FLORIDA LAW WEEKLY

VOLUME 40, NUMBER 20

“Fundamental Schmundamental.”

CASES FROM THE WEEK OF MAY 15, 2015

SUPREME COURT QUASHES “FUNDAMENTAL NATURE” EXCEPTION TO THE NEED FOR A TIMELY OBJECTION TO AN INCONSISTENT VERDICT IN A PRODUCTS LIABILITY CASE.

Coba v. Tricam, 40 Fla. Law Weekly S257 (Fla. May 14, 2015):

In this product liability case, a man fell from a ladder after it collapsed due to a “false locking” problem. He ultimately died. Plaintiff sued the manufacturer, Tricam, and Home Depot who had sold the ladder to the decedent for wrongful death.

At trial, the court instructed the jury on both negligence and strict liability theories. The jury found that the defendants did not place the ladder on the market with a design defect, but did find they were negligent. Defendants failed to object to the verdict before the jury was discharged.

The defendants subsequently moved to set aside the verdict alleging it was “fundamentally inconsistent,” because there could be no finding of negligent design without a finding that a design defect contributed to the fall and the jury determined there was no defect.

The trial court denied the motion to set aside the verdict, but the Third District reversed. It articulated a new rule which seemed to be limited to product liability cases, finding that as long as the inconsistency is of a “fundamental nature,” it is unnecessary for the aggrieved party to object before the jury is discharged. The supreme court took jurisdiction of the issue finding conflict with those cases which require a contemporaneous objection to an inconsistent verdict.

The supreme court then reversed. It found there was no specific reason to apply a “fundamental nature” exception unique to products liability cases. It noted that in cases outside of the products liability context, a failure to object to an inconsistent verdict before the jury is discharged waives the right to complain about the error.

The court observed that the requirement of a timely objection discourages gamesmanship by precluding objections that a party sits on in an effort to obtain a calculated benefit by raising it later, and it also enhances the efficiency of judicial proceedings by requiring the error to be raised immediately so it can be rectified as soon as possible. Finally, the requirement of a timely objection promotes the sanctity of the jury verdict and permits a jury to correct a clearly erroneous verdict that might be based on some underlying confusion brought on by the parties.

IMPLEMENTATION OF MANDATORY STATE-WIDE ELECTRONIC RECORDS ON APPEAL–AMENDMENTS TO APPELLATE RULES.

In Re: Amendments to Rule of Appellate Procedure 9.200, 40 Fla. Law Weekly S262 (Fla. May 14, 2015):

Effective October 1, 2015, the Florida Supreme Court adopted amendments to Rule 9.200 regarding the transmission of the electronic record. Some of the notable changes are the court’s deletion of the need for fully searchable indexed PDF documents and stipulated statements.

CITIZENS PROPERTY INSURANCE CORPORATION IS IMMUNE FROM BAD FAITH–ALSO, BAD FAITH IS NOT “WILLFUL TORT” WHICH WOULD ENTITLE AN AGGRIEVED PARTY TO A BAD FAITH ACTION.

Citizens Property Insurance Corp. v. Perdido Sun Condominium Association, 40 Fla. Law Weekly S265 (Fla. May 14, 2015):

Statutory first-party bad faith causes of action under 624.155(1)(b) do not fall within the exceptions to the immunity granted to Citizens by the legislature. While there is a statutory exception to immunity for “any willful tort,” the supreme court determined a statutory bad faith cause of action is not a tort (it is a statutory cause of action).

Additionally, not only did the court find that the legislature did not demonstrate an intent to exempt first-party bad faith claims from Citizens’ statutory immunity, but it also found that it would reduce the funds available to pay insured’s claims for property damage to be exposed to statutory first-party bad faith actions, which would in turn require tax payers to bear responsibility for damage.

STATE OWNED COLLEGE WHERE SERVICES ARE RENDERED FOR A FEE IS A “BUSINESS ESTABLISHMENT” FOR PURPOSES OF §768.0755 ON “FALLS DUE TO TRANSATORY FOREIGN SUBSTANCES”–PLAINTIFF FAILED TO INTRODUCE ENOUGH EVIDENCE TO DEFEAT SUMMARY JUDGMENT.

McCarthy v. Broward College, 40 Fla. Law Weekly D1060 (Fla. 4th DCA May 6, 2015):

A woman slipped and fell on an unidentified liquid in an elevator at Broward College. The college moved for summary judgment, asserting she could not prove actual constructive knowledge of the dangerous condition as required by §768.0755. The trial court granted the motion, finding Broward College was in fact “a business establishment” for the purposes of the statute (because it does provide services for a fee).

Even in drawing every reasonable inference in favor of the non-moving party, the court found Broward College was entitled to judgment as a matter of law, because the plaintiff provided no facts indicating how Broward College was liable for her fall, because she was unable to identify the liquid in the elevator, determine how long it had been there, or establish if anyone at Broward College had actual constructive notice of its presence. Additionally, no evidence was presented or argument made that the condition occurred with regularity and was therefore, foreseeable.

While the plaintiff introduced evidence that it had rained in Pompano some four miles away, there was no evidence that it had actually rained at the campus where she fell. Plaintiff had testified that there was rain much earlier that morning. However, the evidence would have required the fact finder to draw inferences upon inferences in order to reach that conclusion.

TRIAL COURT ERRED IN DENYING INSURER’S MOTION TO COMPEL ARBITRATION–PLAINTIFFS WHO CLAIM THEY ARE ENTITLED TO BENEFIT FROM THE POLICY’S COVERAGE PROVISION ARE ESTOPPED FROM ATTEMPTING TO AVOID ITS ARBITRATION PROVISION ON THE GROUND THAT THEY WERE NON-SIGNATORIES.

Allied Professionals Insurance Co. v. Fitzpatrick, 40 Fla. Law Weekly D1070 (Fla. 4th DCA May 6, 2015):

A chiropractor had a $1 million insurance policy that contained an arbitration provision. The plaintiffs sued the chiropractor and the chiropractor’s employer, alleging she was responsible for injuries. During the lawsuit, the chiropractor tendered the claim to the insurer.

The plaintiffs then agreed to the entry of final judgment to allow the plaintiffs to recover $1 million from the employer. After the circuit court entered final judgment, plaintiffs moved to join the insurer as a party defendant.

Once the plaintiffs claimed rights under the policy against the insurer, the insurer asserted the plaintiffs became bound by the policy’s arbitration provision. The Fourth District agreed.

Even though the plaintiffs were not signatories to the policy, they were seeking benefits under it. The court concluded that estoppel applies to bind the plaintiffs to arbitration because they cannot claim they are entitled to the benefit of the policy’s coverage, while simultaneously attempting to avoid the burden of its arbitration provisions.

NO ABUSE OF DISCRETION IN DENYING DEFENDANTS’ MOTION TO SET ASIDE DEFAULT ENTERED AFTER DEFENDANTS FAILED TO TIMELY FILE RESPONSIVE PLEADINGS OR REQUEST ADDITIONAL TIME FOR FILING–ALTHOUGH DEFENDANTS CITED PERSONAL OR FAMILY MEDICAL EMERGENCIES, DEFENDANTS HAD BEEN GRANTED AN EXTENSION BECAUSE OF THESE CIRCUMSTANCES AND NEITHER FAILED TO RESPOND DURING THE PERIOD OR REQUEST ANOTHER EXTENSION.

Bowers v. Allez, 40 Fla. Law Weekly D1071 (Fla. 4th DCA May 6, 2015):

The plaintiffs sued defendants for fraudulent misrepresentation in an investment deal. Defendants responded to the complaint with a motion for extension to answer the complaint, requesting an additional 45 days because of ongoing personal and family medical issues. They subsequently filed a motion to correct the date listed on the previous motion as the date they would respond, submitting that it would be November 12, 2013. They failed to do so.

Plaintiffs moved for a default. After default judgment was entered, defendants moved to set aside the default alleging excusable neglect and stating that appellant had his own medical emergencies, had to attend to medical emergencies for his parents, separated from his former employer, and had some other problems.

While district courts have found that illness or psychological conditions may be a valid ground for finding excusable neglect under circumstances interfering with that party’s ability to take action, here, the defendants’ factual bases to set aside the default did not amount to that. Although they alleged medical issues, and timely requested an extension, after the time came and went, they failed to request another extension or to respond in time. Thus, there was no abuse of discretion when the trial judge failed to find excusable neglect.

JUDGE’S COMMENTS AND ACTIONS AT HEARING ON PLAINTIFFS’ REQUEST FOR NON-PARTY PRODUCTION AND AT HEARING WOULD GIVE REASONABLY PRUDENT PERSON FEAR OF NOT RECEIVING FAIR AND IMPARTIAL TRIAL–ERROR TO DENY MOTION TO DISQUALIFY.

Partin v. Magalhaes, 40 Fla. Law Weekly D1074 (Fla. 4th DCA May 6, 2015):

The defendant doctor showed up for his deposition and advised that he was no longer with his former employer. He refused to answer questions regarding the circumstances of his termination. The trial judge granted plaintiffs’ motion to compel him to appear for his deposition and answer questions regarding it though.

Dissatisfied with those responses during the deposition, the plaintiffs sought to obtain the doctor’s employment records and personnel file from his former employer. The doctor objected. At a hearing on plaintiffs’ request for non-party production, the judge cut off petitioners’ counsel and expressed his pre-judgment of the matter. He then granted plaintiffs’ motion, ordered the production and imposed monetary sanctions. During the hearings, the court said the judge made “acerbic comments” about petitioners and exhibited overall hostility towards petitioners and their attorneys.

Based on what was said (which is not specified in the opinion), the court “believed the cumulative effect of events within a short space of time” would give a reasonably prudent person a fear of not receiving a fair and impartial trial (even though a trial judge’s expression of dissatisfaction with an attorney or party’s behavior does not warrant disqualification), in this case it did.

A JURY MAY PROPERLY AWARD DAMAGES EQUAL TO OR IN EXCESS OF THOSE REQUESTED BY COUNSEL IN CLOSING, WITHOUT REQUIRING REVERSAL–COURT ALSO FOUND THERE IS NO DISCRETION IN DENYING THE TOBACCO COMPANY’S MOTION FOR NEW TRIAL ON THE BASIS OF IMPROPER COMMENTS BY PLAINTIFF’S COUNSEL IN CLOSING ARGUMENT.

Phillip Morris v. Cuculino, 40 Fla. Law Weekly D1078 (Fla. 3rd DCA May 6, 2015):

While a jury may award more than the plaintiff’s counsel asks for, in this case plaintiff’s counsel explained to the jury that people get paid for the time that they work including actors who make astronomical sums and professional athletes and expert witnesses, and if the plaintiff had the job of suffering from progressive heart disease he should get paid for it. These comments were improper, but the court ruled not so harmful as to require a new trial. It also did not reverse because the verdict was more than sought for in closing.

ERROR TO ENTER SUMMARY JUDGMENT FOR DEFENDANT, WHEN PERSON TRIPPED ON EXPOSED PIPE ON UNPAVED WALKWAY SUFFICIENT EVIDENCE TO CREATE FACTUAL ISSUES ABOUT WHETHER DEFENDANT EXERCISED CONTROL AND WHETHER PIPE WAS OPEN AND OBVIOUS.

Cook v. Bay Area Renaissance Festival, 40 Fla. Law Weekly D1091 (Fla. 2nd DCA May 8, 2015):

The plaintiff was directed by the festival defendant volunteers to park in overflow parking, and there was an unpaved walkway on a patch of city-owned land between the festival grounds and the overflow lot. Between the unpaved walkway and the entrance to the festival, a police officer was directing traffic to help attendees cross the road. After attending the festival, and on her way back to the lot, plaintiff tripped on an exposed pipe cutting her foot.

There was conflicting testimony about whether a volunteer at the festival directed people to use the unpaved walkway or whether the festival defendant was negligent in not maintaining it. There were genuine issues of fact as to whether it even had control of the unpaved walkway. Also, there were questions of fact regarding whether the pipe was open and obvious, thereby precluding summary judgment.