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FLORIDA LAW WEEKLY

VOLUME 45, NUMBER 43

CASES FROM THE WEEK OCTOBER 30, 2020

ORDER GRANTING MOTION TO AMEND COMPLAINT TO ADD CLAIM FOR PUNITIVE DAMAGES IMPERMISSIBLY USED THE APPELLATE COURT STANDARD OF REVIEW, AND NOT THE REQUISITE TRIAL COURT STANDARD, THEREBY REQUIRING REVERSAL AND THE TRIAL COURT’S RECONSIDERATION OF THE MOTION.

Rodriguez v. Scurtis, 45 Fla. L Weekly D2385 (Fla. 3rd DCA October 21, 2020):

The trial court’s order stated that it was restricted to determining whether the statutory procedural requirements of §768.72 were met in evaluating the motion to amend. However, that is applicable for appellate review, not for when the trial court is considering the amendment. The court did not actually address the proper standard in the opinion, but reversed for reconsideration in light of the proper standard.

IF INSURER DOES NOT RAISE “MISIDENTIFICATION” IN ITS RESPONSE TO A CIVIL REMEDY NOTICE, IT WAIVES THE ARGUMENT.

Bay v. United Services Automobile Association, 45 Fla. L Weekly D2380 (Fla. 4th DCA October 21, 2020):

The trial judge dismissed the plaintiff’s amended complaint for bad faith with prejudice, because the plaintiff misidentified the insurer as “USAA Casualty Insurance Company,” instead of United States Automobile Association or USAA.

The appellate court agreed that the plaintiff had misidentified the insurer, resulting in a failure to strictly comply with §624.155, Fla. Stat. Still, the court found that the trial court erred in refusing to find that the insurer had waived the argument by not raising it in its response to the civil remedy notice. Anyone can waive any contractual, statutory or constitutional right. Waiver also encompasses not only the intentional and involuntary relinquishment of known rights, but also conduct that warrants an inference of the relinquishment of those rights.

While the court reversed the trial judge’s final order granting the insurer’s motion to dismiss the insured’s amended complaint for bad faith, it also remanded to the trial court to consider whether the civil remedy notice was sufficiently specific. Those arguments were raised, but not addressed once the court determined that the misidentification required dismissal.

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ARBITRATION CLAUSE CALLING FOR ARBITRATION OF “ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO” THE AGREEMENT COVERED TORT CLAIMS RESULTING FROM INJURIES THAT FLOWED FROM THE LOSS OF POWER AND LACK OF AIR CONDITIONING UNITS DURING A HURRICANE.

Cooper v. Rehabilitation Center at Hollywood Hills, 45 Fla. L Weekly D2384 (Fla. 4th DCA October 21, 2020):

The subject arbitration agreement called for arbitration of “any controversy or claim arising out of or relating to this Agreement or breach thereof.” The plaintiff who lived in the nursing home, alleged that she had suffered injuries during Hurricane Irma, when the facility lost power and the center failed to provide appropriate nursing care and shelter.

The court reminded litigants that “a legion of cases” have established that arbitration agreements are favored, and courts should resolve all doubts about the scope of an arbitration agreement in favor of arbitration rather than against it. The court then concluded that there was some nexus between the dispute and the contract containing the arbitration clause, and therefore, arbitration of it was required.

COMMENTS BY JUDGE CRITICIZING PUNITIVE DAMAGE LAWS APPLICABLE TO THE RESOLUTION OF PLAINTIFF’S TOBACCO DISPUTE, NOT ENOUGH TO FORM A REASONABLE BASIS TO SUPPORT THAT THE PARTY WOULD NOT RECEIVE A FAIR TRIAL.

Gall v. Phillip Morris, 45 Fla. L Weekly D2388 (Fla. 3rd DCA October 21, 2020):

The court found that these comments in context actually constituted a statement of philosophy rather than a stated judicial policy. Also, after uttering the offending comments, the trial court affirmatively acknowledged it was bound by the standard set forth in binding appellate decisions. Thus, under those circumstances, the court concluded that plaintiff failed to allege legally sufficient judicial bias necessitating a writ of prohibition.

INTERESTING CONCURRENCE ADDRESSING THE APPLICATION OF THE STANDARD JURY INSTRUCTION ON AGENCY TO A FRANCHISE RELATIONSHIP.

Domino’s Pizza v. Wiederhold, 45 Fla. L Weekly D2399 (Fla. 5th DCA October 23, 2020):

This case involved two trials, and ultimately a plaintiff’s verdict, which the Fifth District affirmed. One judge dissented and another concurred specially.

In the concurring opinion, Judge Cohen observed that there are legitimate reasons for distinguishing the “franchise” relationship from other agency relationships, noting that there is a degree of control inherent and necessary to maintain standards of consistency within brands.

However, Judge Cohen also explained that it is axiomatic that trial courts must be cautious to avoid invading the jury’s province when crafting jury instructions. The judge also noted that standard jury instructions give peace of mind to trial judges.

A trial court’s decision not to give a requested instruction will not be reversed unless the error complained of results in a miscarriage of justice, meaning that the instruction -- or failure to give it -- was reasonably calculated to mislead or confuse the jury.

Apparently, the case was tried twice and both juries reached similar substantial verdicts for the plaintiff who lost her husband.

In both cases, the plaintiff offered substantial evidence to support her position that Domino’s control went beyond mere “brand maintenance” or “franchise support,” and also showed that such extensive control precluded a finding that the trial court abused its discretion in giving the standard instruction on agency.

Judge Cohen’s concurrence is not only helpful in arguing for a trial court’s discretion in compiling and giving jury instructions, but also for the wisdom in deferring to standard instructions (in light of The Florida Supreme Court’s decision earlier in the year suggesting that standard jury instructions may be varied from).