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FLORIDA LAW WEEKLY

VOLUME 46, NUMBER 12

CASES FROM THE WEEK MARCH 26, 2021

DEFENDANT’S PROPOSAL FOR SETTLEMENT SERVED ON SECOND PLAINTIFF ELEVEN DAYS AFTER FIRST PLAINTIFF ADDED HER TO THE SUIT, WAS PREMATURE AND UNENFORCEABLE - - THE DATE FOR DETERMINING TIMELINESS WAS THE DATE THE SECOND PLAINTIFF ACTUALLY COMMENCED HER ACTION

Arizone v. Homeowners Choice Property and Cas., 46 Fla. L. Weekly D584 (Fla. 2nd DCA March 17, 2021):

The husband plaintiff originally filed suit pursuant to his homeowners’ policy after the insurer denied coverage of the claim. Five months later, plaintiff filed an amended complaint to add his wife.

A mere eleven days after that, the insurer then served proposals for settlement on both the husband and the wife. After a jury verdict in favor of the insurer, the insurance company moved for attorney’s fees against both plaintiffs, which the trial court granted.

The date for determining whether a proposal for settlement is timely when served on a plaintiff is the date that the plaintiff commences his or her own action. Thus, even in a pending case, a defendant (or a plaintiff as the case may be) must wait the requisite time under Rule 1.442 to serve a proposal. To properly serve a plaintiff, a case must be pending for 90-days before the proposal may be served.

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THE TRIAL COURT’S FAILURE TO USE THE PROPER STANDARD IN EVALUATING PLAINTIFF’S MOTION FOR NEW TRIAL NECESSITATED REVERSAL OF THE COURT’S DENIAL OF SAID MOTION.

Lively v. Grandhige, 46 Fla. L. Weekly D488 (Fla. 2nd DCA March 17, 2021):

After a jury returned a verdict in favor of the defendants in a medical malpractice case, the plaintiff timely moved for a new trial, arguing that the verdict was against the manifest weight of the evidence and that a new trial was required to avoid a miscarriage of justice.

At the hearing, the trial court addressed the change in the Daubert and Frye standards, and commented that it did not find the testimony of one of the experts credible. The court also noted that it would have excluded the expert under the Daubert standard (which was not in effect at the time), and would have granted a new trial on that basis, but felt constrained against doing that.

Because the case involved the application of an erroneous legal standard, the appellate court reviewed the trial court’s ruling de novo.

While the motion for new trial was based upon grounds that the verdict was against the manifest weight of the evidence, the trial court (and not the parties) brought up Frye and Daubert at the hearing, and discussed those cases in its ruling.

While the trial court expressly found that the defendants’ main expert witness was not credible and found that the testimony was contrary to the physical evidence which was required to prove the case, the trial court made no finding as to whether the verdict was, in fact, against the manifest weight of the evidence. Because the trial court’s order did not reflect that the trial court applied the correct legal standard, the Second District reversed and remanded with instructions for it to consider and enter a ruling on the motion for new trial applying the proper legal standard.

NOTICES OF DEPOSITION ARE NOT REQUESTS FOR AFFIRMATIVE ACTION AND CANNOT WAIVE OBJECTIONS TO PERSONAL JURISDICTION

Rebalko v. Atallah, 46 Fla. L. Weekly D596 (Fla. 4th DCA March 17, 2021):

The defendant moved to quash service of process, asserting that the summons was expired. The plaintiffs responded that the defendant waived any defenses to service of process because he filed two notices of deposition.

The trial court found those notices constituted a waiver of defendants’ objection to jurisdiction. A defendant waives a challenge to personal jurisdiction by seeking affirmative relief (such requests are logically inconsistent with an initial defense of lack of jurisdiction).

However, the filing of two notices of deposition does not constitute “some step” in the proceedings, amounting to a submission to the court’s jurisdiction. Requests for discovery do not constitute requests for affirmative relief, and therefore there was no waiver of defendants’ objection to jurisdiction.