The Week In Torts – Cases from June 30, 2023
How sad for you, you didn’t know…
FLORIDA LAW WEEKLY
VOLUME 48, NUMBER 26
CASES FROM THE WEEK OF JUNE 30, 2023
FLORIDA SUPREME COURT PURPORTING TO USE THE “PLAIN LANGUAGE” OF THE STATUTE, READS THE LAW TO BAR PLAINTIFF’S CLAIM ALTOGETHER.
Tsuji v. Fleet, 48 Fla. Law Weekly S130 (Fla. Jun. 29, 2023):
A man injured two people in a car accident while he was in the course and scope of his employment. Over three years after the injury, the plaintiffs brought their lawsuit against both him and his employer. Soon after filing suit, the Plaintiffs learned that the defendant had died of unrelated causes only weeks after the accident. They then substituted the personal representative of the decedent’s estate as the party, and requested damages against the estate to the limits of the insurance coverage as the statute provides.
The employer moved for summary judgment. It argued that Section 733.710(1) barred the plaintiff’s claim against the estate because the statute required them to bring the claims within two years of the death. Plaintiffs argued that under Section 733.702(4)(b), they were permitted to bring claims outside of the two-year statute of repose against the insurance carrier.
In analyzing the statutory language, specifically the phrase noting that nothing in Section 733.702 shall extend the limitations period in Section 733.710, the court found there are only two exceptions to the statute of repose for non-claims, and this case did not fit within either.
The court rejected the plaintiff’s argument that the word “liable” in the context meant the state or condition of a person who was responsible for payment or who was under an obligation to pay, as opposed to the condition of a person after he has breached a contract or violated an obligation resting upon him.
Despite Justice LaBarga’s vigorous dissent, the court concluded that “given the clarity with which the legislature spoke, this is a case in which our analysis begins and ends with the statutory language”.
Concluding that the cases were time barred, the court further concluded that the vicariously liable defendant was also exonerated.
ERROR TO GRANT PLAINTIFF’S MOTION FOR LEAVE TO AMEND TO ADD PUNITIVE DAMAGES WITHOUT A REASONABLE SHOWING THAT DEFENDANT’S MANAGING AGENT ACTED WITH GROSS NEGLIGENCE.
Napleton’s North Palm Auto Park v. Agosto, 48 Fla. Law Weekly D1250 (Fla. 4th DCA Jun. 21, 2023):
The plaintiff sued the dealership for negligent hiring, retention, and supervision after its employee hit the plaintiff’s parked car while allegedly intoxicated during his shift. The trial court allowed the amendment for punitive damages.
On appeal, the dealership argued that the plaintiff failed to make a reasonable showing through recorded evidence that a “managing agent” of the dealership had engaged in gross negligence, as the law requires.
As part of the plaintiff’s proffer, she pointed to three events establishing the dealership’s knowledge of the employee’s history of driving while intoxicated: (1) the employee’s DUI conviction in 2006, twelve years before he was hired; (2) the dealership’s discipline of the employee in 2020 based on another’s employee’s suspicion that he was intoxicated while on the clock; and (3) the assistant service manager’s observation that the employee was acting “off” and “loopy” on another occasion.
The plaintiff argued that the platform manager of the dealership, the employee’s service manager and the assistant service manager knew of the events, and instead of terminating the employee, gave him a simple warning with no additional oversight or restrictions.
The dealership appealed the amendment, asserting that the plaintiff’s proffer did not show that the dealership itself had notice of the employee’s intoxication during work hours, or the dealership acted with gross negligence in its retention and supervision of the employee
To show corporate culpable conduct, a plaintiff must present evidence that the corporation itself is directly liable, showing such culpable conduct at both the employee level and the corporate level. Because a corporation cannot act on its own, there must be a showing of willful and malicious actions on the part of a managing agent of a corporation.
A managing agent must be more than a mid-level employee who has some but limited managerial authority. That person must be an individual of such seniority and stature within the corporation, as to have ultimate decision-making authority for the company.
In this case, the plaintiff’s claims were based on the conduct of three managers. While the platform manager does oversee three or four vehicle stores in the Palm Beach area, one who manages a single unit or units is generally not considered a managing agent of that corporation. Also, a dealership’s platform managers might have decision making authority over the stores he or she supervises, but there was no evidence presented that the platform managers ever participated in the formation of company policy. Similarly, neither the service manager nor the assistant manager could be anything more than a manager or a midlevel employee, necessitating another reversal of one of these amendments.