FLORIDA LAW WEEKLY

VOLUME 41, NUMBER 29

CASES FROM THE WEEK OF JULY 22, 2016

TRIAL COURT DID NOT ABUSE DISCRETION IN DISMISSING COMPLAINT FOR FRAUD ON THE COURT, WHERE PLAINTIFF LIED REGARDING PRIOR INJURIES.

Diaz v. Home Depot, 41 Fla. L. Weekly D1625 (Fla. 3rd DCA July 13, 2016):

Plaintiff sued Home Depot, alleging she was injured when a fire extinguisher fell from the wall above her and hit her on the neck and shoulder. She allegedly suffered permanent injuries to her neck and shoulder, and sought both economic and non-economic damages.

During her deposition, Home Depot’s counsel questioned the plaintiff about her injuries, and about any prior neck or shoulder injuries. At each point, plaintiff denied she had suffered any prior injuries to her neck, back or shoulders, and further denied she had ever been involved in a slip and fall accident or a motor vehicle accident requiring medical treatment.

However, after obtaining her medical records, Home Depot discovered that nine months prior to the subject incident, she had been involved in a motor vehicle accident, went to the hospital by ambulance and had pain to her neck and upper back.

Additionally, medical records revealed that less than seven months before the incident (two months after the incident listed above), she visited the ER, again complaining of neck pain and back pain. She had passed out two days prior to that visit, had fallen backwards, and hit concrete. She reported a throbbing pain to the neck and sharp pain to her back.

Finally, medical records also revealed that eight months after the subject incident (and two months before she filed suit), she was involved in a single car accident which again required a visit to the ER. At that time she also reported to the nurse that she had chronic neck pain since 2009.

Home Depot moved to dismiss the complaint for fraud on the court. The trial judge conducted an evidentiary hearing, at which the plaintiff testified, and several documents were admitted.

The court granted the motion, finding in the detailed 17-page order that plaintiff had provided false and misleading testimony, and that the evidence showed clearly and convincingly that she had demonstrated a willingness to give false testimony under oath, evincing a total and flagrant disregard for the integrity of the judicial system, and that she engaged in a pattern of fraudulent misconduct designed to improperly bolster her claims in compromise. The court found the explanations for her false testimony were not credible.

The Third District concluded that the findings were amply supported by the record. It found no abuse of discretion in the court’s decision to dismiss the complaint with prejudice, based upon its determination that the evidence clearly and convincingly demonstrated that the plaintiff sentiently set in motion an unconscionable scheme calculated to interfere with the judicial system’s ability to impartially adjudicate a matter, by improperly influencing the trier of fact, or hampering the presentation of the opposing party’s claim or defense. The court upheld the dismissal.

THIRD DISTRICT HOLDS THAT A PIP POLICY STATING THAT ANY AMOUNTS PAYABLE UNDER THE COVERAGE ARE SUBJECT TO ANY AND ALL LIMITATIONS AUTHORIZED BY SECTION 627.736 OR ANY OTHER PROVISIONS OF THE FLORIDA MOTOR VEHICLE NO-FAULT LAW--INCLUDING ITS FEE SCHEDULES--CLEARLY AND UNAMBIGUOUSLY ELECTS A 627.736(5)(a)(2) METHODOLOGY UNDER VIRTUAL.

Florida Wellness v. Allstate, 41 Fla. L. Weekly D1619 (Fla. 3rd DCA July 13, 2016):

In 2008, the Florida Legislature amended the PIP statute to include a fee schedule in section 627.736(5)(a)(2)(f). Under this schedule, the policy reimburses medical bills at the statutory rate of 80% of 200% of the Medicare Part B schedule.

Pursuant to the Florida Supreme Court’s decision in Geico v. Virtual Imaging, 141 So. 3d 147 (Fla. 2013), in order for the insurer to utilize the fee schedules to limit reimbursement, the policy must clearly and unambiguously inform insureds that the insurance company has elected to use the statutory schedules.

In this case, the policy language provided that any amounts payable under the coverage:

[s]hall be subject to any and all limitations authorized by section 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.

Allstate argued that the language “subject to any and all limitations…” sufficiently placed the insureds on notice that Allstate had elected to use the fee schedule limitations.

The Third District agreed. Looking to a decision from the First District which used identical language and held that a proper election was made, as well as a similar case from the Second District, the Third District held that this language did in fact satisfy the requirements of Virtual.

The court certified conflict with the Fourth District’s decision in Orthopedic Specialists v. Allstate, 177 So. 3d 19 (Fla. 4th DCA 2015), where that court found the language to be ambiguous, and therefore the election unenforceable.

NOTICE OF APPEAL FILED 35 DAYS AFTER RENDITION OF ORDER DENYING REHEARING WAS UNTIMELY.

Medley Plaza v. The Rama Fund, 41 Fla. L. Weekly D1624 (Fla. 3rd DCA July 13, 2016):

Appellate Rule 9.110(b) requires that a party file a notice of appeal from a final order within 30 days of the rendition of the order being appealed. The Rule of Judicial Administration 2.514(b), which allows a person to act after service by mail or email, by adding on five days, does not operate to extend the time for filing a notice of appeal. Notices of appeal must be filed within 30 days of rendition in order to be timely.

DEFENDANT STABLE OWNER AND HORSE OWNER IMMUNE FROM LIABILITY UNDER FLORIDA’S “EQUINE ACTIVITIES LIABILITY ACT” FOR HORSE BITE SUFFERED BY PLAINTIFF WHILE ENGAGED IN EQUINE ACTIVITY.

Germer v. The Churchill Downs Management, 41 Fla. L. Weekly D1630 (Fla. 3rd DCA July 13, 2016):

Section 773.02 immunizes defendants from any liability for injuries suffered by participants engaged in equine activity. In this case, the plaintiff was a former licensed jockey visiting a barn to see his friend’s horse. This visit to the stables was an organized activity as defined in section 773.01(1), because the visit was organized by the plaintiff’s roommate who owned a horse housed at the stables. Thus, under the statute, the defendants were immunized from responsibility.

ARBITRATION AGREEMENT FOUND IN HOSPITAL DOCUMENTS INCORPORATING SOME, BUT NOT ALL, OF THE PROVISIONS OF FLORIDA’S MEDICAL MALPRACTICE ACT, WAS VOID AGAINST PUBLIC POLICY AND THE PROVISION WAS NOT SEVERABLE.

Klemish v. Villacastin, 41 Fla. L. Weekly D1635 (Fla. 5th DCA July 15, 2016):

A woman who was admitted to the hospital for therapy and post-surgical care, signed an arbitration agreement entitled “Alternative Dispute Resolution Agreement and Amendment to Admission Agreement.” The agreement waived her right to a trial by jury, and stated that any dispute would proceed to binding arbitration.

After suffering injuries, the plaintiff filed a medical malpractice lawsuit and the hospital moved to dismiss based on this arbitration agreement. The plaintiffs argued that the trial court erred in ordering the matter to arbitration, because the agreement was void against public policy since it incorporated some, but not all, of the provisions of Florida’s Medical Malpractice Act.

The Fifth District agreed. Relying on Florida Supreme Court precedent, the court reiterated that public policy prohibits the enforcement of an arbitration provision that incorporates some, but not all of the Medical Malpractice Act’s arbitration provisions, the court found the agreement was unenforceable.

The court further rejected the hospital’s argument that the severability clause in the agreement could sever any of the invalid provisions which would still allow the case to proceed to arbitration. It reasoned that, if the invalid provisions were severed, the trial court would be required to rewrite the parties’ arbitration agreement by inserting the Medical Malpractice Act’s arbitration provisions. That is something Florida courts do not authorize. The court certified conflict with the Second District, because that court had previously ruled to enforce such an agreement.

AN ORDER THAT DENIES DEFENDANT’S MOTION FOR SUMMARY JUDGMENT BUT DOES NOT DETERMINE AS A MATTER OF LAW THAT SUMMARY JUDGMENT IS IMPROPER, IS NOT APPEALABLE.

Taival v. Barrett, 41 Fla. L. Weekly D1637 (Fla. 5th DCA July 15, 2016):

A doctor appealed a non-final order denying her motion for summary judgment on the issue of sovereign immunity. The order denied the defendant’s motion for summary judgment, but did not determine as a matter of law that it was improper based on sovereign immunity. Therefore it was not appealable.