ERROR TO ENTER DIRECTED VERDICT IN FAVOR OF DEFENDANT ON PERMANENCY, WHERE PLAINTIFF PRESENTED EXPERT TESTIMONY FROM TREATING PHYSICIAN AND CONSULTING NEUROLOGIST THAT HE HAD SUSTAINED PERMANENT INJURIES AS A RESULT OF THE ACCIDENT.

James v. City of Tampa, 41 Fla. L. Weekly D1383 (Fla. 2nd DCA June 10, 2016):

In this auto accident between a City sanitation truck and the plaintiff, plaintiff had presented expert testimony supporting his claim of permanent injury.  At the time of the collision, the truck was moving slowly and the driver of the automobile had begun backing up in an unsuccessful attempt to avoid being hit.  The plaintiff contended that the City’s truck backed up and struck his automobile twice, even though the City said only one impact occurred. 

About four months before the collision with the City’s truck, the plaintiff had been involved in another crash where he had been a passenger in a truck that was t-boned.

After the presentation of all the evidence in the case, where the City had denied that the plaintiff had suffered any permanent injury, and asserted that he had at most sustained a minor aggravation of his injuries from the first crash, and where it introduced evidence that the man had not sustained a permanent injury, the trial court granted a directed verdict on the issue of permanency.

However, in the face of Wald v. Grainger, 64 So. 3d 1201 (Fla. 2011), where determinations about the permanency of an injury are generally to be made by juries, this was error.  No matter how effective the City’s presentation might have been in showing that the plaintiff had not suffered a permanent injury, at the very least, the testimony created an issue of fact which should have gone to the jury.  Therefore, entry of directed verdict was erroneous.

TRIAL COURT PROPERLY DENIED DEFENDANT INSURER’S MOTION FOR ATTORNEY’S FEES BASED ON PROPOSAL FOR SETTLEMENT, WHERE IT PURPORTED TO HAVE THE INSURED AGREE TO LIABILITY FOR AN INDETERMINATE CATEGORY OF OTHER POTENTIAL CLAIMS OF THIRD PARTIES AGAINST THE PLAINTIFF’S ATTORNEY WHO WAS A NON-PARTY.

Florida Peninsula Insurance Co. v. Brunner, 41 Fla. L. Weekly D1357 (Fla. 3rd DCA June 8, 2016):

FPIC, the plaintiff’s homeowner’s insurer, served a proposal for settlement which included a requirement on the plaintiff that she would be responsible for all known liens, attorney charging liens and other claims of third parties which would be satisfied or extinguished by the plaintiff.  A paragraph also imposed similar responsibility on her attorney.

The proposal attached a form of release, but the notice of service did not indicate any requirement for assent or execution by the insured’s attorney.  The trial court concluded that this paragraph and a related one similar to it purported to require not only that the insured be responsible for the liens and other claims of third parties, but also that counsel representing her in the case accept that responsibility.

The court found the fatal flaw within the paragraph purporting to require the insured’s counsel to agree not only to assure that counsel’s own legal claims to the settlement funds were extinguished, but also, to assure that counsel would satisfy and extinguish other claims of third parties, without providing a signature block or another provision to indicate that the attorney would agree to assume such open ended liability.  The court reminded us that proposals must be drafted so that the offeree has the ability to evaluate it and independently act to resolve the case against her.

TRIAL COURT DID NOT ERR IN DISMISSING AN “ANTI-DUMPING” COMPLAINT ARISING OUT OF SECTION 395.1041--THE STATUTE PERMITS--BUT DOES NOT OBLIGATE--A HOSPITAL TO TRANSFER A PATIENT TO ANOTHER HOSPITAL.

Morejon v. Mariner’s Hospital, 41 Fla. L. Weekly D1359 (Fla. 3rd DCA June 8, 2016):

The plaintiffs’ complaint alleged that the plaintiff had presented at the hospital with abdominal pain, and that after it was determined that he was suffering from an emergency condition, the medical staff decided the best course of action was to transfer him to another hospital with a more specialized medical staff. 

The plaintiff--a physician himself--had requested a transfer, because the hospital’s list of service capabilities did not include the treatments necessary to care for him.  The hospital did attempt to transfer the plaintiff to another hospital.  However, the second hospital denied the transfer request, and the first hospital did not attempt to transfer the patient to another hospital. 

Instead, the general surgeon on call performed exploratory abdominal surgery which was complicated by a spleen injury and cardiac arrest.  The plaintiff was then transferred to a different hospital for surgical intervention.  While he ultimately survived, the plaintiff claimed that the defendant hospital’s failure to effectuate a timely transfer worsened the plaintiff’s condition.

The plaintiffs brought their case under § 395.1041, asserting that the law created a duty to transfer the plaintiff, without alleging that the hospital “dumped” or refused to treat the plaintiff in violation of the statute.  The permissive use of the word “may” in subsection (3)(c) of the statute, clarifies that a hospital will not be obligated to transfer a patient simply because a patient, physician or other qualified medical person requests the transfer.

The court affirmed the dismissal of the complaint for failure to state a cause of action under the statute.  The court then noted that the plaintiffs could have initially alleged a clause of action for medical malpractice but chose not to.  Since the statute had run, and plaintiffs had not appealed the trial court’s denial of their motion to amend the complaint, choosing instead to rely solely upon their claim for the statutory violation under § 395.1041, plaintiffs were now barred from bringing that claim.

TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS BASED ON THE FINDING THAT THE PLAINTIFFS FAILED TO PRESENT ANY GENUINE ISSUE OF MATERIAL FACT AS TO WHETHER THE DEFENDANT KNEW OR SHOULD HAVE KNOWN OF THE DANGEROUS CONDITION, OR WHETHER IT OCCURRED WITH REGULARITY IN THIS CASE INVOLVING A SLIP AND FALL.

Suker v. White Family Limited Partnership, 41 Fla. L. Weekly D1368 (Fla. 4th DCA June 8, 2016):

The appeal stemmed from a slip and fall accident in front of a Dunkin Donuts.  The plaintiffs filed the depositions of three witnesses, including the deposition of an employee of the defendant that tended to show that the defendant had actual or constructive knowledge of a dangerous condition that existed at the tiled entrance to the establishment when the tile was wet. 

Based on that testimony, and the law that when the material facts create even the “slightest doubt,” summary judgment must be reversed, the Fourth District reversed entry of the summary judgment.  It concluded that genuine issues of material fact remained precluding entry of summary judgment.

WHEN THE AFFIDAVITS AND DEPOSITION OF THE OPPOSING PARTIES CANNOT BE RECONCILED WITH RESPECT TO EACH OF THE DEFENDANTS IN A JURISDICTIONAL ANALYSIS, THE TRIAL COURT MUST ORDER A LIMITED EVIDENTIARY HEARING TO RESOLVE THE DISPUTE.

Packaging & Distribution Resources v. Duke Realty Ltd., 41 Fla. L. Weekly D1369 (Fla. 4th DCA June 8, 2016).

FLORIDA BAR HAS ABSOLUTE IMMUNITY FOR ACTIONS TAKEN WITHIN THE SCOPE OF ITS AUTHORITY AS ARM OF THE FLORIDA SUPREME COURT IN MATTERS OF REGULATION OF ATTORNEYS.

Zavadil v. The Florida Bar, 41 Fla. L. Weekly D1373 (Fla. 4th DCA June 8, 2016):

An attorney brought an action against The Florida Bar, alleging that it defamed him when it posted in his attorney profile and stated in a letter that he had been “disbarred” when in actuality the supreme court had “revoked” his license for making material omissions in his application for admission to the Bar.

The Fourth District noted that revocation can be tantamount to disbarment.  Still, it ruled that the Bar has absolute immunity for actions taken within the scope of its authority as an arm of the Florida Supreme Court in matters of the regulation of attorneys.  As such, could not be called upon to answer such a lawsuit.