FLORIDA LAW WEEKLY
VOLUME 39, NUMBER 7
CASES FROM THE WEEK OF FEB. 14, 2014

The Week In Torts – Stay Out Of My Facebook Account!

By Julie H. Littky-Rubin

COURT ISSUES OPINION LIMITING DEFENDANT’S ACCESS TO A VICTIM’S FACEBOOK POSTS

Root v. Balfour Beatty Construction, 39 Fla. L. Weekly D277 (Fla. 2nd DCA February 5, 2014):

The plaintiffs sought a writ for petition of certiorari arising out of a negligence action filed by a woman on behalf of her three year-old son, who was struck by an oncoming vehicle in front of a construction site. The accident occurred while the boy was under the care of his 17 year-old aunt, and plaintiffs alleged that the defendants were negligent for failing to use reasonable care in keeping the construction site safe for pedestrians. Defendant raised negligent entrustment as an affirmative defense. The plaintiff also brought derivative claims for loss of parental consortium.

The discovery order at issue required the plaintiff to produce copies of postings on her Facebook account which included any counseling or psychological care obtained by her before or after the accident, any and all postings, statuses, photos, likes or videos related to her relationship with her children both before and after the accident, relationships with other family members, boyfriends, husbands or significant others before and after the accident, mental health, stress complaints, alcohol use or other substance use both before and after the accident, and postings related to the lawsuit filed after the accident by the plaintiff or others.

There were some categories of requests (other than these) that the plaintiff conceded were discoverable.

The Second District began its opinion by advising that trial courts around the country have repeatedly determined that social media evidence is discoverable. It reminded us that the Florida Rules of Civil Procedure were amended in 2012 to provide guidelines regarding the production of electronically-stored information (Rule 1.350). However, under the discovery rules of Florida, the party seeking such discovery must establish that it is relevant to the case’s subject matter, admissible in court or reasonably calculated to lead to evidence that is admissible in court.

In looking at the categories of information requested, the court observed that neither the plaintiff’s claims for negligence or for loss of parental consortium, nor the affirmative defenses raised by the defendants (negligent entrustment, failure to supervise and negligence of the driver) pertained to the discovery. Instead, the requests sought discovery of the plaintiff’s past and present relationships, mental health and other things.

Discovery regarding parental consortium is limited to the impact the child’s injury has on the parent. The items defense sought in this case were the type of carte blanchediscovery that the supreme court has guarded against. Even the defense attorney advised the magistrate that they “wanted to look under the hood” and figure out whether there was even a theory worth exploring. That is a fishing expedition.

Until such time that such material becomes relevant, it is not discoverable. Later, the trial court may have to review the material in camera to decide if it should be discoverable.

TRIAL COURT DEPARTED FROM ESSENTIAL REQUIREMENTS OF LAW BY STAYING DECLARATORY JUDGMENT ACTION, WHERE INSURER SOUGHT TO RESOLVE DUTY TO DEFEND AND INDEMNIFY ITS INSUREDS PENDING RESOLUTION OF UNDERLYING ARBITRATION IN LIABILITY ACTION–ORDER CAUSED IRREPARABLE HARM TO INSURER BY FORCING IT TO DEFEND INSUREDS WITHOUT RESOLUTION OF THE COVERAGE DISPUTE

FCCI Commercial Insurance Co. v. Armour, 39 Fla. L. Weekly D279 (Fla. 2nd DCA February 5, 2014):

The court found that an insurer will suffer irreparable injury if the court requires it to provide a defense when it has no obligation to do so. Thus, there was no justifiable reason to delay the resolution of the declaratory judgment action, as the trial court ruled to do.

TRIAL COURT ERRED IN DENYING NEW YORK STATE AUTOMOBILE DEALER’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION WHEN CAR WAS SOLD IN NEW YORK, BUT CAUSED AN ACCIDENT IN FLORIDA FOUR YEARS LATER

Marina Dodge v. Quinn, 39 Fla. L. Weekly D289 (Fla. 4th DCA February 5, 2014):

Plaintiff purchased a vehicle in New York. She later moved to Florida and was involved in an automobile accident in Broward County. She sustained serious injuries as a result of the collision.

Plaintiff sued the dealer in Florida, asserting that minimum contacts had been established. The contacts/activities identified in the complaint were that the dealer was registered with a Florida corporation that auctions automobiles; it purchased nine vehicles over the Internet from an Orlando corporation in the years prior; there were other transactions for extended warranties with Florida companies and some financing arrangements with Florida companies.

Personal jurisdiction is a two-step analysis. The first step requires the trial court to determine whether sufficient facts have been alleged to bring the action within the ambit of Florida’s long arm statute. If the long arm statute applies, the second step requires the trial court to decide whether minimum contacts exist between the defendant and the forum state to satisfy due process.

In analyzing specific jurisdiction (the long arm statute), the court must determine whether there are any acts which meet this statute. The plaintiff correctly alleged that defendant committed a tortious act within the state and caused injury to persons or property within it.

While that prong was met, there can only be general jurisdiction for due process purposes when the defendant is engaged in substantial and not isolated activity within the state. That standard means there are continuous and systematic general business contacts with Florida.

The court found the affidavits revealed very few contacts between the defendant and Florida. While the defendant had engaged in a handful of isolated transactions with various Florida companies over the time frame, the court found there was no showing that Florida had been targeted for business as an automobile seller or repair shop or otherwise. The court noted that 19 vehicles out of 3,678 with a Florida tie, did not constitute “minimum contacts,” and rather was only a “pittance.”

Without these contacts, the Fourth District ruled it was improper for Florida to exercise personal jurisdiction over these dealer defendants in this case, and reversed for dismissal against them.

ERROR FOR TRIAL COURT TO STRIKE UNTIMELY AMENDED COMPLAINT AND DENY A MOTION FOR ENLARGEMENT OF TIME TO FILE AMENDED COMPLAINT WITHOUT CONSIDERING FACTORS SET FORTH BY THE FLORIDA SUPREME COURT IN KOZEL

Portofino Professional Center v. Prime Homes, 39 Fla. L. Weekly D294 (Fla. 3rd DCA February 5, 2014):

ERROR TO DISMISS PLAINTIFF’S CASE FOR FRAUD ON THE COURT FOR FAILURE TO DISCLOSE PRIOR ACCIDENT IN AN INTERROGATORY ANSWER

Bosque v. Rivera, 39 Fla. L. Weekly D302 (Fla. 5th DCA February 7, 2014):

Defendant served interrogatories on plaintiff asking about any prior accidents, claims, worker’s comp claims, slips and falls, etc. The answer was none. However, in response to a request to produce, the plaintiff produced a medical record which referenced a prior accident with no injuries.

Six months later, the defendant deposed the plaintiff, and the plaintiff answered no as to whether he had ever been involved in a car accident prior to the one involved in this case. He also denied any prior injuries to his lower back or neck.

The defense did an investigation, which showed that the plaintiff had an accident two years prior, had chiropractic evaluation, and had been taken to the hospital by Fire Rescue.

The defendant filed a motion to dismiss for a fraud on the court. Reminding us that dismissal sounds the death knell of a lawsuit, and that courts must reserve that remedy for instances where a party’s conduct is egregious, the record in this case did not establish by a clear and convincing evidence that the plaintiff had engaged in a deliberate scheme to subvert the judicial process by failing to disclose his prior accident or chiropractic treatment. The court reversed the dismissal.

MOTION WHICH SOUGHT DISQUALIFICATION BASED UPON JUDGE’S STATEMENTS INDICATING THAT SHE HAD STRONGLY AND DEFINITIVELY PRE-JUDGED THE PETITIONER’S CREDIBILITY IN AN UNFAVORABLE FASHION SHOULD HAVE BEEN GRANTED

Cummings v. Montalvo, 39 Fla. L. Weekly D322 (Fla. 5th DCA February 3, 2014).

PLAINTIFFS SUFFICIENTLY ALLEGED THAT THEY WERE INTENDED THIRD-PARTY BENEFICIARIES OF AN AGREEMENT BETWEEN THE PROPERTY OWNER AND ATTORNEYS HIRED BY THE PROPERTY OWNER IN A LEGAL MALPRACTICE CASE–ERROR TO DISMISS ACTION ON GROUND THAT PLAINTIFFS WERE NOT PARTIES TO THE ATTORNEY-CLIENT RELATIONSHIP AND THAT THE ATTORNEY OWED NO DUTY TO THE PLAINTIFFS

Dingle v. Dellinger, 39 Fla. L. Weekly D322 (Fla. 5th DCA February 7, 2014):

According to the plaintiffs’ complaint, a Panamanian corporation retained an attorney to prepare a quit claim deed to gift a piece of real property from the company to the plaintiffs. To do so, the principal of the company provided the attorney with an English translation of a power of attorney which was originally drafted in Spanish, to evidence his authority to transfer the property.

Several months later, the man died, and his widow challenged the conveyance. Ultimately, the court decided that the power of attorney did not authorize the man to make a gift on the company’s behalf and determined that the conveyance was indeed invalid. The plaintiffs then sued the lawyer alleging legal malpractice.

While an attorney’s liability for professional negligence is generally limited to clients with whom the attorney shares privity of contract, there is a third-party intended beneficiary exception to the rule of privity. In this case, the plaintiffs’ complaint contained sufficient facts, which if proved, would show that they were the intended beneficiaries of the contract between the company and the lawyer. The court stated that under the unique facts of this case, it concluded that the trial court erred in dismissing the professional negligence counts of the complaint.

Please feel free to contact me with any questions about appellate issues you may have

Best Regards,

Julie Littky-Rubin