The Week in Torts – Cases from the Week of June 10, 2016

FLORIDA LAW WEEKLY

VOLUME 41, NUMBER 23

CASES FROM THE WEEK OF JUNE 10, 2016

ERROR TO APPLY A MULTIPLIER WHEN NO SHOWING THAT THE INSUREDS WOULD HAVE HAD DIFFICULTY FINDING COMPETENT COUNSEL TO REPRESENT THEM.

Florida Peninsula Insurance Co. v. Wagner, 41 Fla. L. Weekly D1279 (Fla. 2^nd DCA June 1, 2016):

The Plaintiffs’ refrigerator water line broke in their home and caused flooding. Their insurer did some remediation work, but a dispute arose concerning the insurance company’s invocation of an “option to repair” provision in the policy and the scope of the work that they were supposed to handle.

The Plaintiffs first hired their neighbor who was an attorney, and he soon realized that he could not adequately represent their interests. Not long after his withdrawal, Plaintiffs retained a law firm under a contingency fee arrangement. The case went all the way to trial and a jury awarded the Plaintiffs over $71,000 in damages.

The attorney then moved for fees and sought a multiplier. At the fee hearing, he relayed Plaintiffs’ experience with their prior attorney, and remarked that he felt their case was unique and that it had been vigorously litigated. The Plaintiffs also called an expert who had contacted a few attorneys prior to the hearing to ask whether it was important to have the possibility of a contingency fee multiplier and deciding whether to accept a first party coverage dispute. However, he never relayed what he learned from those conversations. The insurer introduced evidence of Martindale Hubbell which demonstrated 258 attorneys holding themselves out as first party insurance attorneys.

The trial judge awarded the Plaintiffs’ attorney a 2.0 multiplier, apparently impressed by his willingness to see the matter through trial. Remarking that “there may be multiple attorneys out there that are willing to go to trial, but actually going to trial is another issue,” the court likened the trial experience to a market condition that necessitated a contingency fee multiplier. The court also noted that it was “a rare attorney who actually goes all the way through trial to the completion.”

The Second District said that none of those reasons support the application of a fee multiplier. A fee multiplier under Quanstrom serves to correct a deficiency in a legal market for representation. There was no evidence that the Tampa Bay legal market could not provide competent counsel for the plaintiffs’ case at the prevailing hourly rates, and seeing a case through trial does not in and of itself merit a fee multiplier.

Because there was no evidence presented, nor any specific finding by the trial court that the Plaintiffs could not find and retain competent counsel for their case through trial with the prospect of remuneration at a prevailing market rate, the court reversed the award of a multiplier.

THE DELAYED DISCOVERY DOCTRINE AS SET FORTH IN HEARNDON V. GRAHAM APPLIES ONLY TO INTENTIONAL TORT CLAIMS AGAINST A PERPETRATOR OF SEXUAL ABUSE, AND NOT INSTITUTIONS.

W.D. v. Archdiocese of Miami, 41 Fla. L. Weekly D1296 (Fla. 4^th DCA June 1, 2016):

Plaintiff appealed an order dismissing with prejudice his second amended complaint against the Archdiocese and a school. The complaint alleged that the plaintiff attended a school owned and operated by the Archdiocese from 1980 to 1986. At six years old, the plaintiff experienced sexual abuse by a boy off school grounds, and his mother reported the incident to the school. The complaint alleged that three priests sexually abused the boy over a period of time while pretending to counsel him about the off campus abuse. He repressed memories of it, and further alleged that at one time the three priests had threatened harm to him and his mother for reporting the incidents.

Even after the mother reported the abuse (deducing it based on pictures that the boy was drawing), the Archdiocese of the school gave the priests unfettered access to him.

In the spring of 2013, a photo and something he witnessed made the plaintiff remember the abuse. Within a year he filed a complaint against the defendants. The trial court dismissed the complaint. The plaintiff responded that his claims were timely under sections 95.11(7) and (9) by virtue of the delayed discovery doctrine found in Hearndon, and that equitable estoppel based on fraudulent concealment could be used to circumvent the statute of limitations.

Unfortunately, the statutes referenced in §95.11(7) do not provide for abuse by an institution and thus the court found the statute did not save the plaintiff’s untimely claims against the Archdiocese and the school. Also, §95.11(7) did not apply to causes of action that accrued and would be time barred on or before July 1, 2010.

Finally, the court also affirmed dismissal of the equitable estoppel claims, because the plaintiff failed to allege that the Archdiocese had lulled him into a position which caused him to fail to assert his rights, or that they engaged in conduct that induced him to forebear suit within the applicable limitations. The court observed that the doctrine of equitable estoppel typically applies to avoid a statute of limitations defense, where the injured party recognizes the basis for the suit, but that party that caused the injury induced the injured party to forebear from filing suit during limitations.

Despite the horrificness of the allegations, the Fourth District affirmed the dismissal of the second amended complaint.

TRIAL COURT DID NOT ABUSE ITS DISCRETION IN EXCLUDING PLAINTIFF’S EXPERT’S CAUSATION OPINION AND GRANT SUMMARY JUDGMENT–2013 AMENDMENT ON STATUTE OF ADMISSION OF EXPERT TESTIMONY APPLIES RETROACTIVELY–COURT ALSO REVERSED COSTS FOR ATTORNEY TRAVEL AND DEFENSE EXPERT FEES BECAUSE THEY WERE NOT TAXABLE UNDER THE UNIFORM GUIDELINES.

Bunin v. Matrixx Initiatives, 41 Fla. L. Weekly D1308 (Fla. 4^th DCA June 1, 2016):

Plaintiff in this products liability action alleged that she lost her sense of smell after using Zicam nasal spray. Based on the amendments to section 90.702, the defendants moved to exclude the opinion of her causation expert under Daubert.

Finding that the statute applied retroactively because it was a procedural or remedial statute (statutes merely relating to the admission of evidence are generally considered procedural), the court found that while the expert’s opinion would have been admissible under the pure opinion rule of Marsh v. Valyou, it did not meet the Daubert standard. Without that testimony, unfortunately, summary judgment for the defendants was proper.

The court however did reverse the award of costs to the extent that the court allowed compensation for attorney travel expenses and the fees of the defense expert. These costs were not costs that “should be” or “may be” taxed under the uniform guidelines and the court failed to make any specific findings in the cost judgment as to any unique and extraordinary circumstances to justify a deviation from the guidelines.

The expert’s time did not qualify as a cost that was taxable because his fees were not for a deposition, trial testimony or court ordered report. In that instance, they would have fallen into the category of costs that “may be taxed.”

TRIAL COURT ABUSED DISCRETION IN AWARDING NEW TRIAL BASED ON DEFENSE’S VIOLATION OF THE SEQUESTRATION RULE–ALSO DEFENSE EXPERT DID NOT TESTIFY AS TO NEW OPINIONS NOT INCLUDED IN HIS CERTIFIED MEDICAL EXAMINATION REPORT.

Dismex Food v. Tellez, 41 Fla. L. Weekly D1315 (Fla. 3^rd DCA June 1, 2016):

After this rear-end collision, plaintiff was examined by the defense’s medical expert who issued a report pursuant to rule 1.360, essentially stating that the plaintiff’s spine was normal, she did not require surgery, and had zero percent permanent impairment.

Before trial, plaintiff moved in limine to prohibit the doctor from testifying as to new opinions not included in the CME report. Plaintiff also invoked the sequestration rule set forth in section 90.616.

During trial, plaintiff’s doctor testified for the first time that he would not have relied on the MRI due to its poor diagnostic quality. Following that, defense counsel conferenced with the CME doctor about the testimony he would give the next day. The jury awarded the plaintiff his medical expenses but found no permanent injury. Plaintiff moved for a new trial arguing that the defense attorney conferred with his expert regarding plaintiff’s doctor’s testimony, thereby violating the sequestration rule and causing new opinions.

The trial judge granted plaintiff’s motion for new trial based on its finding that the plaintiff had been prejudiced and denied a fair trial by the cumulative effort of defense counsel’s violation of the sequestration rule, and the defense witness’s violation of the trial court’s ruling confining his testimony to the opinions of his report.

The court found that while there may have been a violation of the rule of sequestration, the testimony did not substantially differ from what it would have been without the violation of the rule. Also, the doctor’s testimony was consistent with his report and did not substantially differ. As such, the court found it was error to grant plaintiff a new trial, and remanded for judgment according to the jury verdict.

THE NON-OWNED VEHICLE THE DEFENDANT WAS DRIVING WAS NOT AN “UNINSURED” VEHICLE, BECAUSE IT WAS INSURED UNDER THE LIABILITY PORTION OF THE POLICY UNDER THESE CIRCUMSTANCES—THEREFORE, THE UNINSURED MOTORIST COVERAGE WAS NOT OWED.

State Farm v. Smith, 41 Fla. L. Weekly D1338 (Fla. 2^nd DCA June 3, 2016):

A couple owned a vehicle which they purchased for their daughter. The daughter’s friend–the plaintiff–was injured in a car accident while driving the car with her permission. The daughter was a passenger and was also injured.

The insurance on the vehicle provided both liability and UM coverage, and the plaintiff was also insured under the liability and uninsured motorist provisions of a separate policy issued to his mother. The plaintiff’s policy extended liability coverage to him for the use of his mother’s car, as well as for any other car that he “used but did not own,” including the car at issue, subject to exceptions.

The passenger daughter filed a lawsuit against the plaintiff friend, seeking compensation for her injuries due to his negligence. The boy’s policy owned by his mother ultimately tendered the liability limits.

Following the tender of those limits, the boy amended his own complaint to include a claim against State Farm for UM benefits under his mother’s policy. State Farm counter-claimed for a declaration that it was not liable because the accident vehicle was not an uninsured motor vehicle as defined by his mother’s policy, and as a result he was not entitled to the coverage.

The court explained that the issue boiled down to whether the provision governing vehicles insured under the liability coverage of the boy’s policy unambiguously precluded UM coverage for his injuries. Engaging in a very detailed analysis of the specific policy language, the court found that the policy definition of “uninsured motor vehicle” unambiguously excluded motor vehicles insured under its liability provisions. Because the vehicle when driven by the boy was insured also under the liability provisions of the policy, the trial court erred by holding that the claimed exclusion did not apply. Thus, the boy was not covered under the UM provision of his own policy.