Be careful if the Plaintiff was drinking.

FLORIDA LAW WEEKLY

VOLUME 44, NUMBER 41

CASES FROM THE WEEK OF OCTOBER 11, 2019

COURT REVERSES DIRECTED VERDICT ENTERED FOR PLAINTIFF ON DRUG AND ALCOHOL DEFENSE – TRIAL COURT ABUSED DISCRETION BY ALLOWING PLAINTIFF’S ACCIDENT RECONSTRUCTION EXPERT TO TESTIFY THAT PLAINTIFF’S NORMAL FACULTIES WERE NOT IMPAIRED IN LIGHT OF DAUBERT.

Mastec North America, Inc. v. Morakis, 44 Fla. L Weekly D2470 (Fla. 4th DCA October 2, 2019):

A bicyclist was struck from behind by a van and suffered significant injuries. The defense introduced evidence of the plaintiff’s impairment and sought a jury instruction concerning this alcohol impairment defense (which bars relief to a plaintiff whose impairment causes him/her to be more than 50% at fault).

Before the bicyclist was hit at 6:00 am when it was still dark out, he was wearing non-reflective clothing and dark cowboy boots with a 1 ¼ inch heel that would have covered the bicycle pedals reflectors. There was no headlight or taillight on the bike, and there was conflicting evidence about whether the rear reflector light was properly positioned.

The plaintiff had a blood-alcohol level of .23. Also, the street light across from where the crash occurred was not functioning properly. There was evidence that an increased blood alcohol level could affect performance, and a toxicologist testified that lowered inhibitions caused by an increased blood alcohol level could also result in risky behavior. The expert opined that the plaintiff’s balance, judgment, decision-making, perceptions and reaction time would have been affected.

The court granted a directed verdict for the plaintiff on the alcohol defense set forth in §768.36(2)(b). The court found there was no issue about whether “as the result of the influence of the alcohol” the plaintiff was more than 50% responsible for his own harm, because there was no evidence to show that the intoxication led the victim to wear the dark clothing, not have his light on the back of his bike etc. The judge did allow defendant to argue about comparative fault regarding the dark clothing, the position of the bike, and the light on the bike. The jury was then specifically instructed that the plaintiff’s alcohol consumption did not cause or contribute to the occurrence of the accident, but that the jury could decide whether the plaintiff was negligent, and whether that negligence was a contributing legal cause of his injuries and damages.

Because there was evidence of impairment and comparative negligence, and because there was an admitted blood alcohol level of .23, the Fourth District found that the circumstances of the case properly raised the issue of whether alcohol consumption was a contributing factor of the accident, which precluded the entry of a directed verdict on that defense.

The court also ruled that one of the plaintiff’s expert’s opinions should have been excluded under Daubert. The plaintiff’s accident reconstructionist opined that if the plaintiff had been impaired, he would have been all over the roadway. However, the expert’s opinion was based solely on the testimony of the driver’s deposition, and to some extent, his investigation of the plaintiff’s position after impact. The expert could not say how long the plaintiff was positioned that way, how he got to be in that position, where he came from, or what he was doing before the moment of impact. As such, the court found there was not sufficient information for the expert to opine that the plaintiff’s normal faculties were not impaired.

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THE FLORIDA SUPREME COURT HAS NO JURISDICTION TO REVIEW A DISTRICT COURT OF APPEAL DECISION SIMPLY BECAUSE IT MAY PRESENT FEDERAL ISSUE.

Mallet v. State, 44 Fla. L. Weekly S225 (Fla. October 10, 2019):

The Florida Constitution gives the Florida Supreme Court jurisdiction to review district court opinions that “expressly and directly” conflict with the decision of another district court of appeal, or with the decision of the Florida Supreme Court on the same question of law.

A case that “may present federal issues, and simply hopes that discretionary review will be granted is not enough, because the Florida Constitution does not authorize the court to review such cases.

ERROR TO GRANT SUMMARY JUDGMENT WITHOUT GIVING THE INSURED A CHANCE TO DEPOSE THE INSURER’S CORPORATE REPRESENTATIVE IDENTIFIED FOR THE FIRST TIME IN AN AFFIDAVIT, TWENTY DAYS BEFORE THE SUMMARY JUDGMENT HEARING.

Rodriguez v. Avatar Property and Casualty Insurance Co., 44 Fla. L. Weekly D2449 (Fla. 2nd DCA October 2, 2019):

In a case arising out of a homeowner’s insurance claim, the insurance company had filed a motion for summary judgment in lieu of an answer to the complaint, alleging that the insured had failed to satisfy post-loss contractual obligations. After deposing the plaintiff, the insurance company filed two more motions for summary judgment, alleging fraud and intentional concealment.

Twenty days before the scheduled summary judgment hearing, the insurance company filed a forty-five-page affidavit signed by its corporate representative. It identified the representative for the first time.

A week later, the plaintiff requested an opportunity to depose the corporate representative and sought a continuance of the summary judgment hearing. When those requests yielded no results, the insured filed a motion to strike the affidavit. The trial judge denied both motions at a hearing immediately before the summary judgment hearing.

While a trial court’s decision to grant a continuance of a summary judgment hearing is discretionary, that discretion is tempered if discovery is not complete, and is necessary for the disposition of the case. Under these facts, the trial judge abused her discretion in granting summary judgment.

AN ATTORNEY TREATED LIKE A PARTNER, BUT WHO IS NOT REALLY A PARTNER, IS TREATED LIKE AN ASSOCIATE WHO LEAVES THE FIRM WHEN IT COMES TO A DISPUTED CONTINGENCY FEE.

Parker Waichman, LLP v. RJ Reynolds, 44 Fla. L Weekly D2464 (Fla. 4th DCA October 2, 2019):

In November of 2007, the New York-based firm of Parker Waichman hired an associate attorney who was a Florida lawyer and lived in Florida to screen tobacco cases. In 2010, the Florida bar advised Parker Waichman that it was engaging in the unlicensed practice of law by operating a Florida office without having a licensed partner in the state, thereby marketing itself inappropriately.

The firm subsequently made the Florida attorney a partner in its Florida office. Although the attorney’s agreement with the firm described him as a “profit partner” and a “supervisory partner,” the attorney was not allowed access to the financial information or capital of the partnership, and could not vote in partnership matters. Despite being described as a “profit partner,” his salary was determined by the other partners, he did not receive a share of the profits, and he received compensation as a salary W-2 employee entitled only to discretionary bonuses.

In 2011, the attorney invited another attorney to review Parker Waichman’s pending tobacco cases, and that attorney served as co-counsel with them on pending cases. In 2015, the “partner” attorney resigned from Parker Waichman to start his own firm, and the client chose to stay with the departing attorney and the firm that the departing attorney brought in to help with the cases. Those attorneys took the tobacco case to trial, which resulted in a $33.5 million dollar verdict, and a contingency fee of more than $4 million dollars.

Parker Waichman asserted it was entitled to the entire contingency fee. It relied on a 2013 case from the 11th Circuit stating that when a partner exits the initial firm, and the client follows, the initial firm is entitled to the entire contingency fee, less the former partner’s partnership share.

The Fourth District noted that this case was no longer applicable in light of the significant changes that Florida made to its partnership law in 2005. The court also observed that limited partners do not have a fiduciary duty to the partnership, whereas general partners do.

Because there was no evidence that the attorney was ever a general partner or had equity ownership in the firm, and while the attorney’s title may have changed, his duties and responsibilities and compensation did not, meaning that the attorney was not a general partner for all practical purposes.

As such, for the purposes of dividing the contingency fee in this case, the computation was to be handled as it is when an associate attorney leaves (rather than when an equity general partner leaves), thus entitling Parker Waichman only to quantum meruit for the work it completed.

DEFENDANT’S MEDICAL CONDITION NOT AT ISSUE -- ORDER COMPELLING DISCOVERY OF HER MEDICAL INFORMATION QUASHED.

Stoyka v. Grecz, 44 Fla. L Weekly D2466 (Fla. 4th DCA October 2, 2019):

Plaintiff alleged that the defendant in this slip and fall case had returned from a restaurant, spilled her beverage in a condominium elevator, and then failed to clean the spill or notify the building staff before plaintiff fell. Plaintiff sought the production of the defendant’s medical and pharmaceutical information, which the trial court allowed.

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NO ABUSE OF DISCRETION IN FINDING JURY’S VERDICT IN FAVOR OF DEFENDANT AGAINST MANIFEST WEIGHT OF THE EVIDENCE, WHERE DEFENDANT ADMITTED LIABILITY, AND PLAINTIFF PRESENTED EVIDENCE SHE WAS INJURED AS A RESULT OF THE COLLISION – HOWEVER, NEW TRIAL SHOULD HAVE BEEN LIMITED TO DETERMINE THE AMOUNT OF DAMAGES PLAINTIFF WAS ENTITLED TO RECOVER FOR NON-PERMANENT INJURIES WHERE THERE WERE INJURIES THAT THE JURY COULD HAVE FOUND DID NOT RESULT IN A PERMANENT INJURY.

Hummel v. Taft, 44 Fla. L Weekly D2487 (Fla. 5th DCA October 4, 2019):

The defendant rear-ended a car in which plaintiff was a passenger. Defendant admitted liability but disputed that plaintiff had suffered injuries.

Plaintiff testified she felt pain following the collision, sought treatment the following day, and presented medical witnesses who opined that she was injured as the result of the collision.

In granting a new trial, the trial judge determined that the jury was required at a minimum to award plaintiff medical care and treatment that she received shortly after the accident.

The appellate court agreed, observing that the defendant’s only expert on causation initially agreed that the plaintiff had suffered an injury, before later vacillating on the issue. As such, there was no abuse of discretion in finding the jury’s verdict contrary to the manifest weight of the evidence.

However, the court also found the new trial should be limited to damages for the plaintiff’s non-permanent injuries. As only one of three medical experts presented testified that she suffered a permanent injury, the trial court observed that the finding regarding permanency was within the realm of the jury to accept or reject.