FLORIDA LAW WEEKLY

VOLUME 43, NUMBER 46

CASES FROM THE WEEK OF NOVEMBER 16, 2018

ALLEGATION THAT TRIAL JUDGE IS FACEBOOK “FRIENDS” WITH AN ATTORNEY APPEARING BEFORE THAT JUDGE--STANDING ALONE--DOES NOT CONSTITUTE A LEGALLY SUFFICIENT BASIS FOR DISQUALIFICATION.

Law Offices of Herssein and Herssein, P.A. v. United Services Automobile Association, 43 Fla. L. Weekly S565 (Fla. November 15, 2018):

While under some circumstances the relationship between a judge and a litigant’s lawyer, or another person involved in a case will be a basis for disqualification of the judge, actual friendship relationships are the kind that may present such circumstances requiring disqualification.

In this case, the law makes clear that not every relationship characterized as a “friendship” provides a basis for disqualification, and there is no reason that Facebook “friendships”--which regularly involves strangers--should be singled out and subjected to a per se rule of disqualification.

However, in a dissent by Justice Pariente, she wrote that she would adopt the view of the Fourth District’s opinion (which conflicted with this one) where, quoting Judge Gross’s concurrence she observed that judges do not have the “unfettered social freedom of teenagers.” Judge Gross further observed that central to the public’s confidence in courts is the belief that the fair decisions are rendered by impartial tribunals. As such, maintenance of the appearance of impartiality requires the avoidance and entanglements that may compromise that appearance, and that could include friendships with judges on Facebook.

TRIAL COURT DID NOT ERR IN COMPELLING ARBITRATION OF CLAIMS AGAINST NURSING HOME--THE AGREEMENT REQUIRED ARBITRATION OF ANY “DISPUTE OR CONTROVERSY”--AGREEMENT NOT PROCEDURALLY UNCONSCIONABLE--ATTORNEY’S FEES PROVISION REQUIRING EACH PARTY TO BEAR THEIR OWN FEES AND COSTS UNLESS SPECIFICALLY AWARDED UNDER STATE OR FEDERAL LAW, WAS NOT VIOLATION OF PUBLIC POLICY.

Johnson v. Heartland of Fort Myers, 43 Fla. L. Weekly D2491 (Fla. 2nd DCA November 7, 2018):

Apparently, the resident’s son had executed the arbitration agreement after she was injured.

The agreement provided that the parties agreed they would mutually benefit from a speedy and efficient resolution of any dispute or controversy which would arise between them.

The court found that even if plaintiff was correct that the agreement applied only to a dispute or controversy arising between her and the nursing home after the agreement was executed, the “dispute or controversy” between the parties was not synonymous with “injury” to the victim. Thus, although the plaintiff sustained injuries and her cause of action accrued before the agreement was executed, somehow, the dispute or controversy between her and the nursing home did not arise until after she filed suit.

The court also rejected any argument regarding procedural unconscionability. As such, it did not reach the issues of whether the confidentiality provision and the attorney’s fees provision were substantively unconscionable.

Plaintiff argued that the provision regarding each party to bear its own attorney’s fees and costs, improperly limited her statutory right to seek a full award of her fees under the prevailing party provision of section 415.1111. The nursing home argued the governing case was distinguishable, because the provision allowed the arbitrator to award attorney’s fees and costs “under state or federal law.” Thus the agreement itself did not preclude the plaintiff with prevailing from being awarded attorney’s fees and costs under that section, and therefore did not impinge on her statutory rights.

For all of these reasons, the court upheld the arbitration agreement.

ERROR TO DISMISS COMPLAINT FOLLOWING COUNSEL’S FAILURE TO COMPLY WITH PRETRIAL ORDER, AND FAILURE TO APPEAR AT CALENDAR CALL WITHOUT MAKING A FINDING OF WILLFULNESS.

London v. Temerian, 43 Fla. L. Weekly D2500 (Fla. 4th DCA November 7, 2018):

In another case where an appellate court found that a trial judge “over-sanctioned” a lawyer, the Fourth District reminded us that while dismissing a complaint is a sanction for failing to appear as within the trial court’s discretion, dismissal is too severe a sanction for the crime of failing to attend a pretrial conference, absent a record showing a willful or intentional disregard of a court order.

The orders in this case did not contain such findings of willfulness. As such, the court reversed and remanded for the trial court to conduct further proceedings.

TRIAL COURT ERRED IN HOLDING THAT PLAINTIFF COULD NOT BRING A CLAIM FOR BREACH OF FIDUCIARY DUTY BASED ON THE DEFENDANT’S UNAUTHORIZED DISCLOSURE OF THE PLAINTIFF’S MEDICAL RECORDS--A DOCTOR-PATIENT CONFIDENTIALITY CREATES A RELATIONSHIP OF TRUST AND CONFIDENCE BETWEEN THE PARTIES, WHICH IN TURN GIVES RISE TO A FIDUCIARY DUTY.

Leblanc v. Acevedo, 43 Fla. L. Weekly D2505 (Fla. 5th DCA November 9, 2018):

Plaintiff was a correctional officer whose employment was terminated. While still employed though, plaintiff sought medical treatment from the defendant doctor for his high blood pressure.

The doctor recommended plaintiff take time off of work for his blood pressure and also recommended that he see a psychiatrist.

The plaintiff then took leave under the Family Medical Leave Act in part to deal with his high blood pressure. Subsequently, the DOC sent a questionnaire to the doctor regarding the plaintiff’s fitness to return to work. Included with the correspondence was a blank medical release form for the plaintiff to sign.

Without receiving or even requesting the authorization, the doctor returned the questionnaire, noting that while the plaintiff was medically stable, he needed a psychiatric evaluation before he could resume his duties as a corrections officer. Plaintiff ended up being terminated by the DOC and his termination was upheld by the Public Employment Relation Commission based on the medical records regarding his referral to a psychiatrist.

Defendants successfully moved for summary judgment on plaintiff’s complaint which alleged (1) that the doctor had breached a fiduciary duty by disclosing his confidential medical records and (2) asserting a claim under section 456.057 regarding a private cause of action.

Because a violation of a statutorily imposed duty of confidentiality is actionable under the common law, the trial court erred in finding that plaintiff could not bring a claim for breach of fiduciary duty based on the unauthorized disclosure of the plaintiff’s medical records. The doctor also owed plaintiff a duty to exercise reasonable and ordinary care to keep his medical records confidential, and the negligence of failing to do so caused him damages.

Resolving all the conflicting evidence in the favor of the non-moving party, the issue of causation should also have been submitted to a jury, because it was entirely plausible that the plaintiff could have shown that the doctor’s improper release of his medical information did cause the DOC to order a psychiatric evaluation, which then led to its decision to terminate him.

APPELLATE COURT LACKS JURISDICTION TO REVIEW ORDER ALLOWING PLAINTIFF TO AMEND COMPLAINT TO ASSERT CLAIM FOR PUNITIVE DAMAGES, WHERE TRIAL COURT COMPLIED WITH APPLICABLE PROCEDURAL REQUIREMENTS.

American Heritage Life Insurance Co. v. Smith, 43 Fla. L. Weekly D2519 (Fla. 1st DCA November 13, 2018):

In this case, where the plaintiffs proffered evidence to support their punitive damages claim, the court conducted a hearing, and then entered a thorough order finding the proffer to be sufficient to support the claim, there was no basis for the court to find that the trial judge did not comply with the procedural requirements in section 768.72. Without such a basis, there was no jurisdiction to review the order on a petition for writ of certiorari.