FLORIDA LAW WEEKLY
VOLUME 39, NUMBER 5
CASES FROM THE WEEK OF JAN. 31, 2014

SUPREME COURT QUIETLY ADMONISHES THIRD DISTRICT FOR NOT FOLLOWING BUSTER IN AMENDMENT 7 CASE

Ampuero-Martinez v. Cedars Healthcare, 39 Fla. L. Weekly S60 (Fla. January 30, 2014):

The plaintiff in a medical malpractice case sought records of adverse medical incidents pursuant to Article X, §25, of the Florida Constitution. The hospital objected to the request, and the trial court overruled those objections. The hospital petitioned the Third District, arguing that §381.028(7)(a) limited parties requesting records of adverse medical incidents to those involving the plaintiff only, and not other patients.

The supreme court–in a rarely unanimous decision on this topic–noted that in Buster, approximately three years before the Third District’s decision, it declared §381.028(7)(a) relied upon by the hospital as “unconstituonally impinging upon the rights granted pursuant to Amendment 7…”. Thus, the court quashed the Third District ruling.

TRIAL COURT DEPARTED FROM ESSENTIAL REQUIREMENTS OF LAW BY ORDERING PRODUCTION OF DOCUMENTS A PARTY CLAIMED WERE ATTORNEY CLIENT PRIVILEGED, WITHOUT CONDUCTING IN CAMERA INSPECTION

RC/PB, Inc., v. The Ritz-Carlton, 39 Fla. L. Weekly D196 (Fla. 4th DCA January 22, 2014):

The discovery dispute arose in complex commercial litigation over a franchise agreement. The petitioners asserted attorney client privilege to certain documents and prepared a privilege log. The respondents argued that any privilege had been waived because the documents were either copied, or addressed to third parties.

The petitioner requested an in camera inspection before ordering production. Despite acknowledging that there could be some privileged materials, the trial court ordered production of the materials listed without conducting an in camera inspection. The petitioner asserted that the trial court should have conducted such an inspection before compelling production of the documents to which the privilege was asserted. Respondents argued the privilege was waived by disclosure to third parties.

The petitioner had submitted a privilege log, and an explanation of why others were involved in the communications. The petitioner asserted the attorney client privilege because the communications were in furtherance of seeking legal advice; an argument sufficient to warrant an in camera inspection. The Fourth District granted the petition and remanded for such an inspection, advising the trial court to consider whether the communication would not have been made but for the contemplation of legal services, whether the employee making the communication did so at the direction of his or her corporate superior; whether the superior made the request of the employer as part of the corporation’s effort to secure legal advice or services; whether the content of the communication relates to the legal services being rendered and the subject matter of the communications is within the scope of the employee’s duty; and whether the communication is not disseminated beyond those persons who because of the corporate structure need to know its content.

AVAILABILITY TO COUNSEL OF ONLINE DOCKET DOES NOT SATISFY NOTICE REQUIREMENT

Courtney v. Catalina, 39 Fla. L. Weekly D208 (Fla. 3rd DCA January 22, 2014):

The trial court dismissed a case for failure to prosecute. The plaintiff sought to vacate that order. Plaintiff’s attorney had filed a verified motion under Rule 1.540(b)(4) (which authorizes a trial court to afford relief to a party when a judgment or decree is void).

Attached to the verified motion was counsel’s affidavit asserting that the notice and order were never served on him or co-counsel. Opposing counsel did not disagree. However, the trial court denied the motion finding that the online docket satisfied the notice requirement.

The Third District reversed. Reviewing the Rule of Judicial Administration, 2.516 regarding service, the court noted that postings to an online court docket are not encompassed by the “notice,” leading it to reverse.

QUESTION OF FACT AS TO WHETHER INJURED WORKER EMPLOYED BY PLUMBING SUBCONTRACTOR OR PLUMBING SUPPLY COMPANY, RENDERING SUMMARY JUDGMENT BASED ON WORKER’S COMPENSATION IMMUNITY ERRONEOUS

Pena v. Design-Build Interamerican, 39 Fla. L. Weekly D209 (Fla. 3rd DCA January 22, 2014):

One Stop Plumbing Supply supplied plumbing parts to Royal Plumbing, a subcontractor on a construction project. The injured worker worked as a plumbing supply delivery man, but it was not clear as to whether he worked for Royal Plumbing or for One Stop.

While in the course and scope of his employment, the worker delivered a steel pipe to the construction site and was told by a Royal Plumbing employee to take the pipe to an upper level location. The worker did so and while he was returning to the lower level, the worker stepped on a false ceiling and fell 20 feet, suffering catastrophic injuries which left him in a permanent vegetative state. His wife sued both the subcontractor and the supply company.

Pursuant to 440.10(1)(a) and (b), Royal Plumbing was a subcontractor on the project. If the worker were found to be employed by Royal Plumbing, he would have been considered a statutory employee of the contractor. (It is the obligation to secure worker’s compensation that gives the employer immunity from suit as a third-party tortfeasor).

If Royal Plumbing was the worker’s employer, all of the contractor and subcontractor defendants would be entitled to immunity. However, if the worker was employed by One Stop–a supply company and not a subcontractor–no one would be entitled to immunity.

Because there were conflicts as to whether the worker was employed by the Royal Plumbing subcontractor, or by the One Stop Plumbing Supply Company (one person was the president of both), there were issues of fact precluding summary judgment.

CITIZENS PROPERTY INSURANCE CORP. IS NOT IMMUNIZED FROM BAD FAITH CLAIMS–CONFLICT CERTIFIED

Perdito Condominium Association v. Citizens Property, 39 Fla. L. Weekly D213 (Fla. 1st DCA January 23, 2014):

Citizens is an insurer created by the legislature for the public purpose of providing affordable property insurance to applicants who are in good faith entitled to procure insurance through the voluntary market but are unable to do so. Citizens is described in §627.351 as a government entity that is an integral part of the state, but is not a private insurance company. As a creature of statute, Citizens’ operations, procedures, duties and legal status are governed by §627.351(6). That section provides that Citizens is immunized for actions taken by its agents or employees. However, the immunity does not extend to willful torts, or breach of contract actions pertaining to insurance coverage.

The court found that bad faith is indeed a “willful tort.” Thus, the First District reversed the dismissal of the plaintiff’s complaint. It also certified conflict with a Fifth District case deciding otherwise, and certified the question as one of great public importance.

ERROR TO ENTER SUMMARY JUDGMENT FOR DEFENDANT ON BASIS OF WAIVER AND RELEASE FORM – NOT CLEAR THAT THE NEGLIGENCE IN QUESTION WAS INTENDED TO BE WITHIN THE SCOPE OF THE RELEASE

Gillette v. All Pro Sports, 39 Fla. L. Weekly D223 (Fla. 5th DCA January 24, 2014):

Clauses that purport to deny an injured party the right to recover damages from another who negligently causes injury are strictly construed against the party seeking to be relieved of the liability. To be effective, the wording of such clauses must be so clear and understandable that an ordinary and knowledgeable person would know what he or she is contracting away. Because the release in this case did not make clear that negligence of the kind involved was intended to be within the scope of the release, it was not enforceable.

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

Best Regards,

Julie Littky-Rubin