FLORIDA LAW WEEKLY

VOLUME 42, NUMBER 8

CASES FROM THE WEEK OF FEBRUARY 24, 2017

*DAUBERT ALERT – UPDATE

*SINCE LAST WEEK’S WIT, JUDGE SASSER IN THE 15TH JUDICIAL CIRCUIT ISSUED A DAUBERT ORDER ON THE SUPREME COURT’S DECISION ON FEBRUARY 16, 2017. THE ORDER IS IN THE CASE OF NIXON V. R.J. REYNOLDS TOBACCO CO., AND IS ATTACHED TO THIS EDITION OF THE WEEK IN TORTS FOR YOUR CONVENIENCE.*

TRIAL COURT PROPERLY DENIED MOTION FOR ATTORNEY’S FEES PURSUANT TO PROPOSAL FOR SETTLEMENT, WHEN THE SERVICE FAILED TO COMPLY WITH RULE 2.516 FOR SERVICE BY EMAIL--SIMPLY BECAUSE PROPOSALS FOR SETTLEMENT DO NOT GET FILED WITH THE COURT CONTEMPORANEOUSLY WITH SERVICE, DOES NOT MEAN THAT THE RULE FALLS OUTSIDE THE SCOPE OF RULE 2.516.

Wheaton v. Wheaton, 42 Fla. L. Weekly D411 (Fla. 3rd DCA February 15, 2017):

The relevant portion of rule 2.516 provides that every pleading subsequent to the initial pleading and every other document filed in any court proceeding (with some limited exceptions) must be served by email. Even though proposals for settlement do not get filed with the court per se, the court found that the language “all documents required or permitted to be served on another party must be served by email” included the service of a proposal.

Thus, because the motion was not served in strict compliance to rule 2.516--notwithstanding that the proposal itself is not to be filed contemporaneously with service--the court affirmed the trial judge’s refusal to enforce the proposal.

AMENDMENTS TO PROSPECTIVE JUROR QUESTIONNAIRE FORM IN RULE 1.983.

In Re: Amendments to the Florida Rules of Civil Procedure Form 1.983, 42 Fla. L. Weekly S212 (Fla. February 23, 2017):

The court enacted several amendments to rule 1.983, dealing with prospective juror questionnaires. One requires attorneys and pro se litigants to redact the month and date of a prospective juror’s birth before filing a copy of the form consistent with rule 2.425(a)(2). Another change modifies proposed amendments to question 8 (which allows law enforcement officers and investigative personnel to be excused from jury service) to choose to serve. One other deals with amendments regarding expectant mothers and parents (not provided in the text of the case but available in the appendix at the court’s website).

TRIAL COURT ERRED IN FINDING ARBITRATION AGREEMENT WAS VOID AGAINST PUBLIC POLICY FOR FAILING TO FOLLOW THE AMERICAN HEALTH LAWYERS ASSOCIATION RULES AND TO LIMIT DISCOVERY--ARGUMENT THAT TRIAL JUDGE LACKED AUTHORITY TO DETERMINE WHETHER AGREEMENT WAS VALID BECAUSE OF DELEGATION CLAUSE WHICH VESTED THAT POWER IN THE ARBITRATOR, NOT TIMELY RAISED.

Angels Senior Living v. Gundry, 42 Fla. L. Weekly D400 (Fla. 2nd DCA February 15, 2017):

In this wrongful death of a nursing home resident, the arbitration agreement set forth in the admission documents, included a “delegation provision” stating that any dispute regarding the arbitration would be exclusively for the arbitrator to decide. The agreement also contained a discovery clause, that limited discovery to production of written documents and depositions of opposing parties, treating physicians and expert witnesses only.

Upon the filing of the lawsuit, the nursing home moved to compel arbitration.

Because the nursing home failed to raise the issue of the delegation provision in its initial motion to compel arbitration (it was raised in the second motion to compel), it was not preserved. Florida law does not authorize multiple motions to compel arbitration, and rehearings are not authorized on interlocutory orders.

Without the delegation provision in play, it was for the court--and not the arbitrator--to determine whether the written agreement to arbitrate existed. The estate argued that the discovery limitations violated public policy, thus invalidating the entire arbitration agreement. It also argued that the application of the American Health Lawyers Association Arbitration Rules violated public policy.

The estate argued that the discovery limitation completely undermined the estate’s ability to vindicate the statutory and common law rights of the decedent. However, the court found that even if the discovery clause did not provide the full panoply of discovery available under rule 1.280(b), it was reluctant to conclude that the provision violated public policy.

Once the nursing home conceded that the depositions of current employees could be taken, the court ruled the estate would not be denied meaningful discovery. Also, because the AHLA arbitration rules state that the parties may offer whatever evidence the arbitrator regards as relevant and material to the dispute, the court would not find that requirement violative of public policy either. The case was reversed to conduct arbitration.

TRIAL COURT PROPERLY ENTERED SUMMARY JUDGMENT FOR DEFENDANT SURGERY CENTER IN A THIRD PARTY SPOLIATION SUIT, WHERE PLAINTIFF ALLEGED THAT DEFENDANT HAD KEPT A MEDICAL DEVICE REMOVED FROM THE PLAINTIFF IMPAIRING THE ABILITY TO SUE [FOR NEGLIGENT DESIGN OR MANUFACTURE]--BECAUSE THE DEVICE IN QUESITON WAS A CLASS III MEDICAL DEVICE APPROVED THROUGH THE PRE-MARKET APPROVAL PROCESS OF THE FDA, ANY POTENTIAL CLAIMS WERE PREEMPTED BY FEDERAL LAW.

Wolicki-Gables v. Doctors Same Day Surgery Center, 42 Fla. L. Weekly D401 (Fla. 2nd DCA February 15, 2017):

The plaintiffs brought a third party spoliation lawsuit against the surgery center, arguing that had it kept the allegedly defective pain pump connector removed from them, impairing their ability to sue for spoliation and/or for negligent design and manufacture.

Because any potential state law claim for negligent design or manufacture against the manufacturer is preempted by federal law, and because the plaintiffs could not assert a parallel claim against the manufacturer under Florida law, the court was compelled to affirm the summary judgment.

INSURED WHO HAS ALREADY INSTITUTED AN ACTION AGAINST HIS OR HER HOMEOWNER’S INSURANCE CARRIER PRIOR TO ITS INSOLVENCY, IS NOT STATUTORILY REQUIRED TO FILE A NEW ACTION AGAINST FIGA OR SERVE FIGA SEPARATELY IN THE PENDING ACTION--THE TRIAL COURT ERRED IN GRANTING FIGA’S MOTION TO DISMISS BASED ON ITS INTERPRETATION OF SECTION 631.68, REQUIRING THAT WHEN FIGA ASSUMES A DEFENSE OF A COVERED CLAIM THE INSURED WHO HAS ALREADY FILED A TIMELY LAWSUIT AGAINST THE HOMEOWNER’S CARRIER MUST FILE A NEW LAWSUIT WITHIN A ONE YEAR FILING PERIOD.

Gonzalez v. Homewise Preferred Insurance Co., 42 Fla. L. Weekly D405 (Fla. 2nd DCA February 15, 2017).

COUNTY COURT ERRED IN FINDING STATUTE WHICH LIMITS PIP BENEFITS TO $2,500 IF A PROVIDER DETERMINES THAT THE INJURED PERSON DID NOT HAVE AN EMERGENCY MEDICAL CONDITION, AND EXCLUDES CHIROPRACTORS FROM THE LIST OF PROFESSIONALS AUTHORIZED TO DIAGNOSE A PATIENT WITH SUCH A CONDITION AS UNCONSTITUTIONAL--THE STATUTE BEARS A RATIONAL RELATIONSHIP TO THE OBJECTIVE OF REDUCING FRAUD AND CHIROPRACTORS ARE NOT SIMILARLY SITUATED TO OTHER MEDICAL PROVIDERS IN MAKING AN EMERGENCY MEDICAL CONDITION DIAGNOSIS.

Progressive American Insurance v. Garrido, 42 Fla. L. Weekly D408 (Fla. 3rd DCA February 15, 2017):

Section 627.736(1)(a)3 requires a determination by an authorized physician that a plaintiff suffered an emergency medical condition in order to allow payment of PIP benefits above $2,500. The statute limits PIP benefits to $2,500 if any medical provider--including chiropractic physicians licensed under chapter 460--eligible to receive PIP reimbursement benefits, determines that an injured person does not have an emergency medical condition (EMC). The statute is silent as to what PIP benefits are available in the event there is no EMC diagnosis whatsoever.

Under the statute, a chiropractor is authorized to make a “no EMC” diagnosis, but is not authorized to make a determination that an injured person has an EMC.

The chiropractor argued that the statutory scheme treats chiropractors differently from other licensed medical providers who are authorized to provide EMC diagnoses, and in turn asserted the statute violates equal protection.

The court disagreed. It held that the legislature has the power to establish classifications to make distinctions among persons or groups without running afoul of equal protection law. In this case, the court found that there was a conceivable factual predicate to rationally support the law (fraud prevention), and thus a rational basis for treating chiropractors differently from other medical providers.

The court said under the constitutional equal protection analysis, the inquiry was not whether it believed chiropractors were “qualified” to provide an EMC diagnosis, but rather it must presume that the legislature conducted its own evaluation of the various professionals’ qualifications, and then concluded that chiropractors are not similarly situated to other medical providers entitled to make an EMC diagnosis under the statute by virtue of their respective training, licensing and scope of professional practice. The court further held that when no EMC diagnosis has been provided by an authorized medical provider, the PIP benefits are in fact limited to $2,500.

A TIMELY, LEGALLY SUFFICIENT MOTION REQUIRED DISQUALIFICATION.

Miami-Dade County v. Electronic Transaction Consultants, 42 Fla. L. Weekly D411 (Fla. 3rd DCA February 15, 2017):

While the case does not include any facts, it reminds us that disqualification is required where a trial judge’s comments suggest that he/she has prejudged the case, by announcing a ruling before hearing all of the evidence, and prejudging the parties’ credibility.

WHEN A COURT DENIES A MOTION TO DISMISS BECAUSE THE ALLEGATIONS OF THE COMPLAINT STATE A CAUSE OF ACTION, BUT DOES NOT RULE THAT THE PARTY IS NOT ENTITLED TO SOVEREIGN IMMUNITY--THERE IS NO JURISDICTION UNDER RULE 9.130(a)(3)(C)(xi) FOR A NON-FINAL APPEAL.

Eagle Arts Academy v. Tri-City Electric, 42 Fla. L. Weekly D414 (Fla. 3rd DCA February 15, 2017):

While rule 9.130(a)(3)(C)(xi) authorizes appeals of non-final orders that determine as a matter of law that a party is not entitled to sovereign immunity, when an order does not make a finding that as a matter of law that the party is not entitled to sovereign immunity, and merely finds that based on the four corners of the complaint that the matter may move forward on the allegations, there is no basis for appellate jurisdiction.

AGAIN, TRIAL COURT DID NOT DETERMINE AS A “MATTER OF LAW” THAT COUNTY WAS NOT ENTITLED TO SOVEREIGN IMMUNITY, SO COUNTY WAS NOT AUTHORIZED TO APPEAL ORDER DENYING MOTION FOR SUMMARY JUDGMENT--THERE MUST BE A DETERMINATION THAT THE PARTY IS NOT ENTITLED TO SOVEREIGN IMMUNITY.

Miami-Dade County v. Pozos, 42 Fla. L. Weekly D418 (Fla. 3rd DCA February 15, 2017):

In this case involving a more extensive discussion of the non-final appellate rule, 9.130(a)(3), the court reminded us that as a general rule, parties may not seek interlocutory review by appeals of non-final orders, including orders denying motions for summary judgment as was involved in this case.

Because the relevant subdivision of rule 9.130 authorizes an appeal from a non-final order which determines that a party as a matter of law, is or is not entitled to immunity under section 768.28(9), if the trial court does not make a finding or otherwise determine as a matter of law that the county was not entitled to such immunity, it is not appealable.

FIRST DISTRICT STRIKES ANSWER BRIEF FILED SIX DAYS LATE.

C.M. v. Department of Children and Families, 42 Fla. L. Weekly D428 (Fla. 1st DCA February 16, 2017):

Despite the appellee/guardian ad litem’s seemingly logical computation of time, when the court’s order saw that the Answer Brief had to be filed within 15 days of the date of the order, that was what the court meant. As such, the First District struck a brief filed on January 17th that was due on January 11th.

According to the concurring opinion, judicial orders are outside of the scope of the timing rules, unless the orders so specify. Ouch.

SUMMARY JUDGMENT PROPERLY GRANTED FINDING THE DECEDENT’S ESTATE WAS NOT LIABLE UNDER THE DANGEROUS INSTRUMENTALITY DOCTRINE IN BETWEEN THE TIME THE DECEDENT DIED AND THE APPOINTMENT OF HIS PERSONAL REPRESENTATIVE.

Depriest v. Greeson, 42 Fla. L. Weekly D439 (Fla. 1st DCA February 21, 2017):

The question facing the First District was whether in the gap between the decedent’s death and the appointment of a personal representative, the dangerous instrumentality doctrine made the estate vicariously liable for damages, that the decedent’s child allegedly caused while driving the decedent’s car. On the facts presented, the court found it did not.

Here, the decedent and his wife lived with the decedent’s adult daughter. His car and keys were kept at her house and she occasionally drove the car with his permission. There is no evidence that he ever gave her permission to continue to use the car in the event of his death. The will made no specific bequest of the car, and his daughter and stepson were named equal co-beneficiaries in the will. About a month after his death, the daughter was driving the car and caused a serious accident.

The plaintiff asserted the estate was vicariously liable for the damages. The fact that the personal representative had prior knowledge of the daughter’s use of the car, and implied control over the car, plaintiff argued there was implied consent to use it.

However, the stepson personal representative had the car titled in his name right after the decedent died. There was no evidence of communications between the decedent stepson and the daughter about her use of the car, nor was there any evidence that the stepson knew that she used the car.

The court refused to find that implied consent arose from the nominated personal representative’s failure to act, when authority to act exists to create a duty prior to appointment. Under this set of arguably tortured facts, the court found the estate was not liable for the damages.

THE TRIAL COURT HAS AUTHORITY UPON A MOTION OF A PARTY PURSUANT TO RULE 9.310(a) TO ENTER A STAY UPON CONDITIONS OTHER THAN A BOND, AS LONG AS THOSE CONDITIONS ADEQUATELY ENSURE PAYMENT--THE ORDER STAYING THE MONEY JUDGMENT WAS NOT LEGALLY INSUFFICIENT FOR FAILING TO APPLY THE AUTOMATIC BOND PROCEDURE OUTLINED IN RULE 9.310(b)(1).

Silver Beach Towers Property Owners v. Silver Beach Investments, 42 Fla. L. Weekly D442 (Fla. 1st DCA February 21, 2017):

The court addressed the conflict between the Third District and the Second District, where the Third District holds that the only method of obtaining a stay of judgment solely for the payment of money is found in rule 9.310(b)(1), and the Second District has reached a different conclusion.

Finding that the phrase “except as provided by general law and in subdivision (b) of this rule” at the beginning of rule 9.310(a) carves out an alternative procedure set forth in (b)(1), the court agreed with the Second District and certified conflict with the Third.