The Week in Torts – Cases from the Week of March 16, 2018

FLORIDA LAW WEEKLY

VOLUME 43, NUMBER 11

CASES FROM THE WEEK OF MARCH 16, 2018

DISMISSAL OF PLAINTIFF’S CLAIM TOO HARSH A SANCTION WHEN PLAINTIFF HAD SURGERY BEFORE THE CME COULD BE COMPLETED.

Faris v. Southern-Owners Insurance Co., 43 Fla. L. Weekly D555 (Fla. 5^th DCA March 9, 2018):

A man was injured in a car accident by an uninsured motorist. He had $250,000 in UM coverage. His insurer denied the claim based on the accident being out of state, and the plaintiff sued.

Over the following eight months, the insurer subpoenaed the plaintiff’s medical records and requested his prior medical history, employment history and insurance claim-related history.

On July 22, 2016, as a courtesy only, the plaintiff notified the insurer that he would be undergoing surgery on August 8^th to fix a herniated disc. In response, the insurer requested a compulsory medical examination (CME), and provided two dates that fell before August 8^th.

Plaintiff advised he was unavailable for either of those two dates, and the insurer filed a motion to compel the CME arguing it had insufficient time to schedule it before his surgery. After a hearing, the trial judge granted the motion to compel and ordered the plaintiff either to undergo a preoperative CME or to postpone the surgery. The order also compelled the insurer to provide the plaintiff with two additional CME dates. The insurer only gave one more date before the scheduled surgery, and gave the plaintiff less than 24 hours to confirm the appointment. The plaintiff, who worked for the city of Orlando, requested time off but before it was approved, the insurer informed him that the date was no longer available. The insurer then provided the plaintiff with three more CME dates after the already scheduled surgery.

A week before the surgery, the plaintiff moved for a protective order to allow the CME to occur after the surgery, arguing that the insurer had failed to present evidence that it would be prejudiced by a post-operative CME. The plaintiff also argued that his preoperative x-rays, MRIs and other records were available. The insurer contended that a preoperative CME was necessary to determine the nature and the extent of the injuries suffered in the accident. The trial court denied the plaintiff’s motion, and ordered him to cancel the August 8^th surgery.

The plaintiff underwent surgery on August 8^th anyway. The insurer then moved for sanctions, arguing that the plaintiff’s willful and contumacious disregard of the trial court’s order necessitated dismissal of the plaintiff’s complaint.

The trial court granted the motion for sanctions, finding that the insurer’s failure to provide additional dates did not excuse the plaintiff’s refusal to postpone the surgery, and found plaintiff’s conduct to be willful, contumacious and a blatant disregard of the court’s orders.

A trial court’s decision to dismiss an action with prejudice as a sanction is reviewed for an abuse of discretion. In exercising the discretion, the trial court must balance the impact of the sanction against the severity of the infraction. The severest possible sanction which is dismissal with prejudice may only be employed in extreme circumstances.

The court held that there were mitigating circumstances in this case such that the trial court abused its discretion in dismissing a plaintiff’s complaint with prejudice. To begin with, the plaintiff was not required to notify the insurer of the surgery in the first place and could have simply scheduled it and undergone it without disclosing it (while good for the bad faith case, that may be a lesson here).

Additionally, during oral argument, the insurer conceded that the plaintiff was not required to give notice of his scheduled surgery, and that the insurer also failed to abide by the trial court’s order when it provided the plaintiff with only one date instead of two, for completing a CME before surgery. Then, the insurer only gave the plaintiff less than 24 hours to confirm the appointment, and then, instead of tentatively scheduling it while waiting for the plaintiff to get permission from his employer for the time off, the insurer simply let the date lapse. The plaintiff then moved for a protective order.

Because it was only after exhausting the alternatives that the plaintiff proceeded with the surgery in defiance of the trial court’s order, the court held that under those particular circumstances, and an absence of a demonstrated prejudice to the insurer, the plaintiff’s good faith efforts to comply with the trial court’s order precluded dismissal with prejudice as a sanction. Also, because there were lesser sanctions that could have insured plaintiff’s ongoing compliance, the court found that to be further evidence that the trial court abused its discretion in this case, when it dismissed the complaint with prejudice.

TRIAL COURT SHOULD HAVE AWARDED REMITTITUR FOR PAST MEDICAL EXPENSES.

Wal-Mart v. Thornton, 43 Fla. L. Weekly D521 (Fla. 4^th DCA March 7, 2018):

In this appeal by Wal-Mart, the court found that while there was “some” evidence to support most portions of the award, the trial court should have granted a remittitur as to the $150,000 awarded for future medical expenses. The jury awarded the plaintiff $150,000, even though the plaintiff’s doctor had testified that future medical costs for a “potential” future knee replacement surgery, would not exceed $75,000.

Because the amount of damages awarded bore no reasonable relationship to the damages proved, the court reversed and remanded for reconsideration of the motion for remittitur in accordance with section 768.74. Importantly, the court also admonished that the reconsideration was limited only to the portion of the judgment relating to future medical expenses.