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FLORIDA LAW WEEKLY

VOLUME 46, NUMBER 38

CASES FROM THE WEEK SEPTEMBER 24, 2021

COURT FINDS NO VIOLATION OF PLAINTIFF’S DUE PROCESS IN STRIKING HER COMPLAINT, NOTWITHSTANDING THAT NOTICE ITSELF DID NOT MENTION THE “EVIDENTIARY” PART

Mendez v. ASI Preferred Insurance, 46 Fla. L. Weekly D2029 (Fla. 3rd DCA September 15 2021):

The defendant moved to strike the plaintiff’s complaint as a sham pleading.

The insurance company defendant set the motion to strike for a one-hour special set hearing. The notice did not indicate that the hearing would be conducted as an evidentiary hearing.

Thereafter, the insurance company filed a motion to allow its representative to attend the special set hearing via telephone. The trial court entered an order granting the motion, ruling that the insurance representative could attend or present evidence by telephonic means.

Plaintiff’s counsel asserted his belief that the hearing would be conducted non-evidentiary. However, the trial court referred to emails between the JA and the parties’ attorneys, reflecting that the hearing was an evidentiary hearing. Rule 1.510(a) provides that the trial court must conduct an evidentiary hearing prior to ruling on a motion to strike a pleading as a sham.

While the plaintiff relied on cases where the appellate courts found that the plaintiff’s due process was violated, in this case, the fact that the hearing had been set for an hour, that there was email communication with the JA, confirming that the hearing would be evidentiary and because the trial court said that the insurance representative could appear telephonically and present evidence, the court concluded that the plaintiff’s due process rights were not violated and that she was given sufficient notice of the evidentiary hearing.

The court affirmed both the dismissal of the plaintiff’s complaint, as well as the 57.105 fees that the trial court entered.

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TRIAL COURT ERRED IN PROHIBITING DEFENDANTS FROM PRESENTING AFFIRMATIVE DEFENSE ARISING OUT OF §767.04 IN A DOG CAUSED INJURY CASE – NEW TRIAL REQUIRED ON ISSUE OF PLAINTIFF’S COMPARATIVE FAULT THOUGH THE TRIAL COURT PROPERLY EXCLUDED THE FABRE DEFENSE OF DEFECTIVELY MANUFACTURED COLLAR – SECOND DISTRICT REITERATES THAT BILLS FOR PAST MEDICAL EXPENSES REDUCED BY MEDICARE MAY NOT BE INTRODUCED IN THEIR FULL AMOUNT

Parsons v. Culp, 46 Fla. L. Weekly D270 (Fla. 2nd DCA September 17, 2021):

The defendants’ dog ran towards the plaintiff’s dog, ultimately causing the plaintiff’s dog’s leash to wrap around the plaintiff’s ankles and causing her to fall and break her femur and left leg. Plaintiff sued the defendants based on §767.01, Fla. Stat., which renders owners of dogs liable for any damage done by their dogs to a person. The jury awarded the plaintiff $1,000,000.

The defendants sought to avoid liability for their dog’s actions by blaming the plaintiff herself, as well as the manufacturer or seller of their dog’s collar (which had broken).

As to the comparative fault of the plaintiff, §767.01 is a strict liability statute but still requires an affirmative or aggressive act by the dog.

The court discussed section §767.04 which requires an actual dog bite (which did not take place here). The court noted that these two statutory sections have become intermingled in our common law.

It further noted that comparative negligence was added to §767.04 in 1993, and even though it speaks in terms of persons bitten or dog bites, the court ruled that the confusion in the common law and the intermingling of the laws required it to read a comparative fault defense into §767.01 also.

The court stopped there, however, noting that if the legislature wanted to include negligence of a third party as a statutory defense to dog-related injury claims (because §768.81(3)(a) includes in its preface that it applies to negligence actions), it may do so.

Thus, the Second District concluded that comparative fault applied based on §767.04 (again, even though the case did not involve an actual dog bite), but found that Fabre did not, thereby precluding the defendants from introducing the alleged fault of the non-party manufacturer/retailer.

Finally, the Second District reiterated its fairly recent decision in Dial v. Calusa Palms decision, where it ruled that trial courts should not admit evidence of the full amount of the past medical bills when Medicare has paid those bills (and instead, the court should only introduce the reduced amount).

While the trial court, in this case, allowed evidence of the full amount of the bills, the parties had agreed to the past medical expenses, they were not a feature of the trial, and the court felt that the improper admission of the full amount of them in this particular case did not necessitate a new trial.

However, a new trial was necessary on the plaintiff’s comparative fault, leading the court to reverse and remand for trial on the consideration of that issue only.