The Week in Torts – Cases from the Week of June 16, 2017

FLORIDA LAW WEEKLY

VOLUME 42, NUMBER 24

CASES FROM THE WEEK OF JUNE 16, 2017

AMBIGUOUS EXCULPATORY CLAUSE IN MEDICAL RECORDS PRECLUDED SUMMARY JUDGMENT.

Brooks v. Paul, 42 Fla. L. Weekly D1345 (Fla. 4^th DCA June 7, 2017):

The plaintiff had her ureter cut during spinal surgery. Prior to surgery, she had executed a release as a part of her consent forms.

The release contained language stating that the plaintiff would not sue the doctor or his group for any reason, acknowledging that the doctor would be doing his best to take care of the patient according to community medical standards.

The trial court granted summary judgment for the doctor, finding the release to be “completely unambiguous.” However, the Fourth District observed that the language in the release about complying with community standards created an ambiguity with the sentence about “not suing for any reason.” The court said there was an interpretation of the clause that plaintiff may have agreed not to sue, because she believed the doctor and staff would do their very best to take care of her according to community medical standards.

Based on the ambiguity and factual questions, the court reversed entry of summary judgment for the defendant doctor based on the release.

NO ERROR IN INSTRUCTING JURY THAT LESSEE OF VEHICLE WOULD NOT BE LIABLE IF DRIVER’S USE OF THE LEASED VEHICLE EXCEEDED EXPRESS OR IMPLIED CONSENT.

Stokes v. Wynn, 42 Fla. L. Weekly D1307 (Fla. 4^th DCA June 7, 2017):

The plaintiff was injured when he was struck by a vehicle driven by the defendant driver who fled the scene. Hertz had rented the vehicle to the defendant lessee.

At the time, the lessee was living in a house owned by her husband’s parents with 10 to 12 other people, all of whom had various cars in the driveway. Because there were so many people and cars, everyone kept their keys in the kitchen so as to be able to move cars if need be.

The defendant lessee had been having a mechanical problem with her own car, and then rented a car from Hertz for about three weeks. She left the keys to the rental car in the kitchen.

On the day of the accident, the boyfriend of one of the residents of the house, visited. He took the rental car keys off of the kitchen counter and drove the car to get milk for his girlfriend’s young child. He did not speak to the lessee before taking it and she never gave him permission to drive it.

After the accident, the plaintiff sued the driver, the lessee and Hertz. The defendants asked for an instruction regarding their responsibility if there had not been consent. This was a modification of the standard jury instruction on express or implied consent. The jury found in favor of the lessee and Hertz.

The standard of review of a decision regarding whether to give a particular jury instruction is abuse of discretion. The party defending the instruction on appeal must show that the requested information accurately stated the applicable law, the facts supported giving the instruction, and the instruction was necessary in order to allow the jury to properly resolve all the issues in the case.

Because all of these elements were met, there was no error in the court giving the instruction. The court also affirmed the trial judge’s decision to bifurcate liability and damages.

ORDER GRANTING IME DEPARTED FROM ESSENTIAL REQUIREMENTS OF LAW WHERE IT FAILED TO SPECIFY THE TIME, PLACE, MANNER, CONDITION AND SCOPE OF EXAMINATION, AND PERSON OR PERSONS BY WHOM THE EXAMINATION WAS TO BE MADE.

Smart v. Bock, 42 Fla. L. Weekly D1309 (Fla. 4^th DCA June 7, 2017):

The orders under review required a four hour mental health examination by a psychiatrist in an employment discrimination case, as well as one forcing the production of calendars which the plaintiff maintained to record events in her workplace and typed notes from those calendars. The court denied the petition as it pertained to the diary and notes.

However, it granted certiorari on the order compelling the CME. The failure to provide the specific manner, conditions and scope of an examination gives a psychologist carte blanche to perform any type of psychological inquiry testing and analysis. Such an open ended order departs from the essential requirements of law, and results in the miscarriage of justice.

TRIAL COURT DEPARTED FROM ESSENTIAL REQUIREMENTS OF LAW BY CONSTRUING SECTION 768.73(2), GOVERNING SUCCESSIVE AWARDS OF PUNITIVE DAMAGES TO PERMIT DISCOVERY OF THE AMOUNT OF PUNITIVE DAMAGES DEFENDANTS ACTUALLY PAID IN POST–JUDGMENT SETTLEMENT OF AN UNRELATED CASE-THE STATUTE SPEAKS IN TERMS OF PRIOR PUNITIVE DAMAGES AWARDED, NOT ACTUALLY PAID.

Knauf Plasterboard Co. v. Ziegler, 42 Fla. L. Weekly D1311 (Fla. 4^th DCA June 7, 2017):

The defendants in this case were a Chinese drywall manufacturer and distributor who petitioned for a writ of certiorari seeking review of two nonfinal orders permitting discovery on the amount of punitive damages they had paid in post-judgment settlements of an unrelated case.

The drywall defendants sought to limit the punitive damages awards, pursuant to section 768.73(2) prohibiting a subsequent punitive damage award if the punitive damages were previously awarded in any action alleging harm from the same course of conduct for which punitive damages were already awarded.

The trial court held an evidentiary hearing on whether the clear and convincing evidence demonstrated that the defendants were sufficiently punished. The trial court explained that the statute simply prevented multiple punishments for the same conduct, as long as the defendant was sufficiently punished.

The plaintiff argued that the award in the prior action was never actually “paid” because of a settlement and thus the defendant had not been properly punished because there was no payment.

The court rejected that argument. It held that the drywall defendants were correct that section 768.73(2) speaks only in terms of a prior punitive damage award, and has nothing to do with what is paid. The court further found that the trial court erroneously ordered production of irrelevant confidential terms of the settlement in an unrelated case, because the amount paid in the prior action was irrelevant in light of the statute which speaks only in terms of an “award.”

COURT REVERSES SECTION 57.105 AWARD FOR FAILURE TO STRICTLY COMPLY WITH RULE 2.516 ON SERVICE.

Estimable v. Prophete, 42 Fla. L. Weekly D1312 (Fla. 4^th DCA June 7, 2017):

In a custody battle, the father moved for 57.105 sanctions, asserting the mother’s petition was frivolous. Section 57.105 requires that a party filing a motion for sanctions comply with the 21-day safe harbor provision as well as rule 2.516. The safe harbor provision requires a party to wait 21 days after serving its motion for sanctions on opposing counsel, before the objectionable document/action for fees, to give the opponent a chance to correct or withdraw.

Rule 2.516(b)(1)(E) requires (1) the attachment of a copy of the safe harbor document in pdf format, and a link to the document on a website maintained by a clerk; (2) the subject line should begin with the words “SERVICE OF COURT DOCUMENT” followed by the case number; (3) the body of the email needs to identify the court in which the case is pending, the case number, the name of the initial party on each side, the title of the document served within the email and the name and telephone number of the person required to serve the document.

Because the father failed to strictly comply with these requirements, the court had to reverse the sanction award in his favor.

NO DEPARTURE FROM THE ESSENTIAL REQUIREMENTS OF LAW IN COMPELLING DEPOSITIONS OF THE MAYOR OF THE CITY AND THE CITY MANAGER TO DETERMINE WHY A SIDEWALK CAFÉ WAS PERMITTED TO CONTINUE OPERATING AFTER RECEIVING CITATIONS FROM THE CODE ENFORCEMENT BOARD.

City of Miami v. Vila, 42 Fla. L. Weekly D1321 (Fla. 3^rd DCA June 7, 2017):

After the plaintiff deposed seven city officials who all testified that they did not know why an illegal sidewalk café was allowed to continue to operate, the trial court compelled the mayor and the city manager to appear for a deposition–a matter from which the City took a petition for a writ of certiorari.

When the code enforcement director, the code enforcement supervisor and representative from the mayor’s office all testified they did not know the reason, the plaintiff was allowed to take these depositions, and the appellate court agreed.

COURT INDICATES THAT JUDICIAL NOTICE OF FILINGS IN A RELATED LOWER COURT CASE IS NOT APPROPRIATE, IF NOT IN COMPLIANCE WITH RULES OF APPELLATE PROCEDURE.

Plumer v. U.S. Bank National, 42 Fla. L. Weekly D1323 (Fla. 3^rd DCA June 7, 2017):

The Florida Rules of Appellate Procedure 9.200 prescribe how the record on appeal is to be assembled, and how parties may include or exclude items for the record. Because the motion for the appellate court to take judicial notice of filings and related lower court case did not comport with the rule, the court denied it.

TRIAL COURT PROPERLY DISMISSED CRUISE SHIP CABIN STEWARD’S ACTION AGAINST EMPLOYER ON FORUM SELECTION CLAUSE FOUND IN EMPLOYMENT CONTRACT, WHICH REQUIRED PLAINTIFF TO BRING THE LAWSUIT IN MALTA.

Castro v. Pullmantur, S.A., 42 Fla. L. Weekly D1326 (Fla. 3^rd DCA June 7, 2017):

The plaintiff was a cruise ship steward suing his employer for personal injury under the Jones Act. He filed his claims in Miami-Dade Circuit Court and the cruise ship company moved to dismiss based on the forum selection clause in the employment contract.

The plaintiff asserted that the forum selection clause was unreasonable and void. He said it would be gravely inconvenient for him to litigate the case in Malta because he lives in a poor rural community in Honduras. The court noted that the plaintiff’s filing in the United States undermined the requisite showing needed for “physical injury and/or the financial hardship” needed to bring the case outside of the home forum.

Additionally, plaintiff contended that the forum selection clause was void because Congress amended the Jones Act in 2008 to delete its venue provision providing that actions had to be brought in the judicial circuit district where the employer resides or the employer’s principal office is located. Still, this had nothing to do with forum selection clauses which have been enforceable in Jones Act cases for years. The court upheld dismissal of the plaintiff’s claim.

CERTIORARI GRANTED ON OVERLY BROAD DISCOVERY ORDER IN A NURSING HOME CASE.

Harborside Healthcare v. Sun Healthcare Group, 42 Fla. L. Weekly D1345 (Fla. 2^nd DCA June 9, 2017):

Plaintiff propounded a request for production with 73 paragraphs. The requests included a request for emails including one for all electronic communications sent or received by virtually any administrative director or supervisor for a six month period, prior to the decedent’s residency and nine months after.

Defendant objected based on the time frame, overbreadth, because the emails were not being created for quality assurance purposes and because they were protected by attorney-client HIPPA privilege.

In this case, the trial court required production of all these documents without explanation over objection that the statutory protections applied. The failure to specifically address whether the statutory privileges applied required certiorari.