Amendment 7 means "discoverable" but not admissible in the 5th DCA

FLORIDA LAW WEEKLY

VOLUME 44, NUMBER 47

CASES FROM THE WEEK OF NOVEMBER 22, 2019

TRIAL COURT PROPERLY FOUND HOSPITAL INCIDENT REPORTS INADMISSIBLE IN CASE INVOLVING SEXUAL ASSAULT OF ONE PSYCHIATRIC PATIENT BY ANOTHER PSYCHIATRIC PATIENT.

Bauduy v. Adventist Health System, 44 Fla. L Weekly D2767 (Fla. 5th DCA November 15, 2019):

Plaintiff asserted that plaintiff was sexually assaulted by another psychiatric patient at the Defendants’ behavioral health center. During discovery, plaintiff requested copies of “any records made or received regarding prior adverse medical incidents consisting of sexual assaults, sexual relations between patients, aggression, and/or coercive sexual misconduct.” In response, plaintiff received 24 adverse medical incident reports.

The hospital filed a motion in limine regarding the use and admission of the incident reports contending that while they were discoverable pursuant to Amendment 7, they were still inadmissible at trial pursuant to §395.0197(4), because they related to internal risk management programs.

The court observed that the restriction on admissibility contained in that section pre-existed the adoption of Amendment 7. It agreed with the trial court that granted the motion in limine finding that while the reports were available under Amendment 7 they were not admissible under the statute.

In considering the effect of the adoption of Amendment 7 on §395.0197(4), the court said that statutes continue to be in effect unless they are completely inconsistent with the plain terms of the Constitutional Amendment. If the statute can be harmonized or reconciled with the new constitutional provision, then it is the duty of the courts to do so.

The plaintiffs argued that because Amendment 7 allowed access to the subject documents, they had a corresponding right to use the documents at trial, both by eliciting testimony regarding the substance of those documents, and by admitting them into evidence for the jury. Plaintiffs argued that access without use renders the constitutional amendment meaningless, and that §395.0197(4) was “abrogated” by the Constitutional amendment.

The court rejected this contention, finding that Amendment 7 does not establish any right to a specific use of Amendment 7 documents. It simply provides patients the right to access those documents previously unavailable to them. While the court said it is always careful to give constitutional provisions their full meaning, courts cannot go beyond the meaning and infuse a right that the Florida voters did not enact.

Because the court concluded that nothing in Amendments 7’s text addressed the admissibility of the adverse medical incident reports at trial, the court found no inconsistency with the prohibition against admissibility, and no rules of construction can apply to otherwise unambiguous text to excavate some perceived policy objective.

NO ABUSE OF DISCRETION IN DENYING PLAINTIFF’S REQUEST FOR A SPECIAL JURY INSTRUCTION AND ALLOWING TESTIMONY OF A DEFENDANT’S EMPLOYEE WHO VIEWED “UNAVAILABLE” SURVEILLANCE VIDEO IN A SLIP AND FALL CASE.

Garcia v. Publix, 44 Fla. L Weekly D2756 (Fla. 3rd DCA November 14, 2019):

After a verdict for Publix, the plaintiff appealed arguing that the trial judge should have granted her request for a special jury instruction due to the absence of the once available surveillance.

She also opposed having one of Publix’s employees testify regarding what the unavailable video surveillance showed because he had viewed it.

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DISMISSAL OF ACTION TOO SEVERE A SANCTION UNDER CIRCUMSTANCES-- INSURED HAD LIMITED POWERS OF RECOLLECTION AND FLUENCY IN ENGLISH AND QUESTIONABLE AFFIDAVIT WAS DRAFTED BY HER ATTORNEYS.

Perez v. Safepoint Insurance Co, 44 Fla. L Weekly D2756 (Fla. 3rd DCA November 13, 2019):

The insured alleged that she had sustained water damage from a roof leak, and had submitted an estimate for over $23,000 for the repairs. The insurance company investigated the claim and determined that the damages were not covered, finding instead that the policy only covered the incident if “a covered peril first damages the building causing an opening in a roof or wall and the rain enters through the opening.”

Plaintiff sued the insurance company for the failure to pay her claim. After the defendant deposed the plaintiff, she filed an affidavit opposing the motion for summary judgment (along with one by her daughter). The court characterized these affidavits as “extraordinary” because of the certainty regarding dates and the cause of the loss, as well as the commentary they contained regarding the insurance company’s engineering expert report.

The plaintiff’s affidavit also included statements reflecting reliance on her public adjuster’s detailed inspection, and the report to her on the causation of the leaks.

Finally, plaintiff testified in her deposition that she had diabetes for years, causing her memory problems.

In order to dismiss a case for fraud, the movant must establish by clear and convincing evidence that the non-moving party “sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate the claim by improperly influencing the trier fact or unfairly hampering the presentation of the opposing party’s claim or defense.”

When a party’s attorneys have contributed to the alleged misconduct, the court must weigh the factors enumerated in Kozel before dismissing the plaintiff’s case with prejudice.

Kozel specifies that if a sanction less severe than dismissal with prejudice appears to be a viable alternative, the trial court should employ that as an alternative.

The insurance company never argued the motion it filed seeking to strike the plaintiff’s affidavit. Instead, it filed a motion, to dismiss for fraud on the court three weeks later.

In the Order under review, the trial court specifically observed that the affidavit was crafted in order to misrepresent the core facts of the case and to support the plaintiff’s claim that her damage was a result of rain entering her house through an opening in the roof, which was caused by a storm, and was thus covered by the policy.

On this record, the court found it was obvious that the plaintiff’s limited memory and English language skills (her testimony was through an interpreter), and her lack of familiarity with engineering and construction matters, ruled her out as the source of the numerous matters expressed in the affidavit drafted by her counsel that she signed.

The court observed that cases such as this one require courts to carefully balance a policy favoring adjudications on the merits with competing policies to maintain the integrity of the judicial system. On the record, the court concluded that the lesser sanction initially proposed by the insurance company ought to have been specifically addressed and ruled upon, and that the order of dismissal had to be vacated.

The insurance company’s analysis recognized the plaintiff’s limited powers of recollection, lack of fluency in English, and her lack of expertise. Thus, the trial court’s reaction to the hyperbole in the affidavit was a “teaching point” to caution that a client’s personal knowledge, however imperfect, should not be gilded, excessively bolstered, or embellished by attorneys in the hope of improving a case.

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ERRED TO DENY PLAINTIFF’S MOTION FOR DV IN REAR-END CASE WHERE DEFENDANT FAILED TO REBUT PRESUMPTION OF NEGLIGENCE BY THE REAR DRIVER.

Fonger v. Nall, 44 Fla. L Weekly D2766 (Fla. 5th DCA November 15, 2019):

As the defendant approached an intersection, he noticed the plaintiff’s vehicle directly in front of him, as well as a vehicle in front of the plaintiff. Defendant testified that although the light was green, for no apparent reason, the car in front of the plaintiff came to a complete stop short of the intersection. Both the plaintiff and the defendant applied their brakes simultaneously. Plaintiff stopped short of hitting the first car, but the defendant failed to stop in time and rear-ended the plaintiff. After the trial court denied the plaintiff’s motion for directed verdict as to the defendant’s negligence, the jury found the defendant was not liable, and the court entered judgment reflecting that.

Rear-end collisions create a rebuttable presumption that the rear driver was negligent. If left unrebutted, the presumption requires a directed verdict reflecting the rear driver’s negligence. To rebut the presumption, the rear driver must come forward with evidence or some explanation that “fairly and reasonably intends to show” that the presumption is misplaced or that the real fact is not as presumed. If such evidence is produced, the presumption is rebutted and then all issues of disputed fact regarding comparative fault are submitted to the jury.

There are generally four situations that can rebut the presumption: (1) a mechanical failure in the rear driver’s vehicle; (2) the lead driver’s sudden stop; (3) the lead driver’s sudden lane change; (4) the lead driver’s illegal or improper stop.

In this case, the defendant asserted that the plaintiff made a sudden stop, which rebutted the presumption. However, it is also well established that a sudden or abrupt stop without more will not rebut the presumption of the rear driver’s negligence. Drivers have a duty to remain alert, and to follow the vehicle in front of them at a safe distance.

As the court reminded us, in principle, the law requires all drivers to put ahead of themselves an imaginary clear stopping distance to assure stopping space or an adequate zone within which the driven vehicle can come to a stop. Rear drivers must be prepared to stop suddenly, and to anticipate sudden stops by vehicles in front of them. As such, the rear driver must show that the stop was not expected, that it was abrupt and/or arbitrary, and was in a place not reasonably expected, in order to rebut the presumption.

In this case, the evidence showed a sudden stop without more. The plaintiff merely stopped in response to a car in front of him who made a sudden stop as he approached a busy intersection. This is a place where sudden stops are to be expected because it is not unusual for vehicles driving through busy intersections to suddenly brake for pedestrians, emergency vehicles, or other drivers running red lights.

Because the evidence presented by the defendant could not rebut the presumption of negligence by the rear driver in this rear-end collision, it was error for the trial court to deny the plaintiff’s motion for directed verdict.

AFTER $14 MILLION DOLLAR VERDICT, COURT REVERSES FOR ENTRY OF SUMMARY JUDGMENT FOR THE DEFENDANT BASED ON PROPER TENDER OF THE INSURANCE POLICY LIMITS.

H. Greg Lee v. Mark Chmielewski, 44 Fla. L Weekly D2774 (Fla. 2nd DCA November 15, 2019):

Plaintiff was a passenger who sustained catastrophic injuries in an accident with a Geico insured with a $10,000 policy. Initially Geico had tendered the check to the plaintiff’s father, mistakenly believing that the father was the power of attorney. The father cashed the check. Geico took no further steps to ensure that it had tendered policy limits to the correct party.

Eighteen months later, a plenary guardian was appointed for the plaintiff he offered to settle the claim for the policy limits as long as a $10,000 check was forwarded 14 days from the date of the offer.

At 5:01 p.m. on the 14th day, Geico faxed the plaintiff’s counsel, asking for an extension to respond. Forty minutes later, Geico sent a second fax stating it was accepting the demand. It also advised that the check and release would follow under separate cover.

Geico had instructed one of its field representatives to deliver the check to the attorney’s office. The field representative called the attorney’s office between 5:15 and 5:45 p.m., but no one answered. He testified at deposition that he did not leave a message and did not recall the ability to leave a message.

He then went to the plaintiff’s attorney’s office with the settlement check arriving between 7:00 and 7:15 p.m. but the front doors of the building were locked and there was no mail slot, so he left with the check and returned the following day.

Plaintiff’s counsel rejected the tender stating that the time had expired. After plaintiff filed suit, defendant sought summary judgment based on the acceptance, which the trial court denied. The case proceeded to a jury trial, and the jury rendered a verdict in the amount of $14 million dollars.

The court reversed the judgment, finding that summary judgment should have been entered for Geico. With regard to the timing of the response on the 14th day, the court observed that while it may have been reasonable for plaintiff’s counsel to close his office at a normal business hour, because the offer did not indicate a specific time on the 14th day when it would expire, the court would not read such a limitation into the offer.

When there is an unambiguous contractual provision, a court cannot give it meaning beyond that which is expressed. As such, giving ordinary meaning to the provision “14 days from the date of this letter,” Geico had the full 24 hours on the 14th day to accept the offer.

The court then looked at whether Geico’s actions on that date were sufficient to accept the offer, which it had concluded they were. Whether tender was required or delivery of the check, Geico had done both.

The court concluded that the trial judge erred in determining that Geico had failed to accept plaintiff’s settlement offer, and in denying the motion for summary judgment. It thereby reversed the final judgment as well as the final judgment for costs.