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The Week In Torts – Cases from August 26, 2022
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FLORIDA LAW WEEKLY
VOLUME 47, NUMBER 34
CASES FROM THE WEEK AUGUST 26, 2022
MORE BIG RULE CHANGES-MOTIONS FOR NEW TRIAL AND REMITTITUR / ADDITUR
In Re: Amendments to Florida Rules of Civil Procedure 1.530 and 1.535, 47 Fla. L.
Weekly S203 (Aug. 25, 2022):
The Court eliminated Rule 1.535 on remittiturs and additurs, incorporating those requirements into Rule 1.530(h). It references the time periods set forth in Rule 1.530(b) (15 days), and provides more detail about how courts should address such motions.
The Rule also gives litigants 15 days to file a motion for additur or remittitur, and requires such motions to state the law under which it is made, to note the amount the movant contends the verdict should be, and to identify the specific evidence to support the amount stated or statement of the improper elements of damages that were included in the damages award.
The trial court must then identify the specific statutory criteria it relies on if it grants such a motion.
Finally, a partly adversely affected by the order may elect a new trial on damages by filing a written election within 15 days after the order.
Parties must still file a motion for new trial or motion for rehearing within 15 days after a verdict in a jury action or the filing of a judgment in a non-jury action. However, the Court amended 1.530(g), clarifying that on a motion to alter or amend judgment, a party must serve that motion not later than 15 days after the date of filing of the judgment (as opposed to “entry” of it).
TRIAL COURT ABUSED ITS DISCRETION BY DENYING PLAINTIFF’S MOTION TO SET ASIDE ORDER DISMISSING HIS CASE FOR LACK OF PROSECUTION, WHERE THE RECORD ESTABLISHED THAT PLAINTIFF WAS NEVER SENT NOTICE OF INACTIVITY OR THE ORDER DISMISSING THE CASE
Bravo v. CJM Partners, 47 Fla. L. Weekly D1734 (Fla. 3rd DCA Aug. 17. 2022):
LACK OF PERSONAL JURISDICTION IN A CASE WHERE THE PLAINTIFF FAILED TO DEMONSTRATE A CONNECTION BETWEEN HER CAUSE OF ACTION FOR STRICT LIABILITY FOR THE WRONGFUL DEATH OF HER HUSBAND TO ANY ACTIVITY OF THE DEFENDANT IN FLORIDA
D-I Davit International v. Carpio, 47 Fla. L. Weekly D1736 (Fla. 3rd DCA Aug 17, 202):
A woman brought a wrongful death lawsuit after her husband died during a lifeboat/rescue boat drill aboard a Norwegian Cruise Lines vessel. The plaintiff sued the defendant for product liability and breach of implied warranty against the defendant who manufactured and sold the davits which were supporting the rescue boats. While the decedent was participating in the drill on the seventh deck of the vessel, the davit snapped causing him to fall nearly six stories to his death.
The defendant was a German corporation that manufactured and sold davits (crane like devices used to support, hoist and lower equipment including lifeboats). The amended complaint alleged that the defendant had business in Florida through its agent or representative, a U.S. corporation registered to do business in Florida (Davit DE is a German corporation and Davit US is a U.S. corporation).
The plaintiff alleged that Davit DE manufactured and/or sold the davits for the lifeboat system used on the ship, and either it or the U.S. corporation, provided after sales customer support to NCL regarding all aspects of the davits and lifeboat systems, which included inspections.
The court rejected claims for general jurisdiction outright, finding that a plaintiff must show that a defendant engaged in “continuous and systematic general business contacts” within the state for general jurisdiction to exist. The court found that the plaintiff failed to allege any facts demonstrating that Davit DE itself engaged in any business activities in Florida, or that Davit DE exerted substantial control over Davit US such that Davit US would be no more than an agent controlled by Davit DE.
As to the claim-specific analysis required by a specific jurisdiction inquiry, the court found that Florida’s Long Arm Statute governing specific jurisdiction expressly requires both (1) that the defendant does one of the enumerated acts within Florida, and (2) that the plaintiff’s cause of action arises from one of the enumerated acts occurring in Florida. These dual requirements are known as the statute’s connexity requirement.
In this case, the amended complaint alleged strict liability. The court found though that there was no connexity between the tort and Florida. The declaration filed by Davit DE’s corporate representative and was unrefuted by any other record evidence, and established that the davits were designed, manufactured, and installed in Germany. It also showed that the Davit DE maintenance and inspection personnel boarded the vessel in New York and performed inspection work at sea.
The court rejected that plaintiff was a third party beneficiary of the inspection contract entered into between Davit DE and NCL in Florida. The connexity must relate to the actual tort alleged, and in this case the tort of strict liability alleged regarding the manufacture or installation of the davits, had no relationship to Florida.
The court also rejected the plaintiff’s claim for breach of warranty, because it suffered from the same lack of connexity deficiency. Such a cause of action focuses on the relationship between the buyer and the seller, and the plaintiff failed to connect the subject contract for the sale (the inspection contract) to the basis for the breach of warranty claim.
Accordingly, the plaintiff’s attempt to create a nexus to Florida by claiming that the decedent was a third party beneficiary of the inspection contract necessarily failed to establish the requisite connexity to the breach of warranty claim in Florida, because the contract was entered into in Germany. The court reversed and remanded for dismissal of the party for lack of jurisdiction.
AN INVOLUNTARY DISMISSAL WITHOUT PREJUDICE IS NOT A JUDGMENT ON THE MERITS AND NOT A BASIS FOR FEES UNDER SECTION 768.79 – COSTS STILL AWARDED UNDER SECTION 57.041(1)
Annesser v. Innovative Service, 47 Fla. L. Weekly D1738 (Fla. 3rd DCA Aug. 17, 2022):
The underlying plaintiff added this defendant in its first amended complaint. The defendant served two offers of judgment, which were rejected.
Subsequently, the defendant moved to dismiss, and the trial court granted the motion without prejudice, constituting an involuntary dismissal under Rule 1.420(b). The plaintiff’s amended complaint did not include this defendant. The trial court denied the defendant lawyer’s motion for fees and costs.
Because the involuntary dismissal was “without prejudice,” section 768.79 barred an award of fees. However, the defendant was still entitled to costs under section 57.041(1).
TRIAL COURT SHOULD HAVE DISMISSED MEDICAL MALPRACTICE CLAIM WITHOUT PREJUDICE AFTER DETERMINING THE PLAINTIFF’S CORROBORATING EXPERT AFFIDAVITS WERE LEGALLY INSUFFICIENT – WITH TIME LEFT, THE PLAINTIFF MAY AMEND HER COMPLAINT TO ASSERT A VIOLATION OF SECTION 766.204 BASED ON THE DEFENDANT’S ALLEGED FAILURE TO PROVIDE HER WITH LEGIBLE COPIES OF HER MEDICAL RECORDS
Dennehy v. Srinagesh, 47 Fla. L. Weekly D1756 (Fla. 5th DCA Aug. 19, 2022):
Plaintiff filed a pro se lawsuit against a physician and several other defendants.
The trial court granted the defendant’s motion to dismiss based on the insufficiency of the corroborating expert witness affidavits, even though the plaintiff had asserted that she had not been provided with legible copies of medical records as required by Section 766.204.
Ordinarily, a dismissal without prejudice should not be ordered without giving the plaintiff an opportunity to amend a defective pleading unless it is apparent it cannot be fixed.
In this case, the plaintiff had timely raised the argument that she could allege additional facts to support her cause of action. Because the record did not demonstrate that to allow her to do so would be futile, the trial court should have allowed her to amend her complaint.