FLORIDA LAW WEEKLY

VOLUME 41, NUMBER 25

CASES FROM THE WEEK OF JUNE 24, 2016

ERROR TO ENTER SUMMARY JUDGMENT FOR THE DEFENDANT, FINDING MEDICAL MALPRACTICE PRESUIT REQUIREMENTS APPLIED--HOWEVER, CERTAIN COUNTS BARRED BY STATUTE OF LIMITATIONS, BECAUSE PERIOD COMMENCED WHEN PLAINTIFF’S COUNSEL BECAME AWARE THAT INJURIES COULD HAVE RESULTED FROM MEDICAL MALPRACTICE.

Townes v. The National Deaf Academy, 41 Fla. L. Weekly D1439 (Fla. 5th DCA June 17, 2016):

A minor who was a resident at the National Deaf Academy, was throwing rocks at staff members one day.  In an effort to control her behavior, they employed a specific physical restraint method, and as she was forced to the ground, she was injured and ultimately required the amputation of her leg.

Before going to NDA, the plaintiff was diagnosed with bipolar and other disorders.

The NDA filed a motion to dismiss the complaint, asserting that the plaintiffs had failed to comply with presuit requirements.  They also moved for summary judgment based on the statute of limitations.

The court reversed entry of summary judgment.  The case involved an injury caused by medical personnel’s actions at this school.  The defendant argued that the protective hold they employed was “medical treatment” because it was part of the girl’s care plan.

However, the plaintiff asserted that while the wrongful act occurred in a medical setting, that did not necessarily mean it involved medical malpractice, and that not all psychiatric treatment decisions do.

The court noted that the question of whether a complaint asserts claims for “ordinary” or “medical” negligence is a question for the court and not the jury.  In this case, the court found that the use of the protective hold on the plaintiff victim was not for treatment or diagnosis of any condition, was not employed to meet her daily needs during care and did not require medical skill or judgment, as the non-medical staff was taught the procedure and authorized to decide whether to employ it.  Under those facts, presuit was not required because those counts of the complaint sounded in ordinary negligence.

However, there were two counts for medical malpractice which the court found were barred because plaintiff’s counsel had notice or knowledge of the malpractice and did not sue timely.

Finally, the claims regarding the Baker Act did relate back because they all arose out of the common core of operative facts.  Thus, summary judgment on those counts was also reversed.

REMARKS IN PRIOR CASE COMPARING HOSPITAL’S PROCEDURES ON CONFIDENTIALITY FOR PEER REVIEW AND CREDENTIALING TO THOSE OF THE “TALIBAN” NOT ENOUGH TO DISQUALIFY A JUDGE.

Longwood Medical Center v. Seeger, 41 Fla. L. Weekly D1415 (Fla. 4th DCA June 15, 2016):

The majority denied the writ of prohibition in this case without an opinion, but Judge Gross dissented.  He noted that the trial judge had granted a temporary injunction (which the Fourth revised) and compared the hospital’s procedures on confidentiality for peer review and credentialing records to those of the “Taliban.” 

Judge Gross observed that the “Taliban” comment was at least as incendiary as comparing a former tobacco CEO to a Nazi war criminal (which was once considered a basis for disqualification), and that the motion to disqualify was legally sufficient because it alleged facts that would place a reasonably prudent person in fear of not receiving a fair and impartial trial.

ERROR TO QUASH SERVICE OF PROCESS WHERE RETURN OF SERVICE WAS REGULAR ON ITS FACE, AND DEFENDANT FAILED TO DEMONSTRATE BY CLEAR AND CONVINCING EVIDENCE THAT PLACE OF SERVICE WAS NOT HIS USUAL PLACE OF ABODE.

Preudhomme v. Matthews, 41 Fla. L. Weekly D1423 (Fla. 4th DCA June 15, 2016):

A plaintiff who wants to invoke the court’s jurisdiction bears the burden of proving that the service is proper, which requires a showing that the return of service is facially valid or “regular” on its face.

If the return is regular on its face, then service is presumed to be valid, and the party challenging it has the burden of overcoming that presumption by clear and convincing evidence.

In this case, the plaintiff met her initial burden of establishing the validity of the service, because the return was regular on its face.  The burden then shifted to the defendant to demonstrate that the place of service was not his usual place of abode.  Without such evidence (and only an affidavit which fell short of the clear and convincing standard), service was proper.

TRIAL COURT’S ORDER GRANTING MOTION FOR LEAVE TO ADD A CLAIM FOR PUNITIVE DAMAGES IS NOT SUBJECT TO CERTIORARI REVIEW.

TRG Desert Inn Venture v. Berezovsky, 41 Fla. L. Weekly D1427 (Fla. 3rd DCA June 15, 2016):

Certiorari is appropriate to challenge a trial court’s order allowing a punitive damages claim to proceed when the essential requirements of law--as embodied in section 768.72--have not been followed.

However, a trial court’s application of the correct law is not reviewable by certiorari, even if the appellate court were to disagree with the conclusions reached by the trial court.

INSURER ENTITLED TO RESCISSION OF POLICY DUE TO INSURED’S MISREPRESENTATION ON APPLICATION THAT HOME HAD A CENTRAL STATION ALARM MONITORING FOR SMOKE, TEMPERATURE AND BURGLARY, WHERE THE MISREPRESENTATION WAS MATERIAL TO THE ISSUANCE OF THE POLICY, AND RELIED UPON BY THE INSURER IN ISSUING THE POLICY.

Certain Underwriters at Lloyd’s London v. Jimenez, 41 Fla. L. Weekly D1431 (Fla. 3rd DCA June 15, 2016):

In this case where the policy application provided a concealment or fraud provision, stating that the policy would be void if the applicant intentionally concealed or misrepresented any material facts or circumstances, a material misrepresentation detrimentally relied upon by the insurer precluded coverage for the insureds’ kitchen fire.

Section 627.409(1) provides that misrepresentations, omissions or concealment of facts will prevent a recovery under the policy under certain circumstances.  The court reminded us that an insurance company has the right to rely on an applicant’s representation in an application (unless it has actual or constructive knowledge that such representations are incorrect or untrue).  This allowed the insurer the right to unilaterally rescind the insurance policy on the basis of misrepresentation in the application.

FIFTH DISTRICT DENIES USAA’S PETITION FOR CERTIORARI REGARDING ITS CONFESSION OF JUDGMENT.

USAA Casualty Insurance Co. v. Emergency Physicians of Central Florida, 41 Fla. L. Weekly D1438 (Fla. 5th DCA June 17, 2016):

USAA asked the Fifth District to determine whether a confession of judgment occurred when USAA allegedly mailed overdue PIP payments before the day suit was filed, which was received by the respondent after it filed suit to collect benefits.  Having already paid the benefits, USAA was seeking to avoid responsibility for attorney’s fees.

The court reminded us that district courts of appeal have certiorari jurisdiction to review final orders of circuit courts acting in their review capacity under rule 9.030(b)(2)(B).  However, second-tier certiorari is not a second appeal; it is extraordinarily limited and narrow in scope.  Ordinary legal errors or application of the correct law incorrectly under the facts are not sufficient grounds for a district court to grant second-tier certiorari.  In fact, it should only be exercised when there has been a violation of a clearly established principle of law resulting in the miscarriage of justice.  There has to be something more than “simple legal error.”

In this case, USAA did not pay the claim initially, or even within 30 days of the statutory demand letter.  While it did ultimately pay the benefits (including interest and a penalty), there was no advance notice.  The provider learned of the payments upon receipt.

In the lawsuit, USAA filed a second motion for summary judgment asserting that the provider lacked standing to sue USAA because it had arguably received only an assignment of benefits and not a specific assignment of the insured’s right to pursue legal action.  The respondent moved for entry of judgment on the ground that an insurance company confesses judgment when it pays the disputed claim or benefits after suit is filed.

USAA stipulated that it made the payment of benefits after the suit was filed.  At a second hearing, however, USAA advised that it was mistaken when it stipulated that the payments were made after suit was filed, contending that the checks were prepared and sent before it was filed thereby barring any possible application to the confession of judgment doctrine.

After the county court found that USAA had confessed judgment, it appealed, arguing that it had made its payments before suit was filed.  However, the Fifth District ruled that the stipulation barred that argument, which was waived by USAA.  Also, USAA never withdrew its original stipulation that payment was made after suit was filed.

Because the court found no miscarriage of justice occurred and that the circuit court acting in its appellate capacity did not depart from clearly established principles of law, it denied USAA’s petition for certiorari.