The Week In Torts – Cases from January 14, 2022
But I won, I want ALL my costs!
FLORIDA LAW WEEKLY
VOLUME 47, NUMBER 2
CASES FROM THE WEEK JANUARY 14, 2022
THE INTERPLAY BETWEEN §768.79 (OFFER OF JUDGMENT) AND §57.041(1) (TAXABLE COSTS) PUTS THE FOCUS ON THE OFFER OF JUDGMENT STATUTE, UNDERMINING THE ABILITY TO COLLECT ALL TAXABLE COSTS PURSUANT TO §57.041(1).
Maddox v. Trombetta, 47 Fla. L. Weekly D89 (Fla. 2nd DCA Jan. 5, 2022):
The defendant appealed a final order awarding the plaintiff all of his taxable costs in a negligence action. The appeal came because while the plaintiff obtained a judgment, that judgment did not meet the threshold amount to beat either of the defendant’s two offers of judgment to settle the case, made pursuant to §768.79.
As a result, the defendant argued that the plaintiff should have only been awarded his costs that were incurred up to the time of the first offer of judgment, rather than all of the costs incurred until the underlying judgment was rendered.
The Second District agreed. It looked at the interplay between §768.79 and §57.041, and explained that where a defendant makes a successful offer of judgment, i.e., where a plaintiff recovers a judgment that is at least 25 percent less than what was offered by the defendant,§768.79 controls over §57.041.
When those two statutes are applied together, the focus becomes on the defendant’s entitlement to reasonable costs and attorneys’ fees from the date of filing the offer, rather than the plaintiff’s entitlement to all of the costs incurred pursuant to §57.041. The court explained that the interplay implicitly means that if the defendant is entitled to costs incurred after the offer was filed, the plaintiff must also be limited to recovering costs that were incurred prior to the offer being made.
The court acknowledged criticism that the Florida Supreme Court’s decision in White has received, regarding the definition of “judgment obtained,” (meaning that judgment for damages, any attorneys’ fees, and taxable costs that could have been included in the final judgment if such final judgment were entered on the date of the offer).
In this case, the trial court should have taken the plaintiff’s underlying judgment amount after applying the applicable setoffs, added the pre-offer costs to it, and then determined whether the plaintiff exceeded the threshold of the defendant’s offers of judgment. When the trial court added in all costs that were incurred before and after the offers of judgment were filed, the trial court contravened binding law on how to compute the cost award, requiring reversal.
ORDER DENYING EXCEPTIONS TO GENERAL MAGISTRATE’S REPORT IS A NON-FINAL, NON-APPEALABLE ORDER
Johnson v. Williams, 47 Fla. L. Weekly D89 (Fla. 2nd DCA Jan. 5, 2022).
NO JURISDICTION OVER FOREIGN CORPORATION DUE TO LACK OF MINIMUM CONTACTS
Robinson Helicopter, Co. v. Gangapersaud, 47 Fla. L. Weekly D92 (Fla. 2nd DCA Jan. 5, 2022):
A man was flying the helicopter owned by his dental practice, when the engine unexpectedly lost power and forced him to land it in an empty field. Over the following days, the man communicated with defendant Robinson — the manufacturer based in California — as well as with FSH Maintenance, a local service provider, in an effort to repair the helicopter. Robinson provided FSH with instructions for diagnosing and repairing the helicopter, and also sent replacement parts to potentially fix the problem.
Several days later, mechanics from FSH replaced the helicopter’s fuel pump with a replacement part sent by Robinson. FSH decided it would fly the helicopter to its facility for further inspection. Unfortunately but during the flight, the engine failed again, forcing the pilot to attempt an emergency landing in a busy intersection in Tampa, which in turn caused one of the helicopter’s rotor blades to strike the utility pole, further causing a piece of the blade to break off and fly through the windshield killing the decedent.
The Estate sued several defendants, including the manufacturer based in California. The manufacturer moved to dismiss, submitting sworn affidavits contesting jurisdiction.
The plaintiff asserted that the manufacturer’s involvement in the negligent diagnosis, repair and transport of the helicopter brought it within the ambit of §48.193(1)(a)2, which provides for specific jurisdiction over a nonresident who commits a tortious act within the state. Additionally, the estate also maintained that specific jurisdiction existed under §48.193(1)(a)6, because a helicopter which was manufactured by the manufacturer caused injury in the state.
The trial court denied the motion to dismiss. The Second District reversed the finding that while there was jurisdiction under the long arm statute because the injury was caused in the state (but not on the other basis), there were no minimum contacts.
Even though the defendant did not have representatives in Florida when the events transpired, a defendant’s physical presence is not required to commit a tortious act, which did occur in Florida. This led to an assessment of minimum contacts.
The manufacturer argued that the helicopter was not purposefully directed to Florida. Rather, Robinson sold the helicopter to a dealer in Indiana before it was sold to the operator’s employer and later brought to Florida. The estate argued that purposeful availment was evidenced by the existence of three Robinson authorized dealers and eleven authorized service centers in Florida, which allowed the manufacturer’s helicopters to obtain maintenance all over the state. As the estate put it, the defendant sold its products knowing they would end up in Florida.
Relying on the U.S. Supreme Court’s recent decision in Ford v. Montana, the court observed that there must be a strong relationship among the defendant, the forum, and the litigation, which provides the essential litigation of specific jurisdiction. As the court wrote: “Robinson Helicopter Company is no Ford Motor Company,” and found that the manufacturer had not systematically served a market in Florida for the type of helicopter involved in the case. Additionally, the aircraft had not even been sold in Florida, having been sold in Indiana and then brought to Florida.
The court also concluded that the manufacturer lacked contacts with Florida that arose out of or related to the causes of action in the case. As explained, the manufacturer did not direct the subject helicopter into Florida, nor had it continuously exploited the state’s market such that it must reasonably anticipate being haled into court. In fact, the few contacts the defendant had with Florida, which could plausibly be said to arise out of or relate to the case, were actually created by the repair company and the owner who reached out to the manufacturer for advice in repairing the helicopter. Without minimum contacts, jurisdiction over the manufacturer was not proper.
AN ATTORNEY WHO TESTIFIES ABOUT FACTS WITHIN HIS PERSONAL KNOWLEDGE – IRRESPECTIVE OF WHETHER THAT KNOWLEDGE INVOLVES TECHNICAL MATTERS – IS GIVING FACTUAL TESTIMONY AND NOT EXPERT TESTIMONY, AND THAT ATTORNEY MAY NOT BE AWARDED AN EXPERT WITNESS FEE
Buzby v. Turtle Rock Community Association, 47 Fla. L. Weekly D99 (Fla. 2nd DCA Jan. 5, 2022):
Plaintiffs were pursuing a claim for attorneys’ fees and their attorneys prepared affidavits in support. Plaintiffs’ counsel sent a proposed affidavit to the former attorneys for their review and execution, but those attorneys refused to execute them.
This refusal led the plaintiffs’ counsel to serve a subpoena on one of the attorneys to give a deposition to establish the factual basis for the component of the fee claim attributable to the defendant firm’s work.
Defense counsel then insisted on being paid an expert witness fee, asserting he was qualified as an expert under Rule 1.390, because he was a professional who had been called to testify about his work. He claimed that treating physicians “always get paid,” and reasoned that as an attorney who represented the clients, he should be compensated for the same reason. The trial court orally granted the attorney’s motion, stating “you asked a lawyer to show up and talk about his lawyering, and that’s expert testimony; he should have been paid for his time.”
The Second District reversed. It noted that the question of whether a witness testifies as an expert and is thereby entitled to an expert fee, depends not only on the witness’ credentials, but also on whether the witness actually gives “expert” testimony.
In this case, the attorney was simply asked to testify about his own work. His decision to volunteer an opinion about the work he did, did not transform the nature of the deposition nor his purpose for testifying into expert opinion.
TRIAL COURT PROPERLY GRANTED SUMMARY JUDGMENT IN FAVOR OF A PROSPECTIVE PURCHASER OF AN AUTOMOBILE, BASED ON THE CONCLUSION THAT THE PLAINTIFF HAD FAILED TO ESTABLISH THAT THE PURCHASER HAD POSSESSED BENEFICIAL OWNERSHIP IN THE VEHICLE
Rondell v. Romano, 47 Fla. L. Weekly D101 (Fla. 2nd DCA Jan. 5, 2022):
Prior to an accident seriously injuring the plaintiff, the owner of the vehicle, which struck the plaintiff, was in the process of selling the vehicle. In preparation for obtaining a tag for the vehicle, the prospective purchaser paid for car insurance, but there was no discussion about a price, the date of transfer, and no money for the vehicle ever exchanged hands. The testimony was that the original owner was the sole title owner of the vehicle at the time of the accident.
Under the dangerous instrumentality doctrine, an owner who gives authority to another to operate the owner’s vehicle either by express or implied consent, has a non-delegable obligation to ensure that the vehicle is operated properly. However, to qualify as an owner, the law requires a party to possess and identifiable property interest in the subject vehicle, which includes ownership, bailment, rental, or lease of the vehicle. The beneficial ownership exception to the doctrine is narrow, and applies only where the titleholder holds title under a conditional sales agreement or has sold the vehicle and transferred possession.
In this case, possession was never transferred and never would, due to the accident. There was no evidence produced suggesting that the prospective owner possessed the ability to exercise control of the vehicle, and instead, the evidence demonstrated that after the accident, the prospective purchaser actually disposed of the vehicle’s remains. Without evidence of an applicable identifiable property interest, the trial court properly entered summary judgment.
The Second District also explained that the extension of beneficial ownership under the dangerous instrumentality doctrine should be reserved for those instances where the car’s owner is trying to deny vicarious responsibility, which was not the case here.
PLAINTIFF ENTITLED TO A NEW TRIAL ON PAST ECONOMIC DAMAGES, WHEN THE AWARD FOR PAST MEDICAL EXPENSES WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE
Gutierrez v. De Leon, 47 Fla. L. Weekly D104 (Fla. 3rd DCA Jan. 5, 2022):
A jury returned a verdict finding that both the plaintiff, who allegedly failed to yield the right-of-way, as well as the defendant were both negligent, assigning 80% of the fault to the plaintiff and 20% to the defendant. The jury awarded the plaintiff past damages for $9,838.61 for past medical expenses and $1,000 for past lost earnings, but found no permanent injury.
The defendant moved to set off the jury’s verdict by the PIP benefits, which the trial court granted by agreed order. The court then entered final judgment providing that the plaintiff would take nothing from the action, and awarded attorney’s fees and costs pursuant to §768.79 to the defendant.
While the plaintiff raised several issues in her motion for new trial, the court found only the issue involving the jury’s award of $9,838.61 for past medical expenses to be against the manifest weight of the evidence. The plaintiff introduced bills totaling over $251,000 with over $200,000 relating to the neck surgery performed on the plaintiff.
The jury’s award reflected that it determined that the plaintiff did suffer injuries as a result of the accident that required medical services, and even though there was conflicting evidence as to whether the herniated discs were caused by the accident, or whether the jury felt the expenses were excessive, the defendant’s expert acknowledged that it was reasonable for the plaintiff to go to the emergency room and receive other services shortly after the accident to address her pain. Additionally, the defendant’s billing expert did not challenge the reasonableness of the bills, which totaled over $48,000.
Thus, the jury’s award of less than $10,000 was against the manifest weight of the evidence resulting in a new trial of all past economic damages and the award of attorney’s fees.
TRIAL COURT’S ENTRY OF SUMMARY JUDGMENT FINDING INSURER ACTED IN GOOD FAITH REVERSED; ISSUE WAS ONE OF FACT FOR THE JURY
Firtell v. USAA Ins. Co., 47 Fla. L. Weekly D107 (Fla. 4th DCA Jan. 5, 2022):
While the opinion does not have many facts, the plaintiffs apparently made a claim, USAA then inspected their property, made some payments over a period of months, and then refused to pay the full amount of the loss claimed by the plaintiffs. Following the appraisal process, the plaintiffs asserted a bad faith claim against USAA.
Typically, the question of whether an insurer acted in good faith towards its insured in resolving a claim is an issue of fact for the jury. Given the different inferences that each party argued must be drawn from the facts, there were factual questions necessitating reversal of the summary judgment.
One judge dissented, finding that the undisputed evidence showed that the insurer complied with the policy terms, reasonably investigated the claim, promptly participated in the appraisal process, and timely paid the appraisal award, supporting summary judgment for the insurer.
NEITHER WAIVING ACCESS TO COURTS NOR LIMITING JUDICIAL REVIEW STANDING ALONE MAKES AN ARBITRATION AGREEMENT UNENFORCEABLE AS AGAINST PUBLIC POLICY – UNDER THE BROAD LANGUAGE OF THE ARBITRATION AGREEMENT IN THIS NURSING HOME CASE, THE PERSONAL REPRESENTATIVE’S TORT CLAIM WAS ARBITRABLE BECAUSE IT EMANATED FROM A DUTY CREATED BY THE PARTY’S UNIQUE CONTRACTUAL RELATIONSHIP
Palm Court v. Dowe, 47 Fla. L. Weekly D108 (Fla. 4th DCA Jan 5, 2022):
The personal representative filed a wrongful death action against the nursing home under Chapter 400, alleging that the staff’s failure to provide appropriate wound care led to the decedent’s death. The nursing home moved to compel arbitration.
The agreement not only required arbitration, but also noted that the Federal Arbitration Act governed the agreement. The trial court denied the motion to compel, agreeing with the personal representative that the agreement was void against public policy because parties have a right to a jury trial, and the law has an aversion to attempts to contractually circumvent or dismantle legislative protections for nursing home residents.
In reversing, the court explained that neither waiving access to court, nor limiting judicial review alone makes an arbitration agreement unenforceable against public policy. Also, because Medicare paid for part of the decedent’s claim, interstate commerce was involved allowing for federal law to be applied.
Because the parties clearly contemplated governance by the FAA, and the use of Medicare indicated the nursing home’s operation was part of interstate commerce, the FAA applied, and arbitration was the proper way to resolve the dispute.
NO ERROR IN DECLINING TO INCLUDE DEVELOPER ON THE VERDICT FORM AS A FABRE DEFENDANT, WHERE THE DEVELOPER HAD NO INVOLVEMENT OR CONTROL OVER THE COMMUNITY – TRIAL COURT ERRED IN DENYING REMITTITUR, NECESSITATING A NEW TRIAL ON FUTURE MEDICAL EXPENSES
J. L. Property Owners Association v. Schnurr, 47 Fla. L. Weekly D116 (Fla. 4th DCA Jan. 5, 2022):
A man collided with a bollard while riding his bike in his community. He was thrown from his bike, and rendered quadriplegic. The jury returned a large verdict, assigning 45% responsibility to the defendant, 50% to the plaintiff, and 5% to a settling co-defendant.
As part of the verdict, the jury awarded $12 million in future medical expenses. The defendant moved for remittitur, requesting it to be remitted down to $5.7 million, or alternatively order a new trial.
During the hearing, plaintiffs’ counsel agreed to accept that figure. However, it was not until the end of that hearing that plaintiffs’ counsel informed the court that the plaintiff had died five days before the hearing. The trial court granted the remittitur, but the defendant filed an objection to entry of final judgment, objecting to the remittitur in light of the new facts, and requesting a new trial on all future damages.
On the Fabre issue, the defendant property owners association appealed the trial court’s refusal to allow it to add the developer as a Fabre defendant. The Fourth District affirmed that ruling, finding that the developer had no involvement in, nor control over the community for the two decades prior to the plaintiff’s injury. Because control is a prerequisite to liability for failure to maintain and duty to warn of a dangerous condition, and because the jury found that the defendant had a duty to warn of a danger that it also found was latent, liability could not be assigned to the developer because the property owners association had a reasonable opportunity to discover the condition and take precautions.
As to the remittitur, the court found there was no meeting of the minds because the property owners association withdrew its request to remit the award to the amount initially suggested, and that the plaintiff’s counsel could not accept a pending offer of remittitur after the plaintiff died. Finding that the defendant did not agree to the remittitur either before or after, the trial court ruled on the remittitur amount, even though it originally requested a remittitur before plaintiffs’ counsel advised that the plaintiff had died, the court said there was no meeting of the minds, and that the defendant was the “adversely affected” party complaining about the amount.
Finally, the court admonished that an attorney is first an officer of the court bound to serve the ends of justice with openness, candor, and fairness to all. It suggested that plaintiffs’ counsel would have been better off advising the court at the beginning of the hearing that the plaintiff had died.
In dissenting on that point, Judge Warner reminded us that once a trial is held and a verdict is obtained, the death of the parties does not prevent the entry of judgment and disposition of post-trial motions, suggesting that the lack of candor should not have affected the ruling on remittitur. The court affirmed on liability, but reversed for a new trial on the $12 million in future medical expenses.
BECAUSE NO GUARDIAN OF THE PROPERTY OF THE HEIR HAD BEEN APPOINTED AT THE TIME THE HEIR’S MOTHER BECAME THE PERSONAL REPRESENTATIVE, THE LAW DID NOT GIVE PREFERENCE TO EITHER THE HEIR’S MOTHER OR THE DECEDENT’S MOTHER TO SERVE AS PERSONAL REPRESENTATIVE – TRIAL COURT ERRED IN AWARDING THE CONTINGENCY FEE TO THE LAW FIRM BASED ON AN AGREEMENT WITH THE DECEDENT’S MOTHER, BECAUSE THE MOTHER HAD NEVER BEEN APPOINTED PERSONAL REPRESENTATIVE, AND THE HEIR’S MOTHER ULTIMATELY WAS – ON REMAND, THE TRIAL COURT MUST RESOLVE THE ISSUE OF WHO SHOULD BE THE PERSONAL REPRESENTATIVE
The Estate of Pounds v. Miller & Jacobs, 47 Fla. L. Weekly D124 (Fla. 4th DCA Jan. 5, 2022):
A man died with no will and no spouse. However, he did have a child with a woman he was not married to, and a surviving mother. His mother sought legal representation for the wrongful death before the appointment of a personal representative.
However, before the mother could be appointed personal representative, the mother of the child hired her own attorney and got herself appointed instead. The law firm for the mother did all the work on the case, accumulating a $145,000 settlement from which it took its contingency fee. The Fourth District ruled that the trial court had to resolve factual questions before making such an award.
Some important takeaways from the case are as follows:
(1) A personal representative is not entitled to the 3% personal representative fee, until that person is actually appointed personal representative;
(2) A guardian of the property of the ward is not the equivalent to a natural guardian. Thus, although the mother of the child was the child’s natural guardian, she had never been appointed as guardian of the property, undermining her right to select the personal representative under §733.301(2); and
(3) There is a relation backed doctrine in §733.601, and the legal acts of a personal representative “relate back” after the court appointment, then validating previous acts of the personal representative made on behalf of the estate. Rule 4-1.5(f) of the Rules Regulating the Florida Bar creates a practical difficulty in situations where an attorney is hired to prosecute a wrongful death claim before any person is authorized to sign the contingency fee agreement on behalf of the client, but when the person entering into the contract is the potential personal representative, and is later appointed, the authority relates back.
In this case, because there were so many unanswered questions, the court remanded for additional proceedings to determine who had the right to be the personal representative, and thus which firm/firms were entitled to a fee, and to what extent (contingency fee or quantum meruit).
ERROR TO FIND DEFENDANT CAR DEALER IMMUNE FROM LIABILITY UNDER THE FEDERAL GRAVES AMENDMENT
Romero v. Fields Motor Cars of Florida, 47 Fla. L. Weekly D150 (Fla. 5th DCA Jan 7, 2022):
The plaintiff sued a dealership under the dangerous instrumentality doctrine, for damages she incurred after her vehicle was struck by a loaner car owned by the dealer. The dealer defended successfully, claiming it was immune from liability under the Graves Amendment, which prohibits imposition of vicarious liability on a particular category of commercial vehicle leasors, for injuries resulting from the negligent use or operation of the leased or rented vehicle under certain conditions. (49 USC §30106(a)).
The plaintiff asserted that the Graves Amendment did not apply because the dealership had provided a complimentary loaner car to its customer, and Graves explicitly applies to rental car or lease situations. The court agreed and reversed the summary judgment.