The Week In Torts – Cases from July 21, 2023
FLORIDA LAW WEEKLY
VOLUME 48, NUMBER 29
CASES FROM THE WEEK OF JULY 21, 2023
TRIAL COURT ERRED IN COMMENTING ON THE VALIDITY AND TRUTHFULNESS OF ALLEGATIONS WHEN DENYING A MOTION TO DISQUALIFY – – QUESTION CERTIFIED REGARDING THE EXTENT A JUDGE MAY ISSUE A WRITTEN DENIAL AND STILL STAY WITHIN THE CONFINES OF THE RULES AND THE LAW.
Manuel v. The Law Office of Kelly D. Feig, 48 Fla. L. Weekly D1489 (Fla. July 12, 2023):
An attorney representing petitioners in an underlying probate manner filed a nine-page verified motion to disqualify the trial judge. The attorney cited a “reasonable legitimate fear” that his clients would not receive a fair hearing based on continuing demonstrable prejudice against their attorney. The attorney sought disqualification based primarily on an interaction that took place between her and the trial judge in a separate case which had led to the trial judge admonishing the attorney for “improper and unethical actions”.
In this case, the motion to disqualify alleged a fear of continuing animosity due to those sanctions, imposed without giving the attorney an opportunity to explain or defend herself. The trial court had found that the attorney had abused process, without taking any testimony or evidence. The trial judge also sternly shut her down when she attempted to interject an objection before a ruling.
The trial court rightfully denied the attorney’s motion, but then inexplicably entered a comprehensive written order addressing several of the motion’s factual allegations contrary to the dictates of the law.
A trial judge has no obligation to grant a motion to disqualify when it is legally insufficient. Adverse rulings do not constitute legally sufficient grounds for disqualification.
Of equal importance is the long-standing well-established Florida Supreme Court Rule that a trial court may not address the truth of the facts alleged in a motion to disqualify.
Here, the trial court chose to take issue with the attorney’s sworn suggestions of bias and then irreparably entered a detailed written order attaching 146 pages of exhibits explicitly scrutinizing the allegations.
While there is an exception to the Florida Supreme Court’s mandate not to take issue with a motion to disqualify, a trial judge may elaborate by explaining “the status of the record”.
The appellate court found that the trial judge here attempted and failed to walk a tightrope and explain only the “status of the record” but doing so by going through point by point and refuting the allegations with evidence, which violated the rule. The court granted the petition and remanded with directions to reassign the case to a successor judge.
Finding an ongoing uncertainty as to the jurisprudence regarding the extent to which a judge may write to explain the “status of a record,” the court certified a question of great public importance on that specific issue.
TRIAL COURT CORRECTLY DIRECTED INSURER TO RELEASE ITS PROVIDER AGREEMENT WITH SPECIFIC WINDSHIELD REPLACEMENT COMPANY, EVEN IN THE FACE OF FINDING THAT THE AGREEMENT CONTAINED TRADE SECRETS.
Progressive Select v. Lloyds of Shelton, 48 Fla. L. Weekly D1378 (Fla. 2nd DCA July 12, 2023):
The auto glass assignee of the original plaintiff filed a bad faith action against Progressive.
The case arose after the underlying plaintiff was in an accident and went to Lloyds to get his windshield replaced. The replacement was covered under his auto insurance policy.
However, Progressive refused to pay the invoiced amount. The issue went through the appraisal process provided for under the policy, forcing Progressive to pay several hundred dollars more. The amount was still less than the invoiced amount.
As part of this bad faith lawsuit, the trial court found that specific pages of the agreement between Progressive and Safelight contained trade secrets. However, the trial court expressly found that Lloyds had a reasonable need for the information which outweighed the defendant’s interest in maintaining confidentiality.
The trial court also found that the agreement contained information that was potentially admissible and reasonably calculated to lead to admissible evidence, specifying why. Finally, the trial court found that the confidentiality agreement sufficiently protected the confidentiality interests, while also permitting the plaintiff to access the necessary information to prosecute its claims.
The appellate found that the trial court had properly conducted an in-camera review and then balanced the need for the production against the interest in confidentiality. As the bad faith claim had included an allegation of a secret pricing agreement between Progressive and Safelight, resulting in the insured receiving only partial payment of the no deductible windshield indemnity required by the policy, the court found that the agreement could demonstrate practices of price manipulation as well as evidence that would be potentially admissible. Because the trial court engaged in the appropriate analysis and made the necessary findings to support the release of the agreement, Progressive failed to make a showing of a departure from the essential requirements of law.
COURT REVERSES TRIAL JUDGE’S ENFORCEMENT OF A SETTLEMENT AGREEMENT – – MERE EMPLOYMENT OF AN ATTORNEY DOES NOT IN AND OF ITSELF GIVE THE ATTORNEY IMPLIED OR APPARENT AUTHORITY TO COMPROMISE A CLIENT’S CAUSE OF ACTION.
Evans v. Diaz, 48 Fla. L. Weekly D1391 (Fla. 4th DCA July 12, 2023):
The plaintiff, who spoke English as his second language, opposed a settlement that his attorney had entered into with the adjuster for $4,000.00. The plaintiff believed that the amount was $40,000.00, pointing out that his medical expenses were $17,000.00.
After a hearing on the motion, the court relied on the claims adjuster’s affidavit and a motion seeking to enforce settlement, finding that there was a meeting of the minds, and that the attorney had agreed to settle for $4,000.00.
The plaintiff filed a motion for rehearing, attaching an affidavit stating that he had not given his consent for his attorney to accept the $4,000.00. The trial court denied the motion to enforce.
There are five rules of law used to determine the enforceability of a settlement agreement where an attorney has negotiated the settlement on behalf of a client: (1) the party seeking judgment has the burden of establishing assent by the opposing party; (2) the mere employment of an attorney does not in and of itself give the attorney an implied or apparent authority to compromise the cause of action; (3) an exception to the general rule occurs when the attorney is confronted with an emergency which requires prompt action to protect his client’s interests when consultation with the client is impossible; (4) a client may give his attorney special express authority to compromise and settle his cause of action but such authority must be clear and unequivocal; (5) an unauthorized compromise executed by an attorney unless subsequently ratified by the client has no effect, and may be repudiated or ignored and treated as a nullity by the client.
Here, the defendant did not establish clearly and unequivocally that the plaintiff had authorized his attorney to settle for $4,000.00. There was also no evidence that the plaintiff had granted his attorney authority to settle, or that the plaintiff had subsequently ratified the agreement.
The defendant relied mostly on the fact that the plaintiff had simply retained an attorney to pursue the claim and the attorney had a letter of representation. However, the mere employment of an attorney does not give the attorney the implied or apparent authority to compromise the client’s cause of action in and of itself.
NO ERROR IN ENTERING SUMMARY JUDGMENT FOR THE DEFENDANT WINDOW AND DOOR MANUFACTURER, IN A CASE WHERE A SHIPMENT DELIVERED BY AND PLACED ON THE PLAINTIFF’S EMPLOYER’S FORKLIFT TOPPLED OVER, WAS THE CAUSE OF THE INJURIES.
Benitez v. Lawson Industries, 48 Fla. L. Weekly D1399 (Fla. 3rd DCA July 12, 2023):
The plaintiff sustained injuries when he attempted to unload a shipment of heavy impact windows and doors that were delivered by the defendant’s employee and placed on the plaintiff’s employer’s forklift. The door toppled off the forklift, and onto the plaintiff when he removed the windows leaning against those doors.
On the day of delivery, one of the plaintiff’s co-workers assisted one of the door manufacturer’s employees in moving the shipment from the truck onto the plaintiff’s employer’s forklift. After making the delivery, the driver left.
The plaintiff testified that on the morning after the shipment delivery date, he entered the warehouse and began to unload the shipment from the forklift by himself observing that there were no straps in place. Later he testified that he did not realize no safety straps were in place until after the doors fell on him.
Following a hearing, the trial court granted the manufacturer’s motion for summary judgment. The employer’s representative stated several times that he had strapped the shipment to the forklift once the manufacturer employee had offloaded the shipment. There was testimony that once the manufacturer secures the shipment for delivery and it is delivered, the shipment then becomes the customer’s responsibility.
The trial court granted the motion for summary judgment. It determined that the manufacturer had no duty to the plaintiff, and that his employer was responsible for strapping the shipment to the forklift once the shipment had been offloaded. The court also found that the plaintiff undertook to unload the forklift by himself, despite observing a lack of safety straps.
The appellate court affirmed. It found that the duty element of negligence focuses on whether the defendant’s conduct foreseeably creates a broader zone of risk and poses a general threat of harm to others. Where a defendant’s conduct creates a foreseeable zone of risk, the law will recognize a duty being placed on the defendant to lessen the risk, or to see that sufficient precautions are taken.
Once the manufacturer put this shipment on the employer’s forklift, the employer became the responsible party. Any foreseeable zone of risk surrounding the forklift and shipment was in the control of the employer after the shipment was delivered, leading the court to affirm the summary judgment.