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FLORIDA LAW WEEKLY

VOLUME 45, NUMBER 35

CASES FROM THE WEEK SEPTEMBER 4, 2020

WHERE DEFENDANT WAS THE DRIVER OF A VEHICLE WHICH KILLED A PEDESTRIAN, IT WAS A DEPARTURE FROM THE ESSENTIAL REQUIREMENTS OF LAW TO COMPEL DISCLOSURE OF INFORMATION REGARDING THE DEFENDANT’S POSSESSION AND USE OF A MOBILE TELEPHONE DURING THE TIME OF THE CRASH—ORDER PLACED DEFENDANT IN A POSITION TO INCRIMINATE HIMSELF IN AN ACTIVE CRIMINAL INVESTIGATION, IN VIOLATION OF HIS FIFTH AMENDMENT PRIVILEGE.

Aguila v. Frederick, 45 Fla. L Weekly D2043 (Fla. 3rd DCA August 26, 2020):

The Fifth Amendment privilege can be asserted in any proceedings civil or criminal, administrative or judicial, investigatory or adjudicatory. It is settled law that the privilege against self-incrimination may be properly asserted during discovery proceedings, if the civil litigant has reasonable grounds to believe that direct answers to depositions or interrogatory questions will furnish a link in the chain of evidence needed to prove a crime against him.

The “link in the chain” doctrine is not strictly limited to statements. If any kind of production can constitute protected testimonial communications because it might entail implicit statements of fact, it too is afforded Fifth Amendment protection.

In this wrongful death case, where the defendant was the object of a criminal investigation, the order compelling the production of his mobile phone and the driver’s mobile phone records was error. Because it is a crime to be operating a motor vehicle while manually typing or entering letters into a mobile device under §316.305(3)(a), the compelled disclosures could well furnish a link in the chain of evidence needed to establish the defendant’s criminal culpability.

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TIME THE PLAINTIFFS SPENT ATTENDING TO MATTERS “RELATED” TO AN ACCIDENT, NOT RECOVERABLE AS BUSINESS INTERRUPTION DAMAGES, BECAUSE THE TIME SPENT WAS NOT TIED TO A LOSS OF BUSINESS INCOME.

P&G Trucking of Brandon, Inc. v. Camacho, 45 Fla. L Weekly D2023 (Fla. 4th DCA August 26, 2020):

While driving a truck owned by defendant P&G, and leased by another, the defendant driver caused an accident causing property damage but no injuries. The plaintiff sued for negligence, seeking damages for the total losses of the tractor that was hit, as well as the citrus topper, loss profits, inconvenience, and administrative costs. The defendant admitted fault, but contested causation and damages.

Prior to trial, defendants moved for partial summary judgment on the plaintiffs’ claim for inconvenience and administrative damages, arguing that they were not recoverable. The trial court denied the motion.

Defendants renewed their motion, seeking a directed verdict at trial which was also denied. At trial, the damages were relabeled “business interruption” damages, and the jury ultimately found for the plaintiffs, awarding those damages.

The court said there are no Florida cases specifically addressing the availability of business interruption damages in the context of negligence actions. It looked to insurance law, noting that business interruption insurance is generally intended to return to the insured’s business the amount of profit it would have earned had there been no interruption of the business, or suspension of its operations.

In this case, the time spent by the plaintiff overseeing clean-up of the accident scene, figuring out damages and compensation for it, traveling to meetings with administrators relating to pre-existing contracts, and searching for a replacement operator were not tied to the plaintiffs’ loss of business income. The court noted that the fact that the plaintiffs themselves originally labeled those damages as “inconvenience damages” and “administrative costs” further buttressed the conclusion.

Even if such damages could be considered business interruption damages, the loss of time in the case was not recoverable as an element of damages because that specific harm was too remote, and not proximately caused by the defendants’ negligent act. Accordingly, the court reversed the award for business interruption damages and remanded with instructions for the trial court to deduct those amounts from the final judgment.

TRIAL COURT ERRED IN DENYING MOTION TO VACATE CLERK’S DEFAULT WHERE PLAINTIFF WAS ON NOTICE THAT DEFENDANTS WERE REPRESENTED BY COUNSEL, AND THAT THEY INTENDED TO EITHER EFFECTUATE A SETTLEMENT OR DEFEND THE DISPUTE.

Contreras v. Stambul, 45 Fla. L Weekly D2032 (Fla. 3rd DCA August 26, 2020).

TRIAL COURT ABUSED DISCRETION IN DENYING MOTION TO CONTINUE SUMMARY JUDGMENT HEARING TO ALLOW MORE TIME FOR DISCOVERY, FOLLOWING THE LIFTING OF A STAY, WHICH HAD BEEN GRANTED PENDING ISSUANCE OF AN APPRAISAL AWARD—SUMMARY JUDGMENT REVERSED.

Bello v. Geovera Specialty Insurance Co, 45 Fla. L Weekly D2039 (Fla. 3rd DCA August 26, 2020):

Three weeks after the service of the complaint, the insurer did not answer any of the discovery served with the complaint, sought an appraisal, and shortly thereafter stipulated to the appraisal and to a stay of the proceedings pending issuance of the appraisal award.

Soon after, the appraisal award issued and the stay was lifted. The insurer then moved for summary judgment, even though it had still not provided any of the requested discovery or even filed a formal response or objection.

Under those facts, the court agreed that the trial judge abused his discretion in denying the motion to continue, and in granting summary judgment.