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FLORIDA LAW WEEKLY

VOLUME 46, NUMBER 27

CASES FROM THE WEEK JULY 9, 2021

ANOTHER CASE DISCUSSING INFLAMMATORY CLOSING ARGUMENTS

R.J. Reynolds v. Mahfuz, 46 Fla. L. Weekly D1532 (Fla. 4th DCA June 30, 2021):

During this tobacco trial, plaintiff’s counsel called Phillip Morris a “soulless enterprise of death,” with a recklessness and indifference towards human life that was virtually criminal. The court ruled that counsel made these arguments to inflame the jury.

Plaintiff’s counsel also read from George Orwell’s novel 1984 comparing the Tobacco Companies to Big Brother and a totalitarian state that monitors everybody. Counsel read a passage from the novel to the jury asking it to follow the language and ensure that the decedent was not forgotten.

The court agreed with the Tobacco Companies that plaintiff’s counsel presented this passage to acquaint Tobacco Companies with Big Brother, and urged the jury to save the decedent’s memory with a large verdict. However, the passage had no connection to the evidence.

Counsel also compared the Tobacco Companies to Oscar Wilde’s Dorian Gray; a playboy in Victorian England who looks in a mirror and sees things as rotten as they truly are. Counsel asked the jury to see the Tobacco Companies in that same light.

Later, plaintiff’s counsel told the jury not to lose sight of the evil that men do and urged the jury to mete out a punishment with its verdict that would hurt.

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The Fourth District noted that these closing arguments were similar to those made in R.J. Reynolds v. Kaplan, (decided on June 23, 2021) and said they were improper in that case just as they were improper in this one.

Unlike the judgment in Kaplan which the court affirmed because the verdict was far less than requested by plaintiff’s counsel, in this case, it was clear that counsel succeeded in inflaming the jury, evidenced by a verdict that actually exceeded the compensatory damages request, and equal to the punitive damages request.

Judge Gross concurred, stating that he believes metaphorical speech should be okay and that the courts have lost sight that punitive damages involved in the Engle cases do involve “quasi-criminal” behavior and that these facts are egregious enough to justify their imposition.

Judge Gross explained that while certain themes are inappropriate in closing arguments such as comparisons to Nazis or slavery, plaintiffs’ attorneys should be able to use vivid speech to describe the enormity of a wrong that justifies punitive damages. He lamented that Fourth District case law is now encouraging “euphemism question-begging and sheer cloudy vagueness” with imprecise words that ”fall upon the facts like soft snow,” and blur the outlines of the details. Judge Gross wrote: “Our recent closing argument jurisprudence disrespects the common sense and intelligence of juries, which is the bedrock of the jury system.” That said, the takeaway from the majority is to BE CAREFUL about what you say in closing.

TRIAL COURT DID NOT ABUSE DISCRETION IN DENYING INSURER’S MOTION TO AMEND ANSWER, WHERE THE AMENDMENT SOUGHT ONLY SIX DAYS BEFORE TRIAL WOULD CHANGE THE PRIMARY ISSUES WHICH HAD BEEN LITIGATED FOR MORE THAN FOUR YEARS

State Farm v. Baum Chiropractic, 46 Fla. L. Weekly D1548 (Fla. 4th DCA June 30, 2021):

Four years after State Farm answered the plaintiff’s complaint about a breach of contract (not asserting any affirmative defenses), the court entered an order setting the case for trial, and requiring the parties to file a pre-trial stipulation. The parties agreed that the lawsuit involved a determination of whether the treatment rendered was related to the accident, was medically necessary, and reasonable in price.

Six days before trial, State Farm moved to amend to add several affirmative defenses, including set-off for PIP payments made pre-suit for services found not to be reasonable, related, or medically necessary, upcoding of bills, billing for treatment not rendered, etc.

The court ruled that while Florida encourages a policy of liberality in allowing litigants to amend their pleadings, the policy narrows as the case approaches trial. The case had been pending for four years. Yet State Farm did not decide to change the primary issues until six days before trial. The appellate court found the trial court did not abuse its discretion in refusing to allow the amendment.

TRIAL COURT ERRED IN DENYING INSURER’S MOTION TO AMEND WHERE INSURER HAD NOT PREVIOUSLY ABUSED AMENDMENT PROCESS, AMENDMENT WAS NOT FUTILE AND ADDRESSED DEFENSES AT ISSUE IN A LAWSUIT THAT PLAINTIFF WAS AWARE OF

State Farm v. Global Neuro & Spine Institute, 46 Fla. L. Weekly D1549 (Fla. 4th DCA June 30, 2021):

While three years had passed before the defendant moved to amend its affirmative defenses, leave to amend shall be given freely when justice so requires. The reasons the court gave for denying the motion for leave was that the pretrial order had set deadlines that had been missed, and the case had been pending for a while.

The court wrote that it agreed that litigants must timely pursue their claims and defenses, and courts should not allow litigants to needlessly delay a proceeding with untimely motions.

That said, Florida law encourages a policy of liberality in allowing amendments to pleadings; more than what the court relied on when it denied leave to amend. Unlike in the case above, here, the plaintiff was aware of the defenses, State Farm had not abused the process of amending, plaintiff did not argue that the amendment would have been futile, and there was no prejudice. Thus, the trial court erred in not allowing it.

COURT MUST DO AN IN CAMERA INSPECTION TO DECIDE WHETHER DOCUMENTS PROTECTED BY ATTORNEY-CLIENT PRIVILEGE ARE SUBJECT TO ANY EXCEPTION – MAGISTRATE PROPERLY RULED THAT CLAIMS MATERIALS CREATED PRIOR TO THE FINAL JUDGMENT ON COVERAGE WERE NOT PROTECTED BY WORK PRODUCT

American Home Assurance Co. v. Sebo, 46 Fla. L. Weekly D1524 (Fla. 2nd DCA June 30, 2021):

In this first-party bad faith case arising out of a homeowner’s dispute, the court affirmed the jury’s verdict, finding that the out-of-state insurance company failed to understand the “concurrent cause” doctrine, and erroneously denied coverage as a result.

After plaintiff began his first-party bad faith action against the insurance company arising from the wrongful denial of benefits, he served a request for production seeking an extensive list of documents relating to the denial of the claim. At issue were documents created before the final judgment was entered, at the time the insurance company objected to specific categories of documents, based on work product and attorney-client privileges.

Based on Allstate v. Ruiz, the work-product doctrine does not apply to documents prepared in connection with the evaluation of the underlying insurance claim, and such documents are not shielded from discovery because the claims’ materials are needed to determine whether the insurance company acted in bad faith.

However, Ruiz is limited to the work product doctrine and does not address attorney-client privilege. Attorney-client privilege differs because it is a statutorily protected privilege of confidentiality; it is not concerned with the litigation needs of the opposing party (undue hardship is not an exception nor is disclosure permitted because the opposing party claims that the privileged information is necessary to prove their case). Instead, the purpose of the privilege is to encourage full and frank communications between an attorney and client.

There are potential exceptions to attorney-client privilege communications in bad faith cases when an insurer raises the advice of its counsel as a defense in an action (rendering the communication necessary to establish the defense), and when an insurer has hired an attorney to both investigate an underlying claim and give legal advice. Because of these exceptions, the trial court must conduct an in-camera inspection to determine if the materials at issue are truly protected by attorney-client privilege or not.

COURT REVERSES ORDER GRANTING MOTION TO DISMISS FOR IMPROPER VENUE WITHOUT CONDUCTING AN EVIDENTIARY HEARING, AND THE OPPOSING PARTY’S REQUEST TO CONDUCT DISCOVERY ON THE ISSUE.

Nelson v. Jason Miller Investments, 46 Fla. L. Weekly D1566 (Fla. 2nd DCA July 2, 2021):

The trial court should not have granted defendant’s motion to dismiss for the improper venue without conducting an evidentiary hearing, especially after the plaintiff requested to conduct discovery on the issue.

Although on its face the complaint does not show that the venue would be proper in the county where it was filed, it also did not show on its face that it would be improper either. Thus, the court should have conducted an evidentiary hearing and was reversed for failing to do so.

AGREEMENT TO ARBITRATE VALID EVEN THOUGH ATTORNEY’S FEE PROVISION VIOLATED ADULT PROTECTIVE SERVICES ACT, SEVERABILITY CLAUSE ALLOWED SEVERANCE FROM THE OTHERWISE ENFORCEABLE ARBITRATION AGREEMENT

Gordon v. DOS of Crystal River, 46 Fla. L. Weekly D1571 (Fla. 5th DCA July 2, 2021):

The admission agreement contained an arbitration provision stating that each party would bear its own attorneys’ fees and costs.

However, Florida’s Adult Protective Services Act contains a provision that entitles prevailing parties to recover attorney’s fees under § 415.1111. Thus, the Agreement’s requirement that each party bear its own fees was an improper attempt to limit the statutory remedy of prevailing party’s attorney’s fees. The court found that provision violated the law.

However, the court then found the offending provision was severable from the remainder of the Agreement because it did not go to the “essence” of the Agreement. As such, the court struck the fees provision but found that the claim was still arbitrable.