FLORIDA LAW WEEKLY

VOLUME 39, NUMBER 14

CASES FROM THE WEEK OF APRIL 4, 2014

MOTIONS FOR ADDITUR OR REMITTITUR FALL WITHIN THE TIME LIMITS OF RULE 1.530

Joseph v. GEICO, 39 Fla. L. Weekly D624 (Fla. 4th DCA March 26, 2014):

Plaintiff filed her motion for additur 19 days after the jury verdict, believing it was not subject to the time limits set forth in Rule 1.530 regarding motions for new trial. The Fourth District disagreed. It held that a motion for additur is the equivalent of a “conditional motion for new trial” under Rule 1.530(b), and must be served within the same number of days after the verdict (now, 15 days) to suspend the rendition of the final judgment.

SECTION 627.428 DOES NOT APPLY TO A UM CASE UNLESS THERE IS A DISPUTE OVER COVERAGE

Wapnick v. State Farm, 39 Fla. L. Weekly D627 (Fla. 4th DCA March 26, 2014):

Pursuant to §627.728(8), the provisions of §627.428 do not apply to any action brought pursuant to this section against the uninsured motorist insurer, unless there is a dispute over whether the policy provides coverage for an uninsured motorist proven to be liable for the accident. Since this case never involved such a dispute, §627.428 did not apply, and the plaintiff was not entitled to attorney’s fees.

WHERE THERE IS NO DOUBT REGARDING THE IDENTITY OF THE PARTY INTENDED TO BE NAMED, IT IS NOT UNFAIR OR UNJUST TO PERMIT A PLAINTIFF TO CORRECT ITS PLEADING, PARTICULARLY WHEN THE DEFENDANT SUFFERS NO PREJUDICE

Arch Specialty insurance Co. v. Kubicki Draper, 39 Fla. L. Weekly D640 (Fla. 4th DCA March 26, 2014):

The Fourth District reversed the trial court’s refusal to allow the plaintiff to amend its complaint to correct its own name. Where there is no doubt regarding the identity of the party meant to be named, and there is no prejudice, the court should allow the amendment.

TRIAL COURT DID NOT ERR IN DENYING DEFENDANT’S PEREMPTORY CHALLENGE OF HISPANIC FEMALE JUROR, UPON CONCLUDING THAT PROFFERED NON-DISCRIMINATORY EXPLANATION FOR EXERCISING THE STRIKE WAS NOT GENUINE

Norona v. State, 39 Fla. L. Weekly D644 (Fla. 3rd DCA March 26, 2014):

The defendant attempted to exercise a peremptory strike against a Hispanic female after extensive voir dire. Initially, the defense accepted the juror. By the time the Melbourne colloquy occurred, the record demonstrated that the trial court and counsel were aware that the juror and the alleged victim of the attempted first-degree murder and kidnapping were both Hispanic females; the juror’s husband was a retired corrections officer; other prospective jurors accepted by the defense in ethnic, racial, or gender categories other than those of the juror also had connections to law enforcement officers, including relatives serving as police officers; the prospective juror had been accepted by the defense before the back strike was attempted against the juror; and ultimately that prospective juror served (a male).

In rejecting the strike, the trial judge saw that the defendant had accepted another prospective juror with ties to law enforcement, but from a different ethnic and gender category (the articulated reason for the strike was the connection to law enforcement). The defense had already refused to accept another Hispanic female. The trial court was well aware that the victim was a Hispanic female.

The trial court’s decision on such challenges turns primarily on an assessment of credibility, and will be affirmed on appeal unless it is clearly erroneous. Nothing argued by the defendant showed that the decision was clearly erroneous, and thus, the decision to deny the strike was affirmed.

WITHOUT A SHOWING THAT A NOMINAL PROPOSAL FOR SETTLEMENT WAS MADE IN BAD FAITH, ERROR TO DENY AN AWARD OF ATTORNEY’S FEES

State Farm v. Reyes, 39 Fla. L. Weekly D656 (Fla. 3rd DCA March 26, 2014):

Nominal offers are not necessarily indicative of bad faith without an additional showing in the record.

TRIAL COURT DEPARTED FROM ESSENTIAL REQUIREMENTS OF LAW IN COMPELLING PLAINTIFF TO PRODUCE HANDWRITTEN DRAFT ANSWERS TO INTERROGATORY SHE DELIVERED TO HER ATTORNEY

Montanez v. Publix Supermarkets, 39 Fla. L. Weekly D672 (Fla. 5th DCA March 28, 2014):

After plaintiff in this slip and fall case answered a question asking her for all of the facts which formed the basis for the allegations in her complaint, plaintiff answered that the defendant’s responsibility was to maintain the premises safe for the public and that that liquid had been on the floor long enough for the defendant to have discovered it.

At her deposition, plaintiff was then asked about her answer to that interrogatory, and she responded that while she had signed the answers, that answer had not been provided by her. She then testified she did not know how long the puddle had been present, prior to her slip and fall.

Thereafter, Publix sought to compel production of the plaintiff’s handwritten responses to the interrogatories. Plaintiff objected, and the trial court ruled that Publix could see those draft answers because she had revealed and put her answers at issue during her deposition. Plaintiff had filed a privilege log asserting that the entire document was privileged. The trial court recognized that privilege was at play.

The court ruled that these handwritten draft answers were protected by attorney client privilege.

The court additionally observed that the interrogatory question did not seek the plaintiff’s personal knowledge, but rather asked her to provide all the facts which formed the basis for the allegations within her complaint. Thus, the interrogatory answer was not necessarily inconsistent with the deposition as Publix maintained.

Best Regards,

Julie Littky-Rubin