The Week in Torts – Cases from the Week of August 25, 2017

FLORIDA LAW WEEKLY

VOLUME 42, NUMBER 34

CASES FROM THE WEEK OF AUGUST 25, 2017

DEPARTURE FROM THE ESSENTIAL REQUIREMENTS OF LAW TO JOIN INSURER IN A JUDGMENT ENTERED AGAINST THE INSURED WHEN THE MOTION WAS FILED MORE THAN 15 DAYS AFTER THE JUDGMENT BECAME FINAL.

Geico v. Nocella, 42 Fla. L. Weekly D1781 (Fla. 2^nd DCA August 16, 2017):

After a jury verdict and entry of final judgment, the plaintiff moved to join Geico as a party defendant in her bad faith action. However, the motion was made 32 days after judgment was entered.

The motion should not have been allowed, because it violated rule 1.530(g) which sets a 15 day deadline to move or alter a judgment. Additionally, section 627.4136(4) states that a liability insurer may be joined as a party defendant “at the time the judgment is entered.” Thus, it was error to allow the plaintiff to join Geico into the judgment.

TRIAL COURT DEPARTED FROM ESSENTIAL REQUIREMENTS OF LAW IN SEVERING UM CLAIM FROM UNDERLYING NEGLIGENCE CLAIM.

Choi v. Auto Owners, 42 Fla. L. Weekly D1780 (Fla. 2^nd DCA August 16, 2017):

Auto Owners originally tried to sever the claim against it based on the non-joinder statute, but recognized that was improper on appeal. Instead, it then tried to justify the trial court’s ruling to sever the claims under rule 1.270(b), which gives trial courts the discretion to sever claims in furtherance of convenience and to avoid prejudice. However, it is not proper to sever claims when they are “inextricably interwoven based on the risk of inconsistent verdicts.”

The court here ruled that severance in this case would not avoid prejudice because the jury would still learn both that Choi had insurance coverage, and that the driver was intoxicated (even in a severed UM action). Because these claims were inextricably interwoven it was a departure from the essential requirements of law for the court to have severed them.

TRIAL COURT REVERSIBLY ERRED WHEN IT ALLOWED THE STATE TO USE A PEREMPORTY CHALLENGE ON AN AFRICAN AMERICAN JUROR WHERE THE ONLY RACE-NEUTRAL EXPLANATION APPLIED TO TWO NON-AFRICAN AMERICAN JURORS WHOM THE STATE DID NOT CHALLENGE.

Hunter v. State, 42 Fla. L. Weekly D1792 (Fla. 4^th DCA August 16, 2017):

In trying to strike one juror, the state–when asked for a race-neutral reason–offered that one of the prospective juror’s family members had been arrested.

However, the final jury panel included two jurors who were non-African American, but who also had family members who had been arrested. In light of this, the Fourth District found the state’s reason was not a genuine race-neutral reason, and reversed for a new trial.

REVIEW OF COMPLETE VOIR DIRE IN RECORD SUPPORTED FINDING THAT TRIAL COURT CONSIDERED GENUINENESS OF PLAINTIFF’S RACE/GENDER-NEUTRAL EXPLANATIONS FOR CHALLENGING WHITE MALE JURORS, BEFORE OVERRULING DEFENDANT’S OBJECTION TO THE CHALLENGES.

R.J. Reynolds v. Enochs, 42 Fla. L. Weekly D1799 (Fla. 4^th DCA August 16, 2017):

The plaintiffs struck smokers in this tobacco trial. The trial court agreed that those were genuine race/gender-neutral reasons for the strikes.

After reviewing the entire record of voir dire, the court emphasized how important it was for trial courts to make an on-the-record inquiries to permit meaningful appellate review. In light of the trial judge’s thorough record, the court affirmed the trial court’s ruling.

TRIAL COURT ERRED IN DISMISSING PLAINTIFF’S COMPLAINT AT A HEARING SCHEDULED TO ADDRESS DEFAULT-THE SUA SPONTE DISMISSAL OF THE COMPLAINT IN ABSENCE OF PROPER NOTICE VIOLATED THE PLAINTIFF’S DUE PROCESS RIGHTS BY EXPANDING THE SCOPE OF THE HEARING AND MAKING A DETERMINATION ON MATTERS NOT NOTICED FOR THAT HEARING.

Cardelle v. HSBC Bank, 42 Fla. L. Weekly D1806 (Fla. 3^rd DCA August 16, 2017).