The Week in Torts – Cases from the Week of May 26, 2017

FLORIDA LAW WEEKLY

VOLUME 42, NUMBER 21

CASES FROM THE WEEK OF MAY 26, 2017

FOURTH DISTRICT UPHOLDS DISMISSAL FOR FRAUD ON THE COURT FOR PLAINTIFF’S REPEATED FAILURE TO DISCLOSE PRIOR NECK AND BACK INJURIES.

Bryant v. Mezo, 42 Fla. L. Weekly D1117 (Fla. 4^th DCA May 17, 2017):

Plaintiff was in a “minor” accident, according to the court, meaning that she was not transported to the hospital from the scene, and returned to work the next day. Also, she did not begin receiving chiropractic treatment for her neck and back until two weeks after the accident. A few months later though, plaintiff had neck surgery.

In response to interrogatories, the plaintiff identified a prior worker’s compensation claim in the late 80s where she injured her left arm. She did not include any information about her neck or back injuries. During her deposition, she also failed to mention any neck or back injuries, stating she only had two prior injuries, one which was an ankle injury and one a left arm injury.

Worker’s compensation records produced by the state revealed claims involving cervical spine injuries from 1989 and 1993. Her former chiropractor testified that he treated her 2-3 days a week for nine months, meaning she treated more than 70 times for her cervical spine injury, and had complained of rather significant neck pain.

Records from Indian River Medical Center revealed that she was treated for back-related injuries in 1991 and 2006, and had chiropractic treatment in 2004. However, the plaintiff denied ever visiting a chiropractor prior to the accident. The plaintiff also denied the truth when confronted with the evidence.

The trial court dismissed the plaintiff’s claim for fraud, finding her alleged memory lapses were selective, and that her failure to disclose was intentional and untruthful. The plaintiff asserted that the trial court abused its discretion because the defendant failed to show by “clear and convincing” evidence that her failure to disclose prior injuries and medical treatment was attributable to fraud rather than a failed memory.

The Fourth District agreed with the trial court. It noted that while people are not required to remember every specific ailment from their lives, when the plaintiff’s memory failure is not an isolated incident, that is a different story.

TRIAL COURT’S DECISION FINDING PERSONAL JURISDICTION OVER NON-RESIDENT DEFENDANT REVERSED FOR LACK OF JURISDICTION.

Volkswagen v. Jones, 42 Fla. L. Weekly D1127 (Fla. 2^nd DCA May 17, 2017):

Plaintiffs sued defendant Volkswagen, arguing that the husband had developed mesothelioma as a result of his exposure to asbestos-containing products that the defendant manufactured, distributed and sold. Plaintiffs theorized that the husband had been exposed to these products in the course of his career in the automotive industry in upstate New York, and through work on his own personal vehicle, a 1987 Volkswagen, in Florida.

The Volkswagen defendant moved to dismiss for lack of personal jurisdiction and filed an affidavit of its corporate counsel in the United States.

In pleading a basis for specific jurisdiction under subsection 48.193(1), the plaintiff has to establish that the non-resident defendant has sufficient minimum contacts with the state so the exercise of jurisdiction will not offend traditional notions of fair play and substantial justice. The context must be related to the plaintiff’s cause of action, involve some act where the defendant has purposely availed itself of the privilege of conducting activities in the forum, and must be one where the defendant would reasonably anticipate being hailed into court.

Personal jurisdiction over a non-resident parent corporation based on the actions of the resident subsidiary may also be obtained by establishing that the non-resident parent corporation independently satisfied the test for jurisdiction, that the facts justified piercing the corporate veil or that the parent exercised a high and very significant amount of control over the subsidiary to render the subsidiary an agent or alter-ego of the parent.

When a defendant’s affidavit or sworn proof contravenes jurisdictional allegations, the burden then shifts to the plaintiff to prove by affidavit or other sworn proof that there is a basis for jurisdiction.

The plaintiff conceded that general jurisdiction did not lie, and made clear that she was proceeding under specific jurisdiction, which requires the cause of action to arise out of the defendant’s solicitation or service activities in the state, or there are products, materials or things processed that are manufactured by the defendant, and consumed within the state in the ordinary course of commerce or trade.

Here, the plaintiff had alleged that this German company had manufactured, sold or distributed asbestos-containing products throughout the U.S. including Florida, and derived substantial revenue from interstate and intrastate commerce.

However, the defendant filed a legally sufficient affidavit stating that it has never conducted business in Florida, has no offices, never had a general manager here, never had any employees, bank accounts, an address or telephone number, and has never been obligated to pay taxes, among other things.

Interestingly, the court explains that a legally sufficient affidavit in this context (plaintiff had asserted that the affidavit was not legally sufficient because it was not based on personal knowledge), meant that the defendant’s affidavit must contain factual allegations which if taken as true, show that the defendant’s conduct does not subject him to jurisdiction.

Then, the burden shifted back to the plaintiff to demonstrate there was jurisdiction. However, nothing the plaintiff presented established sufficient minimum contacts. Also, the only Volkswagen on which the husband did any work in Florida was his own, which he had brought from upstate New York. Further, nothing in the record indicated that the replacement brakes that he installed in Florida contained asbestos or were even manufactured by Volkswagen.

The plaintiff relied on an agency or parent subsidiary theory to attribute Volkswagen’s conduct in Florida as a parts distribution center, but failed to establish that the defendant exercised a high and very significant degree of control over the internal day-to-day operations necessary to support the theory.

The court reversed and remanded to allow the trial court to give the parties an opportunity to engage in limited jurisdictional discovery, and then to conduct an evidentiary hearing.

COUNTY’S PROPOSAL FOR SETTLEMENT VALID, EVEN WHEN CONDITION WAS DISMISSAL WITH PREJUDICE OF ALL CLAIMS.

Polk County v. Highlands in the Woods, 42 Fla. L. Weekly D1135 (Fla. 2^nd DCA May 19, 2017):

The county served a PFS stating it would pay $5,000 in exchange for a dismissal with prejudice of all claims against it. The non-monetary relief sought by the county was a dismissal with prejudice of all the plaintiff’s claims. The court said that such language was clear that there would be no need for judicial interpretation of its terms.

The plaintiff argued that because the complaint had a count for declaratory relief, section 768.79 did not apply. However, the court noted that the “real issue” in the case was entitlement to damages. Plaintiff did not seek return of the property dedicated to the county or some other equitable remedy, to make the care about something other than damages.

Because the proposal satisfied the requirements of rule 1.442 (and there was no claim for punitive damages it did not need to address punitive damages) and the plaintiff’s claim alleged an action for damages and not equitable relief, it was valid and the defendant was entitled to fees.

IN A HOTLY CONTESTED CASE WHERE THE JURY FOUND DEFENDANT LIABLE AND AWARDED PAST MEDICAL EXPENSES BUT NO NON-ECONOMIC DAMAGES, VERDICT WAS COMPROMISED–TRIAL COURT PROPERLY ORDERED NEW TRIAL WHERE PLAINTIFF REJECTED ADDITUR, BUT BECAUSE BOTH LIABILITY AND CAUSATION WERE HOTLY CONTESTED NEW TRIAL HAD TO INCLUDE ALL ISSUES.

FLNC, Inc. d/b/a Florida Living Nursing Center v. Ramos, 42 Fla. L. Weekly D1138 (Fla. 5^th DCA May 19, 2017):

The jury in this case found that the nursing home defendant was negligent, but awarded only past medical expenses to the plaintiff, and not a penny for pain and suffering, or other intangible damages. There were strong indications that the jury rendered an improper compromised verdict in this hotly contested liability case (e.g., the jury had deliberated for approximately four hours and sent out two written damage-related questions to the court), and the trial judge found that it was inconceivable that a jury of reasonable people could find negligence and causation, but not award at least some intangible damages. Neither party requested the judge to poll the jury.

The trial judge granted Plaintiff an additur for $9,500 for non-economic damages which the plaintiff rejected. Under the additur statute, the plaintiff was then entitled to a new trial on damages.

However, in this case where liability was hotly contested and there appeared to be a compromised verdict, the case was not one where there was a discrete negligent event resulting in a well-defined injury, requiring a new trial had to be on all issues.

ATTORNEY’S FEES PROVISION OF ARBITRATION AGREEMENT PROVIDING EACH PARTY WOULD BE RESPONSIBLE FOR THEIR OWN FEES VIOLATED PUBLIC POLICY–HOWEVER, IT WAS SEVERABLE UNDER THE EXPRESS TERMS OF THE ARBITRATION AGREEMENT’S SEVERABILITY CLAUSE, AND DID NOT GO TO THE ESSENCE OF THE AGREEMENT SO AS NOT TO RENDER THE ARBITRATION UNENFORCEABLE.

Rockledge v. Miley, 42 Fla. L. Weekly D1140 (Fla. 5^th DCA May 19, 2017).

EXPRESS ASSUMPTION OF THE RISK ONLY APPLIES TO CONTRACTS NOT TO SUE AND TO INJURIES SUSTAINED IN CONTACT SPORTS–REPEATEDLY WALKING ACROSS A STAGE WITH UNSECURED ELECTRICAL CORDS IS ACTUALLY “IMPLIED” ASSUMPTION OF THE RISK EVALUATED BY PRINCIPLES OF COMPARATIVE NEGLIGENCE.

Petruzzela v. Church of the Rock, 42 Fla. L. Weekly D1141 (Fla. 5^th DCA May 19, 2017):

The plaintiff was a volunteer musician/drummer at his church. He tripped on one of his fellow band member’s unsecured cords, and fell off the stage during a rehearsal, sustaining substantial injuries.

The plaintiff sued the defendant for failing to maintain the premises in a reasonably safe condition. The defendant answered by asserting the defense of assumption of the risk and moving for summary judgment.

The court granted summary judgment on express assumption of the risk, finding that because the plaintiff was aware of the condition on the stage, he either knew or should have known of the risk of tripping over an unsecured cord, but chose to repeatedly assume the risk of performing on the stage over a two year period.

That was error. What occurred was actually an implied assumption of the risk, which is subsumed into comparative negligence. Notably, an express assumption of the risk is only applicable to express contracts not to sue, and for injuries resulting from contact sports.

IN AN ACTION SEEKING PUNITIVE DAMAGES AGAINST DEFENDANT WHO REAR-ENDED A VEHICLE AND WAS CONVICTED OF DUI AND MANSLAUGHTER, WAS ERROR TO REFUSE TO GIVE INSTRUCTION THAT JURY MAY NOT AWARD AN AMOUNT THAT WOULD FINANCIALLY DESTROY THE DEFENDANT.

Persaud v. Cortes, 42 Fla. L. Weekly D1144 (Fla. 5^th DCA May 19, 2017):

After the compensatory trial, the trial in this DUI case focused on punitive damages. In the Florida Standard Jury Instructions, there is an instruction stating that a defendant’s financial resources may be considered, but if they are limited, the jury cannot award an amount that would financially destroy the defendant. Notwithstanding the evidence that the defendant had no money, the trial judge refused to give that instruction. The jury there awarded punitive damages of over $1.25 million.

When the defendant introduced evidence of his meager net worth, the trial judge should have given the requested instruction. Because the defendant in light of his financial circumstances would have likely convinced the jury to award less than $1.25 million for punitive damages with that instruction, the court found the error was not harmless and reversed and remanded for a new trial on those damages.