Trial lawyers, you better read this!

FLORIDA LAW WEEKLY

VOLUME 45, NUMBER 9

CASES FROM THE WEEK March 06, 2020

SUPREME COURT ADOPTS NEW RULE REGARDING ADOPTION OF STANDARD JURY INSTRUCTIONS.

In Re: Amendments to the Florida Rules of Judicial Administration, the Florida Rules of Civil Procedure and the Florida Rule of Criminal Procedure-Standard Jury Instructions 45 Fla. L Weekly S88 (March 5, 2020):

The court on its own motion adopted a new rule of Florida Judicial Administration 2.270 (Supreme Court’s Committees on Standard Jury Instructions) authorizing the Committees in charge of standard jury instructions, now approve them for publication and use, under new rules: Florida Judicial Administration 2.570 (Standard Jury Instructions) and amended Florida Rule of Civil Procedure 1.470(b) (Instructions to Jury) and Florida Rule of Criminal Procedure 3.390 (Jury Instructions).

The court advised that it is one of the few state high courts in the country that authorizes or approves standard, patterned or modeled jury instructions. The process currently consists of two steps: (1) the Committees prepare new and amended instructions for various case types and report those instruction changes to the court, and (2) the Court in turn authorizes the instructions for publication and use.

The Florida Supreme Court has now decided this process is overly cumbersome, and suggests the legal correctness of the instructions. Additionally, because the Court has authorized the Standard Instructions, trial judges are sometimes reluctant to modify them or give other instructions requested by a party that may be more appropriate.

The Supreme Court has now taken itself out of the process. The Committees will now develop and approve by a two thirds vote, new and amended standard jury instructions to be published for use in the Committees’ respective case type, under Rule 2.270.

Additionally, subdivision(a) explains that the Standard Jury Instructions approved for publication and use by the Committees are not approved or otherwise specifically authorized for use by the Court, and that the approval of Standard instructions by the Committees shall not be construed as a determination of legal correctness.

Subdivision(b) of that rule specifically charges the Committees with the responsibility to (1) develop new standard jury instructions as the law evolves; (2) review instructions for errors or inaccuracies and amend them; (3) address specific requests from the court concerning the need for new or amended instructions; (4) consider, modified instructions given by a trial court sent to a Committee under Rule 2.570 to determine whether amendments to the standard instructions are warranted; (5) consider changes to the standard instructions as suggested by judges, members of the bar and other interested persons.

Subdivision(c) of Rule 2.270 contains procedural requirements governing the Committee’s development and approval of instructions including things such as the publishing for comment, and substantial revisions to previously published changes which must be considered by the Committee before a final vote.

Under subdivision(d), the Chief Justice will appoint to each committee up to 33 members who will serve staggered three year terms, and no committee member will serve more than two consecutive three year terms, unless the Court determines that it is in the best interest of the Committee. One third of the Committee will consist of judges.

This new rule of Judicial Administration 2.570 is modeled after existing Rule 1.470(b), and provides that trial judges may use the standard jury instructions to instruct juries to the extent that the instructions are applicable, or else the trial judge may determine that an applicable standard is erroneous or inadequate, in which case the judge shall modify the instruction as the judge determines necessary to accurately and sufficiently instruct the jury.

If a judge modifies the standard instruction or gives another one, upon timely objection to the instruction, the judge must state on the record or in a separate order the reason why the judge finds the standard instruction erroneous or inadequate, along with the legal basis for varying from the standard instruction.

Subdivision(b) requires that parties requesting or receiving modified instructions send a copy of the modified instruction to the appropriate Committee, so that it may consider the modification to determine whether it should be amended.

Subdivision(c) of Rule 2.570 states that the Supreme Court does not expressly approve or afford a presumption of correctness to the Standard Jury Instructions, and there should be no belief that there is an adjudicative determination of the legal correctness of the instruction. The subdivision further explains that the standard instructions authorized by the court prior to the adoption of Rule 2.270 shall be treated the same, and given no more deference than instructions approved by the Committee under the rule.

These amendments go into effect on April 01, 2020, and all interested persons have 75 days from the date of the opinion in which to file comments with the Court.

CIRCUIT COURT ERRED IN GRANTING ATTORNEY’S FEES BASED ON ITS INHERENT AUTHORITY TO SANCTION AN EQUITABLE CONDUCT.

In Re: Guardianship of Davis v. Davis, 45 Fla. L Weekly D421 (Fla 2nd DCA February 26, 2020):

Without much explanation, the court found that the trial judge erred in granting a motion for attorney’s fees, based on the court’s inherent authority to sanction inequitable conduct under Moakley v. Smallwood, 826 So. 2d 221, 227 (Fla. 2002). Because the trial court’s exercise of the inherent authority to assess attorney’s fees must be based upon an express finding of bad faith conduct, and supported by detailed factual findings describing the specific acts of bad faith that resulted in the unnecessary incurrence of fees, and because of finding of bad faith conduct must provide a high degree of specificity, the court—without saying more—reversed the order granting sanctions.

AMENDED PLEADINGS REQUIRE SERVICE—NOT SERVICE OF PROCESS

Korman v. Stern, 45 Fla. L Weekly D427 (Fla. 4th DCA February 26, 2020):

There is nothing in Rule 1.070 to suggest that service of process is required for an amended pleading. Amended pleadings require only service, not service of process.

A HEALTHCARE CLINIC IS NOT ENTITLED TO RECEIVE PIP REIMBURSEMENTS FOR PHYSICAL THERAPY SERVICES RENDERED BY A LICENSED MASSAGE THERAPIST WHO IS NOT A LICENSED PHYSICAL THERAPIST.

Geico General Insurance Co. v. Beacon Healthcare, 45 Fla. L Weekly D437 (Fla. 3rd DCA February 26, 2020):

While a licensed massage therapist can lawfully render physical therapy pursuant to the exceptions set forth in the Physical Therapy Act, §486.021(11), a healthcare clinic or provider licensed under that chapter may not receive PIP reimbursements for physical therapy services, because the plain language of the PIP Statute precludes such reimbursements.

TRIAL COURT EXCEEDED AUTHORITY IN DISREGARDING PLAINTIFF’S AFFIDAVIT SUBMITTED IN OPPOSITION TO THE DEFENDANT SUPERMARKET’S MOTION FOR SUMMARY JUDGMENT, BASED ON THE ­­­­REPUDIATION OF PRIOR DEPOSITION TESTIMONY—THE AFFIDAVIT CREATED A FACTUAL ISSUE.

Williams v. Ryta Food Corp, 45 Fla. L Weekly D440 (Fla. 3rd DCA February 26, 2020):

In a slip and fall case against a supermarket, defendant moved for summary judgment contending that it lacked notice of a dangerous condition. Plaintiff filed the affidavit of her sister, who had observed that the puddle was elongated, and appeared to have been traversed by multiple people as evidenced by track marks or footprints, leading both to and from the water.

The defendant argued that the sister had badly repudiated her prior deposition testimony. However, in her deposition, the inquiry about the pooled liquid only concerned the origination source of the water and whether the puddle appeared to be transparent. No query was posed requiring the shape or length of the transitory substance, or the absence or presence of marks.

Accordingly, the affidavit describing the puddle of water as “very long,” and disclosing the existence of several track marks or footprints going in both directions, did not “badly repudiate” her former deposition testimony. Additionally, the other facts in the affidavit established that the pool of water had accumulated as the result of a slow and steady drip originating from a cooler, therefore creating factual issues on constructive notice.

CONDOMINIUM ASSOCIATION HAD NON-DELEGABLE DUTY TO MAINTAIN AND REPAIR COMMON AREAS, AND THUS COULD BE HELD RESPONSIBLE FOR THE NEGLIGENCE OF THE CONTRACTOR--OWNERS AND ASSOCIATION, HOWEVER, WERE NOT JOINT TORTFEASORS AS TO PLAINTIFF’S INJURIES, AND THUS ONLY SEVERALLY LIABLE UNDER STATUE.

Walter v. Beach Club Village, 45 Fla. L. Weekly D448 (Fla. 3rd DCA February 26, 2020):

The plaintiff attended a party at a friend’s condominium. At the time, the condominium’s boat dock was undergoing repairs. The work on the portion of the dock directly behind the owner’s condominium had been completed, but the remainder of the work on the dock had stalled due to a payment dispute between the association and the contractor. While walking on the edge of the unfinished portion, plaintiff fell into a hole and sustained serious injuries.

All of the defendants argued that they were severely liable under §768.81. However, plaintiff argued that the association breached it non-delegable duty, thereby rendering it jointly and severally liable for all of her damages.

The association’s declarations specifically adopted the Condominium Act, which states in part that the condominium association maintain the common areas. The declaration also stated that the association is responsible for maintenance and repair of common areas. In sum, the declarations imposed a non-delegable duty on the association to maintain the dock and other common areas.

In looking at the non-delegable duty, the defendant who owes such a duty may be held responsible for the negligence of the contractor to which work was delegated. Thus, there was a non-delegable duty for the contractor that did the work, but not for the owners who were not performing a non-delegable duty on behalf of the condominium association. Joint and several liability thus applied to the contractor, but not to the owner.

The trial court had also allowed the Association to amend its third party affirmative defense to assert that the owners should be on the verdict form.

While the court never actually said whether that was right or wrong, it noted that a defendant may amend its pleading to assert the negligence of a non-party, as long as the party has fair notice “prior to trial.” The court then read that prior notice (even though the owner had not been named) existed because the issue of the owner’s negligence was to be presented at trial, and the plaintiff knew that. Ultimately, the court found that the plaintiff failed to show how she was prejudiced by the introduction of the evidence.

COURT LACKS JURISDICTION TO REVIEW ORDERS GRANTING LEAVE TO AMEND A COMPLAINT TO ADD A CLAIM FOR PUNITIVE DAMAGES, SO LONG AS THE PROCEDURAL REQUIREMENTS OF THE STATUTE ARE FOLLOWED.

Walker v. Rodriguez, 45 Fla. Weekly D451 (Fla.3rd DCA February 26, 2020):

As long as a trial judge has conformed with the procedural requirements of §768.72, the appellate court may not address the sufficiency of the evidence of the proffer, or the reasonableness of the trial court’s determination.