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.

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.