FLORIDA LAW WEEKLY

VOLUME 41, NUMBER 51

CASES FROM THE WEEK OF DECEMBER 23, 2016

FLORIDA SUPREME COURT DECLARES AN AGREEMENT PLAINTIFF SIGNED IN HER DOCTOR’S OFFICE REQUIRING MEDICAL MALPRACTICE ARBITRATION AS VOID AGAINST PUBLIC POLICY BASED ON THE CONTENT OF THE AGREEMENT.

Hernandez v. Crespo, 41 Fla. L. Weekly S625 (Fla. 5th DCA December 22, 2016):

A woman who was 39 weeks pregnant and having contractions was turned away from her doctor’s appointment because she was several minutes late.  Her appointment was rescheduled for four days later.  However, the day before the rescheduled date, the woman delivered her son stillborn. 

Before being treated by her doctor, the woman had signed an extensive arbitration agreement, waiving her right to jury trial.  Her husband did not sign the agreement.  Pursuant to the agreement, the defendants moved to compel arbitration.

The supreme court reminded us that to achieve the explicit purpose of remedying the alleged medical malpractice insurance crisis, the legislature specifically created the medical malpractice arbitration statutory scheme.  The court reiterated its questioning over whether a continuing medical malpractice crisis still exists (See, Estate of McCall, where the court first so questioned).

The issue in this particular case was not whether the arbitration provision was unconstitutional, but whether the unilateral alteration of the provisions in the statute and memorialized in the agreement, were contrary to public policy expressed therein.

The court observed that the medical malpractice arbitration scheme includes among other things, the defendant’s concession of liability, neutral arbitrators, including an administrative law judge, the defendant’s assumption of arbitration costs and fees, the defendant’s responsibility for payment of interest on damages, joint and several liability of defendants and the right to appeal.

In this case, the arbitration agreement incorporated the statutory scheme to some extent, but then it cherry picked provisions that were more favorable to the defendant.

Because the court found that arbitration agreements that change the costs, award, and fairness incentives of the Medical Malpractice Act’s statutory provisions contravene the legislature’s intent, they are void against public policy, because if parties can avoid the statutory provisions which are less favorable to them, that disrupts the balance of incentives that the legislature carefully crafted to encourage arbitration.

A LOADER IS NOT A DANGEROUS INSTRUMENTALITY.

Newton v. Caterpillar Financial Services, 41 Fla. L. Weekly D2755 (Fla. 2nd DCA December 14, 2016):

The plaintiff was hired as an independent contractor to assist in clearing debris off a private lot.  He used a Bobcat loader to assist in clearing.  The loader had been leased from Caterpillar Financial Services.  It was transported in a box trailer to the residential property, driven on the street for a short while, and then driven to the private lot.  The man was injured when a tree stump fell from the loader’s bucket and rolled back onto the plaintiff’s hand.

A primary factor in determining whether an object is a dangerous instrumentality is whether it is a “motor vehicle.”  Courts also evaluate the extent to which an object is regulated, because legislative regulation is a recognition of the danger posed by the use of the evaluated instrumentality.  Physical characteristics of the object are also pertinent to the inquiry.  Finally, courts consider whether the instrumentality at issue was operated in close proximity to the public.

With that framework in mind, the evidence demonstrated that the loader was not designed to be primarily operated on the roads, nor was it routinely operated on public highways, rights of way, golf courses or other improved services. 

Additionally, most of the prior accidents involved users of the loader and not the general public.  One expert did note that the physical characteristics of the loader had the potential to cause harm based on its weight, its ability to lift a lot of weight, and restricted operator visibility. 

Still, the court ruled on balance, the loader was not a dangerous instrumentality primarily because it was not an automobile.  It is classified as “special mobile equipment” in the statute. 

The court found the loader itself was not especially regulated because it is exempt from many of the regulations designed for motor vehicles operating on the highway, and accidents involving injuries are very rare.  Because a loader has only a nine-foot lifting capacity, which is far shy of that of a crane (which has been classified as a dangerous instrumentality), it does not meet that standard. 

In assessing all of these characteristics, the court concluded it was not a dangerous instrumentality.

WHEN A CASE IS UNDER A PERIOD OF MANDATORY STAY, DISMISSAL FOR FAILURE TO PROSECUTE IS A DENIAL OF FUNDAMENTAL DUE PROCESS RIGHTS.

Reyes v. Aqua Life Corp., 41 Fla. L. Weekly D2768 (Fla. 3rd DCA December 14, 2016).

TRIAL COURT DEPARTED FROM ESSENTIAL REQUIREMENTS OF LAW IN REQUIRING DEFENDANT LAW FIRM TO PRODUCE A PRIVILEGE LOG AS TO DOCUMENTS PROTECTED BY THE ATTORNEY-CLIENT AND WORK PRODUCT PRIVILEGES.

Finn Law Group v. Orange Lake Country Club, 41 Fla. L. Weekly D2784 (Fla. 5th DCA December 16, 2016):

The respondents moved to compel the petitioners to produce ten different categories of documents in a tortious interference case, pursuant to a request to produce.  The petitioners opposed production, arguing that each category was over-broad, harassing and protected by work product and attorney-client privileges.

The court noted that the order under review did not expressly require the production of any privileged communications, since the order permitted the petitioners to file a privilege log as to any such documents.  However, because certain categories did clearly request documents that were privileged, either under the attorney-client or work product privileges, even the requirement of the production of the privilege log was a departure from the essential requirements of the law.