FLORIDA LAW WEEKLY
VOLUME 40, NUMBER 22

The King Is Not So Dead!

CASES FROM THE WEEK OF MAY 29, 2015

STATE UNIVERSITY’S ATHLETIC ASSOCIATION GIVEN SOVEREIGN IMMUNITY IN CASE INVOLVING DEATH OF AN ATHLETE.

Plancher v. UCF Athletics Association, 40 Fla. Law Weekly S302 (Fla. May 28, 2015):

A UCF football player collapsed and tragically died during football practice conditioning drills. His parents filed a negligence action against UCF and the UCF Athletics Association, Inc. (UCFAA), the statutorily authorized direct support organization responsible for administering UCF’s athletic department.

The trial court denied UCFAA’s motion for summary judgment, which argued for entitlement to limited sovereign immunity. The jury then returned a $10 million verdict in favor of the deceased player’s parents.

The Fifth District reversed. It found that the UCFAA was primarily acting as an “instrumentality of UCF” and was therefore entitled to limited sovereign immunity under the statute.

Section 768.28(2) defines state entities entitled to limited sovereign immunity as state agencies and subdivisions, including departments…and “corporations primarily acting as instrumentalities or agencies of the state.” The court observed that if UCFAA was primarily acting as an instrumentality of UCF, it would be considered a state agency or subdivision and entitled to limited sovereign immunity under this section.

Pursuant to Section 1004.28 Fla. Stat., UCF created its certified UCFAA as a university direct-support organization. It is statutorily defined as a not-for-profit Florida corporation, organized and operated exclusively to receive, hold, invest, and administer property and to make expenditures to or for the benefit of a state university in Florida.
The court ruled it is not necessary to decide whether the state controls the corporation’s operations for the corporation to be entitled to limited sovereign immunity. Instead it is the “right” of control that is required, because UCF exercises levels of control over UCFAA and its operations. The court’s analysis showed that UCF maintains and actually exercises its right to control UCFAA’s operations and activities (it controls its budget and finances) and found it was not an autonomous or self-sufficient entity. Only that finding would have taken it out of limited sovereign immunity.

Ultimately, the court ordered the entry of judgment from $10 million down to the $200,000 sovereign immunity cap.

OUTLINING PARAMETERS FOR A VENUE ANALYSIS, COURT REMANDS FOR EVIDENTIARY HEARING.

King v. Raborg, 40 Fla. Law Weekly D1182 (Fla. 3rd DCA May 20, 2015):

Plaintiff was injured in an accident in Broward County by an employee of the AKCA corporation. Plaintiff alleged that AKCA was a foreign corporation authorized to do business in the state of Florida, and doing business in Miami-Dade County with an agent/representative in Miami-Dade, and had entered into a contract with the state for the removal and placement of certain pavement markers.

The first amended complaint realleged that AKCA was a foreign corporation doing business in Miami-Dade (and it had an agent there), and also alleged that the driver himself was a resident of Broward County.

The record showed that the driver either resided in Broward or Polk County, and that AKCA had no agents or representatives in Miami-Dade. Still, the court denied the defendant corporation’s venue motion.

The court reversed to enable the parties to present evidence. It reminded us that pursuant to Section 47.051, a foreign corporation resides in any county where it has an agent or representative, and may be sued in any such county or where the cause of action accrued or where the property at issue is located. While the plaintiff alleged in his unverified complaint that AKCA had an agent or other representative in Miami-Dade County, AKCA controverted those abrogations with a sworn statement. That shifted the burden to the plaintiff to adduce evidence to overcome the sworn factual representations.

There was also no motion to transfer venue on convenience grounds pursuant to Section 47.122. The court ruled that if the trial court determined that venue as to AKCA was not proper in Miami-Dade, then absent an agreement of the parties, it would have to determine whether the driver was a resident of Polk County as he claimed and if so, as between Polk County (where the driver resides), Hillsborough County (where venue is proper as to AKCA), and Broward County (where the cause of action accrued), which county would be proper for the action to be tried.

ERROR TO DISMISS COMPLAINT WITH PREJUDICE WITHOUT EXPRESSLY CONSIDERING THE FACTORS SET FORTH IN KOZEL V. OSTENDORF FOR FAILURE TO COMPLY WITH DISCOVERY.

Vista St. Lucie Association v. Dellatore, 40 Fla. Law Weekly D1192 (Fla. 4th DCA May 20, 2015):

The trial court dismissed a condominium association’s complaint with prejudice, and further awarded attorney’s fees and costs for non-compliance with a court order compelling discovery. However, it did so without conducting the required six-factor analysis found in Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993).

The Fourth District noted how it has consistently required the record to show an express consideration of the Kozel factors. In this case, the court determined that based on the undisputed facts, the record did not warrant the severe sanction of dismissing the complaint anyway, or the order for attorney’s fees. The court remanded for the restatement of the complaint, with instructions that the court could reconsider the motion in light of the Kozel factors. It also noted that the fault appeared to lie with the party’s counsel and not the party itself.

TRIAL COURT ABUSED DISCRETION BY DENYING POST-TRIAL INTERVIEW OF JUROR WHO CONCEALED MATERIAL INFORMATION VOIR DIRE.

Barrios v. Locastro, 40 Fla. Law Weekly D1198 (Fla. 4th DCA May 20, 2015):

During voir dire in an automobile accident case, the jury panel was asked if any of them or any immediate family members had been plaintiffs in a lawsuit seeking to recover money because of an injury, or if they or family members, close friends, partners, or anyone had ever made a claim to recover money damages from someone because they had been injured without a lawsuit being filed. There was also a question about family members being diagnosed with herniated discs, or making claims to recover social security disability benefits. One juror did not respond to any of those questions (others did) and was selected to serve.

After the verdict, an investigation revealed that the juror’s mother was a plaintiff in a slip and fall lawsuit, and the juror had been listed as a possible witness in the case. The juror’s mother had also undergone spine surgery and was receiving social security disability benefits. The defense had exercised preemptory challenges on other jurors who had revealed this type of information.

The court reminded us that while trial courts should be hesitant to grant motions for post-trial juror interviews, when there are reasonable grounds to believe concealment of a material fact has taken place, a party is entitled to conduct a jury interview. In this case, the juror concealed information about her mother’s lawsuit that was material. The information pertained to a lawsuit similar enough, that it prevented the defendant’s counsel from making an informed decision about whether to keep the juror or not. The defendant had also exhausted two of her preemptory challenges on potential jurors who had similar histories to this juror’s.

Thus, the court reversed and remanded for an interview, with instructions that in the event the interview revealed an appropriate reason, the court should grant a new trial.

TRIAL COURT DEPARTED FROM ESSENTIAL REQUIREMENTS OF LAW IN REQUIRING DISCLOSURE OF PLAINTIFF’S MILITARY RECORDS WITHOUT CONDUCTING AN IN CAMERA INSPECTION.

Muller v. Wal-Mart, 40 Fla. Law Weekly D1209 (Fla. 2nd DCA May 22, 2015):

Plaintiff sought certiorari review of a discovery order compelling the production of his military records in his negligence action against Wal-Mart. The man had been struck by a truck belonging to Wal-Mart and sought damages for bodily injury, aggravation of pre-existing condition, pain and suffering, etc.

Discovery revealed that the plaintiff had served in the army for 11 years before being honorably discharged. He had served in several places, disclosing that he had sustained three injuries while in the military but asserted he was not seeking damages for an aggravation of any of his military injuries. Wal-Mart sought the production of the man’s entire military personnel file.

Plaintiff filed an objection and a supporting memorandum asserting an invasion of his right to privacy under article I, section 23 of the Florida Constitution. He also asserted that at a minimum, the trial court needed to conduct an in camera inspection. The court said that while Wal-Mart might be correct that the plaintiff’s military records likely contained evidence that would assist it in defending against the plaintiff’s claims, the military records may also contain information not relevant to his claims, and would be highly intrusive to his privacy interests if disclosed.

Accordingly, the circuit court should have conducted an in camera inspection of the documents to segregate those that were relevant from those that were private and protected.

TRIAL COURT’S FINDINGS AFTER KOZEL HEARING, THAT THE DISMISSAL WITH PREJUDICE WAS PROPER WERE NOT SUPPORTED BY THE RECORD, WHICH WAS DEVOID OF ANY REFERENCE OF WILLFUL, DELIBERATE OR CONTUMACIOUS DISREGARD OF A TRIAL COURT’S ORDER.

Myers v. Highway 46 Holdings, 40 Fla. Law Weekly D1211 (Fla. 5th DCA May 22, 2015).