The Week In Torts – Cases from February 25, 2022
Please, FSC, make them challenge it before all this litigation!
FLORIDA LAW WEEKLY
VOLUME 47, NUMBER 8
CASES FROM THE WEEK FEBRUARY 25, 2022
COURT TAKES ANOTHER THIRTY THOUSAND FOOT VIEW OF A PROPOSAL FOR SETTLEMENT AND FINDS IT UNAMBIGUOUS
Tower Hill Signature Ins. Co., v. Kushch, 47 Fla. L. Weekly D432 (Fla. 4th DCA Feb. 16, 2022):
A homeowner filed a complaint against his insurer for unpaid benefits. During the pendency of the lawsuit, the insurer served a proposal for settlement on both the homeowner and his wife. The wife accepted her proposal and dismissed her claim with prejudice. The homeowner, however, did not accept his proposal and was then served with a second one, which he also rejected.
In the proposal, the insurer noted that it was intended to resolve any and all damages, including all potential claims for extra-contractual damages, did not include an amount for punitive damages, and was exclusive of the plaintiff’s claim for attorneys’ fees and costs.
The release provision had the plaintiff releasing any and all claims for contractual and extra-contractual damages, as well as punitive damages or any other theory the plaintiff may have had.
The release indicated that the plaintiff would dismiss his claim with prejudice, allowing the court to retain jurisdiction for the limited purpose of determining entitlement to attorney’s fees and costs, and if determined, an amount of reasonable attorney’s fees and costs. There was also a confidentiality provision.
The insurer prevailed at trial, and then sought attorney’s fees pursuant to the proposal. The plaintiff argued that the proposal and the release were ambiguous because the proposal stated it was exclusive of attorney’s fees and costs, while the release stated that it resolved all claims related to the claim in litigation.
The plaintiff further noted that his wife had pursued a motion for attorney’s fees after accepting her proposal, but the insurer had not yet submitted to an order of entitlement. Plaintiff claimed that the insurer could not simultaneously argue that the proposal unambiguously provided that it was exclusive of fees, while denying the wife’s motion for fees. The insurer responded that the proposal was unambiguously exclusive of fees, and that it opposed the wife’s motion because the insurer believed it was untimely and not because it disputed entitlement.
The trial court denied the motion for fees based on ambiguities and statutory deficiencies. The court found that the proposal had to be viewed as a whole and when read that way, the plaintiff was required to release all claims of the insurer arising out of the claim, except those relating to attorney’s fees and costs.
When read as a whole, the Fourth District found that the proposal extinguished any claim that was not a resulting attorney’s fee claim. The court found that the plaintiff and the trial court were nitpicking the insurer’s proposal, by finding it ambiguous with respect to fees. The court admonished that whenever possible, all statements in a proposal for settlement should be read together to give effect to every statement.
The plaintiff also had argued that requiring him to release a claim for punitive damages when the insurer knew there was a bad faith claim potentially available, also created an ambiguity. While an offeree cannot be required to relinquish future claims as part of a proposal for settlement, the release in this case only asked the plaintiff to release punitive damages claims arising out of the current claim and lawsuit. By limiting the release in that manner, the insurer avoided any potential ambiguities. The court also agreed that the insurer was not required to apportion an amount for punitive damages because there was no existing claim for punitive damages at the time it was made.
As to the wife’s claim, the plaintiff and his wife had received separate proposals for settlement, and each party was afforded an independent decision about whether to settle, evidenced by the fact that the wife had accepted hers. As the proposals were separate and not joint, the insurer had no responsibility to apportion amounts attributable to both the homeowner and his wife, and therefore there was no ambiguity presented by the wife’s acceptance of the proposal to her.
As to the hold harmless provision, the proposal required the plaintiff to release any claims he may have raised or could have raised against the insurer, including any claims by any known or unknown assignments of benefits under the policy. The plaintiff also had to release and hold harmless the insurer and its principals, etc., for valid claims made upon the proceeds paid by the insurance company.
At the hearing, the plaintiff’s attorney claimed that the plaintiff had no rights as it related to partial assignments in the case, but the Fourth District disagreed. Here, the insurer’s proposal and release were very specifically limited to resolving claims, or those which could have been asserted in the instant litigation. The proposal was served to resolve any and all damages that would otherwise be awarded in the final judgment in the action, including any and all claims and causes of action giving rise to the above-styled lawsuit. The only reasonable interpretation of this was limited to resolving those claims, which the plaintiff asserted or could have asserted in this particular lawsuit.
Finally, the plaintiff argued that the confidentiality provision in the proposal was patently ambiguous and overbroad, since it failed to specify the information and documentation that was jointly in control of the co-offerees or third parties, and/or the resulting obligations and liabilities arising from a breach thereof.
Because this confidentiality provision specified that it related to the facts in terms of the release, and documents or information provided by the parties related to the claim in litigation, it was sufficiently specific enough to render the proposal unambiguous.
In a special concurrence by Judge Gerber, he again urged the Florida Supreme Court or the Civil Rules Committee to amend the rule to include an obligation by a party alleging an ambiguity to raise the issue within a fixed period of time from the date of the offer or else waive the ambiguity. Judge Gerber had pointed that issue out in a case 11 years prior, and expressed mild frustration that nothing has changed since.
TRIAL COURT IMPROPERLY DENIED MOTION SEEKING TO DEPOSE NON-PARTY, CORPORATE REPRESENTATIVE, WHEN DEPONENT WAS MATERIAL, AND NON-PARTY WITNESS WAS NOT A MERE INSTRUMENTALITY OF THE PARTY
Ferguson v. The Republic of Trinidad and Tobago, 47 Fla. L. Weekly D420 (Fla. 3rd DCA Feb. 16, 2022):
In a racketeering case brought against the defendant, the plaintiff sought to depose a material witness. However, the trial court denied the motion, finding the deponent to be a mere instrumentality of the defendant, and thus finding the deposition would be cumulative.
The court reversed, finding the witness was material. The trial court made no finding to rebut the suggestion that the witness was not material, and the court concluded that the witness was not a mere instrumentality of the defendant, but instead a sui generis statutory entity that would constitute a material fact witness. The court granted the petition allowing the deposition to go forward.
ERROR TO FIND THE “IDENTITY OF THE PARTIES” ELEMENT OF COLLATERAL ESTOPPEL SATISFIED, WHERE THE ASSIGNEES AND MEDICAL PROVIDERS WERE IDENTICAL, BUT THE INSUREDS/ASSIGNORS WERE DIFFERENT
United Automobile Insurance Co. v. Millennium Radiology, 47 Fla. L. Weekly D428 (Fla. 3rd DCA Feb. 16, 2022):
Where the assignees and medical providers are identical, but the insured or assignor is different, the “identity of parties” element of collateral estoppel is not met, and, therefore a finding of collateral estoppel is improper.
TRIAL COURT PROPERLY DENIED DIRECTED VERDICT FOR PLAINTIFF AS TO REASONABLENESS OF MRI CHARGE – EXPERT TESTIMONY OPINING THAT ANY CHARGE OVER 200% OF THE MEDICARE REIMBURSEMENT RATE SCHEDULE WAS UNREASONABLE, SUFFICIENT TO CREATE AN ISSUE OF FACT AS TO THE REASONABLENESS OF THE CHARGES
American Mobile Health Services, Inc. v. State Farm, 47 Fla. L. Weekly D429 (Fla. 3rd DCA Feb. 16, 2022):
The plaintiff appealed a judgment entered after a jury verdict for State Farm, arguing that the trial court erred in denying plaintiff’s motion for directed verdict regarding the “reasonable amount” charged for plaintiff’s MRI. State Farm’s expert had argued that the amount of the charge was unreasonable, solely because it exceeded 200% of the allowable amount under the Medicare Part B fee schedule.
Plaintiff contended that State Farm was precluded from making this argument because it had failed to adopt the Medicare Part B fee schedule, as a schedule of maximum charges under §627.736(5)(a) 1.
The Third District affirmed. Irrespective of the fact that State Farm had failed to incorporate the Medicare Part B fee schedule into its policy, the court held that the insurer could use the schedule as evidence to argue that the provider’s charges exceeded a “reasonable amount” under the statute.
Under the statutory scheme, the limitation based on the schedule of maximum charges establishes a ceiling, but not a floor of reasonable charges. Because the statutory provisions are not mutually exclusive, State Farm was permitted to argue that the plaintiff’s charges exceeded the reasonable amount by using the Medicare Part B fee schedule as evidence of what did constitute a reasonable amount. Therefore, the physician’s testimony regarding the fee schedule was sufficient to create an issue of fact as to reasonableness.
TRIAL COURT ERRED IN ENTERING DEFAULT JUDGMENT WITHOUT FIRST RULING ON DEFENDANT’S PENDING MOTION TO DISMISS BECAUSE OF LACK OF JURISDICTION – DEFENDANT’S AFFIDAVITS CONTESTING JURISDICTIONAL ALLEGATIONS HAD TO BE ADDRESSED BEFORE THE COURT COULD ENTER DEFAULT JUDGMENT FOR THE PLANTIFF
J. G. Contracting, Co. v. Tower Innovations Distribution, 47 Fla. L. Weekly D444 (Fla. 4th DCA Feb. 16, 2022):