FLORIDA LAW WEEKLY

VOLUME 41, NUMBER 15

CASES FROM THE WEEK OF APRIL 15, 2016

TRIAL COURT DEPARTED FROM ESSENTIAL REQUIREMENTS OF LAW IN GRANTING MOTION FOR PSYCHIATRIC EXAMINATION OF PARTY WITHOUT PROPERLY DETERMINING THAT THERE WAS GOOD CAUSE FOR THE EXAMINATION--COURT MUST DETERMINE THE SCOPE OF THE REQUIRED EXAMINATION BEFORE MAKING A GOOD CAUSE DETERMINATION.

Espinosa v. D.H. Griffin Construction Co., 41 Fla. Law Weekly D857 (Fla. 3rd DCA April 6, 2016):

Under Rule 1.360, there are two essential prerequisites before a party may seek a compulsory mental or physical examination: (1) the opposing party’s mental condition is “in controversy,” meaning it is directly involved in some material element of the cause of action or of a defense; and (2) that “good cause” be shown or that the mental state of the opposing party even though in controversy cannot be adequately evidenced without the assistance of medical expert testimony.

The court found that the trial judge did not depart from the essential requirements of law in determining that the condition was the subject of the requested examination in controversy.

However, there was a departure from the essential requirements of law because the good cause requirement was not met. In finding the good cause requirement, the trial judge did not consider or evaluate the “scope” of the psychiatric examination. Instead, the judge instructed counsel to attempt to reach an agreement on the scope and in absence of such agreement, to obtain a further order before the exam would be conducted.

It is improper to bifurcate the interrelated concepts of good cause and scope of examination. Instead, the movant has the burden of establishing good cause for each particular examination. Until the movant specifies the scope of the requested examination, the court cannot determine whether the movant has established good cause for each particular examination.

Under the language employed in the motion, the psychiatrist would have been allowed to permit other examinations or administer other tests which were not outlined and thus, the court granted the writ.

ERROR TO IMPOSE ATTORNEY’S FEES AGAINST PLAINTIFF UNDER SECTION 57.105 FOR FILING FRIVOLOUS LAWSUIT, WHERE THERE WAS AN ARGUABLE BASIS IN LAW AND FACT FOR THE SUIT.

Kowallek v. Rehm, 41 Fla. Law Weekly D877 (Fla. 4th DCA April 6, 2016):

The original dispute involved whether FPL was legally permitted to cut down a group of acacia trees growing on the plaintiff’s property. After FPL cut down the tree, the plaintiff alleged there was not compliance with the final judgment regarding FPL’s utility easement. The defendants then moved to dismiss and moved for fees under §57.105.

In concluding that the fees were awarded erroneously, the court noted that its decision was not intended as an opinion of the strength of the plaintiff’s contentions, but found that it could not be said his allegations were “completely without merit and law” or “contradicted by overwhelming evidence.” Therefore it was error to grant the motion for sanctions, and this case gives voice to when a case is “frivolous” and “fee-worthy” under §57.105.

TRIAL COUT ERRED IN HOLDING THAT BENEFITS TO BE PAID FROM $5,000 RESERVE IMPOSED BY STATUTE FOR EMERGENCY SERVICES WERE NOT SUBJECT TO AN OTHERWISE APPLICABLE DEDUCTIBLE IN PIP CASES.

Progressive Express Insurance v. Emergency Physicians of Central Florida, 41 Fla. Law Weekly D888 (Fla. 5th DCA April 8, 2016):

Relying on the Mercury Insurance Co. v. Emergency Physicians of Central case, the court again granted certiorari finding that all claims--including the priority claim of these emergency physicians--are properly applied to a personal injury protection deductible in the order that they are received.

In Mercury, the circuit court had erred in holding that the benefits to be paid from the $5,000 reserve imposed by section 627.736(4)(c) were not subject to an otherwise applicable deductible. However, that interpretation ran afoul of the plain language of §627.739(2) which sets out that the deductible amount must be applied to 100% of the expenses and losses described in §627.736.

Therefore, the emergency physicians were not entitled to payment from the insurance company, because the insurer properly applied its claim to the deductible.

TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION TO STAY EXECUTION OF AN ENGLE-RELATED JUDGMENT WHILE DEFENDANT CONSIDERS WHETHER TO FILE A PETITION FOR REVIEW IN UNITED STATES SUPREME COURT.

R.J. Reynolds v. Sikes, 41 Fla. Law Weekly D899 (Fla. 1st DCA April 12, 2016):

In the seemingly never ending tobacco litigation saga, the court ruled that when a defendant has taken steps to invoke its rights to seek further review increasing its bond to the full amount of the judgment in seeking to confirm the stay, then the defendant is entitled to a continued automatic stay provided by section 569.23(3)(b)(1) (a specific law addressing bond requirements in tobacco cases), Florida Statutes, until the U.S. Supreme Court completes its review, or the period for filing the petition runs.