FLORIDA LAW WEEKLY

VOLUME 43, NUMBER 2

CASES FROM THE WEEK OF JANUARY 12, 2018

JURY AWARD FOR PAST NON-ECONOMIC DAMAGES INADEQUATE AS A MATTER OF LAW--ARGUMENT REGARDING COMPROMISED VERDICT WAIVED WHEN ISSUE WAS NOT RAISED UNTIL PLAINTIFF FILED MOTION FOR RECONSIDERATION OF THE TRIAL COURT’S DENIAL OF A MOTION FOR ADDITUR OR NEW TRIAL.

Gustavsson v. Holder, 43 Fla. L. Weekly D122 (Fla. 5th DCA January 5, 2018):

After a plaintiff was hit as a pedestrian and suffered a displaced right femur fracture that required surgical repair with a titanium rod, facial lacerations requiring surgery and permanent scarring, and where the plaintiff suffered three accident-related MRSA infections, the jury awarded him over $507,000 in past medical expenses for the more than 18 weeks he spent in the hospital. However, the jury awarded nothing for pain and suffering, inconvenience, etc.

The parties agreed that the verdict was inconsistent, and the court sent the jury back for further deliberations. The jury then came back 11 minutes later with an award for $1,000 in past non-economic damages and $1,000 for future non-economic damages.

Plaintiff moved for an additur or in the alternative a new trial, but made no mention of a request for a new trial based on the issue of liability due to a compromised verdict. The trial court denied the motion without a hearing, and plaintiff moved for reconsideration on similar grounds. The trial court actually allowed a hearing on the motion, and for the first time plaintiff argued there was a compromised verdict.

Unfortunately, the court found the plaintiff had failed to preserve the issue of a new trial on liability based on a compromised verdict, because the initial denial of the motion was jurisdictional, and not subject to reconsideration or modification. The court did remand, however, for either an additur or a new trial and past non-economic damages.

RESIDENTS OF BRAZIL IN FLORIDA FOR THEIR DEPOSITIONS IN A CORPORATE CAPACITY WERE IMMUNE FROM SERVICE OF PROCESS.

Queiroz v. Bentley Bay Retail, 43 Fla. L. Weekly D85 (Fla. 3rd DCA January 3, 2018):

It is well-established under Florida law, that witnesses and suitors who attend court outside of the territorial jurisdiction of their residence, are immune from service of process while attending court, and for a reasonable time before and after going to court and in returning to their homes.

Because these witnesses were appearing in their corporate capacities and the plaintiff wanted to serve them in their individual capacity, this case did not fall within one of the exceptions to the general rule (i.e., an identity of parties and/or an identity of issues). There is simply no identity of person between a witness’s corporate capacity and in his/her individual capacity. The trial court should have granted the motion to quash service.

TRIAL COURT DEPARTED FROM ESSENTIAL REQUIREMENTS OF LAW IN ABATING PLAINTIFF’S THIRD-PARTY BAD FAITH CLAIM INSTEAD OF DISMISSING IT.

Geico v. Martinez, 43 Fla. L. Weekly D86 (Fla. 3rd DCA January 3, 2018):

The plaintiff in this case sued the defendant driver and Geico insured when Geico refused to pay its $10,000 policy limits in the case. While the case was pending, the plaintiff filed a motion to amend her complaint to add Geico as a party defendant to the action, and to add a third-party bad faith claim against Geico. When Geico moved to dismiss, the plaintiff conceded that the bad faith claim was premature pursuant to the non-joinder statute, but asked the trial court to abate the action awaiting resolution of the underlying case, which it did.

The appellate court reversed. Pursuant to the non-joinder statute (section 627.4136), there must be a verdict or a settlement against the insured before the insurer may be added to the case. Thus, abatement was improper and the trial court should have dismissed the claim altogether.

ERROR TO DENY A MOTION TO DISMISS FOR IMPROPER VENUE IN A CASE WHERE THE PLAINTIFF WAS INJURED ON AN ESCALATOR INSIDE THE CRUISE TERMINAL LEADING TO THE CRUISE SHIP’S GANGWAY DURING THE BOARDING PROCESS.

Carnival Corp. v. Garcia, 43 Fla. L. Weekly D87 (Fla. 3rd DCA January 3, 2018):

The plaintiff was injured when she fell on an escalator inside the cruise ship terminal leading to the gangway during the process of boarding the ship.

On the cruise ship ticket, bold capitalized language advised cruise ship passengers of the many limitations on their legal rights, including waiver of jury trial, arbitration, jurisdiction and venue. The contract provided that all disputes arising out of the contract and the cruise “including travel to and from the vessel” WOULD be litigated in the United States District Court for the Southern District of Florida in Miami.

The plaintiff sued in state court arguing that jurisdiction was proper under general maritime law and the “Savings to Suitors Clause” of 28 U.S.C. section 1333. The plaintiff asserted that the case was properly filed in state court, because the district court lacked subject matter jurisdiction.

The court acknowledged that the mandatory forum selection clause applied to all disputes, and pointed to jurisdiction in the federal court in Miami. The issue was turned on whether the federal court or the state court had subject matter jurisdiction. Because the plaintiff’s injury occurred prior to embarkation, plaintiff argued the district court had no jurisdiction.

Looking to prior precedent, the question posed was whether admiralty jurisdiction exists when a cruise ship passenger alleges that as a result of the negligence of the cruise line, he or she was injured after exiting the ship and while walking in a restricted area to customs. In answering the question, the court found both the “location” and “connectivity” tests for jurisdiction were met.

Finding that the escalator in the cruise ship terminal was essentially the vessel’s gangway and the only way to board the cruise ship, the court found the location test was met. Additionally, because the safe boarding of a cruise ship has a potentially disruptive impact on maritime commerce and the general character of the activity giving rise to the incident chose a substantial relationship to traditional maritime activity, the connectivity test was also met. As such, federal admiralty jurisdiction existed in the case, and the case was dismissed to be filed in the district court.

AS LONG AS FINDINGS OF FACT MADE IN A DECLARATORY JUDGMENT ACTION ARE SUPPORTED BY COMPETENT, SUBSTANTIAL EVIDENCE, THE APPELLATE COURT WILL UPHOLD A TRIAL JUDGE’S FINDING ON COVERAGE.

State Farm v. Hawkinson, 43 Fla. L. Weekly D100 (Fla. 1st DCA January 2, 2018):

To determine whether the injured plaintiff was a “relative” on her parents’ UM coverage (because she was an unmarried, unemancipated child away at college), the trial court conducted an evidentiary hearing. Although there was conflicting evidence that reasonably could have supported a contrary finding regarding the plaintiff’s emancipation status, because the trial judge’s ultimate findings were supported by competent, substantial evidence, the appellate court said it was constrained to affirm.

THE SERVICE OF A PROPOSAL FOR SETTLEMENT ON THE 91ST DAY AFTER THE INSURED’S COMPLAINT WAS SERVED ON THE CFO OF THE STATE WAS VALID AND BINDING UNDER RULE 1.442(B).

Markovits v. State Farm, 43 Fla. L. Weekly D101 (Fla. 1st DCA January 3, 2018):

Plaintiff served her complaint on our State’s CFO. 91 days later, plaintiff served her proposal for settlement.

State Farm argued that while the CFO was served on February 4, 2014, the insurer did not “receive” the complaint from the CFO until February 7, 2014. State Farm was then arguing that the proposal was filed prematurely.

The court explained that generally when a statutory agent--in this case the CFO of the state--is served, that constitutes actual service of process. Thus, once service was perfected on the CFO, the running of the 90-day period started rendering the proposal for settlement timely.

WHERE LAW FIRM WHICH HAD WITHDRAWN HAD NOT FILED A NOTICE OF LIEN OR OTHERWISE PURSUED THE LIEN IN THE ACTION BEFORE THE VOLUNTARY DISMISSAL OF THE ACTION, THE TRIAL COURT WAS WITHOUT JURISDICTION TO ENFORCE THE LIEN--SENDING LETTERS TO A FORMER CLIENT WITHOUT FILING THOSE LETTERS DOES NOT PERFECT A LIEN.

Greenberg Traurig v. Starling, 43 Fla. L. Weekly D107 (Fla. 2nd DCA January 5, 2018).