FLORIDA LAW WEEKLY

VOLUME 41, NUMBER 47

CASES FROM THE WEEK OF NOVEMBER 25, 2016

ERROR TO ENTER SUMMARY JUDGMENT FOR DEFENDANT BASED ON WORKERS’ COMPENSATION IMMUNITY, WHEN THERE WAS A FACTUAL ISSUE AS TO WHETHER THE DEFENDANT SHOULD BE ESTOPPED FROM CLAIMING IMMUNITY BECAUSE DEFENDANT TOOK INCONSISTENT POSITIONS IN DENYING THE CLAIM FOR BENEFITS.

Gil v. Tenet Health System, 41 Fla. L. Weekly D2567 (Fla. 4th DCA November 16, 2016):

The decedent worked as a carpenter for a hospital where he was exposed to hazardous materials and subsequently died of cancer as a result. His wife attempted to get workers’ compensation benefits from the hospital employer.

According to her affidavit employees of the hospital informed her that her husband’s illness was not work-related. She then filed a petition for workers’ compensation benefits which was denied. The hospital’s denial said the entire claim was denied because claimant’s employment is not the major contributing cause for his death.

Because of the confusion with the denial, the plaintiff voluntarily dismissed her petition for benefits and then filed a wrongful death lawsuit. The hospital then moved for summary judgment claiming it was immune under workers’ compensation. The plaintiff responded that summary judgment should not be granted because there was a question of fact as to whether the employer was estopped from claiming workers’ compensation immunity.

When an employer takes the position in a workers’ compensation proceeding that the employee is not owed benefits because the injury did not occur in the course and scope of employment, or there was no employment relationship, the employer is subsequently estopped from claiming immunity on the grounds that the worker’s exclusive remedy was workers’ compensation. However, if an employer may claim defenses within a workers’ compensation proceeding in that case, it is not estopped from later asserting immunity.

The hospital argued it had not taken inconsistent positions, and instead had merely asserted a medical causation defense.

The court observed that if the hospital merely intended to allege a medical causation defense, it did not do so clearly. That defense applies where the accidental compensable injury is not the major contributing cause for resulting injury.

Because the notice of denial was ambiguous, the lower court erred in granting summary judgment.

TRIAL COURT ABUSED DISCRETION IN REFUSING TO ALLOW PLAINTIFFS’ COUNSEL TO PRESENT ARGUMENT AT SUMMARY JUDGMENT HEARING, WHERE COUNSEL WAS ONLY A FEW MINUTES LATE, AND HAD A PATENTLY REASONABLE EXPLANATION FOR HIS TARDINESS AFTER A RESTROOM VISIT, AND THERE WAS NO SHOWING OF PREJUDICE OR WILLFUL MISCONDUCT.

Natiello v. Winn-Dixie, 41 Fla. L. Weekly D2574 (Fla. 4th DCA November 16, 2016):

In this slip and fall case, plaintiffs’ counsel arrived for a summary judgment hearing at the scheduled time but left to go to the restroom when he saw that defense counsel was not yet present. When he returned to the courtroom a few minutes later, the trial judge, Judge Barkdull, and defense counsel were wrapping up the hearing. Despite defense counsel’s willingness to reargue the matter, the trial court refused to allow plaintiffs’ counsel to argue, stating he had filed no motion to continue, or memorandum in opposition, and was barred from arguing.

The plaintiff filed a verified motion for rehearing, setting forth his very logical explanation for being tardy. Although plaintiffs’ counsel had not filed anything in opposition to the defendant’s motion for summary judgment, counsel still should have been permitted to present argument on the issue of whether the defendant met its burden on summary judgment. The court reversed and remanded for a new summary judgment hearing.

TRIAL COURT PROPERLY DENIED ATTORNEY’S FEES UNDER PROPOSAL FOR SETTLEMENT, FINDING IT WAS AMBIGUOUS.

South Florida Pool v. Sharpe Investment, 41 Fla. L. Weekly D2582 (Fla. 3rd DCA November 16, 2016):

A landlord sued a commercial tenant for eviction and for damages and included a claim for fees in each count. The defendant served a proposal for settlement on the damages claim, but the general release it attached to the proposal was ambiguous as to whether it was meant to include the landlord’s attorney’s fee claim associated with the eviction claim, or whether it was exempt from the proposal. This ambiguity precluded enforcement of the proposal.

TRIAL COURT IMPROPERLY ORDERED DISCLOSURE OF DOCUMENTS CREATED BY, OR DIRECTED TO, ATTORNEYS ADVISING PARTY TO A LAWSUIT AND CONTAINING PROTECTED WORK PRODUCT, WHERE REQUESTING PARTY’S BURDEN WAS NOT MET.

Tyco Fire Products v. 2711 Hollywood Beach Condominium, 41 Fla. L. Weekly D2586 (Fla. 3rd DCA November 16, 2016):

The underlying lawsuit alleged fire sprinkler product defects and misrepresentations regarding the products. The five documents at issue were created by, or directed to, attorneys advising defendants and their affiliates.

The requesting party in this case failed to show that the party had both a significant need and undue hardship in obtaining a substantial equivalent of these documents. Because plaintiff failed to meet its burden, the documents were protected by the privilege and the trial court departed from the essential requirements of law in ordering them to be produced.

TRIAL COURT ERRED IN DENYING INSURER’S MOTION FOR DIRECTED VERDICT ON THE ISSUE OF FUTURE MEDICAL EXPENSES FOR LOW BACK SURGERY, WHERE THE EVIDENCE FAILED TO ESTABLISH THAT FUTURE SURGERY WAS REASONABLY CERTAIN TO OCCUR--IT ALSO ERRED IN DENYING INSURER’S MOTION FOR DIRECTED VERDICT ON ISSUES OF PAST LOST WAGES AND LOST FUTURE EARNING CAPACITY WHEN THE EVIDENCE WAS INSUFFICIENT ON THOSE ISSUES TOO.

Auto Club Insurance Co. v. Babin, 41 Fla. L. Weekly D2603 (Fla. 5th DCA November 18, 2016):

The 63-year old plaintiff was injured in a multicar rear-end collision. The UM carrier did not deny that the defendant driver was negligent, but disputed the amount of damages. Plaintiff asked to be compensated for future surgery to his low back, past lost wages and the loss of his ability to make future earnings from a scuba diving business he had planned to start with a friend prior to his accident.

The jury awarded the plaintiff $120,000 in past medical expenses, $70,000 in past lost earnings, $160,000 in future medical expenses, $72,000 in lost earning ability for future years, $15,000 for past pain and suffering and $15,000 for future pain and suffering.

The only issues in dispute arose out of future medical expenses, past lost earnings and future earning capacity.

Florida law permits the recovery of the reasonable value or expense of hospitalization and medical care and treatment necessarily or reasonably obtained by the claimant. In support of his claim, the plaintiff presented the testimony of a physician who said that if conservative therapy failed; his lower back would be treated with a two-level reconstruction. The doctor testified that the plaintiff clearly had a low back condition, and that it was of a caliber that “might” need surgery at some point. Specifically regarding the need for surgery however, the doctor testified that the plaintiff has not clinically progressed to that level of dysfunction where surgery was indicated. In the end, the doctor testified that he did not have an opinion as to whether within a reasonable degree of medical probability that the plaintiff would need a future surgery.

The UM carrier asserted that the trial court should have granted a directed verdict on this issue, and the court agreed. It found that the evidence presented failed to establish that future surgery on the plaintiff’s low back was reasonably certain to occur.

As to the claims for past lost wages and loss of future earning capacity, the amount of the award for future earning capacity has to be measured by the plaintiff’s diminished ability to earn income in the future, rather than the plaintiff’s actual loss of future earnings. The plaintiff must demonstrate a reasonable certainty of injury, and present evidence which would allow a jury to reasonably calculate lost earning capacity.

Here, the plaintiff had a bachelor’s degree and a master’s in secondary education, and before moving to Florida served as a law enforcement officer and worked as a teacher. He had back surgery in 1995 and after rehabilitation returned to law enforcement. He retired in 1999 and worked as a teacher for six years.

However, at the time of the accident he was not working. He had completed the book work to become a certified dive master and intended to complete the physical portion of the exam in the fall of 2010 (the accident was in the summer of 2010). At that same time, he and his girlfriend discussed selling their house and moving to Belize to start a scuba diving business.

Plaintiff asserted that this was not mere idle conversation, and that his responsibility was to complete the legal certification. He testified he expected to make $28,000 from the dive business if it was a good, solid and safe operation.

The court found the plaintiff’s inability to work as a dive master did not mean he was unable to work.

There was no guarantee he would have ever worked as a dive master, and there was no evidence that he did not have the capacity to earn income in another area like a dog trainer, which he had been doing.

Because there was no reasonable evidence upon which the jury could predicate its verdict in favor of the plaintiff on these claims, the court reversed on those damage awards also.

COUNTY COURT PROPERLY DENIED THE REQUEST OF THE PREVAILING INSURED FOR A CONTINGENT FEE MULTIPLIER--THE RELEVANT MARKET DID NOT REQUIRE ONE.

Garrison Property & Cas. Co. v. Rohrbacher, 41 Fla. L. Weekly D2609 (Fla. 5th DCA November 18, 2016):

Plaintiff sued the insurer for its denial of his PIP coverage, which resulted in a confession of judgment.

The county court denied the plaintiff’s request for a contingent fee multiplier, but the circuit court reversed. The insurer argued that the relevant market did not require a multiplier because many attorneys took these cases without one.

The difficulty of a case alone cannot overcome the presumption against a multiplier. The court observed its docket and the dockets of trial courts all over central Florida had hundreds, if not thousands, of PIP suits pending at any given time. This suggests that few insureds have difficulty in obtaining competent counsel to represent them.

Because the county court did not abuse its discretion in declining to award a multiplier, the circuit court erred in reversing the county court.