FLORIDA LAW WEEKLY VOLUME 39, NUMBER 8 CASES FROM THE WEEK OF FEB. 21, 2014

THE LAW REQUIRES A PRIVILEGE LOG ONLY IF DOCUMENTS ARE OTHERWISE DISCOVERABLE

State Farm v. Coburn, 39 Fla. L. Weekly D334 (Fla. 2nd DCA February 12, 2014):

In this first-party bad faith case, State Farm objected to the plaintiff’s discovery request based on over-breadth and burdensomeness (i.e., the scope of discovery) as well as on attorney client privilege and work product privilege. State Farm argued the court departed from the essential requirements of law by failing to conduct an in camera review to address its objections. Plaintiffs argued State Farm waived the issue by failing to file a privilege log or to ask for an in camera review below.

The court reminded us that a party is required to file a privilege log only if the information is otherwise discoverable. Until a circuit court rules on the scope of discovery objection, a party responding to discovery does not know what will fall within the category of discoverable documents. Additionally, Rule 1.280 does not provide a time limit for filing a privilege log.

The general denial of State Farm’s motion was equivalent to a determination that all of the documents were otherwise discoverable. At that point, State Farm could then claim work product and attorney client privilege, necessitating the need for a privilege log.

ERROR TO DENY DIRECTED VERDICT WHEN NO DISPUTE THAT THE DEFENDANT LOST CONSCIOUSNESS WHILE DRIVING DUE TO A SEIZURE RESULTING IN THE ACCIDENT, AND THAT LOSS OF CONSCIOUSNESS WAS UNFORESEEABLE

Marcum v. Hayward, 39 Fla. L. Weekly D342 (Fla. 2nd DCA February 12, 2014):

The defendant was driving a company vehicle within the course and scope of her employment. She testified that she felt like she momentarily blacked out, woke up briefly, and then blacked out again. Her next recollection was seeing the paramedics after the accident. According to her passenger, the defendant said she did not feel well, blacked out and then suddenly lost consciousness.

The plaintiff did not offer opposing expert testimony regarding the defendant’s seizure. Her only expert was an orthopedic surgeon who provided testimony about her injuries. Plaintiff argued that when defendant described having a funny feeling prior to blacking out, she was experiencing an aura which should have alerted her to pull over. The expert testified that unless the person had already had an epileptic aura, they would not know what that was.

Because the defendant successfully established her defense (and there was no dispute that she lost consciousness while driving as a result of a seizure, and had no seizures before the accident rendering it unforeseeable), the trial court should have granted her motion for directed verdict.

TRIAL COURT ERRED IN ENTERING SUMMARY JUDGMENT FOR DEFENDANT IN PERSONAL INJURY ACTION ON THE BASIS OF PLAINTIFF’S FAILURE TO DISCLOSE A POTENTIAL, UNFILED LAWSUIT AGAINST DEFENDANT IN THE “CONTINGENT AND UNLIQUIDATED CLAIMS” SECTION OF HIS CHAPTER 13 PERSONAL BANKRUPTCY–PLAINTIFF PROMPTLY AMENDED BANKRUPTCY SCHEDULES AFTER DEFENDANT RAISED OMISSION CREATING AN ISSUE OF FACT

Montes v. Mastec North America, 39 Fla. L. Weekly D346 (Fla. 3rd DCA February 12, 2014).

PARTY WAIVES RIGHT TO CHALLENGE ENTITLEMENT TO FEES ON APPEAL WHEN IT ONLY CONTESTS THE REASONABLENESS IN THE TRIAL COURT

Oliver v. Oliver, 39 Fla. L. Weekly D367 (Fla. 1st DCA February 14, 2014).

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

Best Regards,

Julie Littky-Rubin