FLORIDA LAW WEEKLY

VOLUME 43, NUMBER 9

CASES FROM THE WEEK OF MARCH 2, 2018

COURT HOLDS THAT THE TERMS OF RULE 1.442 CANNOT TRUMP THE TERMS OF THE OFFER OF JUDGMENT STATUTE (SECTION 768.79).

Castillo v. Costco Wholesale Corp., 43 Fla. L. Weekly D422 (Fla. 3rd DCA February 21, 2018):

A plaintiff received an award from the jury which was 25% more than her proposal for settlement sent to defendant Costco. The trial court denied the plaintiff’s motion for fees based on Costco’s objections that (1) the offer did not specify whether punitive damages were to be resolved as part of the proposal for settlement and (2) the offer was fatally ambiguous because it purported to settle all claims inclusive of any and all attorney’s fees and costs incurred as of the date of the acceptance of the offer, further stating that attorney’s fees were part of the legal claim. However, the complaint did not seek an award of attorney’s fees.

Quoting the Florida Supreme Court who had recently analyzed the relationship between section 768.79 and rule 1.442, the court noted that the procedural rules should no more be allowed to trump the statute than the tail should be allowed to wag the dog.

In looking at the plaintiff’s offer under section 768.79, the court found the offer unambiguous. The defendant’s contention that the offer was ambiguous related to a provision of rule 1.442, which the court said was trumped by the provision of the statute, and rendered the ambiguity totally irrelevant. The court reversed with an order to enforce the plaintiff’s proposal.

WHERE THE DEFENDANT’S INSURANCE COMPANY COMPLIED WITH THE TERMS OF THE PLAINTIFF’S SETTLEMENT DEMAND AND TENDERED A CHECK FOR THE FULL POLICY LIMITS, THE FACT THAT THE CHECK INCLUDED THE HOSPITAL WHICH MAY HAVE HAD A LIEN FOR MEDICAL SERVICES AS A CO-PAYEE DID NOT CONVERT THE ACCEPTANCE INTO A COUNTEROFFER.

Marin v. Infinity Auto Insurance Co., 43 Fla. L. Weekly D425 (Fla. 3rd DCA February 21, 2018):

The plaintiff was injured in an accident, and treated at a hospital. Shortly thereafter, the insurance company tendered its $10,000 policy limits and issued a release and a check made payable to the plaintiff, her lawyer, and the hospital. The insurance company explained that it included the hospital on the check because it seemed to have a lien.

The plaintiff then fired her lawyer and hired a second lawyer who demanded the limits. The insurer responded by sending that attorney a letter stating that it had already agreed to meet the demand and had sent a copy of the check. The letter explained that the hospital was listed because of the lien, and the insurer offered to reissue the check if the lien was resolved.

The new plaintiff’s attorney interpreted the inclusion of the hospital as a “counteroffer,” and rejected the payment.

The court disagreed. It held that the plaintiff’s settlement demand had only included two essential terms, both which were met when it tendered the full policy limits. It found that the trial court should have found that a valid settlement agreement had been reached.

The inclusion of the hospital as a co-payee on the settlement check did not convert the insurer’s unequivocal acceptance of the essential terms of the offer into counteroffer, especially when it was unclear whether there remained a balance for the services the hospital rendered. The court affirmed the enforcement of the settlement.

COURT UPHELD FORUM SELECTION CLAUSE IN PASSENGERS’ TICKETS REQUIRING LAWSUITS BE FILED IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA--THE WAIVER DID NOT DEPRIVE THE PLAINTIFFS OF THEIR RIGHT TO A JURY TRIAL BECAUSE ONE WAS WOULD BE AVAILABLE IN THAT FORUM.

M.Z. v. Carnival Corp., 43 Fla. L. Weekly D430 (Fla. 3rd DCA February 28, 2018).

DISMISSAL OF SUIT WITH PREJUDICE FOR FAILURE OF PLAINTIFF’S PRIOR COUNSEL TO ATTEND A CASE MANAGEMENT CONFERENCE WAS DEFICIENT BECAUSE IT FAILED TO ADDRESS KOZEL FACTORS; STILL, ISSUE NOT PRESERVED BY REPLACEMENT COUNSEL WHO FAILED TO SUBMIT AN AFFIDAVIT TO MAKE IT PART OF THE RECORD.

Shelswell v. Bourdeau, 43 Fla. L. Weekly D433 (Fla. 4th DCA February 21, 2018):

It is well settled that a final order dismissing a case with prejudice because counsel failed to attend a case management conference, must include a factual finding that the failure to attend was willful, deliberate or contumacious, and not just an act of negligence or inexperience. It is equally well settled that the rule of preservation applies to the improper dismissal of a complaint with prejudice.

After the plaintiff’s case was dismissed, her second attorney did not raise the Kozel issue at any point through a motion for rehearing or clarification with an affidavit or other evidence about what had occurred. Instead, the attorney filed an appeal but failed to take the opportunity to move for relinquishment of jurisdiction. Instead, he urged the appellate court to consider an affidavit that was never submitted to the trial court or made part of the record for the first time on appeal.

Thus, despite the trial court’s clear errors in dismissing the case without addressing the Kozel factors, the court unfortunately had to affirm the trial court’s order of dismissal.

THE COURT REITERATES THE STANDARD FOR SECTION 57.105 MOTIONS.

Moore v. Estate of Albee, 43 Fla. L. Weekly D442 (Fla. 5th DCA February 23, 2018):

The proper standard for an award of 57.105 fees is a showing that the losing party, or the losing party’s attorney “knew or should have known” that the claim or defense when initially presented to the court or at any time before trial was not supported by the material facts or the application of then existing law.

This is an easier threshold to meet, as 57.105 fees are no longer only awardable when there is a complete absence of a justiciable issue.

ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ON SOVEREIGN IMMUNITY GROUNDS WITHOUT EXPLICITLY STATING AS A MATTER OF LAW THE DEFENDANT WAS NOT ENTITLED TO SOVEREIGN IMMUNITY, IS NOT APPEALABLE UNDER RULE 9.130.

Florida Highway Patrol v. Jackson, 43 Fla. L. Weekly D451 (Fla. 1st DCA February 23, 2018):

In addressing rule 9.130(a)(3)(C)(xi), the court found that the order under review did not “explicitly determine as a matter of law” that the FHP was not entitled to sovereign immunity.

However, because the court perceived an inconsistency between the Florida Supreme Court’s decision in Beach Community Bank v. City of Freeport, 150 So.3d 1111 (Fla. 2014) and other cases regarding the specificity with which a court must deny an immunity motion before permitting an interlocutory appeal review, the court certified the question as one of great public importance. Essentially, the court questioned whether the rule permits an appeal of a non-final order denying immunity if the record shows that the defendant is entitled to immunity as a matter of law, but the trial court does not explicitly preclude it as a defense.

TRIAL COURT PROPERLY ACCEPTED PLAINTIFF’S EXPERT’S METHODOLOGY AS RELIABLE, AND PROPERLY PREVENTED DEFENDANT FROM APPORTIONING LIABILITY TO NON-PARTIES UNDER FABRE.

Northrop Grumman v. Britt, 43 Fla. L. Weekly D462 (Fla. 3rd DCA February 23, 2018):

The plaintiff’s husband and decedent died due to the inhalation of asbestos fibers while visiting employees at various commercial industrial facilities as part of his job. While the decedent was alive he had testified that he had also visited non-party facilities owned by Mack Trucks and Beacon Van Lines. However, his observations of dust and maintenance performed at those facilities did not show any evidence of asbestos, nor did the defendant have any.

There was no dispute in the case that the decedent was diagnosed with and died due to mesothelioma. The defendant argued that plaintiff’s expert failed to establish the amount of asbestos the man had inhaled over the years he had visited Northrop’s premises caused his death. The defendant contended that the expert’s testimony was an “any exposure” or a so called “single fiber” opinion which had been excludable under Frye or Daubert.

The court noted how the expert doctor had conducted and published studies of workers exposed to asbestos, rock dust, silica and radioactive dust and air pollution. He was an epidemiologist on the asbestos science advisory board, and had published 50-60 peer reviewed research papers dealing with asbestos disease.

Regarding the decedent’s exposure, the doctor had testified that in the aggregate, the man’s presence for at least 150 days of exposure to asbestos at Northrop facilities was a substantial contributing cause of his ultimately fatal mesothelioma. The doctor rejected Northrop’s invitation to opine that “any,” “every,” or “a single” exposure to airborne asbestos could be a contributing cause.

The doctor’s expertise, his application of reliable methodology and peer review published studies, and the general acceptance by the scientific community of the relationship of the inhalation of asbestos fibers and mesothelioma, distinguished this case from the rejection based on Daubert of the proffered “every exposure” testimony made by medical toxicologists in other cases.

Finally, the defendant argued that the decedent’s testimony suggested that exposure to asbestos during his visits to two other facilities indicated that those parties could have been a substantial contributing cause of the mesothelioma too.

The court rejected that argument, because there was no evidence to establish that asbestos was present at the non-party cites during the time that he visited them.

The plaintiff’s pretrial motion in limine to exclude evidence regarding the prospective Fabre defendants was granted after the defendant failed to provide the trial court with evidence that there was asbestos in any of the products for which those prospective defendants were responsible. The burden to present sufficient evidence “to prove the non-party’s liability or fault by a preponderance of the evidence” was not satisfied either by the defendant’s proffer or by the proof at trial, so the trial court properly left those Fabre defendants off the verdict form.