THE WEEK IN TORTS

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FLORIDA LAW WEEKLY

VOLUME 40, NUMBER 1

CASES FROM THE WEEK OF JANUARY 2, 2015

PROPOSAL ADDRESSED TO ONE DEFENDANT SAYING THAT PLAINTIFF WOULD DISMISS ACTION AGAINST BOTH DEFENDANTS AFTER SECOND DEFENDANT TENDERED WAS INVALID – PROPOSAL DEPRIVED DEFENDANT TO WHOM PROPOSAL WAS ADDRESSED OF THE ABILITY TO EVALUATE AND INDEPENDENTLY ACT TO RESOLVE THE CASE AGAINST HER.

Paduru v. Klinkenberg, 40 Fla. Law Weekly D41 (Fla. 1st DCA December 17, 2014):

The plaintiff in an auto case served the defendant driver with a proposal for settlement. As a non-monetary condition, the proposal stated that the plaintiff would dismiss with prejudice the case against the owners if the driver accepted. When the plaintiff’s verdict far exceeded the proposal, the trial judge granted her motion for attorneys’ fees.

The First District reversed. Reminding us that the statutory and rule language has to be strictly construed because it’s in derogation of common law (and because the statute creates sanction), the court found that the proposal was invalid because it prevented either party from independently evaluating and accepting the proposal.

The court said that although the plaintiff’s proposal stated it was directed only to the driver, the language in the non-monetary condition paragraph could reasonably lead one to believe that the offer also implicated the owner and his agents. Court said that payment of the settlement amount “could be construed” to be required from the owners also.

Here, the proposal deprived the defendant driver of the ability to evaluate and independently act to resolve the case because of the involvement of the owners.

While the language of this particular proposal was ruled ambiguous, I am not convinced all offers to dismiss another defendant as a non-monetary condition are invalid under this case.

ALL OR NOTHING PROPOSAL MADE BY MULTIPLE OFFERORS TO SINGLE OFFEREE WAS AN ACCEPTABLE PROPOSAL FOR SETTLEMENT–BECAUSE THE PROPOSAL WAS “ALL OR NOTHING,” IF THE VERDICT FOR ANY OF THE CLAIMANTS WAS NOT 25% HIGHER THAN THE AMOUNT OF THE CLAIM IN THE SETTLEMENT PROPOSAL, THEN NONE OF THE CLAIMANTS COULD OBTAIN ATTORNEY’S FEES UNDER ITS TERMS.

Duong v. Ziadie, 40 Fla. Law Weekly D23 (Fla. 4th DCA December 17, 2014):

Plaintiff sued for malpractice on behalf of her permanently paralyzed son. At the time of the Complaint, the man’s children were minors, so the Complaint identified the plaintiff as Olivia Ziadie as plenary guardian of the person and property of Francis Ziadie, incapacitated, and for Francis Ziadie, as parent and legal guardian of Phillip Ziadie and Paul Ziadie, his minor children.

Before trial, the plaintiff served a proposal for settlement to the doctor for a total amount, but broke down amounts for each claimant. The physician did not accept the proposal.

The plaintiff’s verdict exceeded the proposal, and the trial court awarded fees to the singular plaintiff stating the all or nothing offer was valid and unambiguous.

The court began by rejecting the defendant’s contention that the cover letter constituted a separate proposal for settlement and made both documents ambiguous. As the trial court found, the cover letter was not itself a proposal for settlement, but merely notice of the enclosed proposal for settlement.

The doctor also contended that the proposal was ambiguous, because it referred to the plaintiff sometimes as the “sole plaintiff” and in other places as “plaintiffs.” However, this particular plaintiff is the guardian of her son, and was able to act in her capacity for the minor children.

Finally, because this was an all or nothing joint proposal, if the verdict for any of the claimants had not been 25% higher than the amount of the claim in the settlement proposal, then none of the claimants could have obtained attorney’s fees under its terms. In other words, it was not enough that the total amount of the verdict exceeded the total amount of the offer by 25%; each individual award to each claimant in the verdict also had to exceed the amount set forth in the proposal for the claimant by 25%, or no attorney’s fees could be claimed based upon the proposal for settlement. Not a hundred percent sure how this decision gets reconciled with the other PFS law, but then again, nothing about this law seems consistent or predictable.

TRIAL COURT PROPERLY FOUND THAT LANGUAGE IN DEMANDS FOR JUDGMENT THAT PLAINTIFF AGREES TO SETTLE ANY AND ALL CLAIMS ASSERTED AGAINST DEFENDANT RENDERED DEMANDS VAGUE, AMBIGUOUS AND UNENFORCEABLE, BEAUSE IT WAS UNCLEAR WHETHER THE INTENT OF THE DEMAND WAS TO RESOLVE ONLY THE CLAIMS OF THE PLAINTIFF, OR BOTH THE PLAINTIFF’S CLAIMS AND LOSS OF CONSORTIUM CLAIMS OF THEIR SPOUSE.

Hilton Hotels Corporation v. Anderson, 44 Fla. Law Weekly D48 (Fla. 5th DCA December 19, 2014):

In this case, the plaintiff served a proposal for settlement that was made on behalf of the plaintiff, for the purpose of settling any and all claims against the defendant. The next paragraph states that in exchange for the amount demanded, the plaintiff would agree to settle any and all claims asserted against the defendant as identified in the case style.

The court agreed with the trial judge that this proposal was vague and ambiguous because although it purported to be made on behalf of the plaintiff only, it agreed to settle any and all claims asserted against the defendant, which would have also included the consortium claim.

90-DAY TOLLING OF SOL TOLLS THE STATUTE AS TO DEFENDANTS KNOWN TO CLAIMANT BUT WHO HAVE YET TO BE SERVED WITH A NOTICE OF INTENT TO INITIATE LITIGATION AS WELL AS TO THE DEFENDANTS RECEIVING THE NOTICE.

Salazar v. Coello, 40 Fla. Law Weekly D7 (Fla. 3rd DCA December 17, 2014):

In addressing this case of first impression in a medical malpractice case, the court framed the issue to read whether §766.106(3)(a), which contains the 90-day tolling of the statute of limitations and is effective upon receipt of a notice of intent to initiate litigation, tolls the statute of limitations only as to the defendant receiving the notice, or whether it also tolls the statute of limitations for 90 days as to other likely defendants known to the claimant but who have yet to be served with a notice of intent to initiate litigation.

In this case, a lawsuit arose from a surgery performed on August 22, 2007. Three doctors provided anesthesia services, and for purposes of the opinion, the court assumed that the plaintiff became aware of these doctors (or should have become aware) shortly after the surgery. Less than two years before the running of the two-year statute, plaintiff obtained the automatic 90-day extension, extending the statute as to all defendants to 11/20/09.

With 30 days remaining on the extended statute, plaintiff then sent a notice of intent to initiate litigation to the surgeon who performed the surgery, but not to any of the anesthesiologists. The anesthesiologists later moved for summary judgment based on the statute of limitations.

After analyzing the statute, the court concluded that §766.106(4), which states that the notice of intent tolls the statute as to all potential “defendants,” included the anesthesiologists and rendered the daughter’s notices timely.

TRIAL COURT ERRED IN DISMISSING PLAINTIFF’S CLAIM FOR THE WRONGFUL DEATH OF HER MOTHER, WHEN HER SURVIVING SPOUSE MURDERED HER FATHER.

Cosman v. Rodriguez, 40 Fla. Law Weekly D10 (Fla. 2nd DCA December 17, 2014):

Plaintiff’s mother was murdered by her current husband (not her father), and she brought suit against the murdering husband.

The circuit court granted the murderer’s motion to dismiss the claim for damages, ruling that the murderer was the surviving spouse of the decedent and that the plaintiff personal representative, and that the adult child was precluded from bringing a survivor’s claim under wrongful death law (no claims for adult children for wrongful death in the event there is a surviving spouse).

Based on §732.802 which specifically deprives the survivor who unlawfully and intentionally kills the decedent from collecting any benefits under the will, and §768.802(4) which states that any other acquisition of property or interest by the killer is treated in accordance with the principles of this section, the court concluded that the right to recover damages for the wrongful death of a decedent under Florida’s wrongful death law, is an interest that, pursuant to those sections, must be treated as if the killer “pre-deceased” the decedent. Thus, it was error for the trial court to rule that the murderer was his wife’s surviving spouse.

WRIT OF PROHIBITION GRANTED WHERE STATEMENTS MADE BY TRIAL JUDGE INDICATED THAT HE HAD PRE-JUDGED COVERAGE ISSUES, INJECTED PERSONAL OPINIONS, AND INDICATED A BIAS IN FAVOR OF THE INSURED.

Great American Insurance Co. v. 2000 Island Boulevard Condominium, 40 Fla. Law Weekly D26 (Fla. 3rd DCA December 17, 2014):

In this insurance coverage dispute, the trial court struck various affirmative defenses regarding exclusions and conditions contained in the policy. At a hearing on the affirmative defense–before a single witness had appeared in court or any deposition was taken or any evidence filed–the judge commented that he did feel this was an abandonment situation.

He noted there was an insurance company not paying a claim, and that it strained all credulity for him to believe that the carrier had not denied coverage based on information they knew then. The court then later guessed that the insurance expert was probably told not to do a report and admonished the defense lawyer for making a specious argument about having these coverage defenses.

The court also found that the judge gave unsolicited legal advice to the plaintiff when stating “If I were being asked, I would sanction you for making a specious argument…” suggesting to the plaintiff that such a sanctions motion would be welcomed and granted. After addressing the many statements made, the court ruled that the writ of prohibition had to be granted.

ERROR TO ENTER SUMMARY JUDGMENT FOR DEFENDANTS ON BASIS THAT SALE OF ALCOHOLIC BEVERAGES TO UNDERAGE PERSON WAS NOT WILLFUL, WHEN THERE WERE FACTUAL ISSUES AS TO WHETHER THE DEFENDANT KNEW OR SHOULD HAVE KNOWN THE PERSON WAS UNDERAGE–ALSO ERROR TO DENY LEAVE TO ADD THE CLAIM FOR PUNITIVE DAMAGES.

Case v. Newman, 40 Fla. Law Weekly D31 (Fla. 1st DCA Dec. 17, 2014):

The case arose out of the §768.125 law, holding responsible those who sell alcoholic beverages to a person who is not of lawful drinking age. The trial court ruled that there was no evidence that the defendant knew or should have known that he was selling alcohol to a minor, and therefore there was no evidence of the element of willfulness. Based on that ruling, he also refused to allow the plaintiff to amend to add a claim for punitive damages.

Because this case involved circumstantial evidence of the knowledge of the age of a person that appearance alone could impart, knowledge of the age was a question of fact and summary judgment was improper (as was the denial of punitive damages on that basis).

ERROR TO ENTER SUMMARY JUDGMENT FOR THE DEFENDANT IN A TRIP AND FALL CASE, WHERE THERE WAS A FACTUAL ISSUE AS TO WHETHER THE CAUSE OF THE PLAINTIFF’S FALL WAS A COMMON DESIGN ELEMENT WITH A RESULT OF POOR MAINTENANCE.

Doering v. The Villages, 44 Fla. Law Weekly D49 (Fla. 5th DCA December 19, 2014):

While walking on a large wharf-like wooden deck owned by the defendant during a Mardi Gras festival, the plaintiff tripped over a wooden plank. She claimed the defendant breached its duty to warn her of the dangerous condition, and its duty to maintain the deck at all times in a reasonably safe condition.

The defendant claimed that the cause of the fall was a common design element, not the result of poor maintenance. Because there were genuine issues from material fact based on the evidence presented, it was error to grant summary judgment.