FLORIDA LAW WEEKLY

VOLUME 40, NUMBER 24

“Judgmental Immunity Protects.”

CASES FROM THE WEEK OF JUNE 12, 2015

SETTLED LAW AND JUDGMENTAL IMMUNITY PROTECTS ATTORNEY FROM LEGAL MALPRACTICE.

Air Turbine Technology v. Quarles & Brady, 40 Fla. Law Weekly D1317 (Fla. 4thDCA June 3, 2015):

A manufacturer of power tools entered into an agreement giving another company license to sell one of its tools. After the parties terminated their agreement, the second company started selling the tool under a different company’s name. The plaintiff hired Quarles & Brady to initiate litigation.

At issue was a provision in the agreement which stated that the prevailing party in a lawsuit would be “entitled to receive its legal costs and expenses.” The attorney advised the client that the provision would never obligate the client to pay the adversary’s legal fees. Judge Marra in federal court ruled that the provision did notentitle the prevailing defendant to attorney’s fees, but the Eleventh Circuit reversed. On remand, Judge Marra entered an award of fees in excess of $1 million.

The client then filed suit against Quarles & Brady and the attorney for legal malpractice in state court. Central to the claims was the attorney’s repeated advice that the client was not at risk of exposure for fees.

The Fourth District ruled there was no malpractice. Under the great weight of Florida law, a contract providing for recovery of “costs and expenses,” does not include the recovery of attorney’s fees. Because Florida law was “settled” in favor of the lawyer’s advice, his advice was obviously the result of “proper exercise of skill and professional judgment” so he could not be negligent for providing it.

Additionally, while attorneys may be held liable for damages incurred by clients based on the attorney’s failure to act with a reasonable degree of care, skill and dispatch, an attorney does not act as an insurer of the outcome of a case. Accordingly, good faith tactical decisions or decisions made on a fairly debatable point of law are generally not actionable under the rule of judgmental immunity. That rule is premised on the understanding that an attorney who acts in good faith and makes a diligent inquiry into an area of law, should not be held liable for providing advice or taking action in an unsettled area of law.

To prevail on a claim for judgment immunity, an attorney must show that (1) the legal authority supporting the asserted cause of action was fairly debatable or unsettled, and (2) that he or she acted in good faith and made a diligent inquiry into the unsettled area of law. An issue of law is unsettled if it is one that has not been determined by the state’s court of last resort, and on which reasonable doubt may be entertained by well-reasoned lawyers.

Ultimately, the court concluded that the attorney did not commit legal malpractice, and affirmed the summary judgment entered in favor of the lawyer and the firm.

ANOTHER SUMMARY JUDGMENT AGAINST AN INJURED VICTIM ON THE INTENTIONAL TORTS EXCEPTION TO WORKERS’ COMPENSATION IMMUNITY, UPHELD.

Moradiellos v. Community Asphalt Corp., 40 Fla. Law Weekly D1326 (Fla. 3rd DCA June 3, 2015):

An asphalt surveyor was killed while working on the turnpike. He was working at night and on the night of the accident, his employer (the contractor) provided his survey crew with a rack of portable lights. The accident occurred approximately 600 to 700 ft. away from those lights and was under a deactivated “high mast” light working with a flashlight and a headlamp.

Shortly before the accident, the truck that struck and killed him was stationed a mile north of him and that driver was told to take the truck to the same area where the decedent was working. He drove the truck backwards going south on the northbound lanes for over a mile, and without any assistance to guide him while operating in reverse, in violation of company policy. In the course of backing up he ran over and killed the decedent. The decedent was facing away from the truck and speaking on the radio with his supervisor when the accident happened.

The court ruled that based on the undisputed facts that the trier of fact could not find that the general contractor committed an intentional tort within the statutory exception. The facts did not reflect and could not support a reasonable inference that the contractor was “virtually certain that its conduct would cause injury.” There were no prior accidents, and the record did not support a finding that there were any explicit warnings identifying a known danger. Also, the dump truck driver had violated the contractor’s safety policy, as well as the instructions on how to approach the work area. Thus, summary judgment was appropriate and affirmed.

TRIAL COURT ABUSED ITS DISCRETION IN DENYING RULE 1.540(B) MOTION TO SET ASIDE THE FINAL ORDER DISMISSING THE CASE FOR LACK OF PROSECUTION, WHERE THE RECORD DEMONSTRATED GOOD CAUSE TO SET ASIDE THE ORDER BECAUSE IT REFLECTED IT WAS NOT SERVED ON THE PARTIES.

Residential Mortgage v. Smith, 40 Fla. Law Weekly D1333 (Fla. 1st DCA June 4, 2015).

TRIAL COURT ERRED IN REFUSING TO REQUIRE STATE TO PROVIDE GENDER-NEUTRAL REASONS FOR PEREMPTORY CHALLENGES OF MALE JURORS.

Guevara v. State, 40 Fla. Law Weekly D1344 (Fla. 2nd DCA June 5, 2015):

A man was convicted of using a computer to seduce, solicit, lure or entice a child to engage in unlawful sexual conduct. During jury selection, the trial court denied his challenges for cause as to two jurors, and also for refusing to require the state to provide gender-neutral reasons for its peremptory challenges to two male jurors following timely objections. The assigned state attorney argued that males are not a “protected class,” and convinced the trial court that the strike of a male juror did not require the trial court to follow the discrimination inquiry procedures established inMelbourne.

The law is actually to the contrary. A party exercising a peremptory strike of a male juror can be called upon to give a gender-neutral reason for the strike, because the Equal Protection clause prohibits discrimination in jury selection on the basis of gender. It was per se reversible error not to do that.