Evidence comes in all shapes and sizes.

FLORIDA LAW WEEKLY

VOLUME 45, NUMBER 4

CASES FROM THE WEEK JANUARY 31, 2020

TRIAL COURT ERRONEOUSLY ENTERED SUMMARY JUDGMENT IN A TIRE BLOW OUT CASE RESULTING IN THE PLAINTIFF’S QUADRIPLEGIA WHEN THE RECORD CONTAINED SUFFICIENT FACTUAL ISSUES.

Desvarieux v. Bridgestone Retail, 45 Fla. L Weekly D188 (Fla. 3rd DCA January 22, 2020):

While driving to Tampa, a man noticed that his left rear tire was flat. Using his voice assisted GPS, he found a repair shop that serviced the tire for $40 in cash but issued no receipt. The plaintiff memorialized the incident, however, by uploading a photo to social media.

The next day, the plaintiff noticed the same tire was flat and found a Tires Plus store. He spoke to an employee who advised him it was almost closing time and he would need approval to service the tire. The employee did the work, and the plaintiff gave him $20 in cash. He never received any paperwork demonstrating the repair.

Later that evening, the plaintiff was driving back to Miami when he experienced a blowout, which caused serious injuries and rendered him quadriplegic.

The plaintiff sued Bridgestone, which owned the Tires Plus store. Bridgestone denied ever having performed any work on the plaintiff’s vehicle. However, the testimony verified plaintiff’s version of the events.

Bridgestone moved for summary judgment asserting that there was no evidence sufficient to demonstrate that a Tires Plus employee had repaired the tire, and even if there were, plaintiff failed to establish that the employee was within the course and of scope of his employment.

Plaintiff argued that Bridgestone failed to “conclusively” prove that he had never visited their store, or that the employee was not acting in the scope of his employment. Plaintiff filed an affidavit of a former Tires Plus employee who attested that he had previously witnessed employees accepting cash for vehicle repairs without written work orders. Plaintiff was also able to recognize and identify the employee who was still working at the time.

While the trial court believed that plaintiff had impermissibly stacked inferences, the Third District disagreed. The evidence was permissible and only a trier of fact may weigh evidence in determining credibility. The court was without authority to weigh the evidentiary value of the plaintiff’s recollection of which tire store he had visited on the day in question.

Because the evidence presented did create genuine issue of material fact, and because defendant failed to conclusively show there was none, the court reversed the summary judgment.

WHEN ONE PARTY BREACHES A CONTRACT, THE OTHER PARTY IS GENERALLY “THE PREVAILING PARTY” ON THE SIGNIFICANT ISSUES, ABSENT COMPELLING CIRCUMSTANCES THAT WOULD MAKE IT UNJUST TO AWARD FEES.

Hardeman Landscape Nursery v. Watkins, 45 Fla. L Weekly D186 (Fla. 2nd DCA January 22, 2020):

A property owner entered into a contract with a nursery for landscaping work. When the project was almost complete, the parties reached an impasse on how to finish it. The owner sued the landscape company, and the company counterclaimed. Each alleged that the other had breached the contract.

After a bench trial, the trial court found that the owner initially breached the contract, but further found that the landscape company failed to properly prove damages and would recover nothing. The court also determined that the owner had failed to prove a breach of contract and would, therefore, recover nothing.

The landscape company moved for attorney’s fees, arguing it was the prevailing party, but the court denied that motion finding there was no prevailing party, because there was no damages.

Because the landscape company prevailed on the owner’s main claim and its own counterclaim, it was at error for the trial court to refuse to award it prevailing party attorney’s fees. Absent compelling circumstances, in a breach of contract action, one party must generally prevail unless it would result in an unjust award. Under these circumstances, the court found one party did breach, and fees should have been awarded.

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AN EMPLOYER IS NOT ESTOPPED FROM ASSERTING WORK COMP IMMUNITY MERELY BECAUSE IT DENIED COMPENSABILITY OF AN ALLEGED WORKPLACE INJURY.

McNair v. Dorsey, 45 Fla. L Weekly D194 (Fla. 1st DCA January 22, 2020):

Plaintiff and one defendant were co-workers and were both employed by the other defendant’s company. Plaintiff asserted he was injured while carrying a tree branch to a wood chipper. He initially filed a petition for work comp benefits, but later received a notice of denial from the company’s insurer, stating that there was no compensable accident.

The plaintiff filed a second petition for benefits, and the parties filed a pre-trial stip reflecting that plaintiff denied that the plaintiff’s accident occurred within the course of scope of his employment. Defendant also alleged that the plaintiff fraudulently misrepresented his medical and employment history. Subsequent to that, the plaintiff voluntarily dismissed his workers’ compensation petition and sued in Circuit Court.

The employer then filed a motion for partial summary judgment, alleging that the plaintiff’s accident occurred within the course and scope of his employment, which did make defendant entitled to workers’ compensation immunity. The trial court granted summary judgment, concluding that the plaintiff’s exclusive remedy was a worker’s comp claim.

The court observed that immunity from suit may be lost to an employer whose conduct amounts to an estoppel since it would be inequitable for the employer to invoke the workers’ compensation statute to bar the suit.

Employers are estopped from asserting work comp immunity when (1) a representation of material fact is contrary to a later asserted position; (2) there is reliance on that representation and; (3) there is a change in position detrimental to the party claiming estoppel that is caused by the reliance on said representation.

Florida Courts have held that employers may be equitably estopped from raising workers’ compensation exclusivity defenses when the employer denies the employees claim by asserting that the injury did not occur within the scope and course of employment.

However, a party should not always be foreclosed from claiming entitlement to immunity simply because it denied compensability in an earlier compensation claims proceeding. This is especially true when an employer claims that no work accident caused any injury at all.

Here, the plaintiff claims that the accident, if it happened as he alleged, occurred in the course and scope of his employment. The defendant’s claim was that no accident causing injury occurred at all, which would be something for the factfinder to determine.

Since the alleged injury would have been covered under the workers’ compensation statute, the trial court did not err in granting summary judgment in finding that the defendant was not estopped from claiming workers’ compensation exclusivity.

It is not inconsistent for a defendant to claim in the workers’ compensation proceeding that no accident occurred, and then to later claim in the tort suit that any injury alleged was in the course and scope of employment. The inconsistent positions in these two proceedings are not the kind that should have estopped the defendant from asserting work comp immunity.

Either the factfinder would have determined that the accident had occurred, in which case it was indisputably within the course and scope of the employment, or if it did not occur at all, there would be no compensable injury either.

The summary judgment was upheld by the court.