FLORIDA LAW WEEKLY

VOLUME 42, NUMBER 47

CASES FROM THE WEEK OF NOVEMBER 24, 2017

TRIAL COURT ABUSED ITS DISCRETION IN DISCOURAGING JURY FROM READ-BACK OF TESTIMONY.

Phillip Morris v. Duignan, 42 Fla. L. Weekly D2426 (Fla. 2nd DCA November 15, 2017):

A juror sent out a note asking the court about how to locate specific portions of evidence to review, asking “Is there a key for the evidence? We are having trouble finding things in the evidence boxes. If not, can we have the number for the witness’s deposition?”

During a discussion with counsel over a potential response to the question, the parties and court considered how to advise the jury about the possibility that deposition testimony could be read back upon request. The trial judge expressed concern that allowing a read-back would open a Pandora’s box and give undue influence to the testimony. The trial court proposed to instruct the jury that “testimony is generally not read back to a jury, but there is a possibility under some circumstances.” The defendant objected, arguing that the instruction should simply advise the jurors that a read-back was “possible.”

Noting that all of the read-back cases have been decided in the criminal context, the court still reiterated two rules about read-backs articulated by the leading case on the issue. The first rule is that a trial court should not use any language that would mislead a jury into believing read backs were prohibited, and the second rule is that when a jury requests trial transcripts, the trial judge should deny the request but inform the jury of a possibility of a read-back.

Because the trial court’s response in this case mislead jurors into believing that a read-back was something extraordinary, and it would have been a fool’s errand to pursue, this was error, especially in this case where the testimony the jury wanted to have read was actually given through deposition versus live witness testimony at trial.

AMENDMENTS TO THE STANDARD JURY INSTRUCTIONS ON BURDEN OF PROOF ON THE MAIN CLAIM/SUMMARY OF CLAIMS OR CONTENTIONS IN.

In Re Standard Jury Instructions in Civil Cases, 42 Fla. L. Weekly S939 (Fla. November 22, 2017):

The supreme court adopted some minor changes to the Standard Jury Instructions. 403.17 - Burden of Proof on the Main Claim – clarifies how affirmative defenses are handled. There are also some new/amended standard jury instructions on retaliation and adverse employment actions.

Finally, the supreme court adopted a model verdict form for a statute of limitations defense in medical malpractice cases.

PLAINTIFF WHO ELECTED EXEMPTION FROM WORKER’S COMPENSATION COVERAGE AS A CORPORATE OFFICER OF A SUB-SUBCONTRACTOR COULD NOT PROPERLY MAINTAIN A TORT ACTION.

Gladden v. Fisher Thomas, Inc., 42 Fla. L. Weekly D2441 (Fla. 1st DCA November 15, 2017):

The plaintiff was seriously injured while performing flooring installation work at a project on the Opal Beach Ranger Station. Plaintiff was injured when an employee of another company on the jobsite lifted materials to him with a forklift. Because the load was improperly secured, the plaintiff fell from the second floor.

At the time of the incident, the general contractor had entered into separate subcontracts with Fisher Thomas (the employer of the forklift operator) and Wilson Floor Covering. Unbeknownst to the contractor, Wilson Floor Covering entered into a sub-subcontract with the plaintiff’s company, Chuck Gladden’s Carpet and Vinyl Installation, to perform the work. Chuck Gladden himself was the plaintiff.

The contract with the National Park Service who had retained the contractor, required the contractor and its subcontractors to maintain worker’s compensation insurance. They did.

However, as an officer of Gladden Carpet, the plaintiff elected to be exempt from worker’s compensation coverage pursuant to section 440.02(15)(b)1. While plaintiff provided a copy of his certificate of exemption to the subcontractor that hired him, neither he nor that subcontractor notified the contractor of the exemption.

Plaintiff then sued the general contractor and the subcontractors. The general contractor filed a third-party complaint against the subcontractor that hired the plaintiff’s company. Defendants argued in their motions for summary judgment that they were immune from suit because the plaintiff was a statutory employee of the general contractor under workers’ compensation law, and potentially in line for workers’ compensation benefits. In response, plaintiff argued that a corporate officer who properly elects to be exempt from workers’ compensation law is excluded from the definition of employee, thereby precluding a finding of immunity.

The trial court granted summary judgment. It ruled that the plaintiff was an employee notwithstanding the exemption, and additionally ruled that the subcontractor was immune from any claims arising from the allegations levied by the plaintiff against the general contractor on the basis of work. comp. immunity.

The court explained that for workers in the construction industry, an employee includes “all persons who are being paid by a construction contractor as a subcontractor, unless the subcontractor has validly elected an exemption as permitted by this chapter.” (§440.02 (15)(c)2). The definition section then further provides that “employee” does not include an officer of a corporation that is engaged in the construction industry who elects to be exempt from the provisions of the chapter.

In this case, there was no dispute that the plaintiff had filed the required election for exemption and that it was current on the date of the accident. Thus, under the plain language of the definitions, the plaintiff did not satisfy the definition of “employee” at the time of the accident.

However, the court explained that the analysis could not end there because context matters. The question is not whether the plaintiff as an “employee” is eligible to make a claim for workers’ comp. benefits as a result of the on-the-job accident; the question is whether the defendants qualify for tort immunity under section 440.11.

In the supreme court decision in Weber v. Dobbins, the Florida Supreme Court expressly declined to apply the section 440.02 definition of “employee” which refers to “those persons who are entitled to file claims under the work. comp. law to quote the context of granting statutory immunities provided by workers’ compensation laws.”

In that case, a worker was injured while working under the direction of a corporate officer of a sign company. The worker made a claim and received benefits, but also filed a negligence action. The defendant defended against the action based on immunity provisions in 440.11, and the issue boiled down to whether the defendant who had elected to be exempt from work. comp. coverage as a corporate officer, could still benefit from work. comp. immunity. The supreme court said the answer was yes.

In this case, the plaintiff contended that by electing the corporate officer exemption he removed himself from the work. comp. scheme and opened the door to actions in tort against individuals otherwise entitled to immunity. But the court said that was inconsistent with the law, and was asking too much of the benefit derived from the corporate exemption in light of the Weber case.

In section 440.075, the only provision in the work. comp. law that specifically addresses the impact of the corporate exemption on work. comp. immunity, an exempt corporate officer may proceed against the corporate employer, this makes sense since the corporate employer received the benefit of reduced work. comp. premiums for an exempt officer, which is the risk associated with that benefit.

However, the plaintiff’s exemption from work. comp. coverage did not equate to his ability to circumvent the immunity protections of 440.11. Therefore, the court affirmed the summary judgment.

IN CALCULATING AMOUNT OF PIP BENEFITS DUE THE DEDUCTIBLE IS TO BE SUBTRACTED FROM THE TOTAL MEDICAL CHARGES BEFORE APPLYING THE STATUTORY REIMBURSEMENT LIMITATIONS PROVIDED IN SECTION 727.736(5)(a)1.B.

Progressive Select v. Florida Hospital Medical Center a/a/o Jonathan Parent, 42 Fla. L. Weekly D2455 (Fla. 5th DCA November 17, 2017):

Because the deductible under section 627.739(2) is applied to 100% of expenses and losses, the deductible is subtracted from the charge and the remaining amounts are then reduced by the percentages owed pursuant to section 627.736(5)(a)1.B. (instead of doing the percentage reductions on the original bill and then subtracting the deductible amount).

AN ORDER AWARDING ATTORNEYS’ FEES AS A SANCTION UNDER SECTION 57.105 MUST INCLUDE FINDINGS TO SUPPORT THE AWARD.

Austin and Laurato v. State Farm, 42 Fla. L. Weekly D2463 (Fla. 5th DCA November 17, 2017):

A final judgment was entered by the trial court in favor of State Farm as a sanction for filing a frivolous complaint. The final judgment also imposed attorneys’ fees jointly and severally against the law firm and the client.

In this case, the order contained a recitation of the facts but only two findings related to sanctions. The first finding was that after the motion for sanctions was served on them, the client and law firm refused to take corrective action and pursued the lawsuit without pause. The second finding was that the plaintiff and her attorneys failed to show any good faith for the action.

Standing alone, those findings were insufficient to assess attorneys’ fees against the attorney and the losing party because there had to be a finding that “counsel knew or should have known at the time the complaint was filed that the claims against State Farm were not supported by material facts necessary to establish the claims or were not supported by the application of then existing law to the material facts.”

The court’s failure to make factual findings in its order compelled reversal. The trial court also erred in imposing joint and several liability because each can only be responsible for 50% of the fees as a sanction.