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FLORIDA LAW WEEKLY

VOLUME 48, NUMBER 34

CASES FROM THE WEEK OF AUGUST 18, 2023

CONTINUANCE OF ORIGINAL SUMMARY JUDGMENT HEARING DID NOT TOLL TIME FOR INSURER TO FILE A RESPONSE – – THE TIMING REQUIREMENTS SET FORTH IN RULE 1.510 GIVE THE OPPOSING PARTY 20 DAYS BEFORE THE TIME FIXED FOR THE ORIGINAL HEARING TO FILE RESPONSE.

State Farm v. Advanced X-Ray, 48 Fla. L. Weekly D1555 (Fla. 3^rd DCA Aug. 9, 2023):

In this case where the trial court entered final judgment for the plaintiff is a PIP benefits case, the appellate court affirmed, and further affirmed the trial court’s decision to strike State Farm’s response. 

Under newly amended Rule 1.510, a party asserting that a fact cannot be, or is genuinely disputed, must support that assertion by citing to particular parts of materials in the record and showing that those materials do not establish the absence or presence of a genuine dispute. 

Rule 1.510(e) contains a subdivision on timing, requiring that the non-movant file a response at least 20 days before the time “fixed for the hearing” to include the non-movant’s supporting factual position.  The timing requirement was implemented to reduce gamesmanship and surprise and to allow for more deliberative consideration of summary judgment motions. 

Here, the relevant motion was set for hearing on October 21, 2021. During the hearing, the trial court ruled to continue it to allow more time for the arguments.  A week later, State Farm filed a new pleading attaching previously unfiled evidence which it asserted was in response to the plaintiff’s original summary judgment motion.  At the continued hearing on November 9, 2021, the trial court struck the additional pleading as untimely pursuant to Rule 1.510(c)(5). 

Pursuant to the Rule, State Farm had twenty days before the time “fixed for the hearing” and failed to do so timely before the first hearing.  The fact that the trial court allowed additional time and continued the hearing did not alleviate State Farm of its burden to timely file a response. 

The court explained that a party cannot evade the requirement to timely file, based on a trial court’s discretionary choice to continue a hearing and allow more time for argument.  Even if the clock had re-set, State Farm still filed its response and new exhibits only 12 days before the continuation, and was thus still in violation of the 20 day pre-hearing filing deadline.

The court noted that it reviews a trial court’s decision to strike new evidence for an abuse of discretion, and that it was far-fetched for State Farm to argue that the trial court abused its discretion by enforcing the plain language of a rule promulgated to put practitioners and courts on notice of what is required. The rules are not advisory and are meant to provide time limits to raise arguments and present evidence to prevent gamesmanship and surprise. 

TRIAL COURT ABUSED ITS DISCRETION BY DENYING THE DEFENDANT’S MOTION FOR RELIEF FROM MISSING THE TRIAL DE NOVO DEADLINE AFTER ENTRY OF A NON-BINDING ARBITRATION ORDER, WITHOUT FIRST CONDUCTING AN EVIDENTIARY HEARING TO DETERMINE WHETHER DEFENDANT RAISED A COLORABLE ENTITLEMENT TO RELIEF BASED ON EXCUSABLE NEGLECT.

Barton Protective Services v. Redmon, 48 Fla. L. Weekly D1560 (Fla. 3d DCA Aug. 9, 2023):

Pursuant to Rule 1.820(h), the due date for a motion for trial de novo after service of a non-binding arbitration decision is 20 days.  Two days after the 20 days had passed, and the day after the plaintiff had moved for an entry of final judgment, the defendant filed a motion for trial de novo, asserting by sworn affidavit that the attorneys had made a calendaring error. 

It is well settled that a calendaring error may constitute excusable neglect.  Where such a claim is raised and contested, the trial court abuses its discretion in failing to conduct an evidentiary hearing on the motion. 

While the court never said so specifically, the deadline for filing a trial de novo is not a jurisdictional issue, therefore allowing for a claim of excusable neglect.

TRIAL COURT ERRED IN DENYING MOTION TO DISMISS COMPLAINT ALLEGING NURSING HOME NEGLIGENCE FOR COMPLAINT FAILED TO COMPLY WITH THE MANDATORY REQUIREMENTS OF SECTION 400.023.

Preston v. Romanoff, 48 Fla. L. Weekly D1563 (Fla. 4^th DCA Aug. 9, 2023):

Section 400.023, Florida Statutes, governs negligence actions against nursing homes. 

The complaint in the case alleged that the defendant was owned by a licensee, and another defendant was alleged to have provided management services to the licensee of the nursing home.  The amended complaint alleged that the actual named defendant owned a 95% interest in the licensee, and further claimed that the defendant had availed itself of the privileges through the ownership of the leasing of the management, or through consultation with nursing homes including the one at issue. 

The statute limits the parties against whom a claim of nursing home negligence may be brought to the licensee’s management or consulting companies, its managing employees, and any direct caregivers.  A consulting or management company only fits the statutory definition pursuant to a contract or by receiving a fee for services, and such a company provides a nursing home facility with one of four specifically listed services. 

Although the Plaintiff alleged that the petitioners were involved with the four activities set forth in the statute, the plaintiff did not allege the crucial element that the petitioners had performed under a contract or received a fee for services performed, rendering the allegations legally insufficient to comply with the statute and necessitating dismissal without prejudice for the plaintiff to move to amend to include the proper parties. 

NO ERROR DENYING PLAINTIFF’S MOTION FOR NEW TRIAL BASED ON EXPERT WITNESS’S STATEMENT THAT PLAINTIFF’S COUNSEL HAD VIOLATED HIS PRIVACY RIGHT BY ASKING HOW MUCH HE EARNED AS AN EXPERT – – TRIAL COURT PROVIDED A CURATIVE INSTRUCTION AND PLAINTIFF FAILED TO PRESERVE AN ARGUMENT REGARDING THE ADEQUACY OF THE INSTRUCTION – – EVEN IF SUFFICIENCY ARGUMENT WERE PRESERVED, NO REVERSIBLE ERROR OCCURRED BECAUSE THE REMARKS WERE ISOLATED AND DID NOT VITIATE THE ENTIRE TRIAL.

Nolan v. Kalbfleisch, 48 Fla. L. Weekly D1599 (Fla. 5^th DCA Aug. 11, 2023):

During the trial, plaintiff’s counsel asked the expert whether he made over a million dollars a year testifying in the legal medical sphere.  The expert answered that he would not answer the question because it violated his privacy rights, and the State of Florida does not allow an attorney to ask an expert how much he makes.  The judge advised the jury to disregard the witness’s statement about that. 

The plaintiff moved for a mistrial and the court denied the motion, advising that it immediately cured the problem.

The appellate court observed that there was nothing in the record to indicate that the jury failed to follow the curative instruction and noted that jurors are presumed to follow the court’s instructions.  The plaintiff did not argue that the instruction was inadequate, and by failing to challenge the sufficiency of the curative instruction, waived any adequacy argument for review.

Even if the plaintiff had made a sufficiency argument, the court noted there was no reversible error.  A witness’s comment warrants a mistrial only when it is prejudicial enough to eviscerate the entire trial. Due to the trial judge’s superior and direct vantage point, the are armed with broad discretionary latitude, and the party complaining must make a showing that the broad discretion was abused. 

Here, these isolated remarks which had nothing to do with the validity of the plaintiff’s lawsuit, and which the trial court promptly instructed the jury to disregard, failed to justify a new trial. 

TRIAL COURT ERRED IN RULING THAT A SLIP AND FALL AT A HOSPITAL REQUIRED COMPLIANCE WITH MEDICAL MALPRACTICE PRE-SUIT NOTICE REQUIREMENTS.

Thomas v. St. Vicent’s Medical Center, 48 Fla. L. Weekly D1602 (Fla. 5^th DCA Aug. 11, 2023):

The Plaintiff alleged that while she was at the defendant’s premises walking towards the restroom, she slipped and fell.  The only cause alleged for the fall was that the floor was wet and slippery.  The only duties allegedly breached were the defendant’s duties to properly maintain the floor in a safe condition or to warn of a dangerous condition.

The defendant moved to dismiss, and referred to matters outside the four corners of the complaint, namely that the plaintiff was a patient at the defendant’s facility and the reason she fell was that she became weak while walking to the restroom with assistance from a nurse.  The trial court relied on those and other additional matters in reaching its decision to dismiss the amended complaint. 

To determine whether a case is one for medical malpractice or ordinary negligence, courts must look to each case and the allegations made in the complaint, accepting them as true. The mere fact that a wrongful act occurs in a medical setting does not automatically transform the contested action in to one for medical malpractice.  Instead, the wrongful act must be directly related to the improper application of medical services and the use of professional judgment or skill. 

Ordinary negligence is something that jurors can resolve by referring to common experience, whereas medical negligence requires the help of experts to establish what is acceptable, appropriate and prudent, because jurors cannot determine through common experience whether medical standards of care were breached.

In this case, the court concluded that the allegations of the complaint fit into the category of simple negligence that could be resolved without reference to any medical standards of care and thus should not have been dismissed as a non-compliant medical malpractice case. 

The court admonished that should the case change over time and morph into a medical malpractice case, the defendant would not be precluded from seeking dismissal or summary resolution on those same grounds, leaving all of us a little on edge, and more likely to pre-suit such cases in an abundance of caution. 

JUDGE WENT BEYOND MERELY DETERMINING THE LEGAL SUFFICIENCY OF A MOTION TO DISQUALIFY THEREBY NECESSITATING DISQUALIFICATION.

Jada v. Harrison, 48 Fla. L. Weekly D1606 (Fla. 5^th DCA Aug. 11, 2023):

The petitioner sought a writ of prohibition following the denial of his second motion to disqualify wherein he alleged that the judge commented on the allegations of bias contained within the first motion to disqualify.

While a judge may explain the status of the record when denying a motion to disqualify, if the trial court comments on the validity or truthfulness of the motion’s allegations of bias, prejudice or partiality, the judge creates an independent ground for disqualification as he did here, when noting that the “took issue with the motion.” 

TRIAL COURT ERRED IN DENYING INSURED’S MOTION TO AMEND TO ASSERT A CLAIM FOR PUNITIVE DAMAGES AGAINST AN INSURANCE COMPANY BASED ON THE DETERMINATION THAT THERE HAD TO BE A SHOWING OF FREQUENCY OF A GENERAL BUSINESS PRACTICE OF MORE THAN THREE OTHER CLAIMS FOR PUNITIVE DAMAGES TO BE ASSERTED – – THERE IS NO MAGIC NUMBER FOR OTHER EVIDENCE REQUIRED TO SHOW THE FREQUENCY OF A GENERAL BUSINESS PRACTICE – – A PLAINTIFF MUST MERELY SHOW THAT THERE IS A REASONABLE SHOWING BY EVIDENCE IN THE RECORD AS A BASIS FOR PUNITIVE DAMAGES.

Cook v. Florida Peninsula Insurance Co., 48 Fla. L. Weekly D 1607 (Fla. 5^th DCA Aug. 11, 2023):

Following the conclusion of a first party lawsuit for windstorm benefits, the plaintiff filed a motion for leave to amend to assert a claim for punitive damages and a proposed amended complaint alleging bad faith by the insurance company.  Plaintiff claimed in the underlying lawsuit that the insurance company had ignored information in its own file when confirming coverage for her claim, used faulty data in denying the claim and failed to conduct a proper investigation.  She also alleged that the insurer misrepresented the policy and the coverage afforded under it.

The plaintiff claimed that the insurance company breached its duty of good faith, and further claimed that as a business practice it misrepresented pertinent facts to mislead insureds to avoid paying claims. The plaintiff detailed actions taken by the insurance company in three other similar claims.

The court addressed what constitutes a sufficient showing of “frequency of a general business practice” for punitive damages and whether the plaintiff met that standard. It found there is no magic number and that all Section 768.72 requires is a “reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for the recovery of such damages.”  

The court found that the record evidence was sufficient to show that the insurance company was aware of, participated in and ratified the conduct initiated in its initial determination letter to the plaintiff throughout the pendency of the underlying litigation, and when viewed in the light most favorable to the plaintiff, there was a reasonable basis that could be formed to allow the plaintiff to plead a claim for punitive damages. 

The plaintiff alleged that the insurance company’s conduct was intentional while the insurer defended stating it was a mistake and that it lacked intent.  Because there were reasonable inferences in the record to plead intentional misconduct, the trial court was required to determine whether the plaintiff offered reasonable evidence of misrepresentation (not whether the mistake was intentional) and, therefore, the trial court had erroneously denied the motion to amend.