So you thought you could wait for a defense verdict, did you?

FLORIDA LAW WEEKLY

VOLUME 46, NUMBER 8

CASES FROM THE WEEK FEBRUARY 26, 2021

TRIAL COURT ABUSED DISCRETION BY SETTING ASIDE JURY VERDICT IN PLAINTIFF’S FAVOR AND DISMISSING CASE BASED ON PLAINTIFF’S GIVING OF INCONSISTENT TESTIMONY REGARDING PRIOR MEDICAL TREATMENT – DEFENSE COUNSEL COULD HAVE SOUGHT A PRE-TRIAL OR IN TRIAL REMEDY BUT MADE A TACTICAL DECISION TO PRESENT THE ISSUE TO THE JURY, AND THE JURY RETURNED A VERDICT FOR THE PLAINTIFF DESPITE THE INCONSISTENCIES

Salazar v. Gomez, 46 Fla. L. Weekly D387 (Fla. 3rd DCA February 17, 2021):

A 23-year-old body builder and personal trainer was involved in a car accident, and sustained neck injuries requiring surgery due to a herniated disc. During his deposition, plaintiff disclosed that he had previously been involved in a minor fender bender the year before, but did not sustain any injuries and did not receive any treatment from that accident. He testified that he had sustained injuries while competing at CrossFit, and had received physical therapy for sports related muscle aches. He denied ever having been treated by an orthopedic surgeon.

A week before trial, defense counsel received medical records, which on their face appeared to contradict the plaintiff’s prior testimony about prior medical treatment. Defense counsel did not seek a continuance to conduct more discovery, or request an updated deposition, or bring any pre-trial motions regarding the alleged late discovery or inconsistencies.

Instead, the parties proceeded to trial where defense counsel confronted the plaintiff with the alleged inconsistencies. The plaintiff explained that he may have misspoken regarding prior treatment by an orthopedic surgeon and maintained that his prior chiropractic treatment was related to fitness activities, and not any accident.

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The jury found for the plaintiff, and apportioned the majority of negligence to the defendant. Following the verdict, the defendant moved to dismiss for fraud and/or for a new trial, realleging the same inconsistencies that were presented to the jury. The trial court granted the motion and dismissed the case with prejudice.

The court agreed that the plaintiff gave inconsistent testimony. However, the inconsistent testimony was known to defense counsel before trial, and tested through cross-examination and re-direct at trial.

Importantly, both sides presented their respective theories of the evidence to the jury, and the jury was therefore fully appraised of the alleged inconsistencies to the point where it could make its own determination about whether the plaintiff lied or provided a reasonable explanation. By its verdict, the jury implicitly rejected the theory that the plaintiff’s inconsistencies were “lies.”

Even in a case where a witness knowingly gives and uses false testimony, the proper remedy is to bring a motion, including a motion for mistrial or a motion for continuance.

Here the defendant did not seek either a pre-trial or an in-trial remedy. As the trial judge observed during the hearing on the post-trial motion to dismiss, the defendant consciously chose not to bring a motion to dismiss for fraud, choosing instead to present the issues to the jury and hoping for a defense verdict.

The court refused to reward this tactical decision. Essential to its analysis was that the defendant did not present any new evidence following the verdict, and the trial court did not conduct an evidentiary hearing on the motion, which had previously been submitted to the jury. The appellate court emphasized that inconsistencies or contradictions in testimony which perpetuate an unconscionable scheme to interfere with the jury’s ability and partially adjudicate the matter can be significant enough to warrant a finding of fraud, but such a finding must be supported by clear and convincing evidence which this record did not contain.

The court reversed, ruling that the trial judge abused his discretion in overturning the verdict and dismissing the case.

STATUTE OF LIMITATIONS IN BAD FAITH CASE BEGAN TO RUN NOT AT THE TIME THE INSURER REFUSED TO PROVIDE COVERAGE OR DEFEND, BUT AT THE TIME THE PLAINTIFF’S BAD FAITH CLAIM BECAME COGNIZABLE

Butler v. Florida Peninsular Ins. Co., 46 Fla. L. Weekly D375 (Fla. 4th DCA February 17, 2021):

Plaintiff sued the insurance company after the defendant insured entered into a Coblentz settlement with the plaintiff, stipulating to a consent judgment, and assigning the plaintiff the right to collect a judgment of $100,000 against the insurance company.

In the operative complaint, the plaintiff alleged one count of bad faith against the insurance company for denying coverage and its failure to defend the insured. The insurance company moved for summary judgment, arguing that the action was time barred because the insured was required to file an action against the insurance company within five years of the denial of coverage and the request to defend the underlying suit.

The trial court agreed and granted summary judgment for the insurance company.

The plaintiff argued that the statute of limitations actually began to run, not at the time the insurance company refused to provide coverage and defend, but at the time that the plaintiff’s bad faith claim (as the assignee of the insured) became cognizable, which is when damages were fixed by the entry of the agreed judgment based on the Coblentz settlement.

ORDER DENYING MOTION FOR RECONSIDERATION AND REHEARING OF NON-FINAL ORDER COMPELLING ARBITRATION IS NOT AN APPEALABLE ORDER, AND DOES NOT TOLL RENDITION OF AN APPEALABLE ORDER – APPEAL PROPERLY DISMISSED

Samara v. Tenet Florida Physician Services, 46 Fla. L. Weekly D379 (Fla. 3rd DCA February 17, 2021):

The plaintiff was a former employee of the defendant and sued for sexual harassment and retaliation. Following an evidentiary hearing, the court granted the defendant’s motions to compel arbitration based on an arbitration agreement the plaintiff had signed. She did not appeal the non-final order compelling arbitration.

Over a year later, the plaintiff filed a motion for reconsideration and rehearing directed at that order, asserting that she had amended her complaint in arbitration and abandoned her claims for negligent and intentional infliction of emotional distress, and argued that the remaining claim for malicious prosecution and defamation did not arise out of the employment. The court denied the plaintiff’s motion for reconsideration, and the plaintiff appealed.

An order on a motion for rehearing is not an appealable order pursuant to Fla. R. App. P. 9.130(4). Orders simply denying a motion for reconsideration or rehearing are not in and of themselves appealable orders either.

In some instances, some motions for rehearing may toll the rendition of an appealable order, but that was not the case in this instance. See, Fla. R. App. P. 9.130(a)(5). The court dismissed the appeal.