The Week In Torts – Cases from March 10, 2023
Did you admit it as a business record?
FLORIDA LAW WEEKLY
VOLUME 48, NUMBER 10
CASES FROM THE WEEK OF MARCH 10, 2023
FAILURE TO INTRODUCE FIELD ADJUSTER’S REPORT AS A BUSINESS RECORD PRECLUDED INSURANCE COMPANY REPRESENTATIVE FROM TESTIFYING ABOUT THE FIELD ADJUSTER’S CONCLUSIONS (FROM ANYTHING BUT HER PERSONAL KNOWLEDGE) — CASE REVERSED BASED ON ERRONEOUS ADMISSION OF INADMISSIBLE HEARSAY.
Mesa v. Citizens Property Insurance Co., 48 Fla. L. Weekly D465 (Fla. 3rd DCA Mar. 1, 2023):
In this first party property insurance case, the plaintiffs suffered roof damage and sued Citizens for refusing to cover it. The issue was whether the loss was caused by rain that came in through an opening in the roof, which was excluded under the policy.
Citizens had its field adjuster inspect the property, take photographs and prepare a report documenting the adjuster’s findings. The adjuster concluded that the roof failed due to wear and tear, and there was no wind created opening which would have been covered.
Citizens did not seek to introduce the field adjuster’s report into evidence as a business record. Instead, it presented the testimony of a woman who identified herself as “the corporate representative” for Citizens, who testified that she had reviewed the claims file and had come to advise the jury about what had happened.
The insured objected that the witness had no personal knowledge and could not testify. Over the objection, the trial court permitted the woman to testify as to the contents of the field adjuster’s report.
The court agreed with the insured that the trial court abused its discretion by permitting what was clearly inadmissible hearsay testimony from Citizens’ corporate representative, pursuant to §90.604.
Citizens seemed to acknowledge the error, relying instead on Rule 1.310(b)(6) which permits a corporation to designate an individual to appear at a deposition to testify about matters known or reasonably available to the organization.
However, Citizens cited to no authority that this discovery rule was tantamount to a “trial hearsay exception.” The court advised it is well established that a trial court reversibly errs by allowing a witness to testify as to the contents of a business record, when the business record itself is not entered into evidence.
Absent Citizens’ introduction of the field adjuster’s report at trial as a business record, the witness was only competent to testify from her personal knowledge of the condition of the home’s roof. Because Citizens failed to establish that the witness possessed such personal knowledge nor did her testimony reveal that she was testifying based on personal knowledge, it was error to allow her to testify about the contents of the report.
The court then concluded that the admission of the hearsay testimony was harmful error, necessitating reversal and a new trial.
FINAL JUDGMENT REVERSED AND CASE REMANDED FOR NEW TRIAL WHERE TRIAL COURT NOTICED THE CASE TO BE TRIED WITHIN 30 DAYS OF THE SCHEDULED TRIAL DATE.
Curry v. Crescent Bank, 48 Fla. L. Weekly D477 (Fla. 3rd DCA Mar. 1, 2023):
The trial court sua sponte and unilaterally set the case for trial 17 days before the scheduled trial date. While the appellant agreed he received the notice, he was unavailable on that date, and was unsuccessful in obtaining a new trial from the trial court.
Rule 1.440(c) requires that a trial shall not be set less than 30 days from the service of the notice for trial. Because the trial court violated that Rule, the final judgment was reversed, and the case remanded for a new trial.
ERROR TO DISMISS ACTION FOR FAILURE TO PROSECUTE WHERE THERE WAS RECORD ACTIVITY WITHIN 10 MONTHS THAT IMMEDIATELY PRECEEDED THE LACK OF PROSECUTION NOTICE –- DOCKET NOTATION SHOWING JUDGE REASSIGMENT IS RECORD ACTIVITY.
Peeples v. Carlton Palms Education Center, 48 Fla. L. Weekly D486 (Fla. 5th DCA Mar. 3, 2023):
The plaintiff sued the defendants on behalf of her son. Ten months passed without any filings made by either party in the case. However, within that ten month period, an administrative order changed the assigned judge.
Almost a year later, the co-defendants filed a notice of lack of prosecution asserting there had been no record activity for 14 months. Citing Rule 1.420(e), the notice maintained that if no activity happened in the next 60 days, the court should dismiss the case for failure to prosecute. No record activity occurred in the next 60 days, and the co-defendant moved to dismiss for failure to prosecute leading the defendants in this case to do the same.
The court looked to the text of the rule noting that “words of a governing text are of paramount concern and what they convey, in their context, is what the text means.”
In evaluating the words of Rule 1.420(e), the Rule states that activity “by filings of pleadings, order of court, or otherwise” precludes the dismissal of the action.
In this case, the administrative order reassigning a new judge was a “court order,” constituting record activity. Because there had not yet been ten months of record inactivity at the time the defendants filed their motion, the court reversed and remanded.