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The Week In Torts – Cases from July 8, 2022
Careful what you say to the judge in private
FLORIDA LAW WEEKLY
VOLUME 47, NUMBER 27
CASES FROM THE WEEK JULY 8, 2022
ANY EX PARTE COMMUNICATIONS THAT GO BEYOND MERE ADMINISTRATIVE CONTACT CAN CAUSE A LITIGANT TO HAVE AN OBJECTIONABLY REASONABLE, WELL-FOUNDED FEAR OF NOT BEING ABLE TO RECEIVE A FAIR AND IMPARTIAL TRIAL THEREBY REQUIRING DISQUALIFICATION
Menada, Inc. v. Arevalo, 47 Fla. L. Weekly D1400 (Fla. 3rd DCA Jun. 29, 2022):
For two years, the plaintiff’s wrongful death suit was proceeding before a judge. Pursuant to standard judicial rotation procedures, the judge was then transferred into a different division.
Two months later, defense counsel was contacted by the JA of the prior presiding judge in order to schedule a hearing on a motion for clarification the plaintiff had filed before the judge had transferred out of the civil division. The defendant objected to the prior judge hearing the motion, asserting that the case was now assigned to a successor judge, and that judge had been hearing all the other matters in the case. The JA responded by advising that she had been notified that the “parties” had requested that the prior judge reassert jurisdiction over the case for these purposes.
The defendant then moved to disqualify the judge, alleging that the judge had engaged in improper ex parte communication with the plaintiff’s counsel that defense counsel was never privy to regarding an attempt to bring the matter back to the original judge.
Taking the facts of the disqualification motion as true (as the law requires), the court found that the ex parte contact went beyond the administrative scheduling of a hearing; there had obviously been communications with plaintiff’s counsel about getting the matter transferred out of the division.
There was no record evidence that the parties jointly went through the chief judge for permission, or that any such approval was given.
The court concluded that under these facts, the defendant could have had an objectionably reasonable well-rounded fear of not receiving a fair and impartial trial, and granted the Writ of Prohibition.
COMMUNICATIONS BETWEEN SCHOOL DISTRICT’S ATTORNEY AND TWO OF ITS EMPLOYEES NOT PROTECTED BY ATTORNEY-CLIENT PRIVILEGE — INTERVIEW WAS PART OF A FACT-FINDING INVESTIGATION
Collier County Public Schools v. Mason Classical Academy, 47 Fla. L. Weekly D1387 (Fla. 2nd DCA Jun. 29, 2022):
The School District was called upon to investigate multiple complaints lodged against one of the county’s charter schools. The attorney issued an investigative report that was made public after his investigation concluded.
The charter school then sued several defendants, alleging claims of tortious interference and conspiracy. The charter school plaintiff sought to take the depositions of two of the former School District employees who participated in the District’s investigation. Neither the School District nor the employees were parties to the litigation.
The court explained that organizations cannot claim that all conversations between an employee and their attorneys are protected by the attorney-client privilege. A trial judge should examine five factors before a trial judge rules on the privilege:
(1) the communication would not have been made but for the
contemplation of legal services;
(2) the employee making the communication did so at the
direction of his or her corporate superior;
(3) the superior made the request of the employee as part
of the corporation’s effort to secure legal advice or services;
(4) the content of the communication relates to the legal
services being rendered, and the subject matter of the
communication is within the scope of the employee’s
duties;
(5) the communication is not disseminated beyond those
persons who, because of the corporate structure, need
to know its contents.
Because the School District’s general counsel interviewed these employees as part of a fact-finding process in his investigation of the charter school, and because the District never asserted that either employee consulted with the attorney for the purpose of obtaining legal advice or services, the District did not meet its burden of establishing the attorney-client privilege.
The court also noted that the Sunshine Law did not provide a basis to evaluate the discussions. Here, the employees and the District’s attorney were clearly not School Board members or part of a “decision-making committee” that would have made such discussions “meetings” pursuant to section 286.011(1).
While there are instances where the employees of the School District could claim attorney-client privilege, this was not one of those instances.
ON ITS OWN MOTION, COURT CERTIFIES CONFLICT REGARDING “PER SE ERROR” REQUIRING REVERSAL WHEN AN ERROR IS MADE IN JURY SELECTION REGARDING CAUSE CHALLENGES
Seadler v. Marina Bay Resort, 47 Fla. L. Weekly D1416 (Fla. 1st DCA Jun. 29, 2022):
The court reiterated its ruling that even though the court erred in denying a cause challenge on a juror, forcing the defendant to use a peremptory, that it did not require a “per se” reversal, but instead, harmless error analysis. The court did certify conflict with the opposite decisions that exist in each of the other appellate districts.
ERROR TO DISMISS A PLAINTIFF’S MEDICAL MALPRACTICE CASE FOR THE FAILURE TO COMPLY WITH PRESUIT, WITHOUT MAKING EXPRESS FINDINGS AS TO WHETHER THE PLAINTIFF CONDUCTED A REASONABLE PRESUIT INVESTIGATION BY PROVIDING A CORROBATIVE EXPERT AFFIDAVIT THAT COMPLIES WITH THE STATUTE
Dontineni v. Sanderson, 47 Fla. L. Weekly D1421 (Fla. 5th DCA Jul. 1, 2022):
As part of any plaintiff’s investigation into a prospective medical malpractice lawsuit, the plaintiff must submit a verified medical expert opinion to corroborate the claim of medical negligence with reasonable grounds, and also show that the medical expert specializes in the same specialty as the healthcare provider against whom or on whose behalf the testimony is offered.
In this case, the trial court denied the doctor’s motion to dismiss but failed to make express findings as to whether the plaintiff conducted a reasonable presuit investigation by providing a corroborating expert affidavit that complied with the statutory presuit requirements. That failure required the grant of the writ of certiorari.
INVOCATION OF APPRAISAL PROVISION AFTER A CRN HAS BEEN FILED DOES NOT TOLL THE SIXTY-DAY CURE PERIOD UNTIL THE APPRAISAL HAS CONCLUDED – ERROR TO FIND THAT THE CRN FAILED TO COMPORT WITH THE STATUTORY SPECIFICITY REQUIREMENT
Apex Roofing and Restoration v. State Farm, 47 Fla. L. Weekly D1423 (Fla. 5th DCA Jul. 1, 2022):
Plaintiff in a property insurance case filed a civil remedy notice (CRN) alleging that State Farm had failed to act in good faith in handling its claim. During the sixty-day period after the filing, State Farm invoked the appraisal provision of the insurance policy. State Farm concluded the appraisal three months after the sixty-day cure period ended, and within a matter of days, paid the difference.
The insured filed a complaint seeking damages against State Farm for bad faith. The trial found that the cure period was tolled because State Farm invoked its appraisal provision (and therefore no bad faith).
The appellate court found that there is no language contained in section 624.155, which allows the invoking of the appraisal process after a CRN is filed, to toll the running of the sixty-day cure period.
The trial court had also erroneously found that the CRN did not comport with the statutory requirement, because it failed to provide specific facts and circumstances that gave rise to the statutory violations, instead using only conclusory statements.
The court rejected that argument finding that the allegations didn’t meet the requisite level of specificity and reversed the summary judgment entered for State Farm.