The Week In Torts – Cases from the Week of March 25, 2016

FLORIDA LAW WEEKLY

VOLUME 41, NUMBER 12

CASES FROM THE WEEK OF MARCH 25, 2016

DEFENDANT’S CLAIM THAT A RACE NEUTRAL REASON FOR STRIKING THE JUROR WAS NOT GENUINE WAS NOT PRESERVED FOR APPEAL WHERE THE DEFENDANT DID NOT EXPRESSLY CLAIM THAT THE REASON WAS PRETEXTUAL–QUESTION CERTIFIED.

Spencer v. State, 41 Fla. Law Weekly D700 (Fla. 2^nd DCA March 18, 2016):

In this case where the court went through an extensive discussion regarding Melbourne (racial preemptory) challenges during voir dire, the court clarified the three steps of Melbourne. It explained that it is helpful to think of the three steps as three “decisions” made by the trial judge during the hearing, and in the “steps” the questions are: (1) Has the opponent properly invoked the Melbourne procedure by (a) objecting, (b) demonstrating the venire person’s protected classification, and (c) requesting the court to have the proponent of the challenge state a neutral reason for it? (2) Has the proponent of the preemptory challenge provided a facially neutral explanation for the challenge? and (3) Has the opponent of the challenge, following the facially neutral explanation, met its burden of persuasion to establish that the facially neutral reason is a pretext?

In a case where the preemptory challenge is ultimately granted and the objection is overruled at the end of a Melbourne hearing, the process looks something like this:

STEP 1: (a) party moves to exercise a preemptory challenge; (b) opponent objects, showing that venire person falls within the protected class and requests a neutral reason for the challenge; and (c) the court finds the objection sufficient.

STEP 2: (a) the court asks for a neutral reason for the challenge; (b) the party provides the reasons why the explanation is race neutral; (c) the opponent is given an opportunity to respond; and (d) the court determines if the reason is facially neutral or not.

Finally, in STEP 3: (a) the court asks the opponent if he or she wishes to make a genuineness objection and (b) if that party chooses to object, the party may explain why the facially neutral reason is a pretext; (c) the challenger may then respond; and (d) the court makes its ruling that a facially neutral reason for the preemptory strike is genuine, explaining as necessary, the basis for the ruling (and if necessary, the party may ask the court to provide additional finding or clarity to preserve the issue for appeal).

The issue in this case focused on the burden on the opponent of a preemptory challenge to create a record establishing the basis for a claim of pretext. In this case (and in another case decided the same day, Ivey v. State, 41 Fla. Law Weekly D704 (Fla. 2^nd DCA March 18, 2016)), the Second District found that in order to prserve the issue of pretext, the opponent of the challenge has a burden to object to any “Step 3” deficiencies, and to call upon the trial court to correct them before the conclusion of jury selection in order to preserve the argument of pretext.

However, the Second District acknowledged that some law exists which suggests to the contrary. It then certified the question about whether it is the burden of the opponent of the allegedly “pretextual” challenge to place into the record the circumstances supporting that position, and to also object if the trial court truly does not contain adequate findings on the issue of genuineness.

SUPREME COURT SAYS BILLING RECORDS OF OPPOSING COUNSEL ARE RELEVANT TO THE ISSUE OF REASONABLENESS OF TIME EXPENDED BY COUNSEL FOR THE PLAINTIFF.

Paton v. Geico, 41 Fla. Law Weekly S115 (Fla. March 24, 2016):

After Geico refused to pay the plaintiff’s UM demand, the jury returned a verdict in excess of the policy limits. The plaintiff subsequently amended her complaint to add a claim for bad faith against Geico and was successful. In pursuit of her attorneys’ fees and costs, plaintiff sought discovery related to opposing counsel’s time records. Geico objected. The trial court overruled Geico’s objections to the discovery (based on privilege and relevancy) allowing Geico to redact the privileged information. The Fourth District granted Geico a writ of certiorari on the orders compelling production.

The supreme court concluded that the billing records of opposing counsel are relevant to the issue of reasonableness of time expended in a claim for attorneys’ fees, and discovery of those records falls within the discretion of the trial court when the fees are contested. They are relevant because the hours expended by those attorneys will demonstrate the complexity of the case along with the time expended, and may also belie a claim if the number of hours spent by the plaintiff was unreasonable, or plaintiff’s entitlement to a multiplier.

Moreover, the entirety of the billing records are not privileged, and where the trial court specifically states that any privileged information may be redacted, the plaintiff should not be required to make an additional special showing to obtain the remaining relevant non-privileged information. Additionally, even if the amount of time spent was privileged, the information would be available only from the defendant insurance company anyway, allowing the plaintiff to satisfy the second prong of the test delineated by rule 1.280(b)(4) for the discovery of privileged information.

“MANIFESTATION” OF DISEASE FOR PURPOSE OF ESTABLISHING MEMBERSHIP IN THE ENGLE TOBACCO CLASS, MEANS THE POINT AT WHICH THE PLAINTIFF BEGAN SUFFERING FROM OR EXPERIENCING SYMPTOMS OF A TOBACCO-RELATED DISEASE.

R.J. Reynolds v. Ciccone, 41 Fla. Law Weekly S118 (Fla. 4^th DCA March 24, 2016):

The key point in determining Engle class membership is pin-pointing when the plaintiff began suffering from smoking-related illness or when the illness manifested. Under that definition of manifestation, any plaintiff’s pre-certification date knowledge of a causal link between symptoms and tobacco is unnecessary for class membership.

The supreme court concluded that the manifestation for purposes of establishing membership in the Engle class is defined as the point from which plaintiff began suffering from or experiencing symptoms of a tobacco-related disease or medical condition. Under that definition, the plaintiff does not need to have been “formally diagnosed” or know that the symptoms were tobacco-related, prior to the cutoff date for class membership.

TRIAL COURT ABUSED ITS DISCRETION BY AWARDING ATTORNEYS’ FEES PURSUANT TO §57.105, WHEN CLAIMS WERE ARGUABLY SUPPORTABLE UNDER THE LAW AND FACTS.

Blinn v. Florida Power and Light, 41 Fla. Law Weekly D676 (Fla. 2^nd DCA March 16, 2016):

The court found that the plaintiff’s claims were arguably supportable under the facts and law, and therefore the trial judge erred in awarding FPL §57.105 fees. Most interesting in the case is the court’s statement “Keeping in mind the court’s duty to apply §57.105(1) with restraint….” A good line to use if on the receiving end of such motion (but not such a good line when you feel you are entitled to such fees!).

TRIAL COURT PROPERLY DETERMINED THAT THERE WAS A VALID AND ENFORCEABLE FORUM SELECTION CLAUSE IN CERTIFICATE OF INSURANCE WHICH PROVIDED FOR MANDITORY AND EXCLUSIVE JURISDICTION OF ACTION BY INSURED AGAINST INSURER IN DELAWARE.

Reyes v. Claria Life & Health, 41 Fla. Law Weekly D685 (Fla. 3^rd DCA March 16, 2016).

WHILE HEALTH CARE PROVIDER FAILED TO DEMONSTRATE IRREPARABLE HARM ENTITLING IT TO A WRIT OF CERTIORARI IN THE DISTRICT COURT, THE COURT LET THE CIRCUIT COURT ORDER STAND, ALLOWING AN INSURER TO DISPUTE THE REASONABLENESS OF CHARGES AT ANY TIME.

Coral Gables Chiropractic v. United Automobile Insurance Co., 41 Fla. Law Weekly D687 (Fla. 3^rd DCA March 16, 2016):

The chiropractic group plaintiff sued United Auto for its failure to pay certain medical bills. The circuit court appellate division found that United Auto could conduct discovery on the issue of reasonableness of the charges, leading Gables Chiropractic to take a writ of certiorari from that decision. It argued that the circuit court appellate division departed from the essential requirements of law, because United Auto failed to dispute the reasonableness of charges in its responses to the chiropractic group’s request for production and interrogatories, and thereby precluded United Auto from contesting and seeking discovery regarding reasonableness. The Third District disagreed with that argument.

United Auto sought to depose Gable Chiropractic’s corporate representative regarding the reasonableness of the charges incurred for the insured’s medical services. The court observed that because the victim had not obtained chiropractic treatment until over a year after the date of his automobile accident, it believed the insurer was entitled to determine whether the charges for his medical services were in fact reasonable.

The court then observed that §627.736(4)(b)(6) allows an insurer to dispute the reasonableness of charges at any time, including after payment of the claim. Therefore, the fact that United Auto issued payments for PIP benefits did not disclose the issue of the reasonableness of the charges.