FLORIDA LAW WEEKLY

VOLUME 41, NUMBER 21

CASES FROM THE WEEK OF MAY 27, 2016

TRIAL COURT ERRED IN FINDING PLAINTIFF TIMELY ACCEPTED PROPOSAL FOR SETTLEMENT WHERE IT WAS NOT ACCEPTED IN THE 30-DAY PERIOD--A RULE 1.090 MOTION TO ENLARGE TIME DOES NOT TOLL THE ACCEPTANCE PERIOD SET FORTH IN RULE 1.442-CONFLICT CERTIFIED.

Ochoa v. Koppel, 41 Fla. Law Weekly D1196 (Fla. 2nd DCA May 20, 2016):

The defendant served the plaintiff in an auto accident with a proposal for settlement. The day before the 30-day period to accept expired, the plaintiff filed a motion seeking to enlarge time in which to respond under rule 1.090. The motion stated she had recently received discovery through a new MRI report bearing on her injuries, and the case was in its infancy, and her deposition had not even been taken (the PFS was filed six months after the suit was filed). There was no ruling on plaintiff’s motion, simply the filing.

When the plaintiff accepted the proposal two months later, the defendant moved to strike it.

Rule 1.442 requires delivery of a written notice of acceptance within 30 days after the service of the proposal. In addition, it provides that the provisions of the Florida Rule of Judicial Administration 2.514(b), which grant five additional days to act if service of the document requiring the act is made by mail or email do not apply. The rule thus sets a “hard 30-day deadline” after which a proposal is deemed by the rule to have been rejected.

Rule 1.090 does not contain any provision which automatically tolls the running of the applicable time periods while a motion made pursuant to its provisions is pending. Moreover, the texts of rule 1.090 and 1.442 are unambiguous in that neither contains language that can be construed to provide time to accept a proposal for settlement to be tolled when the motion to enlarge time is filed. The court said that rule 1.090 does not give a party a de facto enlargement of time without judicial supervision, and nothing in the rule contains any textual indication that that was the result indicated.

The court acknowledged the Fifth District’s decision in Goldy v. Corbett Cranes Services, where the Fifth District held that a motion to enlarge the time did toll the 30-day time period. Finding that not to be the case, the court held that the filing of a motion to enlarge time to respond to a proposal for settlement does not automatically toll that time pending a decision on the motion. The court then certified conflict with Goldy.

TRIAL COURT DID NOT DEPART FROM ESSENTIAL REQUIREMENTS OF LAW IN DETERMINING THAT PERSON INJURED IN THE SAME ACCIDENT WAS NOT AN “INDISPENSABLE” PARTY IN A RELATED SUIT ASSERTING A CLAIM.

The Insurance Company of the State of Pennsylvania v. Ramirez, 41 Fla. Law Weekly D1169 (Fla. 4th DCA May 18, 2016):

Defendant sought to join another person injured in the accident as an indispensable party in this automobile case. The other injured person had not yet even filed suit.

The Fourth District noted that even if he had, that party could not be considered indispensable to another person’s lawsuit and held it was not a departure from the essential requirements of law to deny consolidation of two claims arising out of the same accident.

COURT IMPROPERLY ORDERED PRODUCTION OF COPIES OF BANK STATEMENTS RECEIVED BY DEFENDANT.

Rosen v. McCobb, 41 Fla. Law Weekly D1169 (Fla. 4th DCA May 18, 2016):

In this case arising out of an assault and battery, and where the trial court granted plaintiff’s request to add a punitive damages claim, plaintiff served defendant with a request to produce documents concerning her net worth. The defendant objected, arguing that the plaintiff sought financial information of third parties in violation of their privacy rights, and further objected that the requested information included assets held by both her individually and jointly with her husband. The trial court overruled the objections.

The Fourth District granted the petition as to a request broadly requesting copies of any and all bank statements received by the defendant for a specific period of time. Because the issue is the plaintiff’s assets, and not what bank statements she received may say, the court departed from the essential requirements of law with its ruling.

Additionally, the requests seeking copies of corporate tax returns and partnership tax returns were overbroad and could result in the production of documents not necessarily related to the defendant’s net worth.

TRIAL COURT IS WITHOUT JURISDICTION TO MODIFY A JUDGMENT WHILE THAT JUDGMENT IS PENDING ON APPEAL.

Fonseca v. Taverna Imports, 41 Fla. Law Weekly D1186 (Fla. 3rd DCA May 18, 2016).

TRIAL COURT DEPARTED FROM ESSENTIAL REQUIREMENTS OF LAW BY ALLOWING DEFENDANT TO DEPOSE PLAINTIFF’S RETAINED NON-TESTIFYING EXPERT WITHOUT ANY PROOF OF EXCEPTIONAL CIRCUMSTANCES--PLAINTIFF DID NOT WAIVE WORK-PRODUCT PRIVILEGE BY PROVIDING CO-DEFENDANT IN MEDICAL MALPRACTICE CASE WITH AFFIDAVIT PREPARED BY EXPERT IN ACCORDANCE WITH PRESUIT REQUIREMENTS, OR BY INITIALLY LISTING EXPERT BEFORE CLAIM WAS SETTLED.

Bailey v. Miami-Dade County, 41 Fla. Law Weekly D1194 (Fla. 3rd DCA February 27, 2015):

A man suffered a cardiac event on a cruise ship and upon being transported to the hospital, was allegedly dropped from a gurney onto the ground by the hospital’s staff. While being treated at the hospital, he died.

The plaintiff initially filed a wrongful death medical malpractice claim against the hospital alleging one count for medical malpractice. She later amended her complaint to add a claim for ordinary negligence against the defendant, Miami-Dade County, based on its alleged role in the decedent being dropped from the gurney.

Prior to filing suit, the plaintiff had retained a physician to review the medical negligence claim against the hospital and prepare an affidavit in accordance with presuit requirements. The affidavit was provided to the defendant. Following filing of the lawsuit, and while the medical negligence claim remained pending, the plaintiff disclosed the physician’s name as an expert in response to interrogatories, and stated that he would testify as to all matters of liability. Plaintiff acknowledged the existence of the presuit affidavit and objected to its production as privileged under Chapter 766.

After the plaintiff settled with the hospital, the case proceeded only against the County, leaving “ordinary negligence” as the only remaining count. When the plaintiff submitted her witness and expert witness lists, the name of the physician who gave the presuit affidavit did not appear on either list. Thus, although the plaintiff had, through answers to expert interrogatories, earlier disclosed the doctor as an expert, plaintiff withdrew the name, stating that he was no longer a witness.

Still, the defendant sought to depose the doctor. Plaintiff moved for a protective order. The trial court denied the motion, finding that by providing the presuit affidavit to the County, plaintiff waived any work-product privilege.

The Third District found that allowing the deposition of the opposing party’s retained, non-testifying expert under these circumstances was a departure from the essential requirements of law. The protection provided by rule 1.280(b)(5)(B) applies to experts initially disclosed as testifying witnesses who are later withdrawn. When an expert has been employed in preparation of litigation but is not called as a witness at trial, the facts known or the opinions held are work-product and may be discovered only upon a showing of exceptional circumstances.

In this case, there was no offer of proof or argument that exceptional circumstances existed. As such, the trial court’s denial of the plaintiff’s motion for protective order departed from the essential requirements of law.