FLORIDA LAW WEEKLY

VOLUME 41, NUMBER 14

CASES FROM THE WEEK OF APRIL 8, 2016

TRIAL COURT PROPERLY INTERPRETED RULE 1.510 AS REQUIRING THE ADVERSE PARTY TO FILE NOTICE IN RESPONSE TO A MOTION FOR SUMMARY JUDGMENT, EVEN IF THE EVIDENCE UPON WHICH IT SEEKS TO RELY IS ALREADY IN THE RECORD.

State Farm v. Figler, 41 Fla. Law Weekly D805 (Fla. 4TH DCA March 30, 2016):

In this case of first impression, State Farm had filed an affidavit during discovery in a PIP case, stating its intent to rely upon the affidavit for any purpose permitted pursuant to the Florida Rules of Civil Procedure and Florida Evidence Code.

After that, plaintiff moved for summary judgment on the issue of whether the treatment was reasonable, related and necessary, and State Farm filed nothing specifically to oppose the motion. However, at the hearing, it sought to rely on the doctor’s affidavit.

The trial court granted the plaintiff’s motion for summary judgment concluding that State Farm had not complied with rule 1.510(c) which requires the adverse party to identify by a certain time before the hearing, the summary judgment evidence on which it intends to rely.

State Farm argued that the trial court erred in interpreting the rule, claiming it did not require the adverse party to file a notice in response to a motion for summary judgment, if the evidence upon which it relied was already in the record. It contended that the trial court was injecting into the rule a requirement that the adverse party’s notice must be served only after the moving party moves for summary judgment, when the rule states that notice may be served at any time before the summary judgment hearing, as long as it is timely.

Plaintiff pointed to the 2005 amendment to the rule, which required the movant and the adverse party to notify each other if the summary judgment evidence on which the party relies and argue that the word “shall” in rule 1.510(c) signified a mandatory requirement.

The court went on to explain that a properly crafted motion for summary judgment should frame the legal issues to be decided by the court and the movant must identify the facts in support of the motion. The movant is not supposed to ambush the opposing party, and the rule requires that a summary judgment motion state with particularity the grounds upon which it is based and the substantial matters of law to be argued.

The court found there was logic to the rule requiring specificity as to both the grounds and the evidence to be considered in ruling on a motion, the grounds framing the legal issue and the identification of evidence allowing the trial and the appellate courts to more easily determine if there was a dispute of material fact.

The court said a party is certainly free to rely on evidence previously filed, but the rule requires the adverse party to identify it. Florida courts have sought to adhere to the principle that the Florida Rules of Civil Procedure should be interpreted to further justice and not to frustrate it, and the court believed that this decision would limit “gotcha” tactics in litigation.

COURT REVERSES VERDICT FOR PLAINTIFFS, REMANDING FOR ENTRY OF DIRECTED VERDICT ON WORKERS’ COMPENSATION IMMUNITY.

Wert v. Camacho, 41 Fla. Law Weekly D786 (Fla. 2nd DCA March 30, 2016):

The defendant was working on a job site with the plaintiff. Defendant and plaintiff were working for different subcontractors on a comprehensive maintenance project at a fertilizer plant.

The defendant was the superintendent for one company. The plaintiff was employed by a subcontractor who had set up a staging area for equipment and tools near a shack owned by the defendant’s employer.

The plaintiff argued that he and the defendant were two subcontractors involved in unrelated works, and therefore the exception applied to eviscerate workers’ compensation immunity. The defendants, however, argued they were two separate subcontractors entitled to horizontal immunity.

The Second District found that for the unrelated works exception to apply, the plaintiff and the defendant had to be co-employees of the same employer, pursuant to Section 440.11(1). The plaintiff asserted that §440.10(1)(p) deemed all the subcontractors “one in the same” on a project like this one.

The Second District disagreed. It held that the statute did not apply to create an employment relationship of any kind between the plaintiff’s employer and the defendant’s employer, and while they were both subcontractors of another contractor, they were not part of the same contract work. Thus, no vertical relationship existed between the defendant’s employer and the plaintiff’s employer, and without it, the unrelated works exception could not apply because they were not deemed to be in the same business.

Instead, the two companies were subcontractors on the same project, and were indeed entitled to horizontal immunity.

THE LANGUAGE IN THE INSURER’S POLICY AUTHORIZING PAYMENT BASED ON “ALL FEE SCHEDULES” GAVE THE INSUREDS AND THEIR RESPECTIVE PROVIDERS LEGALLY SUFFICIENT NOTICE OF THE ELECTION TO USE MEDICARE FEE SCHEDULES.

Allstate Indemnity v. Markley Chiropractic, 41 Fla. Law Weekly D793 (Fla. 2ND DCA March 16, 2016):

In a case involving the supreme court decision in Geico v. Virtual, the trial court certified a question of great public importance regarding whether when a PIP policy states that any amounts payable shall be subject to §627.736 including but not limited to all fee schedules, does that properly notify the insured of the methodology the insurer will apply in limiting reimbursement of PIP benefits.

In the PIP policy at issue, the insurer stated that under §627.736(1), it would pay 80% of all reasonable medical expenses for medically necessary medical services. The policy then included an endorsement which stated that:

Any amounts payable under this coverage shall be subject to any and all limitations, authorized by §627.736, or any other provisions of the Florida Motor Vehicle No-Fault Law, as enacted, amended or otherwise continued in the law, including but not limited to, all fee schedules.

The court reminded us of the dispute in Virtual, where the insurer had relied on subsection (5)(a)(2)(f) to limit reimbursement at 200% of the allowable amount under the participating physician’s schedule of Medicare Part B, but did not reference the permissive Medicare fee schedule method of calculating expenses.

The Second District stated that the language “including but not limited to all fee schedules” did provide enough to show the intent to select a specific methodology of reimbursement, and that Virtual does not require other magic words.

A simple notice requirement is satisfied by stating that any amounts payable to the fee schedule base limitations in the statute will do. The court observed that Allstate’s policy left no wiggle room as to whether fee limitations would be utilized because both providers and insureds were on notice that all fee schedules would be applied. The court reversed the summary judgment for the plaintiff.

PLAINTIFF’S MEDICAL MALPRACTICE CASE FILED UNTIMELY.

Bove v. Naples HMA, 41 Fla. Law Weekly D827 (Fla. 2nd DCA April 1, 2016):

The plaintiff’s husband died on February 26, 2012. In April of 2012, plaintiff met with a physician to review what had occurred during her husband’s bone marrow biopsy, and on July 12, 2012, she met with her attorney. She received letters on February 2, 2014 and February 23, 2014 from experts concluding that the death was caused by medical malpractice.

Via certified mail, the plaintiff served the doctors with a copy of the notice of intent on February 25, 2014 that had the experts’ letters and their medical records in it. The notice was not received until March 4th. The notice of intent stated that the two year timeframe to file the complaint would begin on the date of the death, as that was when the negligence was discovered.

Plaintiff filed other notices of intent in May and in the interim filed a petition for extension in April of 2014. By the time plaintiff filed her complaint in September of 2014, the defendants had moved to dismiss based on statute of limitations.

The plaintiff contended that she did not learn of the possible negligence until she met with her attorney in July of 2012. Noting that the mere occurrence of an injury is not enough to trigger the statute of limitations, and that some circumstances might not be the obvious result of medical negligence, the court refused to allow the plaintiff relief under the facts of this case because her notice of intent acknowledged that on the date of her husband’s death, the family and the estate had discovered the negligence of the professionals in performing the bone marrow biopsy.

The plaintiff argued she should not be bound by her attorney’s statement in the notice of intent because it was not evidence and, instead pointed to her own affidavit where she said she did not know until July of 2012. However, the court said litigants are not permitted to take inconsistent positions.

Because the notice of intent was a statutory prerequisite to filing suit and contained factual allegations relied on by the parties, the plaintiff was bound by the assertions within it, and the complaint was not timely.

Also, under §766.106(4) and rule 1.650(b)(1), receipt of notice that requires it be sent by certified mail focuses on the date the notice was received. Thus, that was also relevant in determining whether the statute was tolled. Even though the plaintiff sent the notice on the day before the statute expired, defendants did not receive the notice until after it expired and the plaintiff could not revive it by filing the petition for extension at that point.

THE TRIAL COURT PROPERLY REFUSED TO APPROVE CONTINGENCY FEE AGREEMENT PROVIDING FOR PAYMENT EQUALING 40% RATHER THAN THE 33-1/3% SET BY THE BAR RULE.

Mahany v. Wright’s Healthcare, 41 Fla. Law Weekly D830 (Fla. 2nd DCA April 1, 2016):

Plaintiff sought certiorari review of the trial court’s order denying her petition of approval of an attorney’s fees contract which would have awarded her attorney 40% of the total settlement from her negligence claim against Wright’s Healthcare & Rehabilitation Center. However, Plaintiff filed her complaint after already having reached a settlement. The limited appellate record reflected that the defendant had not retained counsel or otherwise participated in the circuit court proceedings.

Subsequently, after the settlement, the Plaintiff’s attorney sent a letter to the trial court seeking approval for the increased fee. In the petition, the plaintiff waived any right or opportunity to be heard.

Plaintiff contended that the circuit court departed from the essential requirements of law in failing to apply the provisions of 4-1.5, which requires the court to approve a fee agreement where the client shows she understands her rights in terms of the agreement.

Putting aside the requirements for certiorari, the court emphasized that the rule requires the trial court to determine whether the client understands her right to have the fee limitations applied to her case, and the court did not believe that was possible without an evidentiary hearing. The waiver of this right in a sworn petition for approval of an attorney’s fee contract apprised the trial court of the ability to assess the client’s competence, understanding and willingness to waive such a right. The better practice is to present the client before the court to allow the court to assess her understanding of her rights and to confirm that she made a knowing and intelligent waiver under the rule.

My guess is this result had something to do with the timing of the initial petition for approval.