FLORIDA LAW WEEKLY

VOLUME 42, NUMBER 9

CASES FROM THE WEEK OF MARCH 3, 2017

SPOUSE WHO WAS NOT MARRIED TO THE DECEDENT AT THE TIME OF THE DECEDENT’S INJURY MAY NOT RECOVER CONSORTIUM DAMAGES AS PART OF A WRONGFUL DEATH SUIT--WRONGFUL DEATH ACT DOES NOT ABROGATE OR SUPERSEDE THE COMMON LAW REQUIREMENT THAT A SPOUSE BE MARRIED TO THE INJURED PARTY AT THE TIME OF THE INJURY TO RECOVER FOR THE LOSS OF CONSORTIUM.

Kelly v. Georgia-Pacific, 42 Fla. L. Weekly D453 (Fla. 4th DCA February 22, 2017):

The common law requires a spouse be married before the date of an injury to recover damages for loss of consortium. The court found that the Wrongful Death Act did not abrogate the common law rule, because there was no explicit and clear indication in the statute in that regard.

In this case, the plaintiffs filed an action against the defendants for strict liability and negligence, and for the wife’s loss of consortium for the husband’s mesothelioma he contracted in the 70s. During the course of the litigation the husband died and the wife amended the complaint dropping her loss of consortium and adding a wrongful death claim, which included a demand for loss of consortium damages.

The couple had married in 1976, but the exposure was between 1973 and 1974. The husband was not diagnosed until 2014.

Still, the Fourth District agreed with the defendants that under the Wrongful Death Act, the legislature did not abrogate the well-established common law rule that parties have to be married to one another at the time of the injury to recover damages. Looking at the Wrongful Death Act, the court concluded that nothing directly or indirectly abrogated or superseded the common law requirement that the spouse be married to the injured party at the time of the injury, and there is no reason why the common law requirement could not coexist with the Wrongful Death Act.

The plain language of the Wrongful Death Act did not indicate that the legislature intended for a surviving spouse to recover consortium damages if the surviving spouse was not married to the decedent prior to the date of the injury. In both subsections (1) and (2) of section 768.21, the statute clearly provides that damages are recoverable from the date of injury. Thus, the plain language of the statute indicates that the legislature anticipated that the surviving spouse would have been married to the decedent prior to the date of injury.

The court then said it would make no sense to allow a spouse to recover consortium damages under the Wrongful Death Act, simply because his or her spouse died when that same spouse would have been prohibited from recovering the same damage under a loss of consortium claim if the spouse had survived. The court said it was interpreting the Wrongful Death Act in a way that avoided an absurd result.

Judge Taylor dissented. She said she would have reversed the trial court’s order barring the plaintiff from recovering wrongful death damages after almost 40 years of marriage to the decedent, and noting that the decedent was not diagnosed with any asbestos-related illness until 2014 even if he was exposed to it in the 70s. She reminded us that the Wrongful Death Act does not make marriage at the time of injury a necessary element of the cause of action, and that the wrongful death cause of action did not even exist at common law.

My guess is this is not the last we have heard on this point of law, in this heartbreaking result involving a 40 year marriage.

EMPLOYEE NOT ENTITLED TO UM BENEFITS UNDER HIS EMPLOYER’S POLICY--NO COVERED AUTOMOBILES WERE INVOLVED IN THE ACCIDENT, WHEN HE WAS NOT A NAMED INSURED, AND THE POLICY WAS AN EXCESS ONE, MEANING THERE WAS NO REQUIREMENT FOR THE INSURED TO EXECUTE A WRITTEN WAIVER OR REJECTION OF UM COVERAGE--AS A PEDESTRIAN, HE WAS AT BEST A CLASS 2 INSURED WHO COULD ONLY RECOVER UM BENEFITS IF HE WAS OCCUPYING OR DRIVING A COVERED AUTOMOBILE.

American v. Cernogorsky, 42 Fla. L. Weekly D476 (Fla. 3rd DCA February 22, 2017):

The plaintiff was injured when he was struck by an automobile while walking in front of his employer’s (The Green Company) offices on the way into the building. After collecting the liability limits from the driver, he sought UM under The Green Company’s policy with Zurich.

The plaintiff was not a named insured under the policy, although the plaintiff claimed he could be construed to be one. The policy provided coverage for “covered autos” and other “hired autos” or “non-owned autos.” By definition, hired autos were those leased, hired, rented or borrowed by The Green Company, and non-owned autos were those owned by employees but being used for the company’s business. The plaintiff was not a named insured under these definitions.

This was also an excess policy. As such, the failure of the employer company to have executed a written waiver of UM coverage was immaterial because the statute does not mandate it for excess policies.

The plaintiff still would have been unable to recover under the Zurich policy because he was a class 2 insured (not an insured named in the policy or resident or family member as defined class 1 insureds). Class 2 insureds are protected only if they receive bodily injury when occupying an insured automobile of the named insured, and are not resident relatives of named insureds. It was undisputed that the plaintiff was neither driving nor occupying any vehicle at the time of his injury, therefore he could not secure UM benefits as a class 2 insured either.

Thus, because the plaintiff was neither an insured under the policy, nor otherwise eligible to receive benefits, the court reversed the judgment in his favor.

WHEN IT IS CLEAR FROM THE AGREEMENT THAT THE PARTIES INTENDED FOR ANOTHER VENUE TO BE THE SOLE VENUE FOR THE ENFORCEMENT OF THE TERMS OF THE CONTRACT, THE FORUM SELECTION CLAUSE IS VALID AND DISMISSAL FOR LACK OF JURISDICTION IS PROPER.

Quick Cash v. Tradenet Enterprises, 42 Fla. L. Weekly D470 (Fla. 3rd DCA February 22, 2017):

The forum selection clause at issue in this case provided in pertinent part that:

This purchase order shall be deemed entered into and performed in the State of California and Buyer consents to the jurisdiction of the State of California for purposes of enforcement of the terms hereof.

That language reflected the parties’ agreement to mandatory jurisdiction and venue in California, because it contained “words of exclusivity,” and indicated that the parties intended for California to be the sole venue for the enforcement of the terms of the purchase order. Thus, the trial court’s dismissal for lack of jurisdiction and improper venue was proper.

ABUSE OF DISCRETION FOR COURT TO FIND THAT GEICO v. VIRTUAL ANSWERED THE QUESTION IN THE CONTROVERSY, i.e., WHERE THE INSURER PAID THE PIP REIMBURSEMENT ALLEGEDLY BASED ON “80% OF ALL REASONABLE EXPENSES FOR MEDICALLY NECESSARY SERVICES AND TREATMENTS” AND NOT UNDER SECTION 627.736(5)(a)2 WHICH DOES REQUIRE AN ELECTION THAT DID NOT EXIST.

Northwest Center for Integrated Medicine v. State Farm, 42 Fla. L. Weekly D446 (Fla. 4th DCA February 22, 2017):

The PIP policy at issue did not provide notice that the insurance company elected to apply the fee schedules pursuant to section 627.736(5)(a)2. Based on Geico v. Virtual, the trial court held that it was dismissing the complaint because the policy allegedly used a fact-based determination of reasonable fee based on section 627.736(5)(a)1, yet the insurer only used the Medicare fee schedule to calculate payment to the provider.

Under section 627.736, an insurer may elect to calculate medical reimbursements in one of two ways: (a) It can pay a reasonable amount consistent with subsection (5)(a)1 or (b) it can elect to apply the Medicare fee schedules as set forth in subsection (5)(a)2. To exercise that option, the insurer must provide notice in the policy of its election to use the fee schedules.

State Farm did not make such an election. Instead, the policy said it would pay 80% of “reasonable expenses” for medically necessary treatments. Yet State Farm reimbursed the plaintiffs for medical care solely at the Medicare fee schedule amounts.

In this particular case, the plaintiffs also sought class action status arguing that it was a widespread practice of State Farm to instruct adjusters and representatives to solely use the permissive fee schedules to determine reimbursements. State Farm moved to dismiss the complaint arguing that there was no live controversy between the parties because the issue had been resolved by the case law. It conceded that the policies did not elect to apply the Medicare fee schedule but rather applied fact-dependent methodology. The trial court held a hearing, and then entered a final order on State Farm’s motion to dismiss the fifth amended complaint, determining that the allegations did not state a cause of action, and that binding precedent in Virtual determined the issue so the plaintiffs did not adequately allege a bonafide dispute.

The court granted State Farm’s motion to dismiss.

In order to exercise the (5)(a)2 methodology, it found the insurer must provide notice in the policy of its election. State Farm conceded its policy did not provide such notice and therefore the issue in this case, unlike the issue in Virtual, was the proper methodology for calculating reimbursement under (5)(a)1, and whether under that provision the policy language, the use of Medicare fee reimbursement rates was authorized. In particular, the court asked whether Medicare reimbursement could be a sole consideration for reimbursement under (5)(a)1.

The court refused to answer the actual question, but reinstated the complaint, noting that was the purpose of the declaratory judgment.

TRIAL COURT DID NOT ABUSE DISCRETION BY NOT DISMISSING JUROR AND DENYING DEFENDANT’S POST-TRIAL MOTION FOR NEW TRIAL BASED ON FAILURE TO DISCLOSE BIAS DURING JURY SELECTION-ALTHOUGH THE JUROR’S SOCIAL MEDIA POSTINGS SUGGESTED BIAS ABOUT TOBACCO COMPANIES THAT WAS RELEVANT TO HIS JURY SERVICE, THERE WAS NO SHOWING THAT THE JUROR CONCEALED BIAS AND THAT THE DEFENDANT HAD EXERCISED DUE DILIGENCE IN INQUIRING--THE TRIAL COURT ALSO WAS CORRECT IN REFUSING TO REDUCE THE JUDGMENT BY THE PLAINTIFF’S COMPARATIVE FAULT--FIRST DISTRICT PRECEDENT STATES THAT APPORTIONMENT OF FAULT IS NOT REQUIRED WHEN THE DEFENDANT COMMITS INTENTIONAL TORTS OF FRAUDULENT CONCEALMENT AND CONSPIRACY TO FRAUDULENTLY CONCEAL.

R.J. Reynolds v. Allen, 42 Fla. L. Weekly D491 (Fla. 1st DCA February 24, 2017):

In this tobacco case, the juror at issue answered extensive questions about his and his relatives’ history as a smoker, and that he felt cigarette companies were a business. He wrote all of this in his questionnaire. Jury selection spanned three days. The parties pointed to only one excerpt in the transcripts of the jury selection, showing where this juror was questioned individually.

On the fourth day of trial, defendant’s trial counsel raised allegations of juror misconduct, saying that he had personal and deep seated antagonism and bias against the defendant based on his social media postings. The trial judge denied the motion to dismiss the juror. After the verdict for the plaintiff, defendant moved for a new trial based on juror misconduct.

The court found that the juror’s responses about being addicted but accountable for his choices and smoking, were not inconsistent with his social media posts. He had also discussed overcoming smoking addiction. While the questionnaire did not ask unequivocal questions regarding bias, and the juror did not provide unequivocal answers, the questions and answers were not so clear cut the juror could not be held accountable for not giving clearer answers. The trial court also found there was insufficient due diligence exercised by the defendant to meet the third prong of the De La Rosa test. The First District agreed, and affirmed the trial court’s ruling allowing the juror to serve.

As to the comparative fault, when a defendant commits intentional torts of fraudulent concealment and conspiracy to fraudulently conceal, the First District has held there can be no comparison of fault. The Fourth District has held to the contrary, however.