Will The Playing Field Ever Be Level Again?

FLORIDA LAW WEEKLY

VOLUME 45, NUMBER 10

CASES FROM THE WEEK March 13, 2020

NO ABUSE OF DISCRETION IN DENYING MOTION FOR ADVERSE INFERENCE JURY INSTRUCTION IN A SLIP AND FALL CASE.

Pena v. Bi-Lo Holdings, LLC, 45 Fla. L Weekly D506 (Fla. 3rd DCA March 4, 2020):

A woman slipped and fell at a Winn-Dixie, hitting her head on the floor. She was shopping with her future sister-in-law, who observed uncooked rice strewn beneath her, ostensibly coming from a perforated bag that was on a temporary display. The sister-in-law snapped several photographs, one depicting a store employee purportedly sweeping up grains of rice.

Days later, the plaintiff furnished Winn-Dixie with a written request to preserve all video surveillance recorded within the store, from the hours surrounding the incident, which it did. However, the surveillance had not been directed in the area where the fall took place, and because Winn-Dixie did not maintain inspection logs, and could not identify the unknown employee who looked to be sweeping up the rice, plaintiff sought an adverse jury instruction in response to Winn-Dixie’s motion for summary judgment. Plaintiff argues that Winn-Dixie had thwarted her ability to demonstrate notice,

The trial court denied that request, finding no indication of actual or constructive notice, and granted summary judgment in favor of Winn-Dixie.

The Third District provided a very helpful analysis of spoliation and adverse inference jury instructions. It explained that because adverse inferences can invade the province of the jury, they are reserved for circumstances where the normal discovery procedures have gone “seriously awry.” The law has historically wanted to level the playing field against a wrong-doer, when that wrong-doer has acted willfully or recklessly in disregard of its obligations.

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However, prior to exercising any leveling mechanism due to spoliation of evidence, Florida courts must address a three-part threshold inquiry asking: (1) whether the evidence existed at one time; (2) whether the spoliator had a duty to preserve the evidence; and (3) whether the evidence was critical to an opposing party being able to prove its prima facie case or defense. Because the duty to preserve evidence did not exist at common law, the duty must originate either because of a contract, a statute, or a discovery request.

Here, Winn-Dixie was obligated to preserve the surveillance video by request and did. However, there is no duty to create evidence, and therefore no sanction may be imposed to punish those who don’t create it. The court cited two decisions suggesting that even where an action has not been commenced, and there is only a “potential” for litigation, the litigant might be under a duty to preserve evidence which it knows or reasonably should know is relevant to the action.

In this case, the record contained only conjecture as to the fate of the bag of rice. Also, because the condition was readily observable and uniformly described by all witnesses, any value associated with its retention was speculative, and the court could conclude that there was error in rejecting that ground in support of spoliation.

As to identifying the employee, the photograph only contained a lower leg and foot next to the broom, and the Winn-Dixie customer service manager said she could not identify the employee with just that. Given the lack of any further discovery regarding that issue, the court held there was no indication that the lower court had overstepped its authority in tacitly rejecting any evidence of nefarious intent on that basis.

Because the court could not find that the denial of the adverse inference was arbitrary, fanciful, or unreasonable, such that no reasonable person would take the view adopted by the trial court, it affirmed the entry of summary judgment.

SECTION 57.105 DOES NOT AUTHORIZE AN AWARD OF ATTORNEY’S FEES AS A PUNISHMENT.

Safeco Insurance Co. v. Heikka, 45 Fla. L Weekly D485 (Fla.4th DCA March 4, 2020):

Plaintiff and Safeco engaged in settlement discussions after a Safeco insured injured the plaintiff. Both Safeco and the defendant claimed the case had been settled, while plaintiff disagreed that it had been.

The defendant and Safeco filed a separate declaratory judgment action against the plaintiff, seeking a declaration of their rights under the purported settlement agreement. Ultimately, the trial court determined that no settlement had been reached.

The plaintiff sought to recover attorney’s fees pursuant to both §627.428 and §57.105. However, because the plaintiff was not a party to the insurance contract, the court found she had no right to fees under §627.428. The circuit court did award fees under §57.105, however, for the full amount that the plaintiff asked for (683.51 hours at $500.00 an hour). In that order, the trial judge reserved jurisdiction for additional sanctions, (plaintiff sought another 600 hours, which corresponded to the attorney hours that the insurer had expended in what the court called “Rambo-type litigation).

The Fourth District determined that §57.105 does not contain a “punitive” element,” and therefore, the additional award of the amount of fees on top of the fees already awarded (which had already been computed based upon the Rowe lodestar approach for computing a reasonable attorney’s fee), was made in error, because the additional sanction under §57.105 was not authorized by the statute.

The court observed that while it was permissible for a circuit court to consider the insurer’s attorney’s hours expended in determining the reasonableness of the plaintiff’s attorney’s fees, but there is no authority to permit the circuit court to award the plaintiff, not only her own reasonable attorney’s fees, also an additional punitive amount equivalent to the insurer’s attorney’s hours expended as a sanction under §57.105.

TRIAL COURT JUDGE SHOULD HAVE GRANTED MOTION TO DISQUALIFY BASED ON THE SUBSTANTIAL AND EXTENDED PROFESSIONAL RELATIONSHIP WITH THE OPPOSING COUNSEL PLAINTIFF ALLEGED.

Ming v. NS FOA, LLC., 45 Fla. L Weekly D490 (Fla. 4th DCA March 4, 2020):

In her verified motion to disqualify the trial judge, the plaintiff alleged that the judge had a very substantial and extended professional and business relationship with the defendants’ co-counsel, because that attorney had recently represented the interest of the judge, her husband and their son in a high profile, high stakes litigation. The trial judge denied the motion to disqualify without comment.

In reviewing the legal sufficiency of the motion, the appellate court found that one motion alleged facts that would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial.

Notwithstanding that the defendants strongly objected to the facts alleged in the motion to disqualify, the court observed that it is not tasked with adjudicating the truthfulness of those facts, but only with determining under those facts if they would create a fear in the mind of a reasonably prudent person that he/she could not receive a fair and impartial trial. Under these facts, the appellate court found the motion was sufficient, and ordered the disqualification of the trial judge.

COURT’S DENIAL OF MOTIONS TO DISQUALIFY JUDGES IN THE APPELLATE’ s CONTEXT MUCH MORE DISCRETIONARY THAN IN THE TRIAL CONTEXT.

State Farm v. Ceda Health of Hialeah, 45 Fla. L Weekly D505 (Fla. 3rd DCA March 4, 2020):

In this PIP appeal to the circuit court, one of the issues was State Farm’s attempt to disqualify one of the judge’s serving on the three judge appellate panel based upon the fact that the judge was married to a PIP law attorney. The appellate court looked at the motion to disqualify a judge on the circuit court appellate panel, against the standard applicable for first tier certiorari, which requires a petitioner to demonstrate (1) material injury in the proceedings that cannot be corrected on appeal, i.e irreparable harm; and (2) departure from the essential requirements of law.

Based on that standard, the court concluded there was no departure from the essential requirements of law, because the standard governing disqualification of an appellate judge is more personal and discretionary then the strict rules applicable to trial judges. In the appellate context, each judge personally decides both the legal sufficiency of a request for a disqualification, and the propriety of withdrawing. That same discretionary standard also applies to circuit court judges sitting in their appellate capacity.

Due to the narrow scope of the court’s review, it denied State Farm’s petition.

RECORDS THAT ARE SEALED REMAIN SEALED UNDER FLORIDA LAW EVEN IF THEY WERE ENTERED INTO EVIDENCE AND BECAME “INTEGRAL PART” OF THE PROCEEDINGS.

Hotel Association of New York v. Airbnb, 45 Fla. L Weekly D509 (Fla. 3rd DCA March 4, 2020):