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FLORIDA LAW WEEKLY

VOLUME 46, NUMBER 14

CASES FROM THE WEEK APRIL 9, 2021

NO ABUSE OF DISCRETION IN DISMISSING SLIP AND FALL CASE THAT OCCURRED IN A HOTEL ROOM IN JAMAICA, ON FORUM NON CONVENIENS GROUNDS

Brown v. Visit Us, Inc., 46 Fla. L. Weekly D711 (Fla. 3d DCA March 31, 2021):

The case begins by explaining how it presents an example of “the unusual circumstance in which a lawsuit against a defendant domiciled in the plaintiff’s chosen forum may nevertheless be dismissed on forum non conveniens grounds.” A rough start to be sure.

The plaintiff – a resident of Texas – fell on a liquid that was leaking from the ceiling in her Jamaican hotel room. The plaintiffs sued two corporations, one domiciled in Spain and one domiciled in Florida, with its principal place of business in Miami-Dade County. The plaintiffs alleged vicarious liability against the Florida corporation based on a joint venture with the hotel involving ownership and operation of the Jamaican resort.

Based on the uncontroverted affidavit of its general manager, the Florida corporation was an affiliate of the Spanish corporation that managed a travel-booking website for the Spanish corporation’s branded resorts. Notably, the plaintiffs did not book their hotel stay through the Florida corporation’s website.

The Florida corporation Defendant, Visit Us, moved to dismiss the plaintiffs’ complaint, asserting the proper venue was in Jamaica because the alleged negligence took place there, the initial medical treatment occurred there, and a potential third-party defendant – the hotel’s air conditioning contractor – was there. The defendant argued that all or substantially all of the evidence and witnesses regarding liability were in Jamaica, and that Jamaican law would govern the issues of negligence and damages. Finally, defendant argued that if the action proceeded in Florida, it would not be able to interplead the Jamaican air conditioning contractor due to lack of personal jurisdiction.

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In response, plaintiffs submitted an affidavit stating that the victim’s substantive medical treatment occurred in Texas, her medical providers and primary treating physicians were in Texas, and she had no means to compel them to travel to Jamaica, further claiming that the only witness to the fall, and condition of the floor, were her husband and herself.

In doing the Kinney forum non conveniens analysis, the court stated that the fact that the defendants were located in the US and in Florida, was one indication that it would be less burdensome for them to defend in the United States than it would be for the plaintiffs to litigate in a foreign country.

However, even when considering the defendant’s residency in Florida, the court found that in weighing the public and private interest factors, the trial court did not abuse its discretion in dismissing the case for forum non conveniens. The plaintiffs alleged a joint venture to operate a hotel in Jamaica, the plaintiff received initial medical treatment there, and an alleged third-party defendant was answerable only to the jurisdiction of the courts of Jamaica.

Further, since the plaintiffs did not book their vacation with the defendant, no action in the case occurred in Florida. There were no witnesses to the alleged fall or the plaintiffs’ damages connected to Florida. While the plaintiff argued that her Texas based doctors could not appear in Jamaica, the court noted that they could not be compelled to come to Florida either, so the private interest factors strongly weighed in favor of Jamaica.

The public interest factors also weighed strongly in favor of Jamaica because Jamaica has a strong interest in litigating disputes involving its resorts, and the plaintiffs were not Florida residents, which was an important point.

AMENDMENT TO MEDICAL MALPRACTICE PRESUIT SCREENING RULE

IN RE: AMENDMENTS TO RULE OF CIVIL PROCEDURE 1.650, 46 Fla. L. Weekly (S60 Fla. April 8, 2021):

The Court approved an amendment to Rule 1.650 (c)(1), to allow “written questions” and “unsworn statements of treating health care providers” as additional methods of obtaining presuit screening discovery. The rule also adds new subdivisions, (c)(2)(D) and (c)(2)(E) to provide guidance on using these methods of discovery for treating healthcare providers.

AMENDMENT TO RULE ON SUBSTITUTION OF PARTIES DUE TO DEATH OR INCOMPETENCY

IN RE: AMENDMENTS TO FLORIDA RULE OF CIVIL PROCEDURE 1.260, 46 Fla. L. Weekly (S60 Fla. April 8, 2021):

The important change in this rule is the replacement of the language “the death is suggested upon the record by service of a statement of the fact of the death,” which the Court replaced by requiring “a statement noting the death is filed and served on all parties as provided in Rule of General Practice and Judicial Administration 2.516.” A lot clearer for sure.

IMPORTANT CHANGES TO FILING RULES OF VARIOUS KINDS OF PLEADINGS AND DOCUMENTS

IN RE: AMENDMENTS TO THE FLORIDA RULES OF CIVIL PROCEDURE, 46 Fla. L. Weekly (S60 Fla. April 8, 2021):

The noteworthy change to this rule here is that those documents, which are currently served, but not filed with the court, are to be served in accordance with Florida Rule of General Practice and Judicial Administration 2.516 (Service of Pleadings and Documents). The amendments took effect immediately upon release of the opinion.

COURT UPHOLDS ARBITRATION PROVISION IN ATTORNEY’S FEE AGREEMENT

Lemos v. Sessa, 46 Fla. L. Weekly (Fla. 3d DCA March 31, 2021):

The court ruled that the plaintiff/client’s tort claims against her attorney were arbitrable under the retainer agreement’s arbitration clause, which stated that any controversy or claim arising out of the retainer agreement, a breach of it, and performance or breach of performance by the firm in its representation, would be settled through binding arbitration.

TRIAL COURT HAS DISCRETION ON ANSWERING JUROR QUESTIONS

Hernandez-Perez v. State, 46 Fla. L. Weekly D725 (Fla. 4th DCA March 31, 2021):

A trial judge has discretion in answering a juror’s question, and it may answer a question directly or refer the jurors to the standard jury instructions.

DESPITE A VIGOROUS DISSENT, MAJORITY FINDS THE LANGUAGE OF AN INSURANCE POLICY CLEAR AND UNAMBIGUOUS

Walls v. Southern Owners Ins. Co., 46 Fla. L. Weekly D734 (Fla. 1st DCA March 31, 2021):

A corporation called “Partners for Pets” had a corporate insurance policy with Southern Owners that covered bodily injury and property damage. Southern Owners asserted a clause in their contract was an “escape” clause, which limited coverage to circumstances where Partners for Pets did not have any other insurance available affording the same or similar coverage.

There was also a GEICO policy that covered Partners for Pets, as a “person or organization” incurring liability when the acts or omissions of an insured covered the defendant.

The majority concluded that the phrase “similar coverage” referred to coverage that was “similar,” and therefore Southern Owners was not obligated under the $1,000,000 policy.

The dissenting judge, however, Judge Makar, wrote that what was “clear” about the language was that it was less than clear due to the divergent views of judges that have analyzed identical language (they are almost evenly split between whether such language is ambiguous or clear).

Thus, the majority rejected the plaintiff’s arguments that the policy was “not available” because it had exhausted its policy limits. The court said that whether there were still benefits available under the policy was not the question. Instead, the question was whether there was coverage available, which there wasn’t.