FLORIDA LAW WEEKLY

VOLUME 43, NUMBER 25

CASES FROM THE WEEK OF JUNE 22, 2018

ORDER DENYING MOTION TO DISMISS ON GROUND OF SOVEREIGN IMMUNITY NOT APPEALABLE FOR FAILING TO RULE BASED ON SOVEREIGN IMMUNITY.

City of Miami General Employees’ and Sanitation Employees’ Retirement Trust v. Rodriguez, 43 Fla. L. Weekly D1351 (Fla. 3rd DCA June 13, 2018):

The City of Miami General Employees’ and Sanitation Employees’ Retirement Trust appealed from a non-final order granting its motion to dismiss two counts of plaintiff’s operative complaint, but denying the motion as to the third count.

During the hearing on the motion to dismiss, the issue of sovereign immunity was raised by defendant’s counsel. At the conclusion of the hearing, the trial court took the defendant’s motion to dismiss under advisement, and then issued a 28-page order.

Despite the length of the non-final order, the order failed to address the issue of sovereign immunity. There was also nothing in the order reflecting that the trial court ruled on the immunity issue.

Thus, the non-final order was not appealable pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(x) which permits the appeal of a non-final order that determines as a matter of law that a party is not entitled to immunity under section 768.28(9).

TRIAL COURT DID NOT ABUSE DISCRETION IN DISMISSING PERSONAL INJURY CASE FOR FRAUD ON THE COURT, WHERE PLAINTIFF FRAUDULENTLY CONCEALED HIS HISTORY OF CHRONIC LOW BACK PAIN BY FALSELY TESTIFYING ABOUT HIS MEDICAL HISTORY DURING HIS DEPOSITION--DEFENDANT’S DEATH DID NOT RENDER THE APPEAL MOOT BUT REQUIRED THE APPELLATE COURT TO CANCEL THE SCHEDULED ORAL ARGUMENT AND DECIDE THE APPEAL ON THE BRIEFS.

Wallace v. Keldie, 43 Fla. L. Weekly D1358 (Fla. 1st DCA June 13, 2018):

The plaintiff filed a complaint after a car accident, alleging that he suffered permanent injuries to his neck and low back as a result of the accident. During discovery, plaintiff disclosed that he had injured his low back in the early 1980s, but testified in his deposition that the injury had healed and he had not had any problems with it in 30 years. He also denied having seen a doctor for low back pain since 2000.

The plaintiff’s medical records told a different story. A record from the emergency room visit on October of 2013, seven months before the accident, stated that the plaintiff reported he had hurt his low back by slipping off a step ladder resulting in pain that he described as “aching and crushing,” and at a level of “10 out of 10.” He described the pain as radiating into his left leg. The record also stated that the plaintiff reported having a chronic history of similar episodes and having a herniated disc. When plaintiff went to the emergency visit nine days after the second accident, he stated that he reported his back pain started a long time ago but was made worse by the first accident.

Based on these discrepancies, the defendant moved to dismiss the case for fraud, and the trial court granted it finding that plaintiff’s deposition testimony was “patently false” and that he “fraudulently concealed his prior personal injuries.”

The court noted that there is a mixed standard of review for such a dismissal. The factual findings on which a dismissal is based are reviewed for competent substantial evidence, while the legal conclusion that fraud upon the court occurred resulting in dismissal is reviewed for an abuse of discretion.

The court rejected the plaintiff’s argument that the dismissal order did not include sufficient written factual findings (because the issue was not preserved). The court said even if the argument had been preserved, it was without merit because the primary case on which the plaintiff relied in support of that argument was not binding on the appellate court, and was readily distinguishable.

The court then rejected plaintiff’s argument that there was insufficient evidence of fraud. It found the trial court’s findings that the plaintiff provided false testimony both during deposition and the evidentiary hearing was supported by competent substantial evidence.

The court found that the trial court had plenty of reasons to discount the plaintiff’s testimony at the evidentiary hearing, where plaintiff testified his deposition testimony was the result of “poor memory” rather than an intent to deceive.

The plaintiff had an extensive criminal history, including numerous crimes of dishonesty. Additionally, despite the fact that plaintiff continued to claim to have no recollection of the excruciating pain he experienced less than seven months prior to the accidents or the associated emergency room visit, he admitted in his testimony at the evidentiary hearing that he had experienced low back pain since the 1980s when he had an incident falling off a roof, and his medical records bore out that he did have problems and had not healed.

The court also rejected the plaintiff’s argument that the trial court abused its discretion in including that the fraudulent concealment of the low back pain warranted dismissal. Trial judges have the inherent authority to dismiss actions based on fraud, and fraud on the court occurs when clear and convincing evidence demonstrates a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.

In this case, the plaintiff’s false testimony concerned his injury history which was at the heart of the case. The attempts to conceal the information were pertinent and critical to plaintiff’s claim and could not be considered anything less than an unconscionable scheme calculated to interfere with the proper adjudication of the matter.

The trial court’s decision to dismiss the case with prejudice was supported by the need to maintain the institutional integrity of the judicial system, along with the desirability of deterring future misconduct.

From a procedural standpoint, the court also explained how it resolved the problem when the defendant appellee died during the pendency of the appeal. The death did not render the appeal moot, because it is well established that personal injury actions survive the death of the alleged tortfeasor. However, the death did require the court either to abate the appeal while a motion to substitute under Rule 1.260(a) was filed, or to cancel the oral argument and decide the appeal on the briefs. That was the option the court took.

ONE MORE DECISION, WHERE THE COURT FOUND THE FACTS DID NOT RISE TO THE LEVEL OF THE INTENTIONAL TORTS EXCEPTION TO WORKERS’ COMPENSATION IMMUNITY--HOWEVER, THE TRIAL COURT ERRED IN ENTERING SUMMARY JUDGMENT IN FAVOR OF THE FELLOW EMPLOYEE ON PLAINTIFF’S GROSS NEGLIGENCE CLAIM WHERE THE EVIDENCE OF THE RECORD INDICATED THAT THE EMPLOYEE DIRECTED DECEDENT IN A MANNER CREATING A FACT QUESTION ON GROSS NEGLIGENCE.

Ramsey v. Dewitt Excavating, 43 Fla. L. Weekly D1366 (Fla. 5th DCA June 15, 2018):

The industrial accident which resulted in a young man’s death, took place while he was working for Dewitt. His parents alleged that the fellow employees were liable for operating the cement mixing pug mill while the decedent was still inside the mixing box, causing his death.

The court reminded us that there are three elements that must be proved to establish the intentional tort exception to workers’ compensation immunity and the failure to prove anyone of the elements will prevent the exception from applying. The elements are (1) employer knowledge of a known danger based upon a prior similar accident or explicit warnings specifically identifying danger that was virtually certain to cause injury or death to the employee; (2) the employee was not aware of the danger because it was not apparent; and (3) deliberate concealment or misrepresentation by the employer preventing employee from exercising informed judgment as to whether to perform the work.

In yet another case (there has not been a single case ever decided where the exception has ever been ruled to have been met to my knowledge), the court found that there was no evidence that the decedent was not aware of the danger involved in cleaning the pug mill and thus, plaintiffs could not meet the intentional tort exception.

The co-employees filed a motion seeking entry of summary judgment in their favor arguing that the parents’ wrongful death claims were barred by workers’ compensation immunity.

However, for gross negligence, the plaintiffs were required to present evidence as to the following three elements: (1) circumstances constituting an imminent or clear and present danger amounting to more than a normal or usual peril; (2) knowledge or awareness of the imminent danger on the part of the co-employee; and (3) an act or omission on the part of the co-employee that evinces a conscious disregard of the consequences.

When viewed in the light most favorable to the parents, the evidence of the record indicated that the co-employee directed the decedent into the pug mill for cleaning, and later activated the pug mill without utilizing any of the safety systems or the thumbs up signal normally utilized by the pug mill workers or otherwise checking to see if the decedent was still inside. If the jury so found, the co-employee could be determined to have been grossly negligent. Therefore it was error to grant summary judgment against the parents on the gross negligence claim.