The Week In Torts – Cases from April 1, 2022
Putting people into danger is a policy decision?
FLORIDA LAW WEEKLY
VOLUME 47, NUMBER 14
CASES FROM THE WEEK APRIL 1, 2022
SHERIFF’S DECISION ABOUT WHETHER TO PROVIDE SEATBELTS IN VEHICLES USED TO TRANSPORT PRISONERS OR DETAINEES WAS A DISCRETIONARY DECISION, NOT SUBJECT TO SOVEREIGN IMMUNITY PROTECTION
Gualtieri v. Pownall, 47 Fla. L. Weekly D738 (Fla. 2nd DCA Mar. 30, 2022):
A person the police were detaining was being transported to a jail in a vehicle that was owned by the sheriff. It was not equipped with seatbelts or any other restraining devices.
During transport, the plaintiff alleged that he was injured when the driver slammed on the brakes and caused him to be thrown from his seat, striking his body against the metal interior of the rear compartment.
The court reversed the trial court’s denial of the sheriff’s motion to dismiss.
While the court found that plaintiff had plausibly alleged the existence of a duty (based on the special duty that arises when law enforcement officers become directly involved in circumstances which place people in the zone of risk), it still ruled there was no liability as a matter of law. It found that the decision to provide seatbelts in vehicles used to transport prisoners or detainees involves important policy considerations regarding the safety of prisoners and detainees, and thus qualifies as a discretionary function for which the sheriff is protected by sovereign immunity. A bit of a head scratch if you ask me.
A PARTY MAY ADMIT MEMORANDA, DOCUMENTS, COMPILATIONS, ETC. UNDER THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE, BUT THE EXCEPTION DOES NOT INCLUDE MERE TESTIMONY ABOUT THOSE DOCUMENTS WITHOUT THE DOCUMENTS THEMSELVES.
Roberts v. Direct General Ins. Co., 47 Fla. L. Weekly D737 (Fla. 2nd DCA. Mar. 30, 2022):
The defendant in this PIP case relied on the deposition testimony of its underwriting manager that there was an additional person in the plaintiff’s household. This fact would have increased the premium.
However, the insurance company did not include any documents from the underwriting files as part of its summary judgment evidence, relying exclusively on the deposition testimony referenced above.
The trial court admitted the testimony under the business records exception, finding that because the witness testified to having knowledge of the system used to generate “how the information was entered into the system,” she could also claim having personal knowledge from a review of the records. Armed with the deposition, the trial found that the insurance company provided the required testimony needed to establish a failure to disclose the material misrepresentation.
The appellate court rejected the trial court’s finding regarding the business record exception. It found that while the exception allows the admission of a memorandum, report, or data compilation, it does not authorize hearsay testimony concerning the contents of business records, which have not been admitted into evidence. As such, this testimony was not admissible.
The court still affirmed the final summary judgment for the insurance company, though, finding that the testimony was admissible anyway, because the witness was competent to testify from personal knowledge. That factor rendered the need for the business records exception to the hearsay rule unnecessary for the court to admit the deposition.
A SPOUSE WHO MARRIES A PERSON AFTER THE PERSON GETS INJURED BUT BEFORE HE DIED, IS STILL BARRED FROM RECOVERING FOR LOSS OF THE DECEDENT’S COMPANIONSHIP AND PROTECTION, AND MENTAL PAIN AND SUFFERING UNDER SECTION 768.21(2) – HOWEVER, WITHOUT A SPOUSE’S CLAIM, THE CHILDREN MAY RECOVER
Ripple v. CBS Corp., 47 Fla. L. Weekly D750 (Fla. 4th DCA Mar. 30, 2022):
The estate asserted that the trial court erred in holding that a spouse who had married someone after he got injured but before he died had a claim, because 768.21(2) of the Wrongful Death Act prohibits recovery for the loss of the decedent’s companionship and protection, and for mental pain and suffering under those circumstances.
However, the court agreed with the plaintiff’s alternative argument, finding that if the law bars the spouse from recovering under those circumstances, then the decedent’s surviving adult children may recover for lost parental companionship, instruction, guidance, and for mental pain and suffering under Section 768.21(3).
The court affirmed based on the Fourth District’s decision in Kelly v. Georgia Pacific, 211 So.3d 340 (Fla. 4th DCA 2017), but certified conflict with the Fifth District’s decision in Domino’s Pizza v. Wiederhold, 248 So.3d 212 (Fla. 5th DCA 2018).
MEDICAL MALPRACTICE VERDICT AFFIRMED ON EVIDENTIARY ISSUES OF DOCTOR’S FINANCIAL MOTIVE BY DOCTOR; MISTAKEN LISTING OF SETTLED PARTY ON VERDICT FORM, AND PRE-JUDGMENT INTEREST– REVERSAL FOR NEW TRIAL BASED ON LIFE EXPECTANCY DAMAGES FOR THE DAUGHTER
Healthcare Underwriters Group v. Vedere, 47 Fla. L. Weekly D761 (Fla. 4th DCA Mar 30, 2022):
The jury reached a plaintiff’s verdict for a woman and her daughter, after her husband and the child’s father died after an interventional cardiology procedure, which they alleged was not medically indicated or properly performed.
At trial, plaintiff’s counsel argued over vigorous defense objections that the doctor had a financial motive from the manufacturer of the device he used to perform unnecessary procedures. In light of the plaintiff’s theory that the doctor had performed an unnecessary procedure not indicated by the symptoms the patient had, the trial court found the evidence to be wholly relevant and consistent with the motive asserted for doing the procedure: monetary gain.
The court ruled that evidence of financial gain in malpractice suits is admissible, and that the trial court did not abuse its discretion in admitting such evidence concerning the financial arrangements that the physician had with the manufacturer of the device (even though motive is not an element for the cause of action, it was still relevant to the claim of negligence).
The court also affirmed based on the defendant’s argument about the verdict form impermissibly listing a defendant had settled. The parties had apparently approved the verdict form between them, and no one was sure how the one with the settling defendant in the style got to the jury.
Despite case law suggesting a rule that the case caption on the verdict form containing a settling defendant constitutes reversible error, the court found that the error was not per se reversible, because there was no evidence that the jury was influenced by the inclusion of the settling defendant. The jury never asked any questions about the verdict form, and nothing in the record indicated that the jury even noticed a settling defendant was in the caption. The court explained that a violation of Section 768.041(3) is subject to a harmless error analysis and the appellate court agreed with the trial court that the error was harmless.
The court also affirmed the award of pre-judgment interest from the date that the defendant rejected the plaintiff’s request for voluntary arbitration, and not from the date of the verdict. The pre-judgment interest was available on both the economic and non-economic damages.
On the issue of damages involving the survivors’ life expectancies, the court reversed. Plaintiff’s counsel had emphasized that the decedent’s daughter would have a long life expectancy, noting that she would live much longer than her mother.
Because the argument conflicted with the law that non-economic damages for a surviving minor should be measured by the joint life expectancy of the child and the deceased parent, the court reversed for a new trial on that issue only.
TRIAL COURT ABUSED ITS DISCRETION IN DENYING A RULE 1.540(b) MOTION, WHICH SET FORTH A COLORABLE ENTITLEMENT TO RELIEF, WITHOUT AN EVIDENTIARY HEARING
Ravelo v. Payret, 47 Fla. L. Weekly D772 (Fla. 3rd DCA Mar. 30, 2022):
SCHOOL BOARD WAS NOT SELF-INSURED OR STATUTORILY CLASSIFIED AS AN “UNINSURED” OR “UNDERINSURED” TORTFEASOR, WHERE THE SCHOOL BOARD REGULARLY PAID PREMIUMS TO A RECIPROCAL RISK RETENTION GROUP FOR COVERAGE – EVEN IF THE SCHOOL BOARD RETAINED A PORTION OF THE OVERALL RISK, THE SCHOOL BOARD WAS NOT UNDERINSURED – ALSO BECAUSE PLAINTIFF’S SETTLEMENT WITH SCHOOL BOARD DID NOT EXHAUST THE BENEFITS AVAILABLE UNDER THE POLICY, THE EMPLOYER’S UM COVERAGE WAS NOT TRIGGERED
White v. Ascendant Commercial Ins., Inc., 47 Fla. L. Weekly D774 (Fla. 3rd DCA Mar. 30, 2022):
The plaintiff was injured in an accident with a Miami-Dade County school bus while riding as a passenger in his employer’s work vehicle. He sued the employer’s liability carrier as well as the School Board. He settled with the School Board for $175,000.00, and dismissed the case.
Subsequently, the plaintiff sought to collect UM benefits from his employer’s carrier. Plaintiff asserted that the School Board was self-insured and statutorily classified as an uninsured or underinsured tortfeasor.
The trial court rejected the argument that the School Board was fully insured and that the policy provided for up to $200,000.00 in coverage. The plaintiff failed to exhaust those limits, and therefore the trial court ruled that the plaintiff could not seek additional damages from the employer’s UM coverage.
An injured insured may bring a direct action against his own UM carrier without first resolving the claim against the tortfeasor. However, in bringing a direct action against a UM carrier, the insured must first demonstrate his or her entitlement to UM coverage on the basis that the tortfeasor is an uninsured or underinsured motorist.
In this case, the court concluded that the School Board does regularly pay premiums, and even if it retained a portion of the overall risk, the self-retention limit did not constitute self-insurance, and therefore the “policy” was for $200,000.00.
As for the case against the employer’s uninsured motorist coverage, because the policy stated that the benefits were payable only if the tortfeasor’s insurance coverage was exhausted through the payment of judgments or settlements, the failure to exhaust the School Board’s liability coverage meant summary judgment for the employer’s carrier was proper.
TRIAL COURT DEPARTED FROM ESSENTIAL REQUIREMENTS OF LAW RESULTING IN HARM NOT REMEDIABLE ON DIRECT APPEAL BY DENYING THE INSURER’S MOTION TO COMPEL THE DEPOSITION OF THE PROVIDER’S BILLING MANAGER
Standard Fire Insurance, Co. v. Colonial Medical Center, 47 Fla. L. Weekly D785 (Fla. 5th DCA April 1, 2022):
The medical provider plaintiff in this PIP case sought to recover certain claims assigned to it. As an affirmative defense, the insurance company alleged that the provider failed to timely submit the claims.
The provider moved for summary disposition, supporting the motion with an affidavit from the billing manager stating that the bills were timely submitted. The insurance company sought to take the deposition of the billing manager, which the trial court refused to allow.
At the hearing on the motion to compel, the insurer’s attorney advised that the only remaining issue in the case was whether the claims had been timely submitted, and the purpose of the deposition was to determine whether or not the bills were in fact timely submitted. The trial court denied the motion to compel without explanation.
The court granted the writ. It found that the insurance company sought to depose the individual selected by the plaintiff to submit an affidavit, and the testimony would go directly to the disputed issue in the case.
The denial of the petitioner’s motion was a departure from the essential requirements of law, and the effect of the ruling was to eviscerate the insurance company’s ability to present that the claims had been untimely submitted.
Because the court found that the harm from the order would not be remediable on appeal, as there is no practical way to determine after judgment how the requested discovery would have affected the outcome of the proceedings, it granted certiorari.
This will be a good case to use when trial judges grant motions for protective order on witnesses you feel are key to the case.