FLORIDA LAW WEEKLY

VOLUME 42, NUMBER 11

CASES FROM THE WEEK OF MARCH 17, 2017

NO FUNDAMENTAL ERROR OCCURRED WHEN PRIMARY JUROR CARRIED THE ALTERNATE JUROR’S NOTEPAD TO THE JURY ROOM MOMENTS BEFORE THE BAILIFF RETRIEVED IT AT THE TRIAL COURT’S REQUEST--ERROR, IF ANY, WAS HARMLESS, AND EVEN IF THERE WAS A REMOTE QUESTION OF MINOR IRREGULARITY, THE DEFENSE COUNSEL’S FAILURE TO OBJECT WAIVED THE ARGUMENT ON APPEAL.

Morgan v. State, 42 Fla. L. Weekly D590 (Fla. 1st DCA March 10, 2017):

The sole point in this appeal asked whether fundamental error occurred when a primary juror carried to the jury room the alternate juror’s notepad, just moments before the bailiff retrieved it at the trial court’s request. The court concluded that this simple happenstance did not rise to the level of fundamental error. It also found that even if it were error at all, it was harmless.

Additionally, because counsel failed to request any court action after it was disclosed that a juror had removed the alternate juror’s notepad, and agreed with the trial court’s solution of sending the bailiff back to the jury room to retrieve the notepad, and because the attorney did not request an inquiry into whether any of the jurors had read the alternate juror’s notes, or request a special instruction regarding the notepad, defense counsel waived any objection.

PERSONAL SERVICE ON DEFENDANTS BY BRAZILIAN ATTORNEY WAS VALID IN BRAZIL AND RETURNS OF SERVICE COMPLIED WITH FLORIDA LAW.

Asperbras Tecnologia Industrial v. Good Hope Development, 42 Fla. L. Weekly D550 (Fla. 3rd DCA March 8, 2017):

Plaintiff presented evidence that it had engaged a Brazilian attorney in good standing to personally serve the defendants in Brazil, and showed that the service was both valid in Brazil and in compliance with Florida law.

Because Florida courts may accept any particular method of service so long as it does not contradict any self-executing international agreement or implementing statutes, and as long as such method is not expressly prohibited by the law of the foreign state, the service was valid as the trial court found.

AN INSURANCE BROKER MAY BE LIABLE FOR DAMAGES WHERE THERE IS AN AGREEMENT TO PROCURE INSURANCE AND A NEGLIGENT FAILURE TO DO SO--WHERE PLAINTIFF PROVED HE SUSTAINED AN INJURY IN A WORK-RELATED AUTOMOBILE ACCIDENT AND INTRODUCED EVIDENCE THAT THE BROKER NEGLIGENTLY PROCURED INSURANCE FOR THE WRONG ENTITY--ERROR TO ENTER DIRECTED VERDICT.

Gelsomino v. Ace American Insurance, 42 Fla. L. Weekly D596 (Fla. 4th DCA November 9, 2016):

The plaintiff’s brother owned a business completing interior construction of hotels, and when the plaintiff and his brother began working in the Bahamas, their company was required to be incorporated there. They formed a Bahamian company and needed insurance.

The Florida and Bahamian companies had similar names: T & T Services and T & T Contracting. The broker apparently procured the insurance through the Florida corporation.

After plaintiff was involved in a car accident and sustained injuries in the Bahamas, the insurance company denied coverage.

While the factual scenario was a little bit more involved, in essence the jury found the broker was 35% at fault. The broker moved to set aside the verdict and enter a judgment in accordance with motions for directed verdict.

However, because the policy was admitted into evidence and plaintiff proved he sustained an injury in a work-related automobile accident and proved lost wages and past and future medical expenses through expert testimony (and because he introduced the policy that the broker negligently procured for the wrong entity), the existence of “any” evidence to support the verdict for the plaintiff rendered the directed verdict improper.