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FLORIDA LAW WEEKLY

VOLUME 46, NUMBER 31

CASES FROM THE WEEK AUGUST 6, 2021

ERROR TO PRECLUDE TESTIMONY WITHOUT GIVING PARTY A CHANCE TO LAY FOUNDATION FOR PAST RECOLLECTION RECORDED EXCEPTION

United Automobile Ins. Co. v. NB Sports Massage & Rehab Corp., 46 Fla. L. Weekly D1708 (Fla. 3rd DCA July 28, 2021):

The issues in this PIP case were whether the treatment rendered to the insured after the CME cutoff date, was related to the subject accident and/or medically necessary.

On the day of the trial, the provider moved to prevent the insurance company from reading the deposition testimony of its medical expert who had conducted the CME. The provider argued that the physician had read directly from the CME report at his deposition, and therefore, it was inadmissible because the physician did not remember the contents of the report and the report did not refresh his recollection.

The insurance company sought to voir dire the physician to lay the required foundation to allow him to read his report pursuant to the past recollection recorded exception to the hearsay rule. The trial court denied that request.

Section 90.803(5) sets forth the requirements for the past recollection recorded exception to the hearsay rule. Under the exception, a record concerning a matter about which the witness once had knowledge, but now has an insufficient recollection to enable the witness to testify wholly and accurately, and is shown to have been made by the witness when the matter was fresh in the witness’ memory and to reflect that knowledge correctly may be read into evidence. However, no such memorandum is admissible as an exhibit unless offered by an adverse party.

Here, the trial court never allowed the doctor to testify, and therefore erred in refusing to allow the insurance company to lay the proper foundation which may have met the exception.

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BECAUSE THE INSURANCE COMPANY DEFENDANT’S AFFIDAVITS WERE SUFFICIENT TO CREATE A GENUINE ISSUE OF MATERIAL FACT, SUMMARY JUDGMENT WAS IMPROPER

United Automobile Ins. Co. v. Central Therapy Center, 46 Fla. L. Weekly D1710 (Fla. 3rd DCA July 28, 2021):

When considering the legal sufficiency of an affidavit, the focus is on whether the affidavit shows evidence of a nature that would be admissible at trial.

In this case, the trial court concluded that the insurance company’s affidavit was legally insufficient, because the adjuster’s opinions were not based on sufficient facts and data and therefore did not satisfy Daubert. However, as the court found in a case last week, the affidavit contained an extensive description of the adjuster’s qualifications that formed the basis for the opinion on reasonableness.

Daubert does not prohibit expert opinion based on experience. Instead, the plain text of § 90.702 provides that experts may be qualified by knowledge, skill, experience, and training or education. Pure opinion testimony is based solely on the expert’s experience, without relation to the actual condition of the person in the relevant case.

The trial court also improperly excluded the affidavit of the insurance company’s physician who had specifically alleged that he had reviewed the relevant medical records, treatment notes, claims reports and other documents before reaching his conclusions, and that based on his training and experience, he formed his opinions rebutting the provider’s affidavit. Because that affidavit was not pure opinion, it was sufficient to create a genuine issue of material fact to prevent summary judgment on that issue also.

COURT REVERSES ORDER TRANSFERRING VENUE SUA SPONTE, WITHOUT ANY SHOWING THAT PLAINTIFFS’ CHOSEN VENUE WAS IMPROPER, OR THAT TRANSFER WAS APPROPRIATE ON FORUM NON CONVENIENS GROUNDS REVERSED

Live Young, PLLC v. Allstate, 46 Fla. L. Weekly D1707 (Fla. 4th DCA July 20, 2021):

In keeping with another ruling the Fourth District recently made, it reiterated that trial courts may not sua sponte enter orders transferring venue without there being a showing that the plaintiffs’ chosen venue was improper, or that the transfer was appropriate on forum non conveniens grounds. The message seems clear that venue is still the plaintiff’s choice, and only a defendant can challenge it (and to do so, must make a proper showing).

MERE EMPLOYMENT OF AN ATTORNEY TO REPRESENT A CLIENT DOES NOT GIVE THE ATTORNEY THE AUTHORITY TO SETTLE THE CLIENT’S CLAIMS

Tavarez v. Nu-Way Towing Service, Inc., 46 Fla. L. Weekly D1713 (Fla. 3rd DCA July 28, 2021):

A non-authorized settlement agreement executed by an attorney is not valid unless it is subsequently ratified by the client.

Because the defendant here failed to meet its burden of proving that the attorney had a clear and unequivocal grant of authority to settle on the plaintiff’s behalf, the court reversed the trial court’s granting of the defendant’s motion to dismiss pursuant to the settlement agreement.