FLORIDA LAW WEEKLY

VOLUME 42, NUMBER 28

CASES FROM THE WEEK OF JULY 14, 2017

INSURER ON THE HOOK TO PAY PLAINTIFF’S ATTORNEYS’ FEES PURSUANT TO PROPOSAL FOR SETTLEMENT IN A THIRD-PARTY CASE BASED UPON THE POLICY’S ADDITIONAL PAYMENTS “PROVISION.”

Government Employees Insurance Co. v. Macedo, 42 Fla. L. Weekly S731 (Fla. July 13, 2017):

On a 100/300 policy, the plaintiff made an automobile accident claim and served the defendant with a proposal for settlement to settle the case for $50,000. The defendant rejected the proposal.

After a trial, the jury returned a verdict for the plaintiff of almost $250,000. The plaintiff then joined Geico to the judgment and sought taxable fees and costs pursuant to section 768.79.

While fees in excess of the policy limits are generally not awardable in absence of a bad faith finding, the supreme court found that the language of this policy allowed for an award of fees.

First, there was a provision stating that the insurer would cover “other reasonable expenses incurred at our request” which included costs associated with choosing to litigate the case instead of settling it. Also from the “Additional Payments” section of the policy, the insured gave Geico the sole right to litigate and settle claims, and Geico contractually obligated itself to pay for all investigative and legal costs it incurred, as well as all reasonable costs incurred by an insured at Geico’s request.

Geico had argued that because the “Additional Payments” section referred only to “costs,” which generally do not include attorneys’ fees, it could not be on the hook for fees. The supreme court rejected that though, finding that contrary to Geico’s argument, the section did not only reference costs, but also had a policy index that indicated that Geico would make additional payments under the liability coverages for legal expenses and court costs. The additional payments provision stated that it would cover all investigative and legal costs also, and another subsection of the provision discussed “all reasonable costs.”

Finding the “Additional Payments” section to be ambiguous on whether costs included fees, the court held fees should be granted pursuant to the offer of judgment.

Additionally, because this policy gave Geico the authority to settle the case and it could have settled the case for half of the policy limits, it did not have to ask the insured to accept or reject a settlement offer. In essence, Geico controlled the litigation. Thus, any costs or fees incurred as a result of Geico exercising its authority and control is something that it intended to pay supporting the award for fees.

A PARTY THAT HAS HAD A JUDGMENT ENTERED AGAINST IT IS NOT ENTITLED TO SEEK EQUITABLE SUBROGATION FROM SUBSEQUENT TORTFEASOR, WHEN THE JUDGMENT HAS NOT BEEN FULLY SATISFIED, EVEN IF THE SUBSEQUENT TORTFEASOR IS A MEDICAL PROVIDER WHOSE ALLEGED NEGLIGENCE EXACERBATED THE INJURIES SUFFERED BY THE PLAINTIFF.

Holmes Regional Medical Center v. Allstate, 42 Fla. L. Weekly S738 (Fla. July 13, 2017):

A man sustained head injuries when his scooter collided with an automobile belonging to the driver’s father, who was insured by Allstate. The plaintiff had received medical treatment at Holmes Regional where the plaintiff alleged his injuries were exacerbated by medical negligence.

In the main lawsuit, the plaintiff successfully precluded the defendants from presenting evidence that medical negligence was a contributing cause of the injuries. After an $11 million judgment, Allstate paid its $1.1 million policy limits, leaving the remainder of the judgment unpaid.

Subsequent to the personal injury verdict, the plaintiff filed a separate medical malpractice lawsuit against the medical provider defendants seeking recovery for the same injuries. Both Allstate and the defendant were granted leave to intervene in the lawsuit, and both filed complaints claiming they were entitled to equitable subrogation from the medical provider defendants.

The medical providers sought to dismiss the complaints, because neither Allstate nor the defendants had paid the plaintiff’s damages in full. The defendants contended that equitable subrogation is a flexible doctrine, and that equity required that liability be properly apportioned among all of the negligent parties.

The supreme court rejected the original defendants’ argument. Readdressing Stuart v. Hertz, the court reminded us that an initial tortfeasor is prohibited from presenting evidence of subsequent medical malpractice, or from filing a third-party complaint for alleged aggravation of injuries, because to allow that, allows an active tortfeasor to confuse and obfuscate the issue of liability by forcing a plaintiff to concurrently litigate a complex malpractice suit in the context of a simple personal injury suit.

Equitable subrogation is a doctrine that allows the initial tortfeasor to be placed in the shoes of the plaintiff. It is a legal device founded on the proposition of doing justice without regard to form, and was designed to afford relief where one is required to pay a legal obligation which ought to have been met either wholly or partially by another.

Subrogation suits are separate, independent actions against subsequent tortfeasors, and because the injured party has received full compensation for all injuries, it is not a party to the litigation and spared the trauma of an extensive malpractice trial.

The supreme court also said there is nothing wrong with the plaintiff suing the negligent drivers in one suit, and the negligent medical providers in a second suit and that is not splitting a claim. The only time original defendants can assert a claim for contingent equitable subrogation is when the judgment is paid in full.

INCONSISTENT EVIDENTIARY RULINGS ON THE QUALIFICATIONS OF AN EXPERT REQUIRED A NEW TRIAL.

Collar v. R.J. Reynolds, 42 Fla. L. Weekly D1500 (Fla. 4th DCA July 5, 2017):

The trial court originally ruled that the plaintiff’s treating pulmonologist was not qualified as an expert to testify that the plaintiff was addicted to nicotine; a ruling the Fourth District held could be upheld under either Daubert or Frye. On cross-examination, however, over the plaintiff’s objection, the court allowed the pulmonologist to testify that the plaintiff was able to quit smoking when sufficiently motivated to do so.

During closing, the defense lawyer as the court noted, “skillfully exploited the notion that the plaintiff’s own treating doctor and not some hired expert believed she could quit anytime she wanted.” The court believed that these skillful arguments, which were long and detailed, led to the defense verdict.

Noting that if the pulmonologist was unqualified to opine that the plaintiff was addicted to nicotine, he was equally unqualified to opine concerning the plaintiff’s motivation to quit, it was error to allow the latter testimony and not the former. The court further found that the beneficiary of the error could not prove beyond a reasonable doubt that the error complained of did not contribute to the verdict, and as such, the error was not harmless.

TIME FOR FILING NOTICE OF APPEAL FROM SANCTIONS JUDGMENT BEGAN TO RUN ON THE DATE THE ORIGINAL JUDGMENT WAS RENDERED, NOT ON THE DATE THE AMENDED SANCTIONS JUDGMENT WAS RENDERED--AMENDMENT TO JUDGMENT TO CORRECT NAME OF DEFENDANT WAS NOT MATERIAL AND THE APPEAL FILED AS TO THAT AMENDED ORDER WAS UNTIMELY.

Yellow Cab Co. v. Ewing, 42 Fla. L. Weekly D1508 (Fla. 3rd DCA July 5, 2017).

CUMULATIVE ERROR COMPELS NEW TRIAL FOR DEFENDANTS.

Harrison v. Gregory, 42 Fla. L. Weekly D1523 (Fla. 5th DCA July 7, 2017):

In this case of hotly contested liability, a young man died on a motorcycle after a collision with an automobile. The views of what had occurred were widely divergent.

While the defendant driver was at the scene of the accident, she told her sister that she just “killed a kid.” The defendant then filed a pretrial motion in limine seeking to exclude that statement, arguing that it was not relevant, and even if it were marginally relevant, it was inadmissible pursuant to section 90.403. The trial court agreed that the probative value was substantially outweighed by the danger of unfair prejudice and that the statement did not necessarily imply fault.

On the morning of trial, the plaintiff’s attorney advised the court that he intended to call a witness who heard the defendant driver state on her cell phone at the scene that she thought she killed somebody. The defendants objected to that statement arguing that it was essentially identical to the one that the trial court had kept out in the motion in limine and it would be patently inconsistent to allow that statement and not allow the first one. The trial court did not change its ruling on the first motion, but did permit the witness to testify as to the second statement, which the appellate court found was an abuse of discretion.

During the trial, plaintiff’s counsel questioned his accident reconstructionist expert about the inspection of the defendant’s vehicle. The expert advised that it had been transported to a storage yard by the insurance company.

The court said while this passing statement in another trial would not have amounted to an abuse of discretion because it was not at all pervasive, in conjunction with the error of admitting the witness’s testimony about the prejudicial comment made by the defendant, did make the refusal to grant a mistrial on this passing reference an abuse of discretion.

Finally, during closing argument, the plaintiff’s attorney addressed section 768.36 and the decedent’s use of cocaine and marijuana as a causal factor for the accident. The verdict form had stated that if the jury assigned a percentage of fault to the decedent that was 50% or less, it would skip certain questions, and if it was 50% or more, it would answer certain questions.

During plaintiff’s counsel’s closing argument, he advised the jury that if it found that plaintiff was more than 50% responsible, they would recover nothing. The court found that comment highly improper. Based on the cumulative effect of these errors, the court said they could not be seen as harmless, and thus granted the defendants a new trial.

ANOTHER TRIAL COURT DAUBERT ORDER FOR THE RESEARCH FILES (ORDER ATTACHED).

Newsholme v. Palms West, 2015CA003415 (15th Judicial Circuit).

In this second Daubert/Frye order rendered by the Honorable Meenu T. Sasser in the 15th Judicial Circuit, Judge Sasser again addressed a Daubert challenge made by the defendant to the plaintiff’s expert in a medical malpractice case on causation.

In upholding the rationale she initially expressed in the Nixon case, the court rejected the idea that the Florida Supreme Court’s decision in In Re Amendments to Florida Evidence Code, 210 So.3d 1231 (Fla. 2017), which rejected the Florida Legislature’s adoption of Daubert to the extent that it is procedural, cannot be considered a mere “advisory” opinion (because such opinions are not allowed). The court observed to completely ignore Frye and continue to rely on the legislature’s amendments would effectively mean that the supreme court’s decision had no actual force behind it.

Judge Sasser read the supreme court’s ruling to leave trial judges the job of interpreting what portions of Daubert will remain (while still returning to the Frye standard).

Because Frye appears to be the standard, but sections 90.702 and 90.704 have not been technically deemed unconstitutional, Judge Sasser proceeded with her “cautious approach of applying both Daubert and Frye when determining the admissibility of expert testimony.” Ironically, Judge Sasser cited to one of the cases referenced above, Collar v. R.J. Reynolds Tobacco Co. (which she noted seemed to apply this dual approach).

The court went on to state that while it is its belief that the supreme court has said in no uncertain terms that Frye is the future for admissibility of expert testimony, applying both tests is the most prudent approach until such result is more definitively mandated by the Florida Supreme Court.