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The Week In Torts – Cases from June 3, 2022
Does anything go to court anymore?
FLORIDA LAW WEEKLY
VOLUME 47, NUMBER 22
CASES FROM THE WEEK JUNE 3, 2022
COURT ENFORCES ANOTHER CLICKWRAP AGREEMENT CONTAINING AN ARBITRATION CLAUSE EVEN WHEN SEXUAL ASSAULT ALLEGATIONS INVOLVED-THE NEED TO CHALLENGE AS UNCONSCIONABLE AND TO EDUCATE CONSUMERS ABOUT SIGNING THESE CONTRACTS BECOMING EVER MORE ACUTE
Massage Envy v. Jane Doe, 47 Fla. L. Weekly D1151 (Fla. 5th DCA May 27, 2022):
Plaintiff went to Massage Envy for a massage. Several months later, she filed a multi-count complaint alleging that her massage therapist sexually assaulted her during the massage.
Massage Envy responded by filing a motion to stay litigation and seeking to compel arbitration alleging that the plaintiff had entered into a binding contract which she agreed to submit all disputes to an arbitrator rather than to a court.
The plaintiff did not dispute that when she checked in for her appointment that day, she signed an electronic tablet that contained an application with various intake forms. In the section entitled “My Consent” there was also a “Terms of Use Agreement’ that had a hyperlink that described the arbitration agreement. The plaintiff agreed that she clicked the box without clicking on the hyperlink.
With respect to online or electronic contracts, there are at least two types of agreements: browsewrap and clickwrap.
The browsewrap agreement occurs when a website provides a link to the terms and conditions, and does not require the user to click an acknowledgement during the checkout process. The user may complete the transaction without visiting the page. Those agreements are only enforced when the hyperlink is conspicuous enough to put a reasonably prudent person on notice.
Conversely, a clickwrap agreement occurs when a website directs a purchaser or user to the terms or conditions and requires the user to click a box, to acknowledge that they have read the terms and conditions. These agreements are generally enforceable.
Here, the plaintiff conceded that the agreement was a clickwrap agreement, and agreed that she checked the box without going to the hyperlink, which would have put her on notice of the arbitration clause. The court reversed the trial judge’s refusal to enforce the arbitration clause.
A DOCUMENT WHICH SIGNATORY VERIFIES AS HAVING BEEN MADE “UNDER PENALTY OF PERJURY” QUALIFIES AS A “STATEMENT UNDER OATH” TO SATISFY THE VERIFICATION REQUIREMENT SET FORTH IN SECTION 627.4137 – COURT ENFORCED SETTLEMENT AGREEMENT EVEN THOUGH IT MAY HAVE NOT TECHNICALLY COMPLIED WITH THE STATUTE
Koung v. Giordano, 47 Fla. L. Weekly D1116 (Fla. 1st DCA May 25, 2022):
In consideration for the plaintiff’s promise to release the insured, State Farm provided insurance information and agreed to the settlement demand made by the plaintiff after an auto accident.
State Farm later asserted that the settlement was invalid, because while the claims adjuster certified the insurance disclosure “under the penalties of perjury,” it allegedly had not complied with the technical requirements of Section 627.4137, requiring the statement be made under oath.
The trial court then refused to enforce the settlement agreement on that basis, which the appellate court reversed. The trial court erroneously interpreted Section 627.4137 to require that an insurance disclosure literally be sworn before an officer authorized to take oaths.
While read in isolation, Section 627.4137 seems to require a claims manager swear out a disclosure before a notary or other authorized officer, Section 92.525, Fla. Stat., allows a document to be verified as being true “under penalties of perjury” which then becomes a “statement under oath” for the purpose of satisfying Section 627.4137.
Not only does Section 90.525, Fla.Stat., allow certifications like the one made here, the court ruled that any of the insurance company’s technical non-compliance issues involving a pre-existing statutory obligation was not part of the parties’ bargain, and not relevant to whether an agreement existed.
The court admonished that settlement agreements are highly favored and courts will enforce them whenever possible. Here, the undisputed facts showed that a valid settlement agreement had been formed.
TRIAL COURT ABUSED DISCRETION BY AWARDING PLAINTIFF ATTORNEY’S FEES BASED ON DEFENDANT’S REJECTION OF A PROPOSAL FOR SETTLEMENT REQUIRING THE DEFENDANT TO PAY A MILLION DOLLARS IN CASH WITHIN THIRTY DAYS – THE PROPOSAL WAS NOT MADE IN GOOD FAITH, BUT COULD HAVE BEEN HAD THE OFFER BEEN REALISTIC (E.G., REQUIRING DEFENDANT TO AGREE TO ENTRY OF FINAL JUDGMENT OR TO SIGN A PROMISSORY NOTE)
State Farm v. Lightfoot, 47 Fla. L. Weekly D1121 (Fla. 1st DCA May 25, 2022):
The defendant rear-ended the plaintiff. The plaintiff walked away from the accident seeming OK, with minor knee and neck pain. Plaintiff later sued for his injuries, demanding the defendant’s $50,000 bodily injury liability policy, to no avail.
Three years later, the plaintiff served a PFS on the defendant, offering to dismiss his claims against her if she paid him $1.3 million cash in 30 days. The Defendant did not accept.
The case proceeded to trial and four years later (seven years after the accident), a jury found that the defendant was responsible for over $11,000,000 in damages ($10,000,000 of which represented non-economic damages). The defendant unsuccessfully appealed the final judgment.
The plaintiff then sought attorney’s fees pursuant to Section 768.79 and Rule 1.442. The defendant argued the proposal for settlement was invalid and unenforceable because it was impossible to accept and illusory, and thus not made in good faith. The trial court rejected the argument and assessed almost $1.5 million in attorney’s fees and costs.
The party to whom the offer is made has the burden of showing that it was not made in good faith. Reasonableness of the rejection is not relevant to the question of whether it was made in good faith. That question turns on whether the party making the offer had a reasonable foundation on which to make it, and did so with the intent to settle the claim if it had been accepted.
The trial court abused its discretion, according to the appellate court, because it was clear the plaintiff made the PFS without the intent to settle the case.
By conditioning acceptance upon payment of $1.3 million in cash, the offer was illusory as there was no real possibility the defendant could have accepted it. The plaintiff did not have to actually require payment. To show good faith, the offer could have allowed for acceptance followed by a judgment. By requiring the defendant to tender that amount of money in cash within thirty days, the plaintiff chose to include an impossible condition that was designed to make the defendant fail.
The court made clear that it was not holding that an offeror must consider an offeree’s finances and ability to pay before submitting a PFS. Rather, the court found the offer was not made in good faith and was illusory because it required the tender of over a million dollars in cash in 30 days which (apparently) is inherently unrealistic.
COUNTY COURT ABUSED ITS DISCRETION IN SUA SPONTE DISMISSING AN ACTION (EVEN WITHOUT PREJUDICE) BASED ON NON-COMPLIANCE WITH THE PRE-TRIAL ORDER REQUIRING PARTIES TO FILE A JOINT PRE-TRIAL STIPULATION BY A DATE CERTAIN, WITHOUT PROVIDING THE PLAINTIFF NOTICE THAT THE SANCTION OF DISMISSAL WOULD BE IMPOSED
Trauma and Rehab Associates v. Esurance Property & Cas. Ins. Co., 47 Fla. L. Weekly D1139 (Fla. 4th DCA May 25, 2022).
COURT DENIES PETITION FOR WRIT OF PROHIBITION BASED ON TRIAL JUDGE’S REFERRAL OF COUNSEL TO THE LOCAL BAR’S PROFESSIONALISM COMMITTEE
Mongelli v. Florida Health Sciences Center, 47 Fla. L. Weekly D1150 (Fla. 2nd DCA May 27, 2022):
Plaintiff sought to disqualify the trial judge based on the judge’s statements during a discovery hearing observing that plaintiff’s counsel seemed “unnecessarily angry.” The judge subsequently referred the attorney to the local bar’s professionalism panel for assistance with anger management, and counseling in professionalism.
According to the plaintiff, the referral resulted in a well-founded fear that the judge did not trust his attorney, and would look suspiciously at every position.
The Second District rejected the plaintiff’s attempt to equate the referral of his counsel to a local professionalism panel for discourtesy, with a challenge to his counsel’s integrity or ethics. The court stated that those two things are not the same.
Florida judges have a responsibility to promote courtesy and professionalism in their courts, and the Florida Code of Judicial Conduct mandates that judges participate in establishing, maintaining and enforcing high standards.
When a judge questions the veracity or ethics of a party or counsel, those comments may be subject to disqualification depending on the unique facts of the case. However, a referral for a lack of professionalism and decorum is not the same, and the court denied the writ of prohibition.