The Week in Torts – Cases from the Week of April 29, 2016

FLORIDA LAW WEEKLY

VOLUME 41, NUMBER 17

CASES FROM THE WEEK OF APRIL 29, 2016

MANDATORY FEE SCHEDULE SET FORTH IN SECTION 440.34, WHICH CREATES AN IRREBUTABLE PRESUMPTION THAT PRECLUDES ANY CONSIDERATION OF WHETHER THE FEE AWARD IS REASONABLE TO COMPENSATE THE ATTORNEY IN WORKERS’ COMPENSATION CASES, IS UNCONSTITUTIONAL AS A VIOLATION OF DUE PROCESS.

Castellanos v. Next Door Company, 41 Fla. Law Weekly S197 (Fla. April 28, 2016):

The plaintiff was injured during the course of his employment with the defendant, Next Door Company. With the assistance of an attorney, he prevailed on his workers’ compensation claim.

However, because section 440.34 limited a claimant’s ability to recover attorney’s fees to a sliding scale based on the amount of benefits obtained, the fee awarded to the attorney amounted to $1.53 per hour for 107.2 hours of work. Plaintiff had no ability to challenge the reasonableness of that rate, and both the JCC and the First District were precluded by section 440.34 from assessing whether the fee award was reasonable.

The Florida Supreme Court began its analysis starting back in 1935 when the legislature adopted workers’ compensation law to provide “simple expeditious” relief to the injured worker. It observed how in the 80 years since the enactment, the statutory scheme has become increasingly complex.

The supreme court was asked to consider the constitutionality of the 2003 amendments to the attorney’s fee statute, which deleted some of the subjective factors to determine the reasonableness of a workers’ compensation fee. Holding the statute was ambiguous, the court held that the plaintiff was entitled to a reasonable attorney fee.

In 2009, however, following that decision, the legislature decided to remove any ambiguity as to its intent, and deleted the word “reasonable” in relation to attorney’s fees. By removing any consideration of “reasonableness,” and removing any discretion from the JCC or the judiciary on review, the legislature created an unconstitutional violation of due process.

Thus, the mandatory fee schedule enacted by the legislature in 2009 is unconstitutional as a violation of due process, and the predecessor statute is still in place (when a judicial act strikes a new statute that automatically revives the predecessor statute unless it too would be unconstitutional).

A FATHER WITH A FELONY CONVICTION WAS DISQUALIFED FROM SERVING AS PERSONAL REPRESENTATIVE.

In Re Estate of Butler, 41 Fla. Law Weekly D979 (Fla. 4^th DCA April 20, 2016):

Section 733.301(1)(a) explicitly prohibits anyone who has been convicted of a felony from serving as personal representative of their child’s estate.

TRIAL COURT ERRED BY SETTING CASE FOR TRIAL BEFORE IT WAS AT ISSUE.

Melbourne HMA, LLC d/b/a Wuesthoff Medical Center v. Schoof, 41 Fla. Law Weekly D994 (Fla. 5^th DCA April 19, 2016):

Pursuant to rule 1.440, an action is at issue after any motions directed to the last pleading served have been disposed of or, if no such motions are served, 20 days after service of the last pleading.

Once the case is at issue, a party may then file and serve a notice that the case is ready to be set for trial. Thereafter, if the trial court determines the action is ready for trial, the rule directs the trial court to enter an order fixing a date for trial no less than 30 days from the service of the notice. Thus, the rule prescribes a minimum interval of 50 days between service of the last pleading and commencement of trial.

Strict compliance with rule 1.440 is required. In this case, the trial judge set the trial a week before the minimum 50 days had elapsed.

The Fifth District granted the writ of mandamus, and struck the trial from the docket.

TRIAL COURT ERRED IN ALLOWING ORTHOPEDIC SURGEON’S PHYSICIAN ASSISTANT TO GIVE HIS OPINION ON THE INSURED’S NEED FOR FUTURE SURGERY, AND THE COSTS ASSOCIATED WITH THE SURGERY.

State Farm v. Long, 41 Fla. Law Weekly D995 (Fla. 5^th DCA April 22, 2016):

Plaintiff sustained a shoulder injury in a motorcycle collision and sued his UM carrier. The jury returned a verdict of $166,000, which included $116,000 for past and future medical expenses ($46,000 or so which had been stipulated to as past medical expenses).

In support of his damages claim, the plaintiff called a physician’s assistant to testify regarding his future medical expenses. The PA testified that shoulder issues make up a fair portion of his practice, that he knows the doctor he works with very well, and that 50% of his patients who present with shoulder problems ultimately need surgery. Also, he saw the patient approximately ten times in the five years he was treating.

The PA testified about his treatment, cortisone shots, and the cost of future shoulder surgery and associated expenses.

State Farm objected to the testimony, arguing that because he was not a surgeon, he was not competent to give his opinion on the need for future surgery or the costs associated with it.

Because the physician assistant testified that he is not a medical doctor, and does not have the authority to enter notes into the patient’s record without approval of the doctor, and that those notes must be counter-signed, plaintiff had the burden to establish by the preponderance of evidence the basis for the admissibility of the PA’s testimony.

While the court said it did not mean to imply that a physician assistant could never qualify as an expert, and in this case, he was certainly qualified to testify regarding the treatment and care he provided, but his ability to know how the orthopedic surgeon thinks is not sufficient to establish that he had the requisite knowledge or skill to make him competent to testify on the issue of whether the plaintiff required future surgery.

Because the testimony was not without significant impact on the outcome of the trial, and was used extensively to establish the claim for future damages, the court ruled that the error could not be harmless either, and reversed for a new trial.

WHEN THE ASSIGNMENT OF BENEFITS FROM THE INSURED TO THE PLAINTIFF IS CLEAR AND UNAMBIGUOUS, IT IS ERROR TO ALLOW INTRODUCTION OF EXTRINSIC EVIDENCE TO DETERMINE THE MEANING OF THE AGREEMENT–THE ASSIGNMENT OF INSURANCE BENEFITS TRANSFERRED TO THE ASSIGNEE STANDING TO LITIGATE THE COVERAGE ISSUE RAISED BY THE INSURER WHEN IT DENIED THE CLAIM.

Restoration 1 CFL a/a/o White v. State Farm, 41 Fla. Law Weekly D998 (Fla. 5^th DCA April 22, 2016).

ERROR TO DENY DEFENDANT’S MOTION FOR REHEARING WITHOUT AN EVIDENTIARY HEARING, WHEN THE MOTION WAS SUPPORTED BY AN AFFIDAVIT AND EXCUSABLE NEGLECT.

Villas at Laguna Bay Condo Association v. Citimortgage, 41 Fla. Law Weekly D1001 (Fla. 5^th DCA April 22, 2016):

After the court entered summary judgment in favor of the plaintiff, defendant sought a timely motion for rehearing under rule 1.530, and contemporaneously filed an affidavit of excusable neglect. The court denied the motion without a hearing.

Because Florida courts have a preference for deciding cases on the merits rather than on technicality, and because the defendant association’s motion for rehearing was supported by an affidavit from its counsel establishing colorable grounds (a calendaring error) that excusable neglect occurred, the court held that the trial judge abused his discretion by denying the motion without an evidentiary hearing.