FLORIDA LAW WEEKLY

VOLUME 43, NUMBER 10

CASES FROM THE WEEK OF MARCH 9, 2018

PROPOSAL FOR SETTLEMENT WAS UNTIMELY WHEN IT WAS SERVED LATER THAN 45 DAYS BEFORE THE FIRST DAY OF THE DOCKET ON WHICH THE CASE WAS SET FOR TRIAL.

Meyrowitz v. Schwartz, 43 Fla. L. Weekly D479 (Fla. 4th DCA February 28, 2018):

A law firm filed an action against a former client for unpaid legal bills. The clerk entered a default against the client for failure to file any pleadings.

The trial court then entered an order setting the case for a non-jury trial on the calendar beginning on March 20th and ending May 12th. On March 1st, the trial judge entered an order setting the case for a non-jury trial on May 2nd.

On March 3rd, the firm served a proposal for settlement which the client did not accept. The firm was successful and the trial court awarded attorney’s fees.

On appeal, the client argued that the proposal was not timely because it was served later than 45 days before the first day of the docket on which the case was set for trial. The firm responded that the case should be affirmed because the proposal was served two days after an order removing the case from one judge’s trial calendar and reassigning it to another judge for a special set trial. However, the rule states that it is 45 days before the date set for trial or the first day of the docket, whichever is earlier.

In this case, 45 days before the first date of the docket was earlier than 45 days before the date set for trial. 45 days before the May 2nd trial was March 18th but 45 days before the day of the March 20th docket was February 3rd. Because February 3rd was the earlier operative date, the March 3rd proposal was untimely.

The court rejected that the case was governed by the exception set forth in Liguori v. Daly, 756 So.2d 268 (Fla. 4th DCA 2000), where the case was set on a six-week docket and not called for trial during the first five weeks and the parties had been excused from the final week. There, one party filed a proposal during the last week of the docket and the trial was subsequently reset on other dockets and went to trial in August.

The court recognized that an offer of judgment is untimely and unenforceable when it is made less than 45 days before the first day of the docket on which the case is initially set for trial, regardless of when the case actually goes to trial. Still, the court found the proposal timely and enforceable because it was directed to the next unscheduled docket.

Because this case went to trial on the initially set docket, it could not be subject to the Liguori exception.

DEPARTURE FROM ESSENTIAL REQUIREMENTS OF LAW TO ORDER THE DISCLOSURE OF TRADE SECRETS, WHERE THE PARTY REQUESTING THE DISCLOSURE FAILS TO PRESENT ANY EVIDENCE THAT THE PRODUCTION OF PRIVILEGED INFORMATION WAS REASONABLY NECESSARY.

Niagara Industries v. Giaquinto Electric, 43 Fla. L. Weekly D477 (Fla. 4th DCA February 28, 2018):

When a party asserts that materials are protected by trade secrets, the court must conduct a two-step inquiry. First, it must determine if the documents at issue are in fact trade secrets. Second, if the court concludes that the documents are trade secrets, the burden shifts to the requesting party to show that the disclosure is reasonably necessary.

In this case, the court found the documents were trade secrets, which shifted the burden. The other party introduced no evidence at all regarding the reasonable necessity for the information. To the contrary, only the petitioners presented testimony about the devastating impact on its business there would be if the documents were released.

Because the requesting party did not overcome the testimony, it was a departure from the essential requirements of law for the court to order production.

NO ERROR IN COMPELLING ARBITRATION IN A NURSING HOME CASE BASED ON THE ARBITRATION AND LIMITATION OF LIABILITY AGREEMENT, WHEN IT CONTAINED AN EXPRESS SEVERABILITY CLAUSE WORDED IN A WAY THAT IT WOULD SURVIVE THE SEVERENCE OF ANY ILLEGAL ARBITRATION PROVISIONS.

Obolensky v. Chatsworth Wellington Green, 43 Fla. L. Weekly D482 (Fla. 4th DCA November 28, 2018).

SETTLEMENT ENFORCEABLE WHEN PLAINTIFF’S COUNSEL TENDERED AN OFFER TO THE INSURER WHICH WAS ACCEPTED, AND THE INSURER ENCLOSED A RELEASE STATING THAT ITS EXECUTION WAS NOT A CONDITION OF THE SETTLEMENT OR A COUNTEROFFER.

Tovar v. Russell, 43 Fla. L. Weekly D487 (Fla. 4th DCA February 28, 2018):

The plaintiff appealed an order enforcing a settlement agreement, arguing that the trial court erred in enforcing the agreement because there was no meeting of the minds. The Fourth District disagreed and affirmed the “enforced” settlement.

Plaintiff had sent an offer to State Farm requesting it to (1) tender its policy limits of $50,000; (2) reimburse the plaintiff an additional $10,044 for property loss; (3) provide an affidavit from the defendant stating she had no other insurance coverage; and (4) provide a certified copy of the defendant’s insurance policy. The settlement offer did not address a release.

State Farm received a letter and provided plaintiff with all the requested documents. It also enclosed a proposed release and requested it be executed by the plaintiff, further stating that the execution of the release was not a condition of settlement, or a counteroffer.

The plaintiff rejected State Farm’s proposed release in the letter, arguing it contained unusual terms that put an undue burden on him. They requested a standard release. State Farm responded with a letter enclosing two proposed releases, a revised version of the original one, and a standard release drafted by the trial lawyer section of the Florida Bar.

The plaintiff responded by returning certain checks and State Farm moved to enforce the settlement.

In affirming the trial court’s enforcement of the settlement, the court acknowledged that there are other cases where language of releases and other conditions required by insurance companies vary from the original offer which prevented a meeting of the minds. In each of those cases though, the ongoing discussions concerning the language of the release and other conditions occurred before there was an offer, acceptance and consideration for the agreement.

Here, the offer was accepted by State Farm on identical terms, and the agreement was reached before any discussion concerning the release. In fact, State Farm specifically indicated that the release was not a condition of the settlement or counteroffer. Any discussion concerning the language of the release occurred after the settlement agreement had ended, and therefore, there was an enforceable settlement.

TRIAL COURT ERRED BY AWARDING FOR EXPERT WITNESS FEES OVER OPPOSING PARTY’S TIMELY OBJECTION, ABSENT TESTIMONY CONCERNING REASONABLENESS AND NECESSITY OF FEE--TRIAL COURT ERRED IN ASSESSING COSTS FOR MEDICAL RECORDS COPIES AT RATE IN EXCESS OF THE REASONABLE RATE SET BY ADMINISTRATIVE RULE.

Wedmore v. O’Connor, 43 Fla. L. Weekly D501 (Fla. 2nd DCA March 2, 2018):

In reversing the expert fee cost award, the trial court made a mistake by awarding costs for expert fees absent testimony concerning the reasonableness and necessity of the fee which was required.

Additionally, the order incorrectly assessed costs for medical record copies in excess of the reasonable rate set by FAC Rule 64B8-10.003(2). The court remanded for the judge to deduct the expert witness fees from the cost award and to determine a reasonable amount of the copy costs.

ANOTHER CASE WHERE THE COURT ENFORCES THE SEVERABILITY CLAUSE IN A NURSING HOME ARBITRATION AGREEMENT.

Northport Health Services v. Bourne Health & Rehab, 43 Fla. L. Weekly D505 (Fla. 5th DCA March 2, 2018):

In the arbitration agreement signed by the nursing home resident in this case, a paragraph stated that the admissibility of evidence at the arbitration hearing would be determined in accordance with the Alabama rules of evidence, which thereby improperly limited the ability of the resident to recover compensatory damages (because only punitive damages are recoverable in wrongful death claims in Alabama). There was also another provision in the same paragraph requiring the application of the Alabama Rules of Civil Procedure.

The court found that the application of Alabama Rules of Evidence was illegal, because it could preclude the estate from presenting evidence at the arbitration hearing regarding compensatory damages, which would be contrary to the remedial purpose of the act.

That said, the court again relied on the severability provision in the agreement, and noted that the offending clause did not go to “the very essence of the agreement” (really?) invalidating the entire thing. Rather, it could be severed.