FLORIDA LAW WEEKLY

VOLUME 43, NUMBER 20

CASES FROM THE WEEK OF MAY 18, 2018

A MOTION TO ENLARGE THE TIME TO ACCEPT A PROPOSAL FOR SETTLEMENT DOES NOT AUTOMATICALLY TOLL THE 30-DAY DEADLINE FOR ACCEPTING.

Koppel v. Ochoa, 43 Fla. L. Weekly S225 (Fla. May 17, 2018):

The plaintiff served the defendant with a proposal for settlement. One day before the 30-day period to accept was to expire, the defendant filed a motion seeking to enlarge the time in which to respond. The motion cited Florida Rule of Civil Procedure 1.090 which governs the enlargements of time, and defendant alleged that she needed more time to evaluate the proposal based on a new MRI report, and the fact that the case was still in its infancy. The day after the hearing on the motion to enlarge (approximately 90 days after the proposal had been filed), the defendant attempted to accept the proposal. Plaintiff moved to strike the acceptance.

Coming to the supreme court on certified conflict, the issue presented was whether the filing of a motion under rule 1.090 to enlarge the time to accept a proposal for settlement automatically tolls the 30-day deadline until the motion is decided.

The court first looked to section 768.79 which mentions the 30-day deadline. Rule 1.442 outlines the procedures that must be followed when implementing section 768.79, and also focuses on the 30-day time for acceptance.

Finding that it was apparent from the text of the rule that motions to enlarge cannot be granted without a showing of cause, and reflecting on the language and purpose of the statute itself, the court found that the mere filing of a motion to enlarge pursuant to rule 1.090 does not toll the time to accept an offer of settlement made under section 768.79.

The court acknowledged that rule 1.090 does allow the time to be enlarged, but the motion has to be made before the expiration of the time period, and upon cause shown. While the trial court still does have discretion to enlarge the time period if the moving party can demonstrate excusable neglect in addition to cause after the expiration, nowhere does the rule allow additional time to accept by simply filing a motion to enlarge.

DEPARTURE FROM ESSENTIAL REQUIREMENTS OF LAW TO COMPEL PLAINTIFF TO SIGN AN AUTHORIZATION RELEASING HIS MENTAL HEALTH RECORDS WHEN DEFENDANT FAILED TO SHOW PETITIONER PLACED HIS MENTAL HEALTH STATUS AT ISSUE IN THE CASE.

Rodriguez v. City of South Miami, 43 Fla. L. Weekly D1026 (Fla. 3rd DCA May 9, 2018):

The city petitioner filed a petition seeking a temporary and permanent injunction on behalf of itself and nine of its elected officers and officials against the respondent. The respondent sought to dissolve the temporary injunction arguing it was legally insufficient. In filing his motion to dissolve, the defendant noted he was stable and taking medication and regularly seeing his psychiatrist.

Seizing upon that sentence, the city subpoenaed his health care providers for their medical records, and filed a motion to compel him to sign a medical authorization.

The court reminded us that section 90.503(2) grants a patient the privilege to refuse to disclose mental health records, subject to three exceptions, i.e., when those records are relevant to an issue in involuntary commitment proceedings; when they are made in the course of a court-ordered mental examination; or when they are relevant to an issue of the patient’s mental or emotional condition “which the patient relies upon as an element of his or her claim or defense.”

Here, the single sentence contained in the respondent’s motion to dissolve the injunction was not relevant to the solitary legal basis urged for dissolution, and therefore did not meet any of the exceptions to section 90.503. As such, it was a departure from the essential requirements of law for the court to compel the disclosure of those records.

PLAINTIFF’S STATUS AS A SURVIVING SPOUSE IS DETERMINED AS OF THE DATE OF THE DECEDENT’S DEATH AND NOT ON THE DATE OF THE DECEDENT’S INJURIES THAT LED TO THE DEATH--PLAINTIFF WHO MARRIED DECEDENT AFTER ACCIDENT BUT BEFORE DECEDENT’S DEATH WAS A SURVIVING SPOUSE--ISSUE OF CONTROL OF FRANCHISOR OVER FRANCHISEE IS ISSUE OF FACT.

Domino’s Pizza v. Wiederhold, 43 Fla. L. Weekly D1056 (Fla. 5th DCA May 11, 2018):

In January of 2011, a man was rendered quadriplegic after swerving into the median to avoid a vehicle that pulled out in front of him. The vehicle the man swerved to avoid was owned by a Domino’s franchisee. Several months after the accident, the catastrophically injured man married his girlfriend who had been an uninjured passenger in the accident.

Over a year later, the man died and his wife became the personal representative of the estate. She filed an amended complaint to include a claim for wrongful death.

The first issue focused on whether the decedent’s wife was a surviving spouse under the Wrongful Death Act. The court noted that the Act does not specify whether a surviving spouse must be married at the time of the injury or at the time of the death, but further found that that fact does not alone render the term unclear or ambiguous, if the common and ordinary meaning leads to clear and unambiguous results.

The common and ordinary meaning of the term “survivor” is “especially a person remaining alive after an event in which others have died,” according to the Oxford American College Dictionary. Black’s Law Dictionary defines “survivor” as “one who outlives another.” By extension, the common and ordinary meaning of a surviving spouse is a married person who outlives his or her husband or wife. That conclusion was consistent with cases recognizing that wrongful death actions accrue on the date of the decedent’s death.

The court also observed that the definition of survivors, while perhaps limited to familial relationships, does not limit those terms to familial relationships existing at the time of the injury. Also in light of the legislature’s instructions that the Wrongful Death Act is to be liberally construed to achieve its purposes, even so far as holding that a posthumous child is a survivor under the Act, a person who is married to the decedent on the date of death is a survivor under the Act. In light of the conflict with the Fourth District’s decision in Kelly v. Georgia Pacific, 211 So.3d 340 (Fla. 4th DCA 2017), the court certified conflict.

The next issue asked whether Domino’s was vicariously liable for an accident involving its franchisee. Domino’s contended as a matter of law it was not vicariously liable because it had no control over the franchisee’s day-to-day operations, citing Mobile Oil v. Bransford, 648 So.2d 119, 120 (Fla. 1995) (upholding a summary judgment where the record did not establish that the franchisor had directly or apparently participated in substantial way in directing or managing acts of the franchisee beyond the mere fact of providing contractual franchise support activities).

The existence of an agency relationship is ordinarily a question for the trier of fact to decide. However, a court may determine the absence of an agency relationship when the evidence is capable of but one determination, and there is no evidentiary question for the jury to resolve.

While Domino’s pointed to evidence supporting its position that it had no control over the franchisee, it also ignored abundant evidence of control to the contrary. Domino’s argument was simply an invitation for the court to reweigh the evidence or recharacterize its control as being limited to brand maintenance activities; an invitation which the court declined.

The court was however, persuaded by defendant’s argument that it was entitled to a new trial based on improper closing argument. Plaintiff’s attorney argued that Domino’s agency defense was a “greedy charade.” Counsel argued that by inserting exculpatory language into the franchise agreement while controlling every aspect of the franchise created the “greedy charade.”

In addition to the “greedy charade” argument, plaintiff’s counsel had asked for $10 million for pain and suffering of the widow, but specifically asked the jury not to award any more than that because of a concern that it might not be upheld post-trial “and no one wants that to happen.” The court explained that plaintiffs are allowed to ask for specific amounts, but not to suggest that amounts are legally acceptable or will withstand subsequent challenges.

Additionally, counsel expressed awe for the plaintiff, and argued “to live through and deal with what she did is why I’m in awe. And how it makes many of us ask this question: Would we be able to do what she did?”

The court found those arguments were both impermissible golden rule arguments and impermissible expressions of personal opinion.

Finally, the plaintiff argued that she should have been able to introduce all medical expenses paid on her husband’s behalf. She claimed that the estate was entitled to recover the over $863,000 that Medicare and Cigna paid on his behalf even though the estate later satisfied the liens for $51,000.

In a wrongful death case (far different than in injury cases), the court found that an estate does have a right to claim medical expenses paid by or on the decedent’s behalf, without those damages being subject to a reduction when a subrogation or reimbursement right exists. The court held that Domino’s could not escape liability for medical expenses paid on the decedent’s behalf because the widow personal representative ultimately settled the claims.

Citing to Respess v. Carter, 585 So.2d 987, 990 (Fla. 5th DCA 1991), the court explained that while it may seem unfair that by virtue of a contractual arrangement with an insurance carrier survivors receive substantially more than their stipulated damages and that the defendants are required to pay the full amount of damages, if plaintiff’s counsel is able to procure the surrender of the subrogation rights, such ingenuity does not accrue the benefit of the tortfeasors. As the court explained, “The principle behind the collateral source rule is that it is better for the wronged plaintiff to receive a potential windfall than for a tortfeasor to be relieved of responsibility for the wrong.”

Thus, the trial court erred in prohibiting the widow from seeking compensation for medical expenses paid on her husband’s behalf.

PLEADING STATUTE OF LIMITATIONS AS AN AFFIRMATIVE DEFENSE DOES NOT OBVIATE THE MOVANT’S OBLIGATION TO COMPLY WITH THE PARTICULARITY REQUIREMENTS MANDATED BY THE RULE.

Ambrogio v. McGuire, 43 Fla. L. Weekly D1069 (Fla. 2nd DCA May 11, 2018):

In a case involving a promissory note, the defendant moved for summary judgment based on statute of limitations grounds. As the case explained, “The common thread of these motions (this summary judgment and defendant’s other motions) is that they all consisted of one sentence, conclusory statements asserting that there were no issues of material fact, and that she was thus entitled to summary judgment.”

When the trial court asked the defendant’s counsel to identify where the statute of limitations argument had been asserted, counsel said it was in his first affirmative defense.

The court ruled it is reversible error to enter summary judgment on a ground not raised with particularity on a motion for summary judgment. Simply pleading an affirmative defense does not obviate a summary judgment movant’s obligations to comply with the particularity requirement of rule 1.510(c). Because the defendant’s motion did not satisfy the particularity requirement set forth in the rule, it was reversible error for the trial court to enter summary judgment on her behalf.