FLORIDA LAW WEEKLY

VOLUME 42, NUMBER 51

CASES FROM THE WEEK OF DECEMBER 22, 2017

TRIAL COURT PROPERLY ENTERED SUMMARY JUDGMENT FOR DEFENDANT IN A SLIP AND FALL CASE WHERE NO EVIDENCE WAS PRESENTED THAT THE DEFENDANT HAD ACTUAL OR CONSTRUCTIVE NOTICE OF THE SUBSTANCE.

Lago v. Costco Wholesale, 42 Fla. L. Weekly D2599 (Fla. 3rd DCA December 13, 2017):

Plaintiff slipped on a liquid substance which caused her to fall and break her knee (as she was walking into a Costco).

Costco moved for summary judgment, arguing there was no genuine issue of material fact about the company’s actual or constructive knowledge of the slippery liquid substance.

The plaintiff appealed, arguing that the trial judge entered an “unelaborated” order on summary judgment, and also that the summary judgment on the notice issue was entered based solely on the plaintiff’s deposition.

While it might be desirable for a trial judge to specify his or her reasons for granting or denying a summary judgment, the court says there does not appear to be any rule or decision that requires the judge to do so.

In Florida, the burden of proof of constructive knowledge falls on the plaintiff under section 768.0755. In moving for summary judgment, Costco had to show there was no genuine dispute about its actual or constructive knowledge of the slippery liquid substance. As to actual notice, plaintiff testified she did not see any Costco employee around the liquid or by the entrance before when she fell.

As to constructive notice, plaintiff testified that it was not raining, that she did not see liquid on the floor before the fall, she did not know what the liquid was (other than that it was wet) and she did not know how long it had been there. Plaintiff also testified she saw no one else slip in the same busy entrance way before or after her fall.

Without additional facts beyond the floor being wet and the plaintiff slipping and falling, and nothing to suggest the liquid had been there a long period of time or that this happened regularly, the trial court properly granted summary judgment in favor of Costco.

CERTIORARI GRANTED WHERE TRIAL COURT SUMMARILY DENIED DEFENDANT’S MOTION TO DISMISS MED-MAL CASE BASED ON ALLEGED NON-COMPLIANCE WITH PRESUIT, WITHOUT MAKING ANY FINDINGS REGARDING COMPLIANCE.

P.P. Transition, LP, f/k/a Palms of Pasadena Hospital v. Munson, 42 Fla. L. Weekly D2589 (Fla. 2nd DCA December 13, 2017):

Plaintiff submitted an affidavit of a California licensed neurologist who, pursuant to section 766.203(2), expressed an opinion on the malpractice involved in the case. The defendant moved to dismiss for failure to plead a claim, or for an evidentiary hearing on the compliance with chapter 766. Defendant argued, among other things, that the California based witness was ineligible to offer an opinion applicable to nurses pursuant to section 766.206(1) and (2). After a non-evidentiary hearing, the trial court denied the motion, but gave no explanation for its ruling.

The defendant’s motion required the trial court to “determine” whether the plaintiffs complied with chapter 766. At a minimum, it required the trial court to make an express finding as to the plaintiff’s compliance with the presuit requirements.

Because the trial court summarily denied the defendant’s motion without making any such findings about the plaintiff’s compliance with chapter 766, the ruling resulted in a denial of the procedural safeguards of chapter 766, rendering certiorari relief appropriate. The court thus granted the petition, and quashed the order below.

MALPRACTICE EXCEPTION TO ATTORNEY-CLIENT PRIVILEGE APPLIES ONLY TO COMMUNICATIONS BETWEEN CLIENT AND LAWYER BEING SUED-THE EXCEPTION DOES NOT COMPEL A LAWYER’S FORMER CLIENT TO DISCLOSE CONFIDENTIAL INFORMATION WITH THAT CLIENT’S OTHER LAWYERS, SIMPLY BECAUSE IT MAY BE RELEVANT TO THE FORMER LAWYER’S DEFENSE OF THE MALPRACTICE ACTION--WHILE THE INSURED IS THE ATTORNEY’S CLIENT WHEN HIRED BY AN INSURANCE COMPANY, THE COMMUNICATIONS BETWEEN THE INSURER AND THE LAWYER ARE ALSO PROTECTED BY ATTORNEY--CLIENT PRIVILEGE BECAUSE OF THE COMMON INTEREST AND THE OUTCOME OF THE CASE.

United Services Automobile Association v. Law Offices of Herssein and Herssein, 42 Fla. L. Weekly D2591 (Fla. 3rd DCA December 13, 2017):

USAA entered into a legal services contract with the Herssein law firm, for the defense of liability claims made against homeowners insured by USAA.

A claimant sustained personal injuries when she fell after an encounter with dogs owned by a USAA insured. The claimant made a presuit demand for the $100,000 policy limits and USAA accepted the demand and tendered the check. Instead of cashing the check, the claimant filed a personal injury suit two years later. USAA appointed the Herssein firm to defend the insured.

The firm did not seek to enforce the settlement agreement with the claimant, instead withdrawing the presuit policy limit tender. The firm advised the insured to reject the claimant’s renewed policy limit demand, and then served the claimant with a $65,000 counter-proposal for settlement which the claimant rejected.

A year later, the insured lost a motion for summary judgment which found that she was strictly liable for the plaintiff’s injuries. The insured hired separate counsel to handle the potential bad faith action and a malpractice action. As soon as the Herssein firm received the letter of representation, it immediately withdrew citing a conflict.

The case then went to mediation and settled for an amount in excess of the policy limits. USAA sought to terminate its legal services agreement with the Herssein firm, and the firm sued for failing to appoint the Herssein firm to a sufficient number of PIP defense cases. USAA counter-claimed citing legal malpractice in the dog bite case.

In discovery, the firm tried to ascertain whose advice USAA took to settle the claimant’s case and pay over the insured’s policy limits, to which USAA objected based on attorney-client privilege. The firm also served the subsequent lawyer with a non-party subpoena seeking information related to that firm’s representation of the dog bite insured.

The court explained that at first blush, it appeared that the firm’s interrogatory sought only the identity of a USAA lawyer rather than any confidential communications between USAA and its lawyer, and that such identity information is generally not protected by attorney-client privilege.

However, the wording sought to identify the lawyer who advised USAA to settle the case which did trigger privileged information. The trial court’s conclusion that the malpractice exception to the privilege applied to the subject communications was erroneous. While the contents of confidential communications between USAA and its mediation counsel may have had some relevance regarding whether the firm’s settlement advice breached the legal duty to USAA and its insured, the malpractice exception applies only to communications between the client and the lawyer being sued. The court declined to extend the “malpractice exception” to compel a lawyer’s former client to disclose confidential communications with that client’s other lawyer, simply because the information could be relevant to the former lawyer’s defense of a client’s malpractice claim.

Similarly, the malpractice exception did not apply to compel information in the non-party production. While the insured is the attorney’s client, when an attorney is hired by an insurance company represent an insured in a liability case, it is well settled that communications between an insurer and the lawyer hired by the insurer to protect the insured’s interest are also protected by the attorney-client privilege, because the insurer and the insured share a common interest in the outcome of the case.

Similarly, an insurer’s fiduciary obligation to its insured and the common interests of the insured and insurer continue, even after the insured notifies the insurer of a potential bad faith claim.

Notwithstanding the bad faith letter sent to USAA, the interest of both USAA and the dog bite insured were common and aligned in defending her case. Thus, the confidential communications between USAA and the subsequent law firm remain protected by the attorney-client privilege.

DEFENDANTS WAIVED OBJECTION TO PERSONAL JURISDICTION BY REQUESTING AN AWARD OF ATTORNEY’S FEES PURSUANT TO THE CONTRACT--SEEKING AFFIRMATIVE RELIEF IS INCONSISTENT WITH A JURISDICTIONAL OBJECTION.

TBI Caribbean Co. v. Smith, 42 Fla. L. Weekly D2593 (Fla. 3rd DCA December 13, 2017):

While the defendants argued that the circuit court erred in denying their motions to dismiss because the complaint was required to allege sufficient bases for Florida courts to exercise personal jurisdiction, in those defendants’ motions, both included a request for attorneys’ fees pursuant to a fee provision in the subcontract agreement.

Notwithstanding the suggestion that a motion to recover attorneys’ fees is a purely defensive request and not “affirmative relief,” the court found that the request for attorneys’ fees pursuant to a contract would require both the appellate court and the trial court to assume jurisdiction, in order to enforce the subcontract agreement’s fee provision. Moreover, the request for fees was not limited to fees incurred in connection with defending against the exercise of personal jurisdiction, and therefore the defendants waived their objection by inconsistently seeking affirmative relief.

ERROR TO DENY INSURER’S MOTION FOR ATTORNEY’S FEES PURSUANT TO AN OFFER OF JUDGMENT ON THE BASIS THAT THE INSURED’S ACTION SOUGHT BOTH EQUITABLE RELIEF AND MONEY DAMAGES, WHERE THE TRUE RELIEF SOUGHT WAS FOR MONEY DAMAGES FOR BREACH OF CONTRACT.

Tower Hill Signature Insurance v. Javellana, 42 Fla. L. Weekly D2597 (Fla. 3rd DCA December 13, 2017):

The plaintiff insureds sustained water damage to their home and initiated a claim with their insurer, Tower Hill. The insurance company found the claim was covered, but paid based on the actual cash value of the loss, inviting the insureds to submit supplemental claims if they were to find additional damage.

The insureds sued the insurer for breach of contract, declaratory judgment related to wear and tear, and declaratory judgment regarding the unilateral determination of the actual cash value. The insurer served an offer of judgment which was not accepted.

The case went to trial and the jury found that the plaintiffs had not proved by the greater weight of the evidence that the insurer failed to initially pay at least the actual cash value for the damages. The court denied entitlement to the insurer for its fees because the complaint sought both equitable relief and money damages. The court also denied the plaintiff’s motion for fees and costs, finding there was no judgment in their favor.

The court found there was never a judgment for the plaintiffs and thus they were not entitled to any fees. However, holding that the case was a civil action for damages, and finding that the offers of judgment were valid, the court found fees were appropriate.

While a party is not entitled to fees when the plaintiff seeks only non-monetary relief, there is an exception to the rule that a complaint seeking both equitable relief an monetary damages is not subject to an offer of judgment when the “true relief” sought is money damages.

Because it was plain that the true relief sought by the plaintiffs was for money damages for breach of the contract instead of for equitable relief, the offer of judgment was not invalidated by the plaintiff’s inclusion of declaratory judgment counts: the cause of action in actuality sought money damages. The offers of judgment filed by the insurer were declared to be valid.

FOLLOWING ITS EARLIER PRECEDENT, FOURTH DISTRICT REAFFIRMS THAT SURGEON GENERAL’S REPORTS WERE ERRONEOUSLY ADMITTED INTO EVIDENCE IN TOBACCO TRIAL, AND IMPROPERLY USED TO ESTABLISH ADDICTION CAUSATION AND TO BOLSTER EXPERT OPINIONS--SUCH REPORTS ARE NOT ADMISSIBLE AS PUBLIC RECORDS OR ADOPTIVE ADMISSIONS AND MAY NOT BE USED TO IMPERMISSIBLY BOLSTER OPINIONS OF TESTIFYING WITNESSES.

RJ Reynolds v. Ryan, 42 Fla. L. Weekly D2621 (Fla. 4th DCA December 13, 2017).

ERROR FOR TRIAL COURT TO GRANT SUMMARY JUDGMENT BASED ON PLAINTIFF’S ANSWERS TO REQUEST FOR ADMISSIONS WHEN PLAINTIFF SOUGHT LEAVE TO AMEND HER ANSWERS PRIOR TO THE ENTRY OF SUMMARY JUDGMENT (AND AFTER OBTAINING NEW COUNSEL).

Clemens v. Namnum, 42 Fla. L. Weekly D2622 (Fla. 4th DCA December 13, 2017):

The plaintiff sued a hospital and one of its independently contracted physicians for medical malpractice. Plaintiff alleged that the doctor worked under the scope of an agency with the hospital, and then two years later moved to amend her complaint to allege that the hospital also owed a duty to exercise due care in the selection and retention of the independent contractor physician defendant.

The hospital then moved to dismiss, asserting that the complaint then asserted a totally new cause of action for negligent credentialing, and maintained that the newly pled claim did not relate back to the previously pled agency claim and was time barred. The trial court denied the motion to dismiss.

However, the hospital later served requests for admissions designed to pin down the plaintiff’s theory of negligence against the hospital. The request asked the plaintiff to admit that she was not pursuing an agency claim based on vicarious liability, to which the plaintiff responded she was not. However, shortly after submitting those admissions, the plaintiff obtained a new attorney who almost immediately realized that the admission concerning the plaintiff’s lack of agency was incorrect, and moved to amend her admissions to properly reflect the true nature of the agency claim brought against the hospital.

The trial court denied the plaintiff’s motion to amend her admissions, and granted the defendant’s motion to strike the agency paragraph contained in the negligence count. More than three years later, the hospital moved for summary judgment on the negligence count, arguing there was no record evidence to support it. The trial court granted summary judgment.

The appellate court reserved. It observed that from the beginning of the lawsuit, the plaintiff had pled that the doctor was in the scope of agency with the hospital. When new counsel moved to correct the misstep of the former counsel, the pleadings were not closed, discovery was ongoing and the matter was not yet set for trial. Also, the record established that at the time the plaintiff moved for the amendment, her attorney stipulated that she would respond to any additional agency discovery, and would allow the hospital to redepose any witness it wished. Under those circumstances the court held the hospital did not and could not establish that the amendment would have resulted in undue prejudice.

Additionally, the court addressed whether the plaintiff was estopped from asserting contrary positions during her litigation. A key to the doctrine of estoppel is that the party being estopped from taking a contrary position actually succeeded in the former position.

In this case, the plaintiff did not succeed or gain anything by her former counsel’s representation that the hospital was “directly,” and not vicariously liable. Indeed, the plaintiff ultimately conceded on summary judgment that the hospital was not directly liable and thus plaintiff was not estopped from seeking to amend her answers.

TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION FOR DIRECTED VERDICT WHERE CIRCUMSTANTIAL EVIDENCE PRESENTED BY PLAINTIFF WAS INSUFFICIENT TO ESTABLISH THE CAUSE OF THE FALL OR WHERE THE FALL OCCURRED, AND THE ONLY EVIDENCE WAS BASED ON INFERENCE UPON INFERENCE.

Davie Plaza v. Iordanoglu, 42 Fla. L. Weekly D2645 (Fla. 4th DCA December 13, 2017):

The plaintiff fell from a ladder at the owner’s estate, claiming that the fall was due to defects in the premises. Plaintiff worked as a handyman at the subject shopping center, and was on the roof to clear out water that was leaking into a restaurant. The roof had two levels, and in order to get to the area which was leaking, the decedent had to ascend to the first level of the roof over part of the kitchen, haul up the ladder and then ascend to the upper part of the roof where the water was collecting. As he descended from the lower part of the roof to the ground, he fell backwards and suffered serious injuries.

The suit was based on the uneven cracked and defective exterior walkway in the area where the man placed his ladder. In his deposition, he testified that when he was on the roof clearing the water it was dark and rain had started to fall. He used the diner’s A-frame ladder and instead of opening it as he normally would, he leaned it against the side of the building and ascended it to the first roof. He did this successfully until he got to the top, and fell as he was coming down the lower part of the roof.

During discovery, it was unclear from the pictures exactly where the offending terrain was. The defendant moved for a directed verdict contending that the estate’s (the plaintiff later died) case consisted of stacking an inference upon an inference. Because the estate could not show precisely where the man had placed his ladder when descending from the roof, it could not show he placed it in an area of the ground that was dangerous or uneven. Further, an equally reasonable inference was that the angle at which he leaned the unopen ladder against the building caused it to be unsteady.

The court agreed that the estate could not establish the initial inference to the exclusion of all other inferences, precisely because of the plaintiff’s conflicting testimony regarding where he placed the ladder when descending to the ground. In short, the inference that the decedent placed his ladder on a defect in the premises could not be made to the exclusion of all other reasonable inferences. He could have placed his ladder on even concrete to the left of the door or he could have placed his ladder on asphalt at an improper angle. In either case, no defect in the premises could have been a cause of the fall. The court reversed and remanded for judgment for the defendant.

COLLECTOR VEHICLE POLICY RESTRICTING COVERAGE STILL REQUIRED INSURED TO PROVIDE UM COVERAGE FOR ACCIDENTS NOT INVOLVING THE COLLECTOR VEHICLE, UNLESS THE INSURER HAD OBTAINED THE INSURED’S WRITTEN CONSENT ON THE APPROVED FORM.

Lentini v. American Southern Home Insurance, 42 Fla. L. Weekly D2652 (Fla. 5th DCA December 15, 2017):

A man purchased a collector vehicle insurance policy for a 1992 corvette. The policy included $300,000 in coverage for BI and property damage and $300,000 in stacked UM coverage. The insured was involved in a fatal accident while riding his motorcycle and his estate sought UM coverage under the policy. The insurance company denied the claim.

The Florida Supreme Court has concluded that UM coverage follows a class I insured, not the insured vehicle. The insurer may limit the UM coverage, but can only do so if it satisfies the statutorily mandated requirement of notice to the insured and obtaining a note in acceptance of the limited coverage.

In a Second District case, the court found that while public policy strongly favored requiring UM coverage, the legislature never intended to mandate class I, family style and uninsured motorist coverage in a specialty policy.

The Fifth District questioned that reasoning, and noted those concerns, but also found that nothing in section 627.727 excludes collector or antique vehicle insurance policies from its application. To the contrary, that section exclusively states that no motor vehicle liability insurance policy shall be delivered or issued for delivery without UM coverage being provided, and enlisting the appropriate exception.

In this case, the insured had not rejected UM coverage. Instead, he had selected stacked coverage. The court reversed summary judgment and certified conflict with the Second District.

TRIAL COURT ERRED BY ALLOWING PLAINTIFF TO QUESTION DEFENDANT’S CORPORATE REPRESENTATIVE ABOUT MATTERS NOT RELATED TO DAMAGES WHERE LIABILITY WAS ADMITTED AND IT WAS NOT AN ISSUE IN THE CASE--IMPROPER TO REFER TO “GUILT” OR “INNOCENCE” IN A CIVIL TRIAL.

TT of Indian River v. Fortson, 42 Fla. L. Weekly D2655 (Fla. 5th DCA December 15, 2017):

In this automobile accident case where liability was not at issue, the defendants moved to quash the subpoena of the corporate representative, noting that they had stipulated to liability, and the corporate representative had no personal knowledge of anything including the damages issue. Plaintiff’s counsel refused to disclose the basis for calling the corporate representative, stating he did not want to reveal his trial strategy.

The trial court denied the defendant’s motion to quash and allowed the plaintiff to call the corporate representative. During the direct, plaintiff’s counsel asked numerous questions that were not related to damages, but instead intended to denigrate the defendant and inflame the jury by asking “when” the defendant had admitted guilt, noting that it was very close in time with the trial, etc.

In closing, plaintiff’s counsel highlighted the testimony of the corporate representative, noting to the jury that defendants brought someone in identified as risk management, and then the jury found out that the woman did not even work for the company, asking the jury to speculate about what that meant.

The court observed that when a defendant admits the entire responsibility for an accident and only damages are at issue, evidence regarding liability is irrelevant and prejudicial. Moreover, it is improper to refer to guilt or innocence at a civil trial on negligence.

The court also refused to agree that the error was harmless. A great majority of the plaintiff’s direct examination of the corporate representative was not only irrelevant to damages but was formulated to inflame the jury. The error was then compounded by closing argument. The court then reversed for a new trial on damages.