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.

La Cava & Jacobson, P.A.

Amendment 7

Patient’s Right to Know About Adverse Medical Incidents

On November 2, 2004, Florida voters passed Constitutional Amendment 7, also known as the “Patient’s Right to Know About Adverse Medical Incidents” Amendment. Thereafter, the Florida legislature attempted to apply guidelines and restrictions to Amendment 7 via Florida Statute §381.028. In Florida Hospital Waterman, Inc. v. Buster, 984 So. 2d 478 (Fla. 2008), the constitutionality of Florida Statute §381.028 was challenged, with the Florida Supreme Court holding that Amendment 7 was self-executing and that the terms were enforceable as of the date of passage. Importantly, the Florida Supreme Court held that Amendment 7 did not violate the hospitals’ due process rights and that several provisions in Florida Statute §381.028 violated Amendment 7.

Thereafter, courts have been called upon to interpret the scope of Amendment 7. In Columbia Hosp. Corp. of S. Broward v. Fain, 16 So. 3d 236 (Fla. 4th DCA 2009), the court held that the disclosure of adverse incident reports did not impair contracts between hospitals and doctors, which generally provide for confidentiality of peer review proceedings. In Morton Plant Hosp. Ass’n, Inc. v. Shahbas ex rel. Shahbas, 960 So. 2d 820 (Fla. 2d DCA 2007), the court defined “patients” to include active, prospective and previous patients, thus allowing broader discovery of adverse medical incidents. In Benjamin v. Tandem Healthcare, Inc., 998 So. 2d 566 (Fla. 2008), the Florida Supreme Court held that a plaintiff did not have the right to obtain adverse medical incident reports from a nursing home. Finally, in West Fla. Reg’l Med. Ctr., Inc. v. See, 18 So. 3d 676 (Fla. 1st DCA 2009), the court held that effective peer review is not hampered by Amendment 7, and that Amendment 7 was not preempted by federal law.

In some instances, however, the discovery of information is not permitted. For example, courts have upheld statutory protection of information contained in a physicians’ credentialing or re-credentialing file. See West Fla. Reg’l Med. Ctr., Inc. v. See, 18 So. 3d 676 (Fla. 1st DCA 2009); Morton Plant Hosp. Ass’n, Inc. v. Shahbas ex rel. Shahbas, 960 So. 2d 820 (Fla. 2d DCA 2007). The Morton Plant court also held that the disclosure of general policies and procedures for peer review or risk management committees that do not contain adverse medical incident information was not permitted. Finally, if an attorney’s opinions and/or theories of defense are contained within materials, courts have held that the work product doctrine may prevent disclosure. Fla. Eye Clinic, P.A. v. Gmach, 14 So. 3d 1044 (Fla. 5th DCA 2009). Importantly, attorney participation without more will not prevent disclosure. Courts have held that where an attorney does not provide opinions or theories, he is serving as a conduit of factual information which could have been obtained without his involvement. Thus, obtaining an attorney’s opinions and theories at the initial stages of the process is imperative to lay the groundwork for utilizing the protections of the work product doctrine.

La Cava & Jacobson, P.A.

Rebuttable Presumption of Negligence

Auto Accidents

In general, there is a rebuttable presumption of negligence on the part of a rear driver in rear end collision cases. The burden rests on the rear driver to present evidence that “fairly and reasonably tends to show” that the presumption of negligence was misplaced. The presumption dissipates once evidence of the same is presented and the case then must go to the jury to hear further evidence, reconcile conflicts and evaluate the credibility of witnesses. Examples that have rebutted the presumption of negligence include: abrupt arbitrary stops in places where it could not reasonably be expected or unexpected change of lanes; mechanical failures which caused the rear driver to collide with the lead driver; and instances where the lead vehicle is illegally and therefore unexpectedly stopped.

La Cava & Jacobson, P.A.

New Florida Slip and Fall Statute effective July 1, 2010

One of the most useful defenses in premises liability cases is the defendant’s lack of notice of the allegedly dangerous condition. The Florida Legislature has favorably shifted the standard of proof in slip and fall cases in a statute that becomes effective July 1, 2010, under Florida Statute §768.0755. It will read:
Premises liability for transitory foreign substances in a business establishment

  1. If a person slips and falls on a transitory foreign substance in a business establishment, the injured person must prove that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it. Constructive knowledge may be proven by circumstantial evidence showing that:
    1. The dangerous condition existed for such a length of time that, in the exercise of ordinary care, the business establishment should have known of the condition; or
    2. The condition occurred with regularity and was therefore foreseeable.
  2. This section does not affect any common-law duty of care owed by a person or entity in possession or control of a business premises.

If a plaintiff is unable to establish the defendant had actual or constructive knowledge of the transitory foreign substance under the statute, plaintiff’s case should fail. Business owners will hopefully save time and expense in defending claims where the business owner had no actual or constructive knowledge of the alleged dangerous condition.

La Cava & Jacobson, P.A.

Proposals for Settlement

The Florida Supreme Court on April 1, 2010, in the case of Attorney’s Title Insurance Fund, Inc. v. Joseph Gorka, 35 Fla. L. Weekly S196 (Fla. April 1, 2010), held that joint offers of settlement that were conditioned on the mutual acceptance of both property owners were invalid and unenforceable for purposes of imposing attorney’s fees pursuant to the Offer of Judgment Statute. The Florida Supreme Court held that joint offers conditioned on the mutual acceptance of all joint offerees were invalid and unenforceable because they were conditioned such that neither offeree could independently evaluate or settle his or her respective claim by accepting the proposal.