Injury Compensation Association statute, such as why hospitals seek NICA coverage versus why Plaintiffs generally do not want claim to be covered by NICA. While the opinion is mainly dicta, it provides insight into some of the problems with the NICA statute. The opinion also talks about the difficulties in proving whether the mental impairments in child were permanent and substantial given the child’s age. In reading the opinion, it appears that the administrative law judge found that the injury was covered by NICA.

Miccosukee Tribe of Indians v. Dexter Wayne Lehtinen (3d DCA): Trial Court properly denied Plaintiff’s motion to disqualify Defendant’s attorney on the basis that the attorney would gain an unfair informational advantage against it due to the fact that he represented other parties in litigation against Plaintiff in other unrelated matters. The Court noted that disqualifying a party’s attorney is an extraordinary remedy which the Court should use sparingly. When considering a motion to disqualify counsel, the Court must consider the competing interests of maintaining professional standards and preserving the client confidences on the one hand, and permitting a party hire the counsel of their choice on the other. Part of the Court’s denial of the petition was due to the fact that the matters were not related.

La Cava & Jacobson, P.A.

Medical Malpractice

Caps on Non-Economic Damages

In September 2003, the Florida Legislature enacted Florida Statute § 766.118, placing caps on non-economic damages in medical malpractice cases. In cases against practitioners involving death, catastrophic injury, or where the court determines manifest injustice would result, the non-economic damages are capped at $1,000,000.00. In all other cases against practitioners, the cap is $500,000.00. In actions involving non-practitioners, such as hospitals, the caps for the above categories are $1,500,000.00 and $750,000.00, respectively. Theses caps apply regardless of the number of defendants involved. The statute also caps non-economic damages in cases involving emergency room practitioners at $150,000.00 per practitioner and a total of $300,000.00 for all defendants if certain criteria are met.

Since the statute’s passage, it has been the subject of constitutional challenges. Most recently, in March 2010, the Third District Court of Appeal in Weingrad v. Miles, 29 So. 3d 406 (Fla. 3d DCA 2010) upheld the retroactive application of the statute to limit non-economic damages in cases accruing prior to 2003. Previously, in 2009, the Fourth District Court of Appeal in Raphael v. Shecter, 18 So. 3d 1152 (Fla. 4th DCA 2009) reached the opposite conclusion, reasoning that the statute was an impairment of a substantive and vested right of the Plaintiff that existed prior to the enactment of the statute. The losing parties in both Weingrad and Raphael have sought review by the Florida Supreme Court.

The Florida Supreme Court has not yet ruled on the retroactive application issue or on the ultimate question of whether the limitations on non-economic damages are constitutional. The Court’s last significant ruling on the constitutionality issue was in 1993 in University of Miami v. Echarte, 618 So. 2d 189 (Fla. 1993), where the Court upheld separate statutory caps on non-economic damages in medical malpractice arbitrations. Recently, in 2009, the United States District Court for the Northern District of Florida, in Estate of McCall v. U. S., 663 F. Supp. 2d 1276 (N.D. Fla. 2009), interpreted Florida state law and rejected all constitutional challenges to the application of the caps. In doing so, the federal court recognized that the final decision on the issue would need to be made by the Florida Supreme Court. Conversely, in 2007, in Cavanaugh v. Cardiology Associates, 06-CA-3814 (9th Circuit Orange County Oct. 30, 2007), an Orange County Circuit Judge found that the caps violated the guarantee in Article I, Section 26(a) of the Florida Constitution of the right to “all of the damages that a jury could potentially award.”

Clearly, whether through an appeal of Raphael, or Weingrad, or some other mechanism, the Florida Supreme Court will likely address the constitutional challenges to the non-economic damages caps under §766.118. Until that time, this remains an open question in Florida.