The Week in Torts – Cases from the Week of January 26, 2018

FLORIDA LAW WEEKLY

VOLUME 43, NUMBER 4

CASES FROM THE WEEK OF JANUARY 26, 2018

ALTHOUGH PROSECUTOR REQUESTED RACE-NEUTRAL EXPLANATION FOR CHALLENGE TO MALE JUROR, IT WAS CLEAR FROM CONTEXT THAT HE WAS REQUESTING GENDER-NEUTRAL EXPLANATION, AS THE OBJECTION WAS BASED ON THE DEFENSE COUNSEL’S HAVING USED A STRIKE ON ALL FOUR MALES THAT WERE AVAILABLE FOR THE PANEL–HAVING A “BAD FEELING” ABOUT A JUROR OR THINKING THAT A DEFENDANT “DOESN’T WANT” A PROSPECTIVE JUROR ARE NOT RACE OR GENDER-NEUTRAL REASONS FOR PEREMPTORY CHALLENGES AND THE COURT CORRECTLY DISALLOWED THEM.

Johnson v. State, 43 Fla. L. Weekly D205 (Fla. 1^st DCA January 22, 2018):

During jury selection, after defense counsel used a peremptory challenge on one of the jurors, the prosecutor asked for a race-neutral reason because the defense had used a strike on all four males that had been available for the panel.

In response, the defense counsel stated that his client had gotten a “bad feeling” from the person and did not think he would be a good defense juror. The trial court did not find that reason to be race-neutral and denied it, which the appellate court upheld. Having a “bad feeling” or generally “not liking a juror” are not gender or race-neutral reasons for striking one.

COURT REAFFIRMS THE LAW IN MELBOURNE V. STATE, SETTING FORTH THE PROCEDURE FOR RACE-BASED PEREMPTORY CHALLENGES–DEFENDANT PROPERLY PRESERVED CHALLENGE TO DECISION TO GRANT THE STRIKE BUT RECORD MADE CLEAR THAT CHALLENGE WAS NOT PRETEXTUAL.

Spencer v. State, 43 Fla. L. Weekly S34 (Fla. January 25, 2018):

An issue in the case involved the exclusion of two African-American jurors through the exercise of peremptory strikes. The defendant challenged the strikes as racially motivated, and the trial court overruled his objections.

The court went through the history of race-based challenges, starting with State v. Neil, where the exercise of a peremptory challenge to exclude a venire person on the basis of race, violated the defendant and the state’s right to an impartial jury under the Florida constitution.

The supreme court issued Melbourne v. State, addressing the difficulty some Florida courts have had in applying the law. From that came these directives:

A party who objects to the other side’s use of a peremptory challenge on racial grounds must (a) make a timely objection on that basis; (b) show that the venire person is a member of a distinct racial group; and (c) request that the court ask the striking party its reason for the strike. When those initial requirements are met, the court must ask the proponent of the strike to explain the reason for the strike.

The burden then shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If the explanation is facially race-neutral and the court believes that given all the circumstances surrounding the strike, the explanation is not a pretext, the strike will be sustained.

The court’s focus for step 3 is not on the reasonableness of the explanation but on its “genuineness.” Throughout the process the burden of persuasion never leaves the opponent of the strike to prove purposeful racial discrimination.

A test under Melbourne requires the trial court’s decision on the ultimate issue of pretext, to turn on a judicial assessment of the credibility of the proffered reasons and the attorney or party proffering them, both of which must be weighed in light of the circumstances of the case and on the total course of the voir dire in question is reflected in the record.

The trial court’s assessment on appeal, will be affirmed unless clearly erroneous. When the opponent of the strike fails to provide the trial court with an explanation as to why the reasons given were pretextual, and the trial court thereafter fails to undertake an on-the-record genuineness inquiry, the reviewing court cannot engage in a meaningful appellate review.

In this case, the state attorney asserted that he was excluding the juror because the juror had been arrested for domestic violence. The judge found that was a race-neutral reason. The court found no pretext in the exercise of the challenge.

For the second juror, the state attorney stated that because the juror had a friend who was arrested for breaking and entering which was at issue, that too was a race-neutral reason for the strike.

In this case, the supreme court noted that there were two failures of the trial court: First, the trial court did not follow the established procedure to evaluate the strike, and then conflated the second and third steps. Second, defense counsel when asked for a response gave none.

However, because the burden of persuasion was on defense counsel as the opponent of the strike, and defense counsel did not respond, the trial court properly overruled the objections. The court also noted on appeal that the defendant had not argued that the record supported a finding of pretext for the challenged strikes, and the review of the record uncovered none.

The final step of the Melbourne analysis asks if the opponent of the strikes has established that the reason is a pretext for discrimination, and the trial court has responsibility to determine the issue of genuineness based on the record before it. Trial courts should then request that the opponent advise why the reason is not genuine and how given all of the circumstances, the explanation is pretext.

Here, the trial court did not follow established procedure to evaluate the strike and conflated the second and third steps. Also, defense counsel, when asked for a response, gave none.

Because the burden of persuasion was on the defense counsel as the opponent of the strike and the defense counsel did not respond, the trial court properly overruled the objections. Additionally, the defendant had not argued that the record supported a finding of pretext for the challenge, and the record demonstrated none.

In this case, the defendant had preserved the issue for review, but simply did not meet his burden for overturning the trial court’s denial of the finding of pretext.

BECAUSE PUBLIC POLICY PROVIDES LIABILITY COVERAGE FOR CERTAIN DAMAGES CAUSED BY THE INSURED’S USE OF A NON-OWNED GOLF CART, PUBLIC POLICY ALSO REQUIRES UM COVERAGE TO BE RECIPROCAL.

Amica Mutual Insurance Co. v. Willis, 43 Fla. L. Weekly D161 (Fla. 2^nd DCA January 17, 2018):

The insured was walking on a paved pathway when she was hit by an underinsured golf cart. Her UM carrier, Amica, denied benefits because a golf cart was not an uninsured motor vehicle under a policy exclusion. The trial court disagreed, and ruled that the exclusion was invalid as against public policy requiring the UM coverage to be reciprocal to its liability coverage.

The policy provided liability coverage to the insured, and contained an exclusion for vehicles designed mainly for use off public roads with an exception for any non-owned golf cart. Thus, the policy provided liability coverage for the use of a non-owned golf cart. The policy also provided corresponding UM for certain damages.

However, unlike the liability portion, the exclusion did not provide an exception for non-owned golf carts.

Plaintiff asserted that the UM exclusion was inconsistent with the statutory intent that policies provide UM coverage as reciprocal to liability coverage. She argued that because the policy provided liability coverage, the UM provision could not exclude it, citing Sommerville v. Allstate, 65 So.3d 558 (Fla. 2^nd DCA 2011).

The court agreed. It wrote that section 627.727(1) states that no motor vehicle liability insurance policy which provides BI coverage shall be delivered unless UM coverage is also provided. As a creature of statute rather than the matter of contemplation of the parties in creating an insurance policy, the UM protection is not susceptible to the attempts of the insured to limit or negate a protection.

In Sommerville, the court applied these general principles to determine that a UM exclusion for people occupying rented autos was invalid. The insurance policy at issue there also provided both liability and UM coverage to anyone occupying a covered auto.

Because UM coverage follows liability coverage, the UM policy was required to provide reciprocal coverage. A narrower interpretation would not be consistent with the supreme court’s express prohibition against the piece meal “whittling away” of the UM statute.

TRIAL COURT DID NOT ERR IN ENTERING JNOV FOR DEFENDANT WHERE PLAINTIFF’S EXPERT NEVER SAW PLAINTIFF AND RELIED ON HER MEDICAL RECORDS ONLY, AND THE EXPERT’S MAJOR OPINIONS WERE CONTRADICTED BY THOSE RECORDS.

Siegel v. Cross Senior Care, 43 Fla. L. Weekly D183 (Fla. 3^rd DCA January 17, 2018):

In this nursing home case, plaintiff’s theory regarding the wrongful death rested almost entirely on the testimony of a physician who was an expert in family medicine. The expert never treated or examined the decedent, and his opinions were based exclusively on his review of her medical records. However, his major opinions were contradicted by those medical records upon which they were purportedly based.

The question presented by the appeal was whether this doctor’s opinions had sufficient evidentiary weight to be submitted to the jury. Because the trial court found ultimately they did not, and the appellate court agreed, the appellate court granted JNOV (the verdict was for only $5,000 in medical expenses and $1,133 in funeral expenses despite plaintiff’s counsel asking for almost $500,000 for the 88-year old decedent who was at end stage dementia and end stage chronic obstructive pulmonary disease).

COURT CONSTRUES SUGGESTION OF DEATH AS THE FILING OF A DOCUMENT INTENDED TO NOTIFY ALL LITIGANTS OF A PARTY’S DEATH–PERSONAL KNOWLEDGE OF THE PARTY’S DEATH IS NOT SUFFICIENT TO TRIGGER THE 90-DAY PERIOD.

Blue v. R.J. Reynolds, 43 Fla. L. Weekly D195 (Fla. 2^nd DCA January 19, 2018):

The trial court had dismissed the plaintiff’s complaint for failing to properly substitute themselves as proper parties within 90 days. The tobacco companies had argued that the decedent’s death had been suggested on the record when the joint notice and stipulation of dropping the defendants was filed.

Rule 1.260(a)(1) provides in relevant part that if a party dies without the claim being extinguished, a motion for substitution must be made within 90 days after death as suggested upon the record by service of a statement of the fact of the death in the manner provided for in the service of the motion. While the rule only required a statement of “the fact of the death” and does not require other specific information such as the location or date of death or the name of a person to be substituted, the appellate court still held that it was not persuaded that the joint notice and stipulation dropping defendants was sufficient to constitute a suggestion of death needed to trigger the 90-day period.

The court refused to construe the passing reference to the death which was made in a document that related to a settlement with other defendants as a suggestion of death contemplated in rule 1.260(a)(1). It further construed that rule to require the filing of a document that is intended to notify all the litigants of a party’s death.

NOT ABUSE OF DISCRETION FOR THE CIRCUIT COURT TO QUASH A SUBPOENA DUCES TECUM FOR DEPOSITION AND GRANT A PROTECTIVE ORDER–EVIDENCE SUPPORTED THE CIRCUIT COURT’S CONCLUSION THAT A SUBPOENA SUBJECTED THE NON-PARTY WITNESS TO UNDUE BURDEN AND HARASSMENT.

Ferrandino v. Riley, 43 Fla. L. Weekly D206 (Fla. 1^st DCA January 22, 2018):

Although reasonable fact finders could differ on the weight and credibility to assign appellee’s affidavit and other record documentation for the determination of whether a protective order was warranted in this case for harassment and undue burden, the appellants did not provide a transcript of the hearing making the appellate court presume that any deficiency in the documentary evidence supported the circuit court’s decision. As such, there was no abuse of the circuit court’s broad discretion to regulate discovery.