The Week In Torts – Cases from August 11, 2023
A confession by any other name
FLORIDA LAW WEEKLY
VOLUME 48, NUMBER 32
CASES FROM THE WEEK OF AUGUST 11, 2023
INSURER’S PAYMENT OF UM POLICY LIMITS IN RESPONSE TO A PLAINTIFF’S CIVIL REMEDY NOTICE WAS THE FUNCTIONAL EQUIVALENT OF A “CONFESSION OF JUDGMENT,” THEREBY ENTITLING THE PLAINTIFF TO ATTORNEY’S FEES PURSUANT TO HER PROPOSAL FOR SETTLEMENT.
Stiwich v. Progressive American, 48 Fla. L. Weekly D1535 (Fla. 2nd DCA Aug. 4, 2023):
Progressive failed to pay a $10,000.00 UM policy necessitating a lawsuit. The plaintiff served a proposal for settlement pursuant to §768.79.
The plaintiff then filed a Civil Remedy Notice and within that frame, Progressive paid the $10,000.00 policy limits. The plaintiff filed her motion seeking entry of an order of confession of judgment/final judgment and requested attorney’s fees and costs (she had served a Proposal for Settlement for an amount less than the $10,000.00).
Progressive opposed the motion arguing that because it never denied coverage, its payment of the UM policy limits in response to the Civil Remedy Notice could not be a confession of judgment and was rather just a settlement. Progressive maintained that because no judgment had been entered in the underlying action, the plaintiff could not recover fees, because under the statute a person is entitled to fees only if he or she recovers a judgment in the amount of 25% greater than the offer. The plaintiff argued that the confessed judgment was equivalent to a verdict upon which a final judgment in her favor should have been entered, thereby triggering her entitlement to fees and costs.
By tendering the amount of the disputed claim to cure the Civil Remedy Notice, the court found that Progressive acknowledged that the plaintiff was entitled to UM benefits. Also, because the plaintiff established that the tender was a confession of judgment that could be substituted for a verdict in her favor, the trial court erred in denying her motion seeking an order for confession of judgment or entry of final judgment. That final judgment which the court refused to enter, would have satisfied the requirements of the statute.
Finally, the court rejected Progressive’s position that its tender of policy limits could not be deemed a confession of judgment because it never denied coverage. If there is a bonified dispute, that dispute is the condition precedent to treating a post suit payment as a confession of judgment.
In other words, it made no difference whether Progressive refused to pay the UM claim because it concluded that the plaintiff did not have coverage or because it concluded it was not liable to pay for some other reason as expressed in its affirmative defenses. The fact that it denied claim is what created the dispute necessitating the filing of the lawsuit.
DRAM SHOP LAW SET FORTH IN §768.125 DOES NOT IMPOSE A DUTY ON A NIGHTCLUB TO DEFEND AND INDEMNIFY THE MINOR WHO WAS SERVED AND GOT IN THE CRASH
Garcia v. Myrtil, 48 Fla. L. Weekly D1483 (Fla. 3rd DCA Aug. 2, 2023):
In the underlying case, a plaintiff sued the owner and driver of a vehicle, after the plaintiff was injured by the driver’s drunk driving. The plaintiff also sued a nightclub pursuant to §768.125, alleging that it had served alcohol to the driver who was under the legal drinking age.
The first case was mis-tried. Before the second trial, the plaintiff settled with the nightclub. A few days later, the owner and driver sought to file a third-party complaint against the nightclub asserting that it was directly liable for the damages caused by willfully and unlawfully serving alcohol to the minor. There were also counts based on indemnification, where the defendants allege that pursuant to Florida’s dram shop law, the nightclub was obligated to defend and indemnify them.
The court ruled that the nightclub had no duty to defend and indemnify the tortfeasors. There is nothing in the language of §768.125 that imposes such a duty. (The direct claims were barred by the statute of limitations). There was also no special relationship that would give a rise to a duty to indemnify. Without legal authority, the court properly dismissed the complaint.
ERROR TO DENY MOTION TO DISQUALIFY WHERE COMMENTS MADE BY JUDGE WERE SUFFICIENT TO SUPPORT WELL-FOUNDED FEAR BIAS
Frohlich v. National Concrete Preservation, 48 Fla. L. Weekly D1491 (Fla. 3rd DCA Aug. 2, 2023):
Though the opinion does not include the comments that were made, it cited cases referring to threats of criminal prosecution, and held such claims were sufficient to support the claims of bias and disqualification.
COURT REVERSES SUMMARY JUDGMENT ENTERED IN FAVOR OF PRODUCT MANUFACTURER – – PLAINTIFF WAS NOT REQUIRED TO PROVE THAT THE DEFENDANT WAS THE EXCLUSIVE SUPPLIER OF BRAKE LININGS ONLY THAT THE DECEDENT WAS MORE LIKELY THAN NOT EXPOSED TO THE DEFENDANT’S PRODUCT.
Smith v. Carlisle Industrial Brake and Friction, Inc., 48 Fla. L. Weekly D1531 (Fla. 1st DCA Aug. 2, 2023):
A woman passed away from mesothelioma caused by exposure to asbestos. The complaint alleged that she had been exposed to it from laundering her deceased husband’s work clothing. Her husband was a mechanic who worked with brake products that contained asbestos.
The defendant, Carlisle, manufactured and sold brake linings that contained asbestos to automotive break manufacturers, who then sold Carlisle brake linings as their own. The issue on appeal was whether the plaintiff had offered enough evidence to support a genuine factual issue over whether the decedent had some interaction or exposure to asbestos from Carlisle’s brake linings to defeat summary judgment.
The evidence showed that from 1969 through 1993, the husband worked on Mack trucks. Mack purchased brake products from third party manufacturers including Carlisle. There was evidence that Carlisle had supplied brake products to Mack between 1974 and 1979, but Mack did not know which, if any, of the approved suppliers had actually sold the brake linings during the seventies. There was evidence that there were other suppliers, but Carlisle had supplied brake products during the pertinent time.
On summary judgment, Carlisle argued that none of the plaintiff’s fact witnesses mentioned Carlisle by name or offered testimony about it indicating that the decedent worked with or around any Carlisle product. Carlisle argued that it was one of twelve suppliers to Mack and that it was pure speculation as to whether it had manufactured the breaks used by the deceased husband.
In asbestos cases a plaintiff can establish exposure to the defendant’s products by presenting evidence that the products were used on a job site and the victim was in proximity to that product.
The court observed that the standard for evaluating product identification is no different than the causation standard articulated in Gooding. Based on that standard, the plaintiff had produced sufficient circumstantial evidence to overcome summary judgment by offering evidence (a) that from 1974 to 1979, the decedent was regularly exposed to dust from Mack branded brake linings; (b) that Mack did not manufacture its own linings but purchased them from an authorized supplier and (c) that Carlise was one of those authorized suppliers who had sold brake linings to Mack from 1974 to 1979.
There was evidence that Carlisle was only one of three authorized suppliers in 1974 narrowing down field of 12 potential suppliers that would have not been enough to create a fact issue.
The court found that the plaintiff had established enough evidence to create a genuine issue of material fact as to product identification and reverse summary judgment.
TRIAL COURT ERRED BY FAILING TO GIVE REQUESTED JURY INSTRUCTION REGARDING A DRIVER’S ALLEGED VIOLATION OF TRAFFIC CONTROL LAWS
Goddard v. Mujia-Hernandez, 48 Fla. L. Weekly D1549 (Fla. 6th DCA Aug. 4, 2023):
The plaintiff appealed a defense verdict after the jury found that the defendant was not negligent when his company owned truck ran into a minor riding a bicycle. The defendant was driving his truck in daylight on dry roads and with no sun blocking his view.
At an intersection, his truck collided with the child and her bicycle. The road on which the child was traveling had a stop sign and the intersection facing the defendant did not. The defendant testified that he did not see the child until just before the impact.
The theory of the plaintiff’s case was that the defendant was negligent by failing to avoid a collision. The plaintiff requested, over the defendant’s objection, two jury instructions based on the defendant’s alleged violation of traffic control laws.
One related to the duty to avoid colliding with a pedestrian or person propelling a human powered vehicle and the other addressed a driver’s duty not to speed and drive at an appropriately reduced speed when conditions warranted. The trial court refused to give the requested jury instructions.
A party is entitled to have the jury instructed on the theory of its case when the evidence supports the theory. The plaintiff argued that although there was a factual dispute as to whether the defendant violated his duty to use due care to avoid colliding with the child, the dispute should have been submitted to the jury for resolution.
The court agreed that the two instructions were accurate statements of the law and should have been given under the facts of the case, as the evidence supported them.