I swear, she's the one who sent those texts!

FLORIDA LAW WEEKLY

VOLUME 45, NUMBER 37

CASES FROM THE WEEK SEPTEMBER 18, 2020

TEXT MESSAGES WHICH WERE THE SOLE EVIDENCE SUPPORTING ENTRY OF AN INJUNCTION, WERE NOT SUFFICIENTLY AUTHENTICATED, AND COULD NOT BE CONSIDERED BY THE COURT—CONTEXTUAL CLUES IN TEXTS ARE NOT SUFFICIENT TO PROVIDE AUTHENTICATION.

Walker v. Harley-Anderson, 45 Fla. L Weekly D2116 (Fla. 4th DCA September 9, 2020):

In this appeal of a final judgment granting an injunction for protection against stalking, the appellant contended that the trial court erred in admitting text messages showing threats made against the appellee, as the sole evidence to support the entry of the injunction.

At the final hearing, the appellee testified she did not personally know the appellant, but she knew that the appellant had a relationship with her nephew, which apparently had fallen apart. As a result, appellee stated she had received twenty harassing messages over a period of six months, and then fifteen in one day, threatening violence against her family.

The appellee offered a series of ten pages of text messages into evidence. The appellant objected, contending that she did not recognize the telephone numbers from which the messages were sent. Still, the trial court admitted the messages over objection.

The appellee said she knew the messages were from the appellant because of the content of the messages and that they were intended to harass her and her nephew’s family. The appellant denied sending the messages, and testified she did not know who sent them and did not recognize the phone numbers.

The court reviewed the handful of cases regarding the authentication of texts. In one case, the state offered extrinsic evidence that texts and pictures had come from the defendant’s phone, because the phone had been seized by the police.

However, the court reminded us that testimony that a person received a text or email from another is not sufficient by itself to authenticate the identity of the sender. Circumstances that have been recognized as sufficient to meet the test of authenticity include when a letter is written disclosing information which is likely only known to the purported author. In that case, the letter had contained specific details concerning the crime, the relationship between the co-defendants, incriminating evidence and the proposed plan to fabricate testimony. Because that information was likely only known by the three co-defendants, it was admissible.

In this case, there was no direct evidence that the messages were sent by the appellant. No one saw or heard the appellant send the messages, and they appeared to be from different phone numbers, and none of the origination numbers matched the phone number of the appellant, according to her phone bill that was placed into evidence. The trial court did not analyze the content of the messages, but simply found no other explanation as to who could have sent them. That was insufficient.

The court found that the contextual clues in the text were not sufficient to provide the authentication that they were sent by the appellant. The court also ruled that because the appellee did not contest the appeal, that it would vacate the judgment and not allow the appellee a second bite of the apple.

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COURT CANNOT COMPEL INSURER TO DISCLOSE CONTENTS OF CLAIM FILE WHEN THE ISSUE OF COVERAGE IS IN DISPUTE AND REMAINS UNRESOLVED.

Owner’s Insurance Co, v. Armour, 45 Fla. L Weekly D2105 (Fla. 2nd DCA September 9, 2020):

The plaintiff in this declaratory action over coverage for allegedly defective construction, filed suit alleging he was entitled to coverage based on being an additional insured under the policies issued to the subcontractors involved in the construction.

The plaintiff attempted to discover information regarding whether the insurer had received notice (the main issue in the case), and set the depositions of certain corporate representatives.

The court found that the plaintiff was entitled to depose the insurance company’s representatives on the specific issue of notice (because a party waives the right to claim privilege when the proof necessarily requires that a privileged matter be offered in evidence).

However, disclosure of the contents of an insurer’s claim file cannot be compelled ordinarily, when the issue of coverage is in dispute and has not been resolved. Similarly, a party is not entitled to discovery of an insurer’s claim file, or documents relating to the insurer’s business policies or practices regarding the handling of claims, in an action for insurance benefits combined with a bad faith action, until the insurer’s obligation to provide coverage has in fact been established.

With those parameters established, the Second District allowed the discovery as to the notice, but granted the writ on issues outside of that matter, pending resolution of the coverage dispute.

TRIAL COURT ERRONEOUSLY TRANSFORMED MOTION TO DISMISS INTO AN UNARTICULATED MOTION FOR SUMMARY JUDGMENT, REQUIRING REVERSAL.

Howard v. Greenwich Insurance Co, 45 Fla. L Weekly D2108 (Fla. 3rd DCA September 9, 2020):

Plaintiff was injured outside a T-Mobile store and filed a complaint alleging several counts of negligence. T-Mobile was covered by a liability policy, and the plaintiff filed a second amended complaint adding for the first time a count against the insurance company for breach of contract, alleging he was a third party beneficiary of the medical payment benefit as an omnibus insured under the agreement between the defendant and its insured.

Plaintiff then filed a proposal for settlement with T-Mobile, which T-Mobile accepted a month after he filed a second amended complaint. Plaintiff and T-Mobile executed a release discharging T-Mobile, stating that payments for medical treatment rendered as a result of the accident were covered in the settlement.

The insurer then moved to dismiss the applicable count of the second amended complaint. The trial court ultimately granted the insurance company’s motion to dismiss, having taken judicial notice of the settlement with T-Mobile and finding that the settlement extinguished the plaintiff’s claim against the insurance company as a matter of law.

Because the trial court’s consideration of the settlement to release was a matter outside the four corners of the second amended complaint, and because there was no reference in the complaint to the prior action and no stipulation that the documents from the earlier claim could be considered, the trial court abused its discretion in looking outside of the four corners and dismissing the complaint, because it erroneously treated it as a motion for summary judgment.

PROPOSAL FOR SETTLEMENT SERVED BY PLAINTIFF AFTER THE DEATH OF THE ORIGINAL DEFENDANT AND PRIOR TO THE PROPER SUBSTITUTION OF THE ESTATE, WAS A LEGAL NULLITY AND THUS INVALID.

De La Riva v. State Farm, 45 Fla. L Weekly D2114 (Fla. 4th DCA September 9, 2020):

Plaintiff was injured in an automobile accident. The defendant driver died five months later. Defendant’s counsel timely filed a suggestion of death and plaintiff requested that the estate of the defendant be substituted as the party defendant.

After receiving no information on the status of the estate, plaintiff filed a motion to compel the defense counsel to disclose the status, which the trial court granted. The court ordered the plaintiff to properly set up the estate for the defendant, and to substitute the defendant’s estate.

In the meantime, the estate was opened for the defendant in probate court in Miami, but no personal representative was appointed. Plaintiff filed a first amended complaint identifying “John Doe” as the personal representative of the estate.

The Miami Dade probate court later appointed de la Riva as curator of the estate on July 23, 2015, a year and a half after the defendant passed away. The curator was given full authority to defend and initiate all lawsuits on behalf of the estate. However, plaintiff failed to substitute de la Riva for “John Doe” as the party defendant in the personal injury case.

In December 2015, plaintiff tendered a $40,000.00 proposal for settlement identifying the estate of the defendant as the party defendant and sent it by email to State Farm’s counsel and de la Riva. Plaintiff then went to trial and obtained a verdict far in excess of that amount. The trial court subsequently awarded the plaintiff attorney’s fees based on the proposal.

However, the plaintiff failed to formally serve the estate’s curator with the proposal, and never changed the complaint to identify de la Riva instead of “John Doe” as the defendant. As such, the subsequent proceedings after the death became a nullity.

The court found that not only did the proposal violate Rule 1.260, but it also violated Rule 1.442(b), which requires a plaintiff to wait at least 90 days after service of process on the defendant before serving a proposal for settlement. Without the change being made, plaintiff served his proposal prematurely, and thus could not be enforced.

NO ERROR IN DISMISSING INSURED WIFE’S LOSS OF CONSORTIUM CLAIM WHERE WIFE FAILED TO FILE A CIVIL REMEDY NOTICE—TRIAL COURT ERRED IN ADMITTING THE INSURER’S ACTIVITY LOG MEMORIALIZING THE SETTLEMENT OFFERS MADE BY THE INSURED AFTER MEDIATION—LOG HAD NOTHING TO DO WITH WHETHER INSURER ACTED IN BAD FAITH WHEN IT FAILED TO TENDER THE POLICY LIMITS.

Moultrop v. Geico, 45 Fla. L Weekly D2121 (Fla. 4th DCA September 9, 2020):

The case arose from a three-car collision after the driver of the first car made an abrupt lane change and stepped on the brakes, which caused the second car to rear-end the first car, and the third car to collide with the second car. Plaintiffs occupied the third car.

Soon after the accident, plaintiffs demanded their UM carrier tender its full policy limits. The plaintiff sent a second letter demanding the limits, including the hospital’s medical records, the accident report and other documentation. After several “back and forths” with the UM carrier requesting more documents, and plaintiff producing more documents, the UM carrier suggested that the husband was at fault, and considered him between 75 to 100% responsible for the accident.

The plaintiff filed a civil remedy notice approximately three months after the accident. The wife did not file one. A week later, plaintiffs filed their lawsuit against the driver of the first vehicle, as well as their UM carrier. The UM carrier offered to pay the plaintiffs $5,000.00 to settle the case.

The plaintiffs continued to furnish the UM carrier with medical bills and a lien, and the carrier ultimately increased its offer to $30,000.00 after the CRN expired.

Approximately nine months later, Geico finally offered the $50,000.00 policy limits, which plaintiffs rejected. Geico made an activity log noting that plaintiff’s demand was $500,000.00 and the offer tendered was for the limits of $50,000.00.

The parties went to trial and the jury reached a verdict in excess of $362,000.00. It placed 90% of the fault on the first driver and 10% on the plaintiff husband. The trial court reserved jurisdiction to conduct the bad faith trial.

The first bad faith trial resulted in a mistrial. Before the second bad faith trial, the UM carrier moved in limine to admit its activity log to summarize the mediation which the plaintiff objected to. Plaintiffs argued the log was inadmissible because it was a settlement offer, irrelevant, and more prejudicial than probative. The UM carrier responded that the rejection was untimely and that the log was relevant to show that two days after the UM carrier tendered the policy limits, plaintiff’s wanted ten times that much, and also wanted to counter the husband’s argument that he would have accepted the policy limits earlier. The trial court allowed this evidence. The UM carrier made those arguments during closing.

The appellate court granted the plaintiffs a new trial. It found that this evidence was not relevant because it had nothing to do with whether the insured had investigated the facts and given fair consideration to a settlement offer that was not unreasonable, and to settle where a reasonably prudent person faced with the prospect of paying the total recovery would have done so. The focus of a bad faith action is not on the actions of the claimant, but on those of the insurer in fulfilling its obligations to the insured. The introduction of the plaintiffs’ offer had nothing to do with whether the UM carrier acted in bad faith when it failed to tender its policy limits.

Additionally, pursuant to 90.408 and the mediation privilege set forth in §44.405, the log reflecting settlement negotiations was not admissible. Because the activity log note was irrelevant, it ran afoul of the rules of evidence concerning settlement negotiations and the mediation privilege, the trial court erred in overruling the husband’s objection to its admission necessitating a new trial.

Finally, it is important to note, that without a CRN, a party—plaintiff or consortium plaintiff—may not bring a bad faith action against his or her UM carrier.