If it's vicarious, you better plead it!

FLORIDA LAW WEEKLY

VOLUME 46, NUMBER 5

CASES FROM THE WEEK FEBRUARY 5, 2021

PLAINTIFF MUST SPECIFICALLY PLEAD VICARIOUS LIABILITY TO AVOID SUMMARY JUDGMENT

Wilson v. Jacks, 46 Fla. L. Weekly D269 (Fla. 1st DCA January 29, 2021):

The plaintiff and the defendant were neighbors and the suit was based on a fire that started on the defendant’s property and spread to the plaintiff’s property. There was no dispute that the defendant did not take any action to start the fire in her individual capacity. Instead the fire had been started by workers on the defendant’s property who had been contracted to build cattle fencing, and were using small fires as a tool to remove stumps.

Despite the lack of individual involvement, the plaintiff’s complaint only included a single claim of negligence contending that the defendant owed a duty to plaintiff to control the fires she started on her property, and further alleging that defendant breached her duty by not controlling the fires she started. The plaintiff’s complaint did not reference any third parties, nor did it attempt to raise as a claim for relief that defendant was liable for the actions of any others. Because the complaint only alleged individual negligence on defendant’s part, and because it was not disputed that defendant was not individually responsible for the alleged negligent use of the fire on her property, the trial court granted the motion for summary judgment.

The court agreed with the defendant that summary judgment was properly entered. A claim for vicarious negligence must be specifically pleaded in the complaint to be considered in avoiding summary judgment. The court also agreed with the summary judgment because the only claim offered in the plaintiff’s complaint as a basis for relief, argued that the defendant started the offending fire in her individual capacity, and did not dispute that the defendant was not responsible in such a capacity.

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ERROR TO DENY MOTION TO VACATE CLERK’S DEFAULT WHERE THERE WAS CORRESPONDENCE BETWEEN COUNSEL FOR THE PARTIES PRIOR TO ENTRY, WHICH INDICATED THAT DEFENDANT WAS REPRESENTED BY COUNSEL, AND INTENDED TO DEFEND SUIT

Ace Funding Source v. A1 Transportation, 46 Fla. L. Weekly D232 (Fla. 3rd DCA January 27, 2021):

Both in the motion to vacate, and the supporting affidavit of the defendant’s registered agent, defendant alleged that before entry of the clerk’s default, attorneys from both sides discussed defendant’s representation by counsel and its intent to defend. Plaintiff did not file a response to the motion to vacate, nor was there a transcript from the hearing, leaving defendant’s statements unchallenged.

The trial court ultimately denied the motion to vacate the clerk’s default, finding that the defendant had been served with the complaint, and that the trial court found it failed to establish excusable neglect, due diligence, and a meritorious defense.

Florida Rule of Civil Procedure 1.500 allows entry of a clerk’s default when a party fails to file or serve any paper in the action, but it should be liberally construed in favor of deciding the case on the merits. The correspondence between the parties’ attorneys prior to entry of a clerk’s default fell squarely within the definition of “paper” as defined by the court. Because the plaintiff was on notice that defendant was represented by counsel and intended to defend against the dispute, the court found the clerk’s default was improvidently entered, and that the final judgment could not stand.

THE TRIAL COURT ERRED IN ADMITTING TESTIMONY OF A POLICE DETECTIVE WHO TESTIFIED THAT ANOTHER OFFICER TOLD HIM THE DECEDENT HAD AN EAR BUD IN HIS EAR WHILE LYING ON THE GROUND AFTER THE ACCIDENT - - INADMISSIBLE HEARSAY COULD HAVE POSSIBLY AFFECTED THE VERDICT RENDERING THE ERROR HARMFUL AND NECESSITATING A NEW TRIAL FOR THE PLAINTIFF

Dayes v. Warner Enterprises, 46 Fla. L. Weekly D333 (Fla. 3rd DCA January 27, 2021):

The plaintiff’s husband was killed at work when a tractor-trailer backed over him. The plaintiff sued the owner of the tractor-trailer, along with its driver employee.

The main argument on appeal was the plaintiff’s contention that the trial court erred in allowing the defendants to read to the jury the deposition of a police detective who testified that another officer told him that the decedent had an ear bud in his ear while lying on the ground after the accident. The plaintiff was a security guard working for a third party contractor, tasked with logging tractor-trailers out of the distribution center.

A trial court’s decision to admit evidence is reviewed under the abuse of discretion standard, but that discretion is limited by the Evidence Code and applicable case law.

In this case, the court assumed – without deciding – that the police detective was testifying as an expert regarding his homicide investigation. The court then explained that while an expert may undoubtedly rely on hearsay in rendering opinions, expert testimony may not be merely used as a conduit for the introduction of otherwise inadmissible evidence.

The court was also concerned that the other witness who saw the decedent on the ground either could not recall whether he had an ear bud in his ear, or did not testify to it. While there was evidence that the decedent had ear buds on his person, the only evidence that he had one in his ear came from the detective’s testimony relating what another officer told him. However, according to the reporting officer’s own deposition, he could not recall whether or not the decedent had an ear bud in his ear after the accident, and did not recall making a statement to the other officer who testified about that.

Thus, not only did the court err in admitting this hearsay testimony, the court could not find the error admitting it was harmless, because harmless error occurs only when the beneficiary of the error demonstrates that there is no reasonable possibility that the error contributed to the verdict.

The defendants could not prove that there was no reasonable possibility that the admission of the hearsay that the decedent had an ear bud in his ear did not contribute to the defense verdict, as such evidence went to liability in general, and not just comparative negligence as the defense argued. Because the hearsay bolstered the defendants’ case that they were not negligent, and the defendants hammered on the ear buds during their direct examination of their expert, the driver, and during closing argument, the court found that the admission of evidence that should have been excluded, contributed to the verdict.

TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR THE INSURER BASED ON AN AFFIDAVIT THAT WAS NOT IN COMPLIANCE WITH RULE 1.510(e)

Everett v. Avatar Prop. & Cas. Ins. Co., 46 Fla. L. Weekly D259 (Fla. 2nd DCA January 29, 2021):

The plaintiff insureds sued their insurance company after the insurer indicated it would repair the wind damage to their roof, but after receiving two sworn proofs of loss, still did not undertake to make such repairs. The plaintiffs asserted that the insurance company was required to replace the entire roof, not just the 36 shingles it offered to repair.

Before filing an answer, the insurer filed two motions for summary judgment alleging that the plaintiffs failed to satisfy a number of post-loss contractual obligations, and alleged they failed to provide the insurer with a valid proof of loss. In support of its motion, the insurer filed an affidavit of its corporate representative.

Plaintiffs’ counsel pointed out that the corporate representative was not an attorney, and that she made conclusions of law basically copying and pasting the motion for summary judgment. Counsel argued that the notice of loss was made within a couple of weeks and was timely, and there was no support for the contention that the plaintiffs failed to protect the property from further damage.

One of the issues was whether plaintiffs had been advised that they had to sit for an EUO (examination under oath). The affidavit stated that the insurer had requested such an examination and that plaintiffs failed to appear. However, the affidavit provided no dates regarding the EUO and no documents in support.

Rule 1.510(e) requires a motion for summary judgment to specifically identify any affidavits, answers to interrogatories, admissions, depositions, and other materials which would be admissible in evidence on which the movant relies.

The insurance company’s motion did not reference the affidavit or other evidence. Also, the affidavit did not state that the affiant was a records custodian, nor did it describe her position with the company or her corporate duties. She also attested she had knowledge, but not “personal knowledge” of the matters stated. There was also evidence presented (plaintiffs’ motion for reconsideration) that they were never informed of a scheduled EUO, which at the very least created a fact issue.

Because the sole affidavit the insurer relied on to support its motion for summary judgment was insufficient under Rule 1.510(e), the insurance company failed to prove there were no genuine issues of material fact and that it was entitled to judgment as a matter of law, thereby necessitating reversal.

REQUEST TO TAKE JUDICIAL NOTICE OF AN OUT-OF-STATE OPINION FOR PURPOSES OF IMPEACHMENT WERE NOT CLAIMS OR DEFENSES DEVOID OF LEGAL MERIT UNDER §57.105, AND DID NOT CREATE AN ENTITLEMENT TO ATTORNEY’S FEES

Gilligan, Gooding, Batsel & Anderson, P.A. v. Condor Aerial, LLC, 46 Fla. L. Weekly D267 (Fla. 1st DCA January 29, 2021):

The appellant and his law firm asked the trial judge multiple times to take judicial notice of an unpublished appellate opinion from an out-of-state case involving appellee.

The case began with a contract dispute, and a question arose about the appellee’s CEO’s prior out-of-state felony conviction. Appellants had information that was contrary to what appellees presented about that conviction.

The appellants asked the trial judge multiple times to take judicial notice of the out-of-state opinion until the appellee moved for sanctions under §57.105, arguing that the request constituted improper impeachment, and had no basis in law or fact.

The appellants argued that the requests were not claims or defenses within the meaning of §57.105, and also asserted that their requests were not devoid of legal merit because there was a good argument that the opinion could be used to impeach the testimony about the felony conviction. The court agreed and reversed the award of §57.105 fees.