FLORIDA LAW WEEKLY

VOLUME 42, NUMBER 35

CASES FROM THE WEEK OF SEPTEMBER 1, 2017

CERTIORARI GRANTED BECAUSE TRIAL JUDGE FAILED TO FOLLOW THE PROPER PROCEDURE FOR EVALUATING AN AMENDMENT FOR PUNITIVE DAMAGES.

Leinberger v. Magee, 42 Fla. L. Weekly D1852 (Fla. 4th DCA August 23, 2017):

In order to seek punitive damages, a plaintiff must engage in the following procedure:

First, the plaintiff must attach the proposed amended pleading to the motion seeking leave to amend in compliance with rule 1.190(a). Moving to amend without attaching a copy of the proposed amended pleading is insufficient.

Second, pursuant to rule 1.190(f), the proffer of “evidence of record” to support the punitive damages claim must be served prior to the hearing on the motion for leave to amend. The rule requires it be served at least 20 days before the hearing.

To grant the amendment, the trial court must make an affirmative finding that the plaintiff made a “reasonable showing by evidence” which would provide a “reasonable evidentiary basis for recovering such damages” if the motion to amend were to be granted.

The reviewing court cannot re-weigh or consider the sufficiency of the evidence presented. Its only role is to ensure compliance with the procedural requirements.

§ 627.426 REQUIRES INSURERS TO DO CERTAIN THINGS BEFORE REFUSING TO DEFEND--FAILURE TO DO THEM PROPERLY PRECLUDES AN INSURER FROM DENYING COVERAGE.

Geico General Insurance Co. v. Mukamal, 42 Fla. L. Weekly D1833 (Fla. 3rd DCA August 23, 2017):

In this wrongful death case, Geico reserved its rights to deny coverage, based on the defendant driver not being listed as a driver on the subject insurance policy. The driver himself then absconded, and his whereabouts were never discovered.

Geico notified the driver of its reservation of rights based on his failure to cooperate. Geico issued numerous reservation of rights letters, but continued to represent the driver for a period of years, all throughout post-judgment proceedings. The jury returned a verdict of over $15 million in favor of the plaintiffs, at which time Geico finally sought to decline coverage based on the lack of cooperation.

Pursuant to section 627.426, insurers may only deny coverage if they comply with the specific rules and time periods. One of those requirements is to give written notice to the named insured by registered or certified mail of its refusal, and another is to obtain from the insured a non-waiver agreement. Because Geico did not comply with the “refusal to defend” section of the statute, and also failed to obtain a non-waiver agreement from the insured, nor did it retain independent counsel, Geico could not deny coverage.

DISMISSAL WITH PREJUDICE PROPER BECAUSE PLAINTIFF’S FIFTH AMENDED COMPLAINT FAILED TO STATE A CAUSE OF ACTION, AND GIVING PLAINTIFF ANOTHER OPPORTUNITY TO AMEND WOULD HAVE BEEN FUTILE.

Dow v. Fidelity Investments, 42 Fla. L. Weekly D1852 (Fla. 4th DCA August 23, 2017):

The trial judge gave the plaintiff numerous attempts to state a cause of action against the defendants. Because giving the plaintiff another opportunity to amend the complaint would have been futile, the court affirmed the trial court’s final order granting the defendant’s motion to dismiss plaintiff’s fifth amended complaint against them with prejudice.

MISADVICE LEADING UP TO A SETTLEMENT DOES NOT BAR A PLAINTIFF’S SUBSEQUENT LEGAL MALPRACTICE CLAIM, EVEN THOUGH THE PLAINTIFF HAS “SETTLED.”

Miller v. Finizio & Finizio, 42 Fla. L. Weekly D1856 (Fla. 4th DCA August 23, 2017):

In this legal malpractice case arising out of a marital settlement agreement, the plaintiff asserted that she settled her divorce case, but that her lawyers had failed to obtain the required financial disclosures from the husband. The plaintiff alleged that as a result of the defendant’s violations of the standard of care, she was damaged by relying on their advice and signing a highly disadvantageous agreement resulting in a final judgment with much less favorable terms than would have otherwise been the case.

The defendants argued that after a client settles a claim, there can be no lawsuit for legal malpractice. The defendants also argued that the plaintiff could not show redressable harm because a marital settlement agreement is always “subject to modification” in family court.

In a situation where the plaintiff is not alleging that she did not consent to the settlement of the underlying case, but rather is alleging that the defendant’s breach of the standard of care resulted in a disadvantageous settlement, there is an action. The fact that there could be a possible modification also does not change the fact that redressable harm occurred at the moment the dissolution judgment became final.

Because the plaintiff’s voluntary acceptance of a settlement in the underlying dissolution case did not bar a legal malpractice claim, the court reversed the judgment on the pleadings entered against the plaintiff.

TRIAL COURT DID NOT ABUSE DISCRETION IN PERMITTING INTRODUCTION OF LAY WITNESS TESTIMONY REGARDING SPEED BASED ON THE KNOWLEDGEABLE WITNESS’S “HEARING” HOW FAST A MOTORCYCLE WAS GOING--DISCLOSURE OF RECORDS WAIVES PSYCHOTHERAPIST-PATIENT PRIVILEGE.

Sajiun v. Hernandez, 42 Fla. L. Weekly D1857 (Fla. 4th DCA August 23, 2017):

In this wrongful death case, where a motorcyclist was killed after a collision with a truck driver, the plaintiff appealed several evidentiary rulings which either alone or combined seemed to require reversal.

First, the court allowed a man sitting behind a privacy fence who only “heard” the motorcyclist proceeding on the adjacent road, to testify that he felt the motorcyclist was speeding. However, the witness had operated a motorcycle since 1980, and could tell the difference between sounds emitted by the engines of a Japanese motorcycle and a Harley Davidson, almost rendering the witness an “expert.”

The court allowed this testimony also because two other defense witnesses, a mother and a daughter who were traveling together, encountered the motorcycle and testified that the noise of the engine drew their attention to the motorcycle, and that they had commented to each other about how fast this motorcycle was going and that he was cutting off cars.

The case also involved the psychotherapist-patient privilege. The plaintiff’s suit had sought damages for pain and suffering, and the trial court entered an agreed order allowing the defense motion to compel production of the records of the psychotherapist who treated one of the children. Subsequently, the plaintiff listed the records as a trial exhibit.

At trial, plaintiff’s counsel withdrew the mental anguish claim and argued for the reinstatement of the psychotherapist-patient privilege. However, the jury instruction included the instruction on pain and suffering (though it is questionable as to whether that was wrong or not since the courts have ruled other non-economic damages besides mental anguish may be pursued without putting the plaintiff’s mental health at issue).

The court ruled that under § 90.507, the voluntary disclosure of the records waived the privilege, even though the waiver of the privilege itself is not irrevocable. Once the information is disclosed, the privilege ceases to exist.

INCIDENT REPORT PREPARED IN ANTICIPATION OF LITIGATION WAS PROTECTED BY WORK PRODUCT.

Ruby Tuesday v. Metalonis, 42 Fla. L. Weekly D1862 (Fla. 5th DCA August 25, 2017):

The determination of whether an incident report was prepared in anticipation of litigation turns on whether the document was prepared in response to some of that which foreseeably could be made the basis of a claim in the future. Although the subjective intent of the reporter making the report might be relevant to this determination, it is by no means dispositive because an objective standard applies.

In this case, the reporter testified she made the report in accordance with company policy to report incidents of injury to patients. The fact that she did not personally foresee the potential claim and did not know the purpose for the company policy, did not negate the finding that the report was in fact work product.

It was clear that the alleged injury was caused by an object in the defendant’s control and there was some evidence to suggest that the defendants had prior knowledge of the defective condition. Under those circumstances, it was foreseeable that the event might form the basis of a claim and accordingly, the incident was protected by work product.