FLORIDA LAW WEEKLY

VOLUME 43, NUMBER 41

CASES FROM THE WEEK OF OCTOBER 12, 2018

SUCCESSOR JUDGE ERRED IN AWARDING AN ADDITUR TO THE JURY’S PAIN AND SUFFERING AWARD WHERE CONFLICTING EVIDENCE WAS PRESENTED CONCERNING THE CAUSE OF PLAINTIFF’S INJURIES.

Pogue v. Garib, 43 Fla. L. Weekly D2248 (Fla. 4th DCA October 3, 2018):

In this rear-end collision, where the parties disputed the severity of the accident (the plaintiff’s airbag did not deploy, the plaintiff reported no pain or injuries at the scene, was not seen by EMS, and did not go to the hospital). Instead, she drove from the accident scene to get her hair washed (fun fact included by the court) and returned to work for the day.

Sometime after the accident, the plaintiff began physical therapy and chiropractic treatment, complaining mainly of injuries to her neck, low back, hand and jaw. After months of therapy she continued to self-treat at home. She received no injections, pain medication or surgeries related to the claimed injuries.

About a year after the accident, she filed a negligence action. At trial, she admitted she could do everything she was able to do before the accident, but claimed to be slower. Six months after the accident she reported to her OB/GYN that she had no complaints of back pain, numbness or weakness.

Her doctor and only medical expert testified that he believed she had suffered a permanent injury as a result of the accident, and opined she would need disc replacement surgery. His medical records however, reflected a recommendation for a fusion. He testified she would need future lumbar surgery, but admitted that recommendation was recent, because he had only previously recommended injections.

The defense expert testified that the plaintiff’s MRIs showed her neck and back injuries were not due to a disc herniation, but rather to desiccation which is degenerative in nature and not caused by a traumatic injury. He testified the plaintiff did not suffer a permanent injury, and there was no need for future treatment.

The plaintiff requested $47,042 in past medicals, $117,000 in future medicals ($108,000 for surgery, $9,000 for epidural injections), $36,500 for past pain and suffering and $73,000 for future pain and suffering.

The jury did find that the defendant’s negligence was the legal cause of the injury, and that plaintiff sustained permanent injury. Still, it only awarded a little over $11,000 in past medicals, $9,000 in future medicals, and nothing for past or future pain and suffering.

The defendant advised that the verdict was inconsistent because the jury found permanent injury, but failed to award damages for pain and suffering. The parties drafted an instruction and before it was given, plaintiff moved for a mistrial. She argued the verdict was inconsistent and did not agree to the additional instruction.

The trial court denied plaintiff’s motion and granted an instruction advising that the jury had to award some pain and suffering because it awarded a permanent injury.

The instruction stated:

Under Florida law, if the jury finds that the plaintiff suffered a permanent injury you must award some damages for pain and suffering, disability, physical impairment, disfigurement, mental anguish, inconvenience, aggravation of disease, or physical defect or loss of capacity for the enjoyment of life sustained in the past and to be sustained I the future. There is no exact standard for measuring such damage. The amount should be fair and just in light of the evidence.

The plaintiff objected to the use of “some damages” but the trial court overruled the objection and gave the instrution. The jury deliberated and awarded $500 for past and future pain and suffering.

The plaintiff moved for an additur. A successor judge heard the motion, and during the hearing, the judge admitted he had not reviewed the entire trial transcript. Still, he found that the instruction was a departure from the standard instruction and resulted in an award that was against the manifest weight of the evidence. The successor judge then awarded an additur of $20,000, indicating that if the defendant rejected the additur, he would order a new trial on damages only.

The defendant argued on appeal that the successor judge abused its discretion in awarding the additur and the new trial on damages, because the jury’s award on her past and future non-economic damages was consistent with the conflicting evidence.

The Fourth District agreed, writing that additur is only appropriate where the award shocks the conscience of the court. The court admonished that a trial judge may not award an additur where the evidence is conflicting and the jury could have reached its verdict in a manner consistent with the evidence.

The defendant argued that the $1,000 awarded for the past pain and future suffering was consistent with the conflicting evidence at trial. The evidence in this case demonstrated that the plaintiff was out doing normal activities, bending down taking care of her kids and smiling (the surveillance showed that) and on the date of the accident she left the scene and went to have her hair washed before going back to work without any complaints of pain.

Here, the jury considered the evidence and decided only to award $1,000 for pain and suffering and the conclusion was supported by the evidence. As such, the successor judge erred in granting the additur, because he impermissibly acted as the seventh juror.

JOINT PROPOSAL FOR SETTLEMENT MADE TO DEFENDANTS INVALID, WHERE IT WAS CONDITIONED ON BOTH DEFENDANTS ACCEPTING IT.

Atlantic Civil, Inc. v. Swift, 43 Fla. L. Weekly D2253 (Fla. 3rd DCA October 3, 2018):

Atlantic Civil had entered into a contract with the FDOT to do excavation work. It temporarily stored fill material on land owned by Key Haven and Swift, as the managing member of it. Atlantic Civil filed suit against Swift individually and Key Haven when a dispute arose.

Atlantic Civil then served a proposal for settlement on both Swift and Key Haven. As part of the non-monetary conditions, plaintiff conditioned the proposal on the exchange of mutual releases and then the proposal contained a paragraph stating that if the defendants did not timely accept the proposal, both could be liable for fees.

The Third District found that because the proposal would be deemed rejected unless the defendants accepted it, it was thereby conditioned on both defendants mutually accepting the offer in joint action, which in turn undermined each defendant’s ability to independently evaluate and settle his or her respective claim.

The Third District then cautioned that while joint proposals are now permitted under rule 1.442(c)(3), they have become a trap for the wary and unwary alike, and litigants are best advised to avoid joint proposals.

TRIAL COURT ERRED IN DISMISSING COMPLAINT WITHOUT CONDUCTING AN EVIDENTIARY HEARING REQUESTED BY INSUREDS, TO PERMIT THEM TO REFUTE THE INSURER’S ALLEGATIONS OF FRAUD.

Robinson v. Safepoint Insurance Co., 43 Fla. L. Weekly D2258 (Fla. 3rd DCA October 3, 2018):

The plaintiffs sued the insurance company for denying their insurance claim based on an alleged water leak. The insurance company claimed that the plaintiffs were attempting to commit fraud upon the court regarding the timing of the leak.

In the final order dismissing the plaintiffs’ complaint with prejudice, the trial judge found that they had set in motion an unconscionable scheme intended to render the trial court unable to properly adjudicate the action on the merits.

The trial court found that based on the pre-loss contract between the restoration services company and the plaintiffs, along with inconsistencies in the husband and wife’s testimony and documentation related to the work completed on the property, there was clear and convincing evidence that the Plaintiffs had perpetrated a fraud upon the court.

The Third District noted that the insurance company raised serious questions about the legitimacy of the plaintiffs’ claim, and further observed that the insurance company’s unauthenticated submission certainly suggested that an attempted fraud on the court may have been committed.

Still, the court concluded that before the ultimate sanction of dismissal could be imposed, the trial court had to conduct an evidentiary hearing as requested by the plaintiffs. As such, the court reversed the dismissal and remanded for an evidentiary hearing.

EXCLUSION FOR AN INSURED SUSTAINING BODILY INJURY WHILE OCCUPYING A VEHICLE OWNED BY ANY RESIDENT RELATIVE IF IT IS NOT YOUR CAR MEANT THAT DAUGHTER WITH HER OWN POLICY WAS NOT ELIGIBLE TO THE HIGHER UM LIMITS ON HER MOTHER’S POLICY.

State Farm v. Lyde, 43 Fla. L. Weekly D2267 (Fla. 2nd DCA October 5, 2018):

A mother and daughter resided together. They each owned their own vehicle. State Farm issued a policy to the mother, listing her as the only named insured on the dec page with a UM coverage limit of $100,000 per person. State Farm had also issued a policy on the daughter’s vehicle, listing both the daughter and the mother as named insureds on the dec page, and providing UM coverage of $25,000 per person.

Apart from the amounts of coverage and the named insureds, the policies were identical. The insuring agreement provided that the insurance company would provide compensatory damages for bodily injury an insured would be legally entitled to recover from the owner or driver of an uninsured motor vehicle, and specified that the bodily injury for which State Farm would pay compensation would be sustained by an insured and caused by an accident involving the operation, maintenance and use of an uninsured motor vehicle.

The exclusions section provided that there was no coverage for an insured who sustains bodily injury while occupying a vehicle owned by the insured or “any resident relative if it is not your car or a newly acquired car.”

While State Farm admitted that the daughter was an insured under both policies, it denied she was entitled to the UM coverage under the mother’s policy based on that exclusion. State Farm also asserted that the mother’s policy provided for non-stacking UM coverage, pursuant to the named insured’s execution of a rejection form.

The court found that the policy excluded this coverage for the higher limits, and also found that the policy exclusion was statutorily authorized by section 627.727.

The court reversed summary judgment for the daughter based on the unambiguous language of the mother’s policy excluding the daughter from UM coverage and State Farm’s compliance with section 627.727(9). The court, however, declined to address the selection/rejection argument because it was not preserved.

COURT ISSUES ORDER TO SHOW CAUSE AGAINST ATTORNEY FOR FAILING TO DISCLOSE A CONTROLLING CASE ADVERSE TO THE ATTORNEY’S POSITION, AND FOR SPEAKING HARSHLY ABOUT THE JUDGES IN HIS FILINGS.

Aquasol Condominium Association v. HSBC Bank, 43 Fla. L. Weekly D2271 (Fla. 1st DCA September 26, 2018):

Based upon this non-disclosure, along with assertions about the judges that the attorney made in his motion for rehearing/rehearing en banc which the court found violated rule 4-8.2(a) (impugning qualifications and integrity of judges or other officers), the court issued an order to show cause as to why it should not impose sanctions for filing such a motion and briefs that violated both the appellate rules and the Florida Bar rules.

The court reserved jurisdiction to impose such sanctions, including the personal appearance of the attorney in the event the court deemed the written response to be insufficient.