Aren’t the goose and gander a little different?

FLORIDA LAW WEEKLY

VOLUME 44, NUMBER 9

CASES FROM THE WEEK OF MARCH 1, 2019

TRIAL COURT PROPERLY COMPELLED DEFENSE COUNSEL’S LAW FIRM TO DISCLOSE THE AMOUNT OF MONEY IT HAS PAID TO, AND THE TOTAL NUMBER OF TIMES IT RETAINED AN EXPERT OVER A THREE YEAR PERIOD - QUESTION CERTIFIED REGARDING THE APPLICATION OF WORLEY TO DEFENSE LAW FIRMS THAT ARE NOT PARTIES TO THE LITIGATION.

Younkin v. Blackwelder, 44 Fla. L. Weekly D549 (Fla. 5th DCA February 22, 2019):

The defendant was sued for negligence for personal injuries arising out of a motor vehicle accident. The defendant was insured by Allstate, and Allstate provided him with counsel. Counsel retained an orthopedic surgeon to perform a compulsory medical examination (CME).

Prior to that scheduled CME, plaintiff sought information as to the frequency that said doctor had been used by defense counsel during the prior three years, and the fees it had paid to the expert during that time pursuant to Boecher.

Allstate asserted that under the decision in Worley v. Central Florida Young Men’s Christian Ass’n, 228 So.3d 18 (Fla. 2017), disclosure of the financial relationship between a defense law firm and its expert was not discoverable. The trial court disagreed and compelled the discovery.

Worley involved the attorney-client privilege, and held that a plaintiff is protected from disclosing that an attorney referred him or her to a doctor for treatment, and plaintiff law firms do not have to produce documents related to the possible referral relationship between the firm and its client’s treating physicians.

Worley distinguished Boecher, which held that the extent of a party’s financial relationship with a particular expert was discoverable, from the issue regarding the ability to discover a referral or other financial relationship between a plaintiff’s law firm and a plaintiff’s treating physician, finding them to be different because the plaintiff’s law firm was not a party to the litigation.

In this case, the defendant argued that the reasoning should apply to his Allstate-hired counsel also, because that firm was not a party to the litigation either.

The court noted how the case law does seem to treat personal injury plaintiffs differently from defendants regarding disclosure of this type of relationship, quoting State Farm v. Knapp, where the court observed that Worley seems as a practical matter to permit full Boecher discovery only when it is directed to personal injury defendants and their insurers, while shielding injured plaintiffs from having to disclose information about similar repetitious referral relationships that exist between doctors and plaintiffs’ counsel by invoking attorney-client privilege.

The court went on to explain that under Worley, a plaintiff law firm can refer a hundred of its clients to the same treating physician who may later testify as an expert witness at trial, but never have that referral relationship being discovered or disclosed to the jury.

However, if a defense firm sends each one of those hundred plaintiffs to its own expert to perform the CME, the extent of the defense law firm’s relationship is readily discoverable and can be used by the plaintiff’s law firm to attack credibility.

Quoting its decision in Springer v. West, and emphasizing the need for the truth-seeking function and fairness of trial, the court still believed that the order did not depart from the essential requirements of law. However, finding that petitioner had made a compelling argument that the law was not being applied even handedly, it certified the following question to the supreme court:

“Whether the analysis and decision in Worley should also apply to preclude a defense law firm that is not a party to the litigation from having to disclose its financial relationship with experts that it retains for purposes of litigation including those that perform compulsory medical examinations under Florida Rule of Civil Procedure 1.360?”

THE ATTORNEY’S FEES PROVISION SET FORTH IN RULE 1.380(a)(4) IS NOT A PREVAILING PARTY RULE.

Federal Express Corp. v. Charria, 44 Fla. L. Weekly D506 (Fla. 4th DCA February 20, 2019):

The trial court ordered attorney’s fees against the defendant after granting “Plaintiff’s Motion to Compel Better Answers to Interrogatories and Motion to Compel Designation of Corporate Representative and Defendant’s Objections to Plaintiff’s Discovery Requests.” Rule 1.380(a)(4) allows a court to impose fees when a motion is granted, the movant fails to certify that a good faith effort was made to obtain the discovery and the opposition to the motion was not substantially justified.

Here, because plaintiff “won” the motion, the trial court imposed the fees. However, the record reflected--and the trial court acknowledged--that some of the objections were in fact substantially justified. As such, the award of fees was erroneous.

TRIAL COURT PROPERLY DENIED AWARD OF APPELLATE FEES WHERE APPELLANTS FAILED TO SERVE A PROPER MOTION.

Paul v. Avrahami, 44 Fla. L. Weekly D510 (Fla. 4th DCA February 20, 2019):

According to the plain language of Fla.R.App.P. 9.410(b), parties seeking appellate fees as a sanction pursuant to section 57.105 (as they were being sought in this case) are required to proceed pursuant to rule 9.410(b) not rule 9.400(b).

Rule 9.410(b) permits a party to seek an award of fees as a sanction “no later than the time for serving any permitted response to a challenge paper” or if there is no response permitted as of right, “within fifteen days after a challenge paper is served or a challenge claim, defense, contention, allegation or denial is made at oral argument.”

The failure to file the motion precluded the party from collecting fees, notwithstanding the frivolousness of the appeal.

TRIAL COURT’S INVOLUNTARY DISMISSAL OF INSURED’S COMPLAINT AGAINST HOMEOWNER’S INSURER AS A SANCTION FOR THE INSURED’S DISREGARD OF COURT ORDERS WAS SUPPORTED BY THE COURT’S FINDINGS ON KOZEL FACTORS AND EVIDENCE UNDERLYING THE FACTORS.

Perlmutter v. Olympus Insurance Co., 44 Fla. L. Weekly D521 (Fla. 4th DCA February 20, 2019):

The case arose out of a homeowner’s insurance claim. During a lawsuit, the insurer filed a request for its consulting experts to enter the insured’s land to inspect her property. Days before trial, and facing court ordered deadlines to do so, the plaintiff insured failed to schedule the inspection. The insurer sought sanctions.

At the end of the hearing on the motion for sanctions, the court issued an order for involuntary dismissal of plaintiff’s complaint, having addressed all six Kozel factors.

The court explained that the insurer’s longstanding quest for discovery had begun six months before and had been met with utter indifference or outright resistance. Emails were routinely ignored and the court ordered deadlines were disregarded. The court noted it had issued an order unequivocally mandating that the inspection take place no later than a certain date, yet even after the deadline passed, the inspection still had not taken place.

The court observed that counsel for the insurer had made repeated diligent attempts to schedule the inspection, mediation and depositions of the remaining witnesses but despite the urgency of the situation, the emails were, for the most part, totally ignored. In the rarest instances where there was a response from plaintiff’s counsel, as the court noted, it was to reject dates without any suggestion of alternative ones.

The court wrote that the court imposed deadlines for discovery and mediation came and went through no fault of the insurer, and that the insured was primarily responsible for the delays in obtaining discovery by not allowing or permitting inspection of her residence, and not being responsive to her attorney’s numerous requests for information and dates.

The court found that if it canceled and reset the trial it would only have rewarded the plaintiff for her flagrant disregard of court orders and encourage similar conduct in the future.

Based on those findings, the trial court entered an order of involuntary dismissal of plaintiff’s case, and the Fourth District upheld the ruling.

ERROR TO DENY A RULE 1.061 MOTION TO DISMISS WITHOUT CONDUCTING THE REQUIRED ANALYSIS SET FORTH IN KINNEY SYSTEMS, INC. V. CONTINENTAL INSURANCE CO.

Tome v. Herrera-Zenil, 44 Fla. L. Weekly D527 (Fla. 3rd DCA February 20, 2019):

Defendants filed a motion to dismiss under rule 1.061 on forum non conveniens, supporting it with affidavits. The trial court failed to set forth any meaningful analysis in its order, and did not address each of the Kinney factors. The appellate court reversed for consideration in light of Kinney.

FIRST DISTRICT ISSUES NEW ADMINISTRATIVE ORDER ON AGREED EXTENSIONS OF TIMES FOR BRIEFS.

Administrative Order 19-2, 44 Fla. L. Weekly D546 (Fla. 1st DCA February 21, 2019):

Agreed notices of extension of time will now be accepted in the First District for up to a total of ninety (90) days for an initial or answer brief, and fifteen (15) days for a reply brief (including final and non-final appeals and administrative appeals but not worker’s compensation proceedings, proceedings involving adoptions, dependency, termination of parental rights, delinquency, emergency appeals or any other appeal that has been accorded expedited treatment by the court).

The language that the notice shall contain is

The undersigned (Appellant/Appellee ________) or counsel for (Appellant/Appellee __________) has agreed with (Appellant/Appellee __________) or counsel for (Appellant/Appellee ___________) that the time for serving Appellant/Appellee’s (initial, answer, or reply) brief may be extended for _____ days.

The notice need not be signed by both parties, and the court will not issue an order.

Extensions of time beyond those time parameters must be presented to the court by motion even if they are agreed upon.

LITIGATION-RELATED LEGAL MALPRACTICE CLAIM RIPE WHERE CONSENT FINAL JUDGMENT WAS NEVER THE SUBJECT OF A MOTION FOR REHEARING OR A DIRECT APPEAL--WHEN PLAINTIFFS ESTABLISHED THEY HAD SUFFERED “SOME LOSS” AS A CONSEQUENCE OF THE ATTORNEY’S NEGLIGENCE, THE TIME BEGAN TO RUN.

Otero v. Arcia, 44 Fla. L. Weekly D553 (Fla. 5th DCA February 22, 2019):

The plaintiffs claimed that they entered into a consent judgment foreclosing their interest in property in a foreclosure action, based on negligent advice and negligent representation by their lawyers.

With regard to when a “litigation-related” malpractice action accrues or achieves ripeness, the Florida Supreme Court has stated that the two year statute under section 95.11(4)(a) begins to run when the final judgment becomes final. A judgment becomes final either upon the expiration of the time for filing an appeal or post-judgment motions, or if an appeal is taken, upon the appeal being affirmed and either the expiration of the time of filing for motions for rehearing or a denial of those motions.

In this case, the plaintiffs did not appeal the consent judgment. While they did file a motion to vacate it (which was denied, along with their motion for rehearing), the appeal of that order took place more than a year after the plaintiffs filed their complaint against the law firm.

The court found that the appeal should not have been dismissed as being premature. As long as a client has suffered “some loss” as a consequence of an attorney’s negligence, it does not require there be a determination of the full extent of all losses and the legal malpractice claim is ripe.