FLORIDA LAW WEEKLY

VOLUME 43, NUMBER 28

CASES FROM THE WEEK OF JULY 13, 2018

HIGHLY PREJUDICIAL AND INFLAMMATORY COMMENTS MADE BY INSURED’S COUNSEL BOTH IN CLOSING, AND DURING QUESTIONING OF THE INSURER’S LITIGATION MANAGER, REQUIRED A NEW TRIAL.

Homeowners Choice Property and Cas. Ins. Co. v. Kuwas, 43 Fla. L. Weekly D1513 (Fla. 4th DCA Jul 5, 2018):

In this case involving a man’s homeowner’s insurer, the appellate court found that the trial judge should have granted the insurer’s motion for new trial based on the plaintiff’s counsel’s improper arguments, and the questioning of the homeowner insurer’s litigation manager.

Plaintiff had sued the insurer for its denial of coverage for two property damage insurance claims filed in 2011 and 2015 as the result of water loss. The insurance company had originally asserted affirmative defenses, subsequently withdrawing one of them and proceeding to trial on the remaining defenses.

The insurance company argued on appeal that the plaintiff had improperly implied bad faith into this case which did not involve bad faith. It also asserted that plaintiff improperly argued that the insurance company did something wrong by defending itself (these two reasons led to the reversal).

In the first instance, plaintiff’s counsel repeatedly argued to the jury, and asked questions regarding whether the insurance company had been “playing the odds” when it decided to deny the claim, hoping that the party seeking to be paid under the policy would not sue them. The appellate court reminded us that implications of bad faith should not form a basis to determine liability in the first party coverage action. The insurance company also properly argued that plaintiff’s arguments shifted the focus to bad faith in the claims handling, and denied it a fair trial.

The insurer also argued that the criticism of its claims handling practices as a business practice were not only not based on matters in evidence, but there was also no evidence to support the claims anyway.

Another argument plaintiff made, was that the insured had been paying premiums to his carrier for many years, suggesting that as a basis for why the insurer should have paid the claims. The defendant insurer argued it was improper for counsel to emphasize the payment of premiums in this manner, because it was irrelevant to whether the insurance company breached its policy when it denied its claims.

The court looked to the decision in Geico v. Kesha, 160 So.3d 549, 552-53 (Fla. 5th DCA 2015), where the court determined that references to the length of time the insured had been insured by its insurer constituted an impermissible plea for sympathy that impeded the jury’s ability to fulfill its duty of impartiality, and thus the references denied insurer’s right to a fair trial. As to this issue, the court found that the comments about the premiums were not so highly prejudicial and inflammatory alone, as to warrant a new trial when viewed in the context of the plaintiff’s argument as a whole. The court then explained how in Kesha there were at least ten references to what “good customers” the insureds were throughout the trial. The court found the statements alone did not demonstrate that the issue had become a centerpiece of the trial, but coupled with the “playing the odds” theme, did create problems for the court.

Finally, the Fourth District criticized plaintiff’s comments which improperly denigrated the defenses of the insurance company. Apparently, the insurer had withdrawn one of its affirmative defenses, and plaintiff’s counsel argued how they had been litigating that issue for 14 or 15 months, suggesting that the insurance company made the plaintiffs waste their time, and that the judge should have penalized the insurance company for requiring the plaintiff to take actions necessary to prove his case on these issues.

According to the court, a plaintiff may not suggest to the jury that the defendant was somehow acting improperly by defending itself at trial, or suggest that a defendant should be punished for contesting damages.

Ultimately, the court concluded that a new trial was warranted both because the comments made by plaintiff’s counsel in closing argument improperly denigrated the insurer’s defenses, and were so highly prejudicial and inflammatory, that they denied the insurer’s right to a fair trial.

The court further concluded that such errors were not harmless, and that under the test where the beneficiary of the error has the burden to prove that the error complained of did not contribute to the verdict, there was no way that the plaintiff could show that.

TRIAL COURT ERRED BY DISMISSING THIRD PARTY COMPLAINT AS A SANCTION WITHOUT MAKING EXPRESS WRITTEN FINDINGS OF FACT.

Stein v. Defren, 43 Fla. L. Weekly D1525 (Fla. 4th DCA July 5, 2018):

When a trial judge dismisses a case as a sanction, it must make express written findings to enable the appellate court to review the order on appeal. The failure to do so required remand for such findings.

TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION TO VACATE CLERK’S DEFAULT WHERE CRITICAL MOTIONS AND NOTICES, INCLUDING THOSE RELATED TO THE DEFAULT, WERE MAILED TO THE WRONG ADDRESS, AND THE DEFENDANT DEMONSTRATED EXCUSABLE NEGLECT, A MERITORIOUS DEFENSE AND DUE DILIGENCE.

Sencion v. Medula Network, LLC, 43 Fla. L. Weekly D1526 (Fla. 3rd DCA July 5, 2018):

Plaintiff mailed a motion for a clerk’s default and other documents to the defendant’s last known address (which was not the address where the defendant had been served). The defendant did not appear at the hearing, and the default was then entered against him.

When the defendant later reviewed the court docket and discovered the default, he moved to vacate. In the affidavit in support of the motion, he testified that the motions and notices had been sent to a former address--rather than to his current address--and he had no notice of the motion or hearing.

The defendant established excusable neglect, and also established a meritorious defense, stating in his letter filed with the court and in his affidavit, that most of the money claimed by the plaintiff had already been paid. He also exercised due diligence in discovering the default, and in timely filing the motion to vacate.

Because of the preferences for adjudicating cases on the merits, and the defendant’s establishment of excusable neglect, a meritorious defense and due diligence, the court held that the trial court erred by refusing to vacate the default.

THE DEFENDANT’S FAILURE TO FILE A PRIVILEGE LOG WHEN OBJECTING TO THE SCOPE OF A SUBPOENA DUCES TECUM SERVED ON AN INVESTIGATOR, DID NOT WAIVE THE WORK PRODUCT OR ATTORNEY-CLIENT PRIVILEGE WHERE THE ASSERTION OF PRIVILEGE WAS “CATEGORY SPECIFIC” AND THE CATEGORY PLAINLY PROTECTED BY THE PRIVILEGE.

GKK v. Cruz, 43 Fla. L. Weekly D1532 (Fla. 3rd DCA July 5, 2018):

The defendant sought a writ of certiorari quashing an order denying its motion for protective order and objections to the scope of a subpoena duces tecum served on an investigator hired by the defendant to investigate a slip and fall accident in which the plaintiff was allegedly injured.

The subpoena had enumerated seven separate categories of items that the investigator was instructed to bring with him to his deposition.

The defendant filed an objection to the subpoena and moved for a protective order, asserting that the items listed in four of the paragraphs sought information protected by the work product or attorney-client privilege. The defendant did not file a privilege log for any of the listed items as required by Rule 1.280(b)(5).

The trial court overruled the defendant’s objections and denied a motion for protective order which led to the filing of the petition.

The court granted the petition as it related to three of the four paragraphs. Acknowledging that generally the rule is that a party failing to file a privilege log may be deemed to waive certain privileges, that general rule is subject to an exception: i.e., the finding of a waiver “should not apply where assertion of a privilege is not document-specific but category specific and the category itself is plainly protected.”

In this case, the privilege raised as to the three of the four paragraphs were categorical assertions of privilege, and the court concluded that such items sought in those paragraphs were plainly protected. Therefore, the failure to file a privilege log did not waive the privilege as to those categories of items.

However, the same could not be said to the items filed in the other two paragraphs. While some of those items could be subject to a privilege, on their face, others were not. The failure to file a privilege log waived the assertion of a privilege as to those items, and thus the court denied the petition as to those paragraphs.

ORDER DENYING ENTITLEMENT TO ATTORNEY’S FEES IS APPEALABLE.

Yampol v. Turnberry Isle, 43 Fla. L. Weekly D1533 (Fla. 3rd DCA July 5, 2018):

An order granting entitlement to attorney’s fees but not determining the amount of fees or costs is a non-final, non-appealable order. However, a post-judgment order denying a party’s claim for entitlement to attorney’s fees is an appealable final order.

In this case, there was a single order granting one party’s entitlement to fees and denying the other party’s entitlement.

In a situation where the order addresses both issues, it is appealable to the extent that there is a denial of entitlement. Otherwise the appellate rights of the party whose entitlement was denied would be prejudiced.

WHILE TRIAL COURT PROPERLY FOUND DEFENDANT’S CONDUCT AND ACTIONS JUSTIFIED THE IMPOSITION OF SANCTIONS, THE ORDER STRIKING THE ANSWER AND AFFIRMATIVE DEFENSES WAS ITSELF TOO SEVERE A SANCTION.

Atkin v. Kane, 43 Fla. L. Weekly D1534 (Fla. 3rd DCA July 5, 2018):

The trial court concluded that the conduct of the plaintiff in answering his complaint and interrogatories, was at best “inaccurate” and at worst “deceptive.”

While the court did not describe the circumstances, it did reverse the part of the order striking the plaintiff’s pleadings, which led to the entry of a final judgment against him. The court held that the imposition of the severest of sanctions--foreclosing any further defense of the action and resulting entry of final judgment--was simply too severe under the circumstances presented and not commensurate with the conduct and actions that occurred (again, we don’t know what those actions were, except that the answer and interrogatories were found to be at best inaccurate, and at worst deceptive).

TRIAL COURT DEPARTED FROM ESSENTIAL REQUIREMENTS OF LAW IN DENYING THE DEFENDANT HOSPITAL’S MOTION TO DISMISS A COMPLAINT ON THE BASIS THAT THE PLAINTIFFS FAILED TO COMPLY WITH PRESUIT INVESTIGATION REQUIREMENTS, BECAUSE COURT FAILED TO MAKE THE NECESSARY FINDINGS.

Osceola Regional Hospital v. Calzada, 43 Fla. L. Weekly D1537 (Fla. 5th DCA July 6, 2018):

The hospital alleged that the plaintiffs failed to comply with certain presuit investigation requirements with regard to their claims that the hospital was liable for the actions of three nurses. The trial court denied the motion without making the necessary findings, which then forced the court to grant the position.

After the trial court conducted a non-evidentiary hearing, it denied the motion without explanation. By doing so, the trial court effectively denied the procedural safeguards of Chapter 766 for which certiorari relief is appropriate.

The court then directed the trial judge to make express findings on remand as to whether the plaintiffs complied with Chapter 766 or not.