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FLORIDA LAW WEEKLY

VOLUME 45, NUMBER 30

CASES FROM THE WEEK JULY 31, 2020

AMENDMENT ADDING CHILDREN’S LOSS OF PARENTAL CONSORTIUM CLAIM DID NOT RELATE BACK TO THE FILING OF THE ORIGINAL MEDICAL MALPRACTICE COMPLAINT.

Castro v. Linfante, 45 Fla, Weekly D1774 (Fla. 3rd DCA July 22, 2020):

Like a spousal consortium claim, a minor’s loss of consortium claim is also derivative in nature and seeks damages for similar losses—comfort, companionship and society. Because they are separate causes of action and add a new party (or parties), loss of consortium claims must also be timely in their own right for purposes of the statute of limitations.

The failure to bring these medical malpractice loss of parental consortium claims within the applicable two-year statute of limitations period, barred those claims.

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TRIAL COURT ERRONEOUSLY GRANTED A NEW TRIAL THINKING ONE OF ITS EVIDENTIARY RULINGS WAS WRONG, WHEN IT ACTUALLY WAS RIGHT

Emmitt v. First Transit, Inc. 45 Fla. L Weekly D1744 (Fla. 4th DCA July 22, 2020):

The plaintiff was injured falling off a trolley. Before filing suit, plaintiff asserted that the defendant’s trolley had “jolted” as she was exiting it. However, after the defendant provided surveillance video showing the trolley had completely stopped before plaintiff stepped off, when the plaintiff filed her suit, she alleged instead that she had fallen because the defendant had failed to properly clean, maintain, and inspect the steps of the trolley.

The court conducted a bifurcated trial, and plaintiff moved in limine to prohibit the defendant from using the plaintiff’s medical records to impeach the plaintiff about what caused her to fall. In one of those records, plaintiff told one of her doctors that as she was stepping off the trolley, the driver jerked the trolley and caused her to fall.

The defendant argued this hearsay statement was admissible under §90.803(4) as a statement for purpose of medical diagnosis or treatment. While the court rejected that argument, and would not allow the statement to be used as substantive evidence (without the doctor testifying that the statement was made for the purpose of diagnosis), it ruled it could be used for impeachment.

Near the end of trial, the parties stipulated—and the court read to the jury--that there was no allegation or evidence that a jolt caused the plaintiff to fall.

The jury reached a verdict for the plaintiff, finding the defendant 80% responsible and the plaintiff 20% responsible. The trial court granted defendant’s motion for new trial, reasoning that the defendant’s inability to establish that the plaintiff’s statement was admissible hearsay for the purposes of medical diagnosis or treatment or under the business record exception did not preclude the admissibility of the statement as an admission of a party. This was an argument that defendant made for the first time.

The Fourth District reversed. Pursuant to §90.104(1)(b), it is error for the trial court to grant a new trial, unless the trial judge concludes that a party’s substantial rights were adversely affected by the exclusion of the evidence (which the trial court did not find).

The court admonished that the defendant had conflated substantive evidence with impeachment evidence, and ruled that the trial court had properly allowed the inconsistent statement as impeachment to attack the plaintiff’s credibility.

In light of the stipulation that defendant insisted be read at trial, there was no evidence that the plaintiff fell because the trolley jolted, thereby making it inconsistent for the defendant to argue on appeal that the trial court’s refusal to admit that the plaintiff’s statement in the medical record as substantive evidence mattered or was error. Because there was no erroneous evidentiary ruling, it was error to grant the new trial, and the court reversed to reinstate jury’s verdict.

EXCULPATORY CLAUSE IN EMPLOYMENT AGREEMENT WAS BOTH UNAMBIGUOUS AND ENFORCEABLE TO PREVENT THE PLAINTIFF’S LAWSUIT AGAINST A CUSTOMER OF THE PLAINTIFF’S EMPLOYER.

Merlien v. JM Family Enterprises, 45 Fla. L Weekly D1749 (Fla. 4th DCA July 22, 2020):

A firm providing security services for various clients hired the plaintiff, and assigned him to work as a security guard for JM Family Enterprises. He was injured there after falling on the JM facility’s stairs.

In response to the plaintiff’s premises liability lawsuit against JM Enterprises, the defendant asserted that the plaintiff’s employment agreement insulated it from liability. The disclaimer stated that upon accepting employment waived and forever released any and all rights to make a claim or file a lawsuit against any customers/employees of f the employer to which the plaintiff/employee was assigned, in the event those injuries were covered under the Workers’ Compensation statutes.

While public policy disfavors exculpatory contracts because they relieve one party of the obligation to use due care, there is a general countervailing policy favoring the enforcement contracts, and unambiguous exculpatory contracts are enforceable unless they contravene public policy.

Because this disclaimer was limited to injuries covered under the Workers’ Compensation statute, and made no promises or representations other than explaining that injuries would be paid for by the Workers’ Compensation insurer, the court found the agreement was unambiguous.

Also, because the plaintiff’s injury fell under the scope of the worker’s compensation statutes, and he received payment for his injuries, the disclaimer did not subvert the worker’s compensation scheme, but rather fully utilized it.

The plaintiff was not coerced into signing this agreement. Instead, he voluntarily agreed as a condition of his employment to limit his avenues for recovery to the State’s workers’ compensation program.

Thus, the court concluded that the disclaimer signed by the plaintiff was unambiguous, not in violation of Florida’s public policy and therefore, enforceable.

ABUSE OF DISCRETION TO REFUSE PLAINTIFF A CHANCE TO AMEND HIS COMPLAINT TO ADD A FRAUD CLAIM SIX WEEKS BEFORE THE SUMMARY JUDGMENT HEARING AND SIX MONTHS BEFORE TRIAL.

Fayad v. University of Miami, 45 Fla, Weekly D1762 (Fla. 3rd DCA July 22, 2020):

A physician was suing the University of Miami regarding his hospital. Six weeks before the summary judgment hearing, plaintiff retained new counsel, and a few days later, after receiving twenty-five bankers boxes of documents from the prior attorney, sought to amend the complaint to add a fraud count.

The trial court found there would be prejudice to the defendant. It noted that the matter was six years old, and adding a fraud cause to the breach of contract action on the eve of the summary judgment violated justice, even though the plaintiff had never amended his complaint before.

A trial court’s denial of a motion to amend a complaint is generally an abuse of discretion unless (1) the privilege to amend has been abused, (2) the amendment would prejudice the opposing party, or (3) the amendment would be futile.

Without a showing of such prejudice, it was error for the trial court to deny the plaintiff’s motion to amend, and error for it to enter final summary judgment.

ERROR TO IMPOSE §57.105 FEES WHEN THERE WAS NO BASIS TO SUPPORT A DETERMINATION THAT THE MOTION TO DETERMINE THE WORKERS’ COMPENSATION LIEN WAS FRIVOLOUS

Preferred Government Insurance Trust v. Aelion, 45 Fla, Weekly D1772 (Fla. 3rd DCA July 22, 2020):

Under §57.105, the trial court may impose sanctions on an attorney for a frivolous filing, where the claim was not supported by the material facts necessary to establish the claim or would not be supported by the application of then-existing law. The courts have defined “frivolous” as a claim that “presents no justiciable question and is so devoid of merit on the face of the record that there is little prospect it will ever succeed.”

In this case, while the work comp carrier did not ultimately prevail on its argument (unspecified in the case as to what that argument was) it was not so clearly devoid of merit as to be completely untenable, and thus the imposition of §57.105 was erroneous.

A TRIAL JUDGE THAT HAD EXPRESSED BEING TIRED OF AN ATTORNEY’S SCHEDULING GAMES, SHOULD HAVE DISQUALIFIED HERSELF WHEN A LITIGANT BEING REPRESENTED BY THAT ATTORNEY’S PARTNER FEARED THE JUDGE’S BIAS AND FILED A MOTION SEEKING DISQUALIFICATION.

Murphy v. Collins, 45 Fla, Weekly D1775 (Fla. 3rd DCA July 22, 2020):

A judge should disqualify him or herself in instances where the judge has a personal bias or prejudice concerning a party or a party’s lawyer.

Here, in an unrelated preceding, the judge had raised her voice, and told an attorney that the attorney’s partner had a “history of submitting motions at the last minute” and that the judge had “instructed” her staff not to accommodate” the attorney since he played games and blamed the court and her staff. The judge said she was tired of the behavior.

The party filed a petition alleging under oath that upon hearing this, and learning of the judge’s expressions, she feared she would not be afforded an impartial take on her case. The trial judge denied the petition, but should have granted it..

WHERE TWO POLICIES PROVIDE COVERAGE FOR THE SAME LOSS, ONE OF WHICH IS PRO RATA AND THE OTHER IS PURELY EXCESS, EFFECT IS GIVEN TO THE PURELY EXCESS PROVISION—EXCESS POLICY DOES NOT REQUIRE UM CARRIER TO OFFER A PARTICULAR FORM OF UM INSURANCE.

Progressive Express v. Ferris, 45 Fla, Weekly D1784 (Fla. 5th DCA July 24, 2020):

The plaintiff was involved in an accident caused by an uninsured motorist. He was driving a vehicle owned by his auto repair company, and identified that company and another, as the only named insureds. However, the policy also provided UM coverage for any person occupying the insured automobile.

State Farm issued an automobile policy identifying the plaintiff’s wife as the named insured, and providing UM coverage for the plaintiff, as a resident relative. While the parties agreed that both policies provided UM coverage, they disagreed over which policy should pay first.

Both policies had “Other Insurance” clauses which discussed the prioritization of policies. In reading the language, the court determined that the State Farm policy provided “pro rata” excess coverage and Progressive’s was excess coverage, meaning that the pro rata policy paid first.