The Week in Torts – Cases from the Week of October 21, 2016

FLORIDA LAW WEEKLY

VOLUME 41, NUMBER 42

CASES FROM THE WEEK OF OCTOBER 21, 2016

A PROPOSAL FOR SETTLEMENT IS NOT INVALID FOR FAILING TO STATE WHETHER THE PROPOSAL INCLUDES ATTORNEY’S FEES AND ARE PART OF THE LEGAL CLAIM [IN A CASE WHERE ATTORNEY’S FEES ARE NOT SOUGHT IN THE PLEADINGS].

Kuhajda v. Borden Dairy Co., 41 Fla. L. Weekly S471 (Fla. October 20, 2016):

By enacting the offer of judgment statute, the legislature modified the American rule, stating that each party pays its own attorney’s fees. Because the statute and rule 1.442 are in derogation of common law, they must be strictly construed. Apropos of that strict construction, courts have long read section 768.79 and Rule 1.442 strictly.

However, pursuant to Rule 1.442(c)2(F) in context of the statute–which was enacted to reduce litigation costs and encourage settlement–the court wrote that it will not invalidate offers of judgment solely for voiding a requirement in Rule 1.442, when section 768.79 does not actually require such things. As the supreme court wrote, “the procedural rule should no more be allowed to trump the statute here than the tail should be allowed to wag the dog.” “A procedural rule,” it wrote, “should not be strictly construed to defeat a statute it is designed to implement.”

In cases where a party has never sought attorney’s fees, the supreme court said it would make no sense to require a party to state that the offer does not include attorney’s fees. Thus, in situations where attorney’s fees are not sought in the pleadings, the failure to indicate that the proposal includes attorney’s fees and/or indicates whether they are part of the legal claim, does not invalidate the offer.

COURT CLARIFIES THE DIFFERENCE BETWEEN A FABRE DEFENSE AND AN EMPTY CHAIR DEFENSE–NO ABUSE OF DISCRETION IN DENYING PLAINTIFF’S MOTION FOR MISTRIAL BASED ON A VIOLATION OF MOTION IN LIMINE, WHEN ALL THE JURORS REVEALED ON INDIVIDUAL VOIR DIRE THEY NEVER SAW THE OBJECTIONABLE EVIDENCE.

Villa v. Philip Morris, 41 Fla. L. Weekly D2308 (Fla. 3^rd DCA October 13, 2016):

In this tobacco case, the plaintiff testified that he had only smoked Marlboro brand cigarettes. Philip Morris uncovered evidence to suggest that was not the case, and showed that Marlboro cigarettes sold in the Dominican Republic when the plaintiff lived there were manufactured by a different company. However, Philip Morris never sought to plead the other company as a Fabre defendant in an affirmative defense. Instead, it simply agreed that another company was responsible.

On the verdict form, the question was asked about whether smoking cigarettes manufactured by Philip Morris was a legal cause of the plaintiff’s cancer. The plaintiff objected to this question, asserting that because Philip Morris never pleaded the liability of the other company as an affirmative defense, the question on the verdict form suggesting the existence of another company was wrong.

The court disagreed. It noted there is a distinct legal difference between asserting an “empty chair” defense and seeking an apportionment of fault under Fabre. To present an “empty chair defense,” a defendant may point to an empty chair by arguing that a non-party is responsible for the plaintiff’s injuries. To do so, the defendant need only answer the complaint with a general denial, and argue to the jury that the injury was due to the negligence of a non-party.

Conversely, if the defendant wishes to seek an apportionment of fault against the non-party, it must identify the non-party and plead the negligence of that non-party as an affirmative defense. If those requirements are met, then the non-party defendant may be placed on the verdict form, and considered with the other fault so that the jury could allocate the percentage.

On the other issue, counsel for Philip Morris had shown information to the jury on the medical record that the plaintiff had moved in limine to exclude. The trial judge denied plaintiff’s motion for a mistrial after the trial court voir dired each of the jurors individually. Because each juror responded that he or she had not seen any of the objectionable information, the court denied the motion.

ORDER COMPELLING PARTIES TO PROVIDE COPIES OF SWORN WITNESS STATEMENTS TO OPPOSING PARTY WITHOUT CONDUCTING AN IN CAMERA INSPECTION TO DETERMINE IF THE STATEMENTS WERE WORK PRODUCT, AND WITHOUT FINDING THE OPPOSING PARTY WOULD BE UNABLE TO SECURE EQUIVALENT WITHOUT UNDUE HARDSHIP, WAS A DEPARTURE FROM THE ESSENTIAL REQUIREMENTS OF LAW.

Selton v. Nelson, 41 Fla. L. Weekly D2337 (Fla. 5^th DCA October 14, 2016):

Witness statements prepared by counsel in anticipation of litigation are generally protected by the work product privilege. Although a party may be ordered to provide the names and addresses of individuals who have furnished statements in anticipation of litigation, absent rare and exceptional circumstances, the party should not be required to furnish the statements themselves because they are work product.

When a party seeks the production of witness statements, there must be an evaluation of work product objections.

In this case, the trial judge ordered production of the witness statement solely because they were sworn affidavits. However, there was no showing made that any of the exceptions to rule 1.280(b) applied, and the court compelled production of the witness statements without conducting an in camera inspection to determine if the statements were actually work product, and without finding that the respondents would be unable to secure the equivalent without undue hardship. Because this ruling departed from the essential requirements of law, the court granted the petition for writ of certiorari.

PRE-JUDGMENT INTEREST ON ATTORNEY’S FEE AWARD SHOULD BE ASSESSED FROM THE DATE OF THE ORDER CONFIRMING THE ARBITRATION AWARD WHICH DETERMINED THE PARTY’S ENTITLEMENT TO FEES, NOT THE DATE OF THE ARBITRATION AWARD ITSELF.

HDE, Inc. v. Bee-Line Supply Co., 41 Fla. L. Weekly D2341 (Fla. 5^th DCA October 10, 2016).

TRIAL COURT ABUSED DISCRETION IN AWARDING NEW TRIAL BASED ON AN ALLEGED QUOTIENT VERDICT, WHEN THE EVIDENCE DID NOT ESTABLISH EITHER THE USE OF A FORBIDDEN AVERAGING PROCESS OR AN AGREEMENT AMONG JURORS TO BE BOUND BY THE RESULT–THE DAMAGES WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE HOWEVER.

Henry v. Jones, 41 Fla. L. Weekly D2348 (Fla. 2^nd DCA October 14, 2016):

In this case involving the interference with the expectancy of inheritance, the jury was actually asked a question on the verdict form as to whether it agreed that a certain amount of money never should have been removed from a trust allowing the plaintiff to be the recipient of a percentage of that money. 

The court concluded that that jury question alone was insufficient to establish the utilization of an improper quotient verdict, because it neither evinced the use of a forbidden averaging process nor an agreement to be bound by the result thereof. As this is the standard for establishing quotient verdict, there was none.

TRIAL COURT SHOULD HAVE SET ASIDE THE CLERK’S DEFAULT UPON WHICH THE DEFAULT JUDGMENT WAS BASED WHERE IT WAS ENTERED AFTER THE DEFENDANTS HAD FILED A PAPER IN THE ACTION–ALTHOUGH THE CLERK’S DELAY IN ENTERING THE DEFAULT EFFECTIVELY PERMITTED THE DEFENDANTS TO FILE SUCH A PAPER, THE DEFENDANT WAS ALLOWED TO PLEAD OR DEFEND THE ACTION IN LIGHT OF RULE 1.500(c) WHICH PROVIDES THAT A PARTY MAY PLEAD OR OTHERWISE DEFEND AT ANY TIME “BEFORE DEFAULT IS ENTERED.”

720 South Howard, LLC v. Gina Investments, 41 Fla. L. Weekly D2349 (Fla. 2^nd DCA October 14, 2016):

The rule on entry of a clerk’s default provides that when a party against whom affirmative relief is sought has failed to file or serve any paper in the action, the party seeking relief may have the clerk enter a default against the party failing to serve or file such paper. The rule also provides that a party may plead or otherwise defend at any time before the default is entered.

Here, the clerk’s office did not timely act on the motion for the clerk’s default, and by the time it did, the defendant had entered a paper in the action. Based on the rule, even though the clerk’s office should have acted timely, it was error not to vacate the default.