The Week In Torts – Cases from April 1, 2022
Now THAT is aggravating
FLORIDA LAW WEEKLY
VOLUME 47, NUMBER 13
CASES FROM THE WEEK April 1, 2022
AGGRAVATION OF INJURY MUST BE SPECIFICALLY PLED – DEFENDANT’S KNOWLEDGE OF CLAIMED DAMAGES IS INSUFFICIENT TO EXCUSE THE PLEADING REQUIREMENT – NEW TRIAL ORDERED ON THE CAUSE AND AMOUNT OF FUTURE MEDICAL EXPENSES, AND THE CAUSE AND AMOUNT OF FUTURE NON-ECONOMIC DAMAGES
State Farm v. Davis, 47 Fla. L. Weekly D715 (Fla. 5th DCA Mar. 25, 2022):
After an accident, the plaintiff claimed that the accident and her injuries were caused by the negligence of an uninsured motorist, suing her UM carrier, State Farm.
Plaintiff’s complaint asserted that she had sustained personal injuries, suffered loss, injury and damages as a result of the accident, and alleged that her injuries were permanent and continuing. State Farm admitted that the uninsured driver was negligent and the sole cause of the crash, but contested causation and the extent of her injuries.
Before the accident, the plaintiff had received chiropractic treatment for various conditions. She also was sent to a medical doctor for steroid and nerve block injections prior to the accident. There was no medical testimony or any other evidence presented by either side that the subject wreck had aggravated any of the plaintiff’s pre-existing conditions of her low back and neck (the injuries in this case were in her neck, ribs, middle back, shoulders, hip, lumbar spine and headaches).
The plaintiff did not claim special damages for aggravation of pre-existing injuries or conditions in her complaint, even though her attorney acknowledged that such claims were standard pleading. In her pre-trial statement, plaintiff claimed that as a result of the crash, she suffered significant and permanent loss, injury, and damages, but didn’t make any mention of aggravation. However, shortly before trial, she presented a proposed verdict form, which contained a question including damages for aggravation.
The trial court ruled that because State Farm was aware of the prior injuries and treatment, the claim for aggravation could be brought before the jury. At the close of the plaintiff’s case, State Farm moved unsuccessfully for a directed verdict because no evidence was presented about aggravation, and State Farm also objected to the jury instructions and verdict form.
The jury returned a verdict awarding the plaintiff $350,000 for future medical expenses and $150,000 for her future non-economic damages, which included aggravation of pre-existing condition.
The court reversed. It equated “aggravation” to special damages, and ruled that when special damages are sought, the pleading requirements are more demanding.
Special damages are those that do not necessarily result from the wrong, or breach of contract complained of, or which the law does not imply as a result of an injury, even though they might actually and proximately result from the injury.
The court explained that people injured in accidents may or may not have pre-existing conditions, and even those who do, may not always have them aggravated by the collision, even if the same general part of the body is involved. Special damages must therefore be specified in a complaint, to apprise the opposing party of the nature of the damages claimed.
Under the existing rules, the only instance where a legal issue not raised by the pleadings may be tried and decided is where the issue, although not pled, is tried by consent of the parties.
A claim for special damages, the court ruled, such as the aggravation of a pre-existing condition must be pled and per se reversible error for a trial court to permit evidence of such damages without a pleading claiming such.
Here, State Farm refused to argue the case by consent and therefore the court reversed.
The court also ruled that without any evidence of aggravation, the trial court should have granted the defendant’s motion for directed verdict. Here, while the plaintiff’s medical expert testified that the plaintiff’s injuries were caused by the accident, he did not offer any testimony that any pre-existing condition had been aggravated.
A WEBSITE’S “TERMS OF SERVICE” AGREEMENT INCORPORATING THE AMERICAN ARBITRATION ASSOCIATION RULES BY REFERENCE THAT CONFER THE RIGHT TO MAKE ARBITRABILITY DETERMINATIONS TO AN ARBITRATOR, SOMEHOW CONSTITUTES “CLEAR AND UNMISTAKABLE” EVIDENCE OF THE PARTIES’ INTENT TO HAVE THE ARBITRATOR (AND NOT THE COURT), RESOLVE QUESTIONS OF ARBITRABILITY
Airbnb, Inc., v. Doe, 47 Fla. L. Weekly S100 (Fla. 2nd DCA Mar. 31, 2022):
The issue before the court focused on who decides arbitrability (i.e., whether a dispute falls within a contract’s arbitration provision): is it an arbitrator or the judge?
Airbnb’s Terms of Service Agreement incorporated the American Arbitration Association (AAA) rules by reference. This serpentine connection, the court found, constituted “clear and unmistakable” evidence that the parties intended to empower an arbitrator rather than the court to resolve questions for arbitrability.
In so ruling, the Supreme Court reversed a Second District decision, where that court refused to hold that that the AAA rules generically referenced in the clickwrap agreement was anything but broad, nonspecific and cursory, and found that the reference was limited to how the arbitration was supposed to be administered and commenced.
While the parties agreed that the issues of arbitrability in that case were governed by the FAA, they argued over which tribunal decides whether arbitration would be compelled or not. The Florida Supreme Court held that because Airbnb’s terms of service incorporated by reference the AAA rules that expressly delegate arbitrability determinations to an arbitrator, the agreement clearly and unmistakably evinced the parties’ intent to empower an arbitrator rather than a court, to resolve questions of arbitrability.
Justice Labarga dissented. He questioned how an arbitrability provision buried within voluminous pages of rules and policies, and incorporated the only reference in a clickwrap agreement, could ever demonstrate “clear and unmistakable” intent.
TRIAL COURT ERRED IN FAILING TO GRANT DEFENDANT’S MOTIONS TO TRANSFER VENUE TO LEE COUNTY BASED ON THE HOME VENUE PRIVILEGE –AMENDMENTS TO SECTION 768.28(1) DID NOT WAIVE THE PRIVILEGE
Lee Memorial Health System v. Martinez, 47 Fla. L. Weekly D695 (Fla. 3rd DCA Mar. 23, 2022):
A man filed a wrongful death medical malpractice case on behalf of his deceased 19-year old son.
According to the complaint, the father resided in Lee County. The complaint also acknowledged that Lee Health is a hospital system located in Lee County. The plaintiff’s son had received extensive medical treatment for headaches and blurred vision at Lee Health, before he was discharged, and before he went to Baptist Hospital in Miami, where it appeared he had a brain tumor. He died several days later.
The plaintiff filed suit in Miami-Dade County against Lee Memorial, and several other defendants. Although all of the medical treatment by the named defendants occurred in Lee County, the complaint alleged that it was proper in Miami-Dade County because the young man died there.
In response to the complaint, Lee Health sought to transfer venue to Lee County based on the home venue privilege. Lee Health argued that as a political subdivision of Florida, venue for any civil action — absent waiver or exception — lay only in Lee County where it is headquartered. Several other defendants also filed separate motions to dismiss for improper venue.
While a trial court’s discretionary decision to change venue is reviewable under an abuse of discretion standard, the issue of whether venue is proper in a particular forum is not discretionary.
Although venue is typically controlled by statute, governmental defendants have a common law home venue privilege providing that absent waiver or exception, venue is proper only in the county in which the state, or the agency or subdivision maintains its principal headquarters. One exception is where the legislature has waived the privilege by statute. The plaintiff argued that under Section 768.28, the legislature did so.
The court disagreed. It rejected the argument that the language in Section 768.28(1) “any such action may be brought in the county where the property in litigation is located or, if the affected agency or subdivision has an office in such county for the transaction of its customary business, where the cause of action accrued.”
The plaintiff argued that such language allows a political subdivision of the state, like Lee Memorial, to be sued in the county where the tort action accrued.
The court found that the plain language did not evidence an intent to waive the common law home venue privilege. Additionally, pursuant to Section 47.011, the negligent acts in the case really occurred in Lee County and not Miami-Dade County.
Wrongful death causes of action accrue in the county where the negligence actions which caused the death were committed, rather than the county where the death occurred. The court, therefore, reversed and remanded to transfer the case to Lee County.
A PLAINTIFF’S CHOICE OF VENUE IS PRESUMPTIVELY CORRECT, AND THE TRIAL COURT DOES NOT HAVE DISCRETION TO DISMISS OR TRANSFER A CASE BASED ON ITS BELIEF THAT THERE IS NO “RELEVANT CONNECTION” TO THE COUNTY WHERE THE CASE WAS FILED
Miami Open MRI, LLC v. Liberty Mutual, 47 Fla. L. Weekly D701 (Fla. 4th DCA Mar. 23, 2022):
The county court sua sponte dismissed the plaintiff’s case for failing to comply with an order requiring information regarding venue.
A plaintiff’s choice of venue is presumed to be correct, and transfers are only warranted when the court is presented with evidence shedding necessary light on the issue of the convenience of the parties and witnesses, or the interest of justice.
Trial courts do not have discretion to dismiss or transfer cases simply because they believe there is no relevant connection to the county. Here, the county court issued an order to show cause sua sponte before the defendant filed an answer, seeking an explanation from the plaintiff about the county where the medical treatment was rendered, where the automobile accident occurred, and where the patient resided. This act was error, necessitating reversal.
NO ERROR IN DISMISSING CLAIMS FOR FAILURE TO COMPLY WITH MEDICAL MALPRACTICE PRESUIT REQUIREMENTS
Rafferty v. Martin Memorial, 47 Fla. L. Weekly D702 (Fla. 4th DCA Mar. 23, 2022):
The plaintiff sued a midwife and the hospital staff for medical negligence during the delivery of the baby. However, she failed to include a corroborating affidavit of an expert in compliance with presuit requirements.
Without a statement to corroborate reasonable grounds to support a claim for medical malpractice, the court affirmed the dismissal.