FLORIDA LAW WEEKLY

VOLUME 44, NUMBER 5

CASES FROM THE WEEK OF FEBRUARY 1, 2019

INSURANCE COMPANIES CANNOT PURSUE LEGAL MALPRACTICE CLAIMS AGAINST DEFENSE ATTORNEYS, BECAUSE COUNSEL REPRESENTS THE INSURED AND NOT THE INSURANCE COMPANY, AND THERE IS NO PRIVITY, WHICH IS NEEDED FOR A LEGAL MALPRACTICE CLAIM.

Arch Insurance Co. v. Kubicki Draper, 44 Fla. L. Weekly D269 (Fla. 4th DCA January 23, 2019):

An insurance company hired a law firm to defend the insured in a lawsuit. After that suit was settled within the policy limits, the insurer sued the law firm for legal malpractice. The insurance company alleged that the law firm’s delayed filing of the insured’s statute of limitations defense resulted in a large settlement using the insurer’s funds, which would have been avoided if the law firm had raised (in a prior case I believe) the statute of limitations defense earlier in a separate lawsuit.

The law firm moved for summary judgment, arguing that the insurer lacked standing to sue the law firm because the two were not in privity. As the court observed, there is no Florida case law that recognizes an attorney-client duty owed by defense counsel to an insurance carrier, even though the attorneys hired to defend insureds with respect to liability claims filed under the policy.

The trial court granted the law firm’s motion for summary judgment. It too reasoned that only the insured is in privity with the law firm as the law firm’s client, and not the insurer.

Notwithstanding law from the federal courts supportive of the insurance company’s argument (the Fourth reminded us that state courts are bound by the decisions of the United States Supreme Court but there is no similar obligation with respect to decisions of lower federal courts), there is no authority to support that Florida courts would extend the strict privity exception to recognize an insured’s legal malpractice claim against an attorney retained to represent the insured.

On de novo review, the Fourth District agreed with the trial judge’s conclusion that the law firm was only in privity with the insured as the client. There was nothing in the record to indicate that the law firm was in privity with the insurer, and nothing in the record to indicate that the insurer was an intended third party beneficiary of the relationship between a law firm and the insured. The Fourth District also adopted the trial court’s well-reasoned order distinguishing the federal cases upon which the insurer relied as the court’s own reasoning.

The Fourth District also stated it was bound to follow the laws that exist, not as the insurer believed or wanted them to be (arguing that the public policy argument was that an insurer should be able to pursue a legal malpractice claim because it retained the law firm to protect the insured’s rights).

The court noted that there are only two situations in which a third party is permitted to pursue a legal malpractice claim against an attorney who is not in privity with the third party, and neither applied to this case: (1) a will drafting situation and (2) a private placement situation.

Without any evidence that the law firm was in privity with the insurer, or that the insurer was an intended third party beneficiary, the Fourth District affirmed the trial court’s conclusion that the insurer lacked standing to pursue a legal malpractice claim.

TRIAL COURT SHOULD HAVE GRANTED MOTION TO DISMISS MEDICAL MALPRACTICE CASE BASED ON NON-COMPLIANCE WITH PRESUIT, WHERE A DEFENDANT WAS AN ORTHOPEDIC SURGEON, AND PLAINTIFF’S PRESUIT EXPERT WAS A PLASTIC SURGEON.

Riggenbach v. Rhodes, 44 Fla. L. Weekly D296 (Fla. 5th DCA January 25, 2019):

The defendant doctor and his group sought certiorari review of an order denying their motion to dismiss plaintiff’s medical malpractice lawsuit. The defendants moved to dismiss, because the plaintiff’s written expert report served in presuit was from a physician who specializes in plastic surgery. However, the defendant specializes in orthopedic surgery.

Because plaintiff failed to comply with the requirements of section 766.203, 776.202(6) and 776.102(5)(a), requiring a written medical expert report from a specialist in the same specialty as the defendant health care provider, the complaint had to be dismissed.

As background, before July 2013, the presuit statute authorized opinion testimony from an expert witness against a defendant doctor in “the same or similar specialty” as the defendant doctor. § 766.102(5)(a), Fla. Stat. (2012). Under that version of the statute, the courts could also look at an expert’s experience before admitting testimony.

In 2013, however, the legislature amended the statutory definition of “medical expert” to require that only a practicing specialist in the “same specialty” as the defendant health care provider could offer expert opinions on the care provided by the defendant specialist.

The proper interpretation of the statute is purely legal, and Florida courts have previously decided that the “same specialty” is to be taken literally, and is not synonymous with physicians with different specialties providing similar treatment to the same areas of the body.

Thus, the trial court erred in finding that a plastic surgeon and an orthopedic surgeon practiced the “same” specialties. As such, the physician’s affidavit was statutorily insufficient (rendering the plaintiff not in compliance with the presuit requirements of §766.203).

AFFIDAVITS FROM EMERGENCY ROOM PHYSICIAN, RADIOLOGIST AND NURSE ALSO FAILED TO COMPLY WITH STATUTORY PRESUIT REQUIREMENTS TO SUPPORT CLAIM AGAINST ORTHOPEDIC SURGEON--AGAIN, AFFIDAVITS WERE NOT FROM SAME SPECIALTY.

Davis v. Karr, 44 Fla. L. Weekly D298 (Fla. 5th DCA January 25, 2019):

In another 5th DCA case on the sufficiency of a presuit affidavit from a medical specialist, the court once again interpreted section 766.102(5) according to its plain language, and required that the same specialty requirement of the statute was not met when plaintiff had affidavits from an emergency room physician, a radiologist and a nurse, all averring that the actions of an orthopedic surgeon negligently caused the fracture of her femur during the plaintiff’s hip surgery.

The plaintiff also raised for the first time on appeal the constitutionality of the “same specialty” requirements of section 766.102(5)(a). The court unfortunately concluded that the issue had not been properly preserved for review. The court admonished that a party who seeks to question the constitutionality of a statute, a county or municipal charter, ordinance or franchise, must serve the notice, and the pleading or other document challenging its constitutionality upon either the attorney general or the state attorney of the judicial circuit in which the action is pending. Here, there was no such notice provided.

The court again affirmed the final judgment entered in favor of the defendant doctor.

TRIAL COURT ERRED IN ENTERING SUMMARY JUDGMENT FOR DEFENDANTS IN A SLIP AND FALL CASE, FINDING THAT AN UNEVEN JOINT BETWEEN TWO CONCRETE SEGMENTS OF SIDEWALK WAS AN OPEN AND OBVIOUS CONDITION FOR WHICH DEFENDANTS HAD NO DUTY TO WARN, AND WHERE A GENUINE ISSUE OF FACT EXISTED AS TO WHETHER DEFENDANT SHOULD HAVE ANTICIPATED THAT PLAINTIFF WOULD USE THE SIDEWALK AND ENCOUNTER CRACKED OR UNEVEN CONCRETE, NOTWITHSTANDING THE OBVIOUS CONDITION.

Middleton v. Asher, 44 Fla. L. Weekly D301 (Fla. 5th DCA January 25, 2019):

Plaintiff owns property within the defendant condominium association, having resided there for 15 years. While walking on those premises, the plaintiff tripped on an uneven sidewalk and was injured. She had walked on the property before, and had passed the area where she fell.

Defendants moved for summary judgment, arguing they had no duty to warn the plaintiff of the sidewalk condition, because the uneven joint between the two concrete segments was an open and obvious condition.

In response to defendants’ motion, plaintiff argued that even if the condition was open and obvious, there was an issue of fact as to whether the defendants should have anticipated that the condominium residents would use the sidewalk and encounter the cracked and uneven concrete.

The trial court found that the condition was so open and obvious that it could not be held to constitute a hidden dangerous condition, granting the motion for summary judgment on that basis.

Uneven floor levels are obvious and not inherently dangerous conditions as a matter of law (citations omitted). Therefore, in this case, the trial court correctly found that the uneven sidewalk was open and obvious.

However, while the fact that a danger is obvious discharges the landowner’s duty to warn, it does not discharge the landowner’s duty to maintain the premises. Thus, notwithstanding the condition of the sidewalk as open and obvious, the defendants had a duty to maintain the property in a reasonably safe condition by repairing conditions that they could foresee would cause harm.

In this case, it was clear that the defendants knew of the significant disrepair of the sidewalk on the property, and had been aware of the condition for as long as 18 months, as indicated by a series of blue dots that had been placed on the sidewalk throughout the property.

While the defendants may not have owed a duty to warn the plaintiff of the condition of the sidewalk, the court did not agree that the obviousness of the condition did not relieve the defendants of their duty to repair it. Therefore, there was a factual issue that remained as to whether the defendants should have anticipated that notwithstanding that the condition was obvious, the condominium residents would use the sidewalk and encounter the uneven concrete, and repaired it.