FLORIDA LAW WEEKLY

VOLUME 41, NUMBER 26

CASES FROM THE WEEK OF JULY 1, 2016

TRIAL COURT PROPERLY COMPELLED MEDICAL MALPRACTICE PLAINTIFF TO ANSWER QUESTIONS ABOUT WHEN SHE FIRST CONTACTED AN ATTORNEY, AND WHAT ATTORNEYS SHE CONTACTED--AS THOSE QUESTIONS DO NOT REQUIRE A PLAINTIFF TO DISCLOSE ANY “COMMUNICATIONS” SHE MAY HAVE HAD WITH AN ATTORNEY (WHICH ARE PROTECTED).

Coffey-Garcia v. South Miami Hospital, 41 Fla. L. Weekly D1458 (Fla. 3rd DCA June 22, 2016):

Parents filed a petition for writ of certiorari seeking to review an order compelling the mother to answer deposition questions regarding the lawyer she consulted related to the medical malpractice claim she brought on behalf of her daughter. Because there was a question as to when the statute of limitations ran, the defense lawyers sought to discover what lawyers the mother contacted, when, and why. After she testified that her current attorney was not the “first,” she declined to answer any other questions based on the attorney-client privilege asserted by her attorney.

The trial court ordered the mother to answer all questions related to when she first sought legal counsel, and the names of the attorneys whom she consulted with. However, the court also compelled her to give the reasons why she first sought out legal counsel and any subsequent counsel.

As a rule, the attorney-client privilege protects communications to and from a lawyer, but it does not protect facts known by the client independent of any communication with the lawyer, even if the client later tells the fact to the lawyer. Thus, while the communications between the attorney and the client are privileged, the underlying facts are discoverable.

The burden of establishing the existence of the attorney-client privilege and the existence of confidential communications rests on the party asserting the privilege. That burden can be met by describing the nature of the documents, the communications, or the things not produced or disclosed, in a manner that without revealing the information, will enable other parties to assess the applicability of the privilege.

Here, the trial court’s order was appropriate in ordering the plaintiff to compel the names of the attorneys she consulted, and when, for the general purpose of discussing possible legal remedies stemming from her daughter’s condition. Those questions did not implicate the attorney-client privilege, even though the mother would be revealing in general terms, her purpose for scheduling and attending the consultation. Courts have consistently held that general subject matters of a client’s representation are not privileged and the purpose of the client’s representation does not necessarily divulge confidential professional communications.

However, the court did quash the third part of the order, requiring the mother to answer all questions related to the reasons why she first sought out legal counsel and any subsequent counsel. That part of the order did impermissibly allow inquiry into confidential communications, and the court could not require her to answer those questions.

BECAUSE A PRESUIT SETTLEMENT INVOLVED MINORS AND TOTALED $50,000 OR MORE, TRIAL COURT WAS REQUIRED TO APPOINT A GUARDIAN AD LITEM TO REPRESENT THE CHILDREN’S INTEREST BEFORE APPROVING SETTLMENT THAT DISPOSED OF THE CHILDREN’S CLAIMS--SETTLEMENT INVALID AS TO CHILDREN’S CLAIMS, AND SO THEREFORE, THE TRIAL COURT ERRED IN DISMISSING CHILDREN’S COMPLAINT BASED ON THE AGREEMENT.

Allen v. Montalvan, 41 Fla. L. Weekly D1469 (Fla. 4th DCA June 22, 2016):

The children were three of six passengers in an automobile involved in an accident. The driver, the grandmother of two of the children and the mother of the third, was killed in the crash. The other passengers suffered varying degrees of injuries.

The mother retained attorneys and gave them the authority to prosecute any suit and settle, dismiss or discontinue the same. The attorney sent a letter to the plaintiff’s insurance carrier seeking coverage information. The coverage had limits of $25,000 per person and $50,000 per incident.

There was a discussion between the attorney and the adjuster, which was a matter of dispute. The adjuster said she would be “globally tendering the policy limits to extinguish all bodily injury claims.” She recounted how the attorney requested payment be made in two checks: one for the wrongful death and the other for the five surviving passengers.

The attorney’s recollection was different. He testified that the adjuster offered to tender the full policy limits, but did not give the dollar amount per claim. He remembers her saying she was going to globally tender the rest of the $25,000 and send him blank releases. The attorney said that while the $25,000 with the release naming the deceased was a “settlement” in his mind, he did not consider the second $25,000 to be a settlement, but rather an insurance tender.

Because the presuit settlement in this case involved minors and totaled $50,000 or more, the trial court was required to appoint a guardian ad litem to represent the children’s interest before approving a settlement that disposed of the children’s claims. The attorney’s failure to do that was sufficient to require reversal of the settlement.

The insurer and the two other appellees as parties to the settlement agreement all had an obligation to ensure the settlement was legally binding. Because the proposed settlement did not comply with the requirements of section 744.3025, it was invalid as to the claims for the children. As such, the trial court erred by dismissing the children’s complaint based upon their agreement.

IDENTICAL PROPOSALS FOR SETTLEMENT MADE TO THE OWNER OF THE VEHICLE AND DRIVER WERE AMBIGUOUS AND INVALID, WHERE ONE PARAGRAPH OF EACH PROPOSAL MADE CLEAR THAT PAYMENT OF $20,000 BY THE DEFENDANT NAMED IN THE PROPOSAL WOULD SETTLE THE PLAINTIFF’S CLAIMS AGAINST A SPECIFIC DEFENDANT, BUT ANOTHER PARAGRAPH STATED THAT THE PROPOSAL WAS INCLUSIVE OF “ALL DAMAGES” CLAIMED BY THE PLAINTIFF--PROPOSAL IS AMBIGUOUS BECAUSE IT WAS UNCLEAR WHETHER THE ACCEPTANCE AND PAYMENT OF THE PROPOSAL BY ONE DEFENDANT WOULD RESOLVE CASE AGAINST BOTH DEFENDANTS, OR ONLY AGAINST THE INDIVIDUAL ACCEPTING THE PROPOSAL.

Nunez v. Allen, 41 Fla. L. Weekly D1487 (Fla. 5th DCA June 24, 2016):

The case arose out of a car accident case where the defendant driver was operating a vehicle owned by his father. The plaintiffs served separate proposals for settlement in the same amount. In each proposal, the plaintiff agreed to “settle any and all claims asserted against the defendant as identified in” the case number. The next paragraph said that the proposal for settlement was inclusive of all damages claimed by the plaintiff.

The court agreed that the language in the fifth paragraph of the proposals for settlement rendered the proposals ambiguous. Initially, paragraphs 2, 3 and 4 made clear that the payment of $20,000 by the defendant named in the proposal would settle the plaintiff’s claims brought. However, the fifth paragraph stated that the proposal for settlement was inclusive of all damages claimed by the plaintiff. As “all damages” arguably included those that could have been and were imposed on both parties in the case, paragraph 5 of the plaintiff’s proposal for settlement could be reasonably interpreted to mean that the acceptance of the proposal for settlement by only one of the appellants, resolved the appellee’s entire case against both of them.

In other words, if paragraph 5 had stated that the proposal was inclusive of all damages claimed by the plaintiff against the individually named defendant similar to the language in paragraph 3, there would have been no ambiguity.

Cases involving proposals for settlement just seem to get more and more esoteric. In my opinion, each decision adds to the body of evidence for why the legislature should repeal § 768.79!