FLORIDA LAW WEEKLY

VOLUME 43, NUMBER 44

CASES FROM THE WEEK OF NOVEMBER 2, 2018

WHEN MINOR LACKS A PARENT, GUARDIAN OR GUARDIAN AD LITEM, OR DURING ANY PERIOD WHERE THOSE PERSONS HAVE AN INTEREST ADVERSE TO MINOR--STATUTE OF LIMITATIONS IS TOLLED.

D.H. v. Adept Community Services, Inc., 43 Fla. L. Weekly S533 (Fla. November 1, 2018):

The minor plaintiffs were born to a mother diagnosed with non-congenital cerebral palsy, and a seizure disorder. Desiring to live on her own, she moved out of her parents’ home when she was 20 years old and hired defendant Adept, and another organization, B.E.A.R.R., to provide support services to help her. The mother became pregnant, and after she gave birth to twins in 2005, she moved back into her parents’ home. Still, she was determined to live on her own after they were born.

To facilitate that, the mother again hired Adept and B.E.A.R.R. to provide support services as they had done before. However, worried that the mother would not be able to safely care for, and raise the twins because of her disability, the grandparents arranged a meeting of the support workers from both organizations to discuss their concerns.

The parties disputed what transpired at the meeting. The twins alleged that the grandparents told the support workers that if anything happened to the little boys everyone in the room would be responsible. The twins further alleged that the support workers nodded and promised to ensure they would look out for the twins.

The defendants, Adept and B.E.A.R.R., denied that their employees undertook such an obligation. After months of problems, and pursuant to an anonymous complaint, a petition to shelter the twins was filed with the circuit court and the sheriff’s office removed the children from the mother’s custody approximately six months after she moved out with them.

The twins were adjudicated dependent on May 16, 2006 and placed in the temporary care, custody and control of their grandparents. Three days later, DCF completed a comprehensive health assessment for each twin, noting developmental delays and anxiety problems due to abuse and neglect. The twins were also diagnosed with a sensory disorder, a condition also attributed to their past abuse and neglect. On April 13, 2007, the protective supervision was terminated and the grandparents became the twins’ permanent guardians.

On November 22, 2010, the grandparents filed a complaint as the next friends and permanent guardians of the twins against both defendants, Adept and B.E.A.R.R. The complaint alleged that the defendants had negligently failed to prevent the twins from being injured by their mother’s maltreatment. The defendants moved for summary judgment based on the statute of limitations.

The district court addressed the issue of when the grandparents became “on notice” of the abuse, and when they should have filed suit. However, the Florida Supreme Court ruled such issues were moot in the face of the court’s conclusion that the statute of limitations applicable to the children’s claims was tolled pursuant to section 95.051(1)(h), at all times prior to the grandparents being appointed as the permanent guardians on April 13, 2007.

Because there were periods of time where the children either lacked a parent, guardian or guardian ad litem whose interests were not adverse to theirs, under the statute the time for bringing their claims (four years) was tolled. As such, the lawsuit was brought timely, and the court reversed the erroneously entered summary judgment.

IN ORDER TO PREVAIL ON A “FAILURE TO COOPERATE DEFENSE” AN INSURER MUST SHOW “MATERIAL FAILURE” TO COOPERATE WHICH “SUBSTANTIALLY” PREJUDICED THE INSURER.

Barthelemy v. Safeco Insurance Co., 43 Fla. L. Weekly D2379 (Fla. 4th DCA October 24, 2018):

An insured sued his insurer for declaratory relief seeking coverage up to his policy limits. The insurer raised a “failure to cooperate” defense citing to the insured’s failure to submit three times to an examination under oath (EUO). The insurance company asserted that this undermined its ability to investigate the claim.

Over objection, the jury was instructed that for the insurer to prevail upon its “failure to cooperate” defense, the insurer had to establish that the appellant “did not comply” with his post-loss obligations and that the insurer was “actually prejudiced” by the appellant’s failure to comply.

However, pursuant to dispositive case law, a “failure to cooperate” requires the insurer to show “a material failure to cooperate which substantially prejudiced the insurer.” The “failure to cooperate” defense requires the insurer to show that the insured (1) materially failed to cooperate with his post-loss obligations and (2) the failure to cooperate substantially prejudiced the insurer.

Thus, when the trial court gave an instruction which did not include “material failure” to comply and “substantial prejudice” the trial court misstated the law and could have misled the jury into applying an incorrect standard, requiring reversal.

TRIAL COURT ERRED IN STRIKING DEFENDANT’S PLEADINGS AND ENTERING JUDGMENT FOR PLAINTIFF AS SANCTION FOR DEFENDANT’S FAILURE TO COMPLY WITH DISCOVERY ORDERS WITHOUT GIVING DEFENDANT AN OPPORTUNITY TO PRESENT REBUTTAL EVIDENCE.

Garcia-Mathies Interiors, Inc. v. Peré, 43 Fla. L. Weekly D2400 (Fla. 3rd DCA October 24, 2018):

The plaintiffs hired the defendant to design and decorate their new home. When the relationship went awry, plaintiffs sued the defendant for fraudulent inducement, fraud, unjust enrichment and other claims.

In their first request for production, the plaintiffs requested that the defendant produce any and all accounting spreadsheets in native format of whatever electronic software was utilized relating to the design and decoration of their home. The defendant responded, but the plaintiff moved to compel, arguing that the spreadsheets were not in native format. The trial court held a hearing on the motion and compelled the documents to be produced in the next 60 days. Through several months of back and forth, the plaintiffs ultimately believed that the defendant finally sent them documents that had never been produced, and ultimately the judge ruled that the defendant acted in bad faith, with constant, deliberate and willful disregard or gross indifference to the court’s orders, as well as the intentional destruction and alteration and concealment of evidence. The court struck the defendant’s pleadings and entered judgment for the plaintiff without allowing the defendant to present rebuttal evidence in its own defense.

Because the defendant was deprived of the opportunity to be heard, the court was forced to strike the order striking the pleadings and entering judgment against it (while still expressing no opinion one way or the other about whether the striking was appropriate). The court should have allowed the evidence to be heard.

ERROR TO GRANT NEW TRIAL ON THE BASIS THAT RULE 1.280 PROHIBITED COUNSEL FROM QUESTIONING THE TORTFEASOR’S EXPERT CONCERNING HIS TOTAL ANNUAL INCOME--RULE 1.280 IS A RULE PERTAINING TO DISCOVERY AND NOT EVIDENCE--ERROR TO GRANT NEW TRIAL BASED ON TORTFEASOR’S OWN UNEXPECTED AND UNSOLICITED TESTIMONY REGARDING HER INSURANCE, BECAUSE ANY ERROR WAS EXPRESSLY WAIVED BY COUNSEL.

Priest v. Velisek, 43 Fla. L. Weekly D2409 (Fla. 5th DCA October 26, 2018):

The trial court granted a new trial based on two things: First, that the plaintiff’s cross-examination of the defendant’s expert witness about his financial bias (where expert was asked if he previously testified to earning $2 million annually from all defendants); and second, defendant’s unsolicited, unexpected mentioning of insurance while testifying.

The court agreed with the plaintiff that neither ground supported a new trial.

First, the trial court ruled that F.R.C.P. 1.280 prohibited plaintiff’s counsel from questioning the defendant expert concerning his total income from all defendants. Rule 1.280 is a rule pertaining to discovery, not evidence. Therefore, the reliance on that procedural rule could not be the basis of a new trial.

Additionally, simply because the defendant made an unexpected and unsolicited statement about her insurance in front of the jury was not a basis either for granting a new trial because the defendant explicitly waived the issue in the record. Because of that waiver, the court did not have to decide if there was invited error.