FLORIDA LAW WEEKLY

VOLUME 41, NUMBER 33

CASES FROM THE WEEK OF AUGUST 19, 2016

COURT ABUSED DISCRETION IN DENYING INSURER’S MOTION FOR LOST PAST EARNINGS AND LOST FUTURE EARNING CAPACITY WHERE AWARDS WERE PRIMARILY BASED ON THE INSURED’S SPECULATIVE TESTIMONY ABOUT HIS POTENTIAL EARNINGS.

Safeco Insurance Co. v. Fridman, 41 Fla. L. Weekly D1870 (Fla. 5th DCA August 12, 2016):

Plaintiff sued his UM carrier for injuries resulting from an auto accident.  At the time, he was 41 years old and unemployed.  Prior to the accident, he had been an electronics salesman for several years earning $800-$1,000 per week.  He had also operated a retail marble and tile store.  At trial he could not recall the exact earnings from the business explaining it was a growing business and he did not remember getting a paycheck.

Shortly after the collision, the plaintiff found a new location to open a wholesale marble and tile business which stayed open for approximately 20 days, during which time he lost money.  He testified he closed the business because he could not lift the marble as a result of the injuries suffered in the accident.  Plaintiff then went to work in an electronics store, earning a commission of $400-$600 per week, and later at a photoshop, earning $500-$600 per week.  Subsequently, he obtained employment at a cash-for-gold store, earning approximately $1,200 per week.

In May of 2010, he had surgery for injuries related to the collision and was unable to work for two weeks.  He then returned to his job at the cash-for-gold store, and was employed there at the time of trial.

In support of plaintiff’s time away from work for his surgery, he testified he believed in a good year he would have made between $100,000 and $200,000 in the wholesale marble business.  He did not adduce any other evidence to support his claim to that effect, except that he would buy the marble at a small price per square foot and sell it for several times the amount paid.

The jury awarded him $1 million, including $45,000 for past earnings and $225,000 for lost future earning capacity.

Unfortunately, plaintiff failed to present any evidence of the amount of earnings that could “reasonably be expected” from a business such as his, other than the unsubstantiated speculation about how much he could make in a good year.  While a plaintiff earning more after the injury than prior to the injury is entitled to recover some damages for loss of income or loss of future earning capacity, it is more difficult for him to show that he has suffered an economic loss. 

In this case, the evidence was insufficient to support the past earnings and lost future earning capacity.  Therefore the court reversed for entry of a remittitur.

CAUSE OF ACTION BEGINS TO ACCRUE WHEN PLAINTIFF STARTS TO SUFFER DAMAGES.

Riverwalk Sunrise Homeowners Association v. Biscayne Painting Corp., 41 Fla. L. Weekly D1828 (Fla. 4th DCA August 10, 2016):

In 2005, the defendant painted the homeowners’ association buildings.  Several years later the paint began to crack and peel.  The defendant had inspected the premises in 2005 when the painting was completed, but the damages did not become apparent until 2009.  The association filed suit in 2012, but the trial judge dismissed it as untimely, finding that the statute had started running on the date of defendant’s final inspection in 2005.

To be timely, the Fourth District reminded us, an action for negligence must be commenced within four years after the cause of action accrues, and a cause of action accrues when the last element constituting the cause of action occurs.  As a general rule, bodily injury or property damage is an essential element of a cause of action in negligence.

Because plaintiff did not begin suffering damages until 2009, a complaint filed in 2012 was indeed timely, and the Fourth District reversed the final judgment entered in favor of the defendant.

ERROR TO DISMISS COMPLAINT FOR FAILURE TO SERVE PROCESS WITHIN 120 DAYS, WHEN PLAINTIFF DEMONSTRATED EXCUSABLE NEGLECT FOR FAILING TO TIMELY SERVE DUE TO ITS INVOLUNTARY BANKRUPTCY.

Banyon Income Fund v. Hutchison & Steffen, 41 Fla. L. Weekly D1829 (Fla. 4th DCA August 10, 2016).

ERROR TO DISMISS ACTION BECAUSE PLAINTIFF’S COUNSEL FAILED TO APPEAR FOR CASE MANAGEMENT CONFERENCE, WITHOUT MAKING A FINDING THAT COUNSEL’S ACTIONS WERE WILLFUL, FLAGRANT, DELIBERATE AND/OR OTHERWISE AGGRAVATED.

Special K Investors v. Meiman, 41 Fla. L. Weekly D1857 (Fla. 3rd DCA August 10, 2016).

CONTINUING TORT DOCTRINE DID NOT APPLY BECAUSE ORIGINAL WRONG IN THAT CASE TRIGGERED THE STATUTE.

Effs v. Sony Pictures, 41 Fla. L. Weekly D1858 (Fla. 3rd DCA August 10, 2016):

Plaintiff sued for tortious interference with a business relationship against Sony Pictures, alleging he had a 25% interest in a movie, pursuant to an oral agreement he had.  Plaintiff alleged that Sony subsequently entered into a licensing agreement with others, thereby tortiously interfering with the original business relationship plaintiff had.

Pursuant to the subsequent licensing agreement, Sony paid the first payment to the others in 2005.  Other distribution payments were allegedly made after that date.  In 2007, plaintiff’s counsel sent Sony an email advising it of plaintiff’s involvement in the movie, and his entitlement to his share.

The trial court found plaintiff’s tortious interference claim accrued on the date of the first payment in 2005.  Under the delayed discovery doctrine the court ruled, the latest date the plaintiff learned of the alleged interference was in May of 2007 when his counsel sent the email.  The court found the lawsuit was barred as of March 2012, but plaintiff asserted the continuing tort doctrine applied.

Under the continuing tort doctrine, a cause of action accrues when the tortious conduct ceases.  A continuing tort is established by continual tortious acts, but not by continual harmful effects from an original, completed act.

Contrary to the plaintiff’s assertion, the tort was not continual in nature merely because Sony had made subsequent distribution payments.  Those additional payments were merely still the harmful effects from the original completed act.  Because the continuing tort doctrine was not applicable, the trial court properly concluded the case was time barred.

AN ARBITRATION CLAUSE CONTAINED IN A BULK MAILER SENT OUT AFTER THE PURCHASE OF PROPANE DID NOT APPLY RETROACTIVELY.

All-South Subcontractors v. AmeriGas Propane, 41 Fla. L. Weekly D1859 (Fla. 1st DCA August 1, 2016):

Plaintiff had purchased propane from the appellees in 2010.  In 2012, defendant sent out written notice of general terms and conditions of AmeriGas Propane contracts, relating to the supply of propane and the release of related equipment.  Contained within those terms and conditions was an arbitration clause.

In 2014, the plaintiff/appellant filed a class action against AmeriGas, alleging that its practice of charging fuel recovery fees to its customers violated the Florida Deceptive and Unfair Trade Practices Act.  Because the defendant failed to show that the parties entered into a valid written agreement in 2010 to arbitrate the dispute, and the bulk mailer came after that fact, those terms and conditions could not be applied retroactively to bind the plaintiff.   Therefore the arbitration clause could not provide a basis to dismiss the plaintiff’s complaint.

PARTY CAN SEEK RELIEF UNDER RULE 1.540(b) WHEN NOT RECEIVING A COPY OF AN ORDER ENTERED BY THE COURT UNTIL AFTER THE TIME FOR FILING THE APPEAL HAS EXPIRED.

Waters v. Pam Childers, 41 Fla. L. Weekly D1864 (Fla. 1st DCA August 11, 2016):

The plaintiff, an inmate, filed a mandamus petition against the clerk of Escambia County.  The petition was denied and a timely motion for rehearing was filed.  Subsequently, the appellant sent a notice of inquiry to the clerk regarding the status of the motion for rehearing.  The clerk informed the appellant that the order had been entered approximately six weeks before.

Plaintiff then filed a motion for relief from judgment under rule 1.540(b), asserting that he never received a copy of the order denying the motion, and asking the trial court to vacate and re-enter the order so he could appeal.  The trial court denied the motion.

Because the motion for relief was facially sufficient and not refuted by the limited record, and because not receiving an order is a basis for relief under rule 1.540(b), the court reversed and remanded for an evidentiary hearing on the motion.