The Week In Torts – Cases from December 10, 2021
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FLORIDA LAW WEEKLY
VOLUME 46, NUMBER 49
CASES FROM THE WEEK DECEMBER 10, 2021
WRIT OF CERTIORARI ISSUED TO PREVENT PRODUCTION OF A WORK PRODUCT PROTECTED INCIDENT REPORT WHICH THE TRIAL COURT ORDERED PRODUCED, BASED ON ITS MISTAKEN CONCLUSION THAT IT CONTAINED PLAINTIFF’S WITNESS STATEMENT
Winn Dixie v. Lopez, 46 Fla. L. Weekly D2570 (Fla. 3rd DCA Dec. 1, 2021):
After an in camera inspection, the trial judge concluded that two portions of the incident report had to be produced, believing that they contained statements made directly by the plaintiff.
While Winn Dixie argued that the plaintiff made no showing that she had the need for materials in preparation of a case and was unable to obtain them (or the substantial equivalent) without undue hardship, the plaintiff correctly noted no showing of undue hardship is necessary to obtain the party’s own statement.
However, to qualify as a witness statement under Rule 1.280, the statement must be written, and signed or otherwise adopted or approved by the person making it, or it must be a stenographic, mechanical, electrical, or other recording or transcription that is substantially verbatim of the oral statement the person made, and contemporaneously recorded.
The court’s review of the incident report revealed that the statement was not made by the plaintiff herself. Since there was no signature, and no other evidence of adoption or approval by the plaintiff, the court concluded that she was not entitled to production under the rule.
INSURERS MAY LIMIT PIP REIMBURSEMENTS TO THE SCHEDULE OF MAXIMUM CHARGES SET FORTH IN SECTION 627.736(5)(a), IRRESPECTIVE OF THE SCHEDULE OF MAXIMUM CHARGES INCLUDED IN ITS POLICY
MRI Associates of Tampa v. State Farm Mut. Auto. Ins. Co., 46 Fla. L. Weekly S379 (Dec. 9, 2021):
In a unanimous decision, the Florida Supreme Court addressed a State Farm policy provision, which permitted the insurer to use a schedule of maximum charges, even though the policy also referred to the use of other statutory factors for determining reasonable charges.
The court concluded that State Farm was within its right to use the statutory factors set forth in section 627.736(5)(a) (containing a list of factors) to determine the reasonableness of charges, along with the schedule of maximum charges that may be used to limit reimbursement and provisions related to the application of the schedule. Irrespective of what might have appeared to be a “hybrid-payment” methodology, the Court ruled that State Farm could elect the limitations of the scheduled maximum charges.
ERROR TO DISMISS COMPLAINT WITH PREJUDICE WITHOUT ALLOWING PLAINTIFF AN OPPORTUNITY TO AMEND
Wiener v. Golex Properties, 46 Fla. L. Weekly D2567 (Fla. 4th DCA Dec. 1, 2121):
The trial court dismissed the plaintiff’s complaint concluding that because he was not a party to the agreement being sued upon, he could not sue over it. However, the plaintiff argued he could amend the complaint, and seek to nullify the provision at issue by alleging that the corporate veil was pierced.
The Fourth District agreed. It noted that leave of court to amend a pleading shall be given freely when justice so requires.
TRIAL COURT PROPERLY ORDERED ATTORNEY’S FEES TO AN ATTORNEY WHOSE OFFER OF JUDGMENT WAS REJECTED IN A LEGAL MALPRACTICE CASE, EVEN THOUGH THE LAW FIRM WAS CONTRACTUALLY OBLIGATED TO INDEMNIFY THE ATTORNEY
Jain v. Buchanan Ingersoll & Rooney, 46 Fla. L. Weekly D2575 (Fla. 3rd DCA Dec. 1, 2021):
The plaintiff sued both his attorney for legal malpractice, as well as the law firm, pursuant to respondeat superior/vicarious liability.
The attorney served an offer of judgment. The firm did not join it. Upon winning, the attorney then moved for his fees.
The losing plaintiff asserted that the attorney was not entitled to collect the fees because he had not actually incurred any, because the firm was contractually obligated to indemnify and did indemnify him.
The trial court determined that the attorney was entitled to his fees because section 768.79 permits recovery of fees “incurred on the defendant’s behalf.” Thus, the analysis was unaffected by the fact that the defendant lawyer may not himself have been contractually obligated to pay fees, because his firm was. The trial court also found that apportionment was not appropriate, because the fees incurred in defending both the attorney and the firm were the same.
The court affirmed the trial court’s rulings, noting that the fact that another party or non-party may have paid the offeror’s attorney’s fees is of no consequence as to whether the offeror is entitled to those fees pursuant to an offer of judgment.
Because the attorney’s fees and costs were incurred in this case on the defendant’s behalf, the trial court properly found entitlement. The court further found the analysis was unaffected by the fact that the attorneys did work for the firm, because the work was the same.