I just don’t see an issue

FLORIDA LAW WEEKLY

VOLUME 50, NUMBER 12

CASES FROM THE WEEK OF MARCH 28, 2025

COURT AFFIRMS SUMMARY JUDGMENT BASED ON DEFENDANT’S SHOWING OF AN ABSENCE OF PROOF TO SUPPORT THE MOVANT’S CASE

Septentriona Domus, LLC v. Keystone Morgan Real Estate, 50 Fla. L. Weekly D663 (Fla. 3rd DCA Mar. 19, 2025):

As the non-movant for summary judgment bears the burden of proof at trial, a party moving for summary judgment need only demonstrate that there is an absence of proof to support the issue.

The corollary to that rule is that a movant seeking summary judgment need not present evidence when the burden of persuasion at trial is on the non-movant. Once the moving party demonstrates an absence of proof, it is incumbent upon the non-moving party to come forward with evidentiary material demonstrating that a genuine issue of material fact exists as to an element necessary for the non-movant to prevail at trial. Even if the non-movant presents evidence, if that evidence is merely colorable or not significantly probative, the trial court may grant summary judgment.

The non-movant’s evidence must be of sufficient weight and quality that reasonable jurors could find by a preponderance of the evidence that the non-movant is entitled to a verdict.

Because the non-movant failed to make any showing that there existed a genuine issue of fact regarding any of the claims, the trial court properly entered summary judgment.

TRIAL COURT DEPARTED FROM ESSENTIAL REQUIREMENTS OF LAW BY ORDERING DEFENDANT TO PRODUCE DOCUMENTS THAT DEFENDANT CLAIMED WERE PRIVILEGED, WITHOUT SETTING FORTH ITS REASONS FOR REJECTING THE DEFENDANT’S OBJECTIONS TO DISCOVERY, OR CONDUCTING AN IN CAMERA REVIEW

Florida Health Sciences Center, Inc. v. Jackman, 50 Fla. L. Weekly D639 (Fla. 2nd DCA Mar. 19, 2025):

The defendant hospital filed a writ for a petition of certiorari, arguing that the trial court improperly compelled it to produce documents in response to the plaintiff’s discovery requests, notwithstanding its objections for vagueness, overbreadth, violation of statutory confidentiality of employee information, peer review and quality assurance program privileges, and attorney-client and work product privileges.

The trial judge rejected the defendant’s contentions without explanation and disregarded its assertion that it was entitled to a hearing on the discovery dispute. The hospital moved for reconsideration arguing that the circuit court violated the hospital’s right to due process by entering the orders without a hearing. The trial court also denied that motion without a hearing or explanation.

The appellate court made clear that it was not addressing the hospital’s objections based on vagueness, overbreadth, or relevance.

However, in addressing matters involving attorney-client privilege, work product privilege or other objections where privileges allegedly apply, a trial court needs to address whether the claimed privileges do apply and should often conduct an in-camera review of the disputed materials, so the appellate court is not left to guess about the ruling.

In keeping with other Second District precedent, the court held that the lower court’s failure to provide due process and findings to demonstrate its consideration of the privilege issues, warranted certiorari relief.

TRIAL COURT ERRED IN DENYING INSURER’S MOTION FOR SUMMARY JUDGMENT AND ALLOWING A BAD FAITH CLAIM TO PROCEED WHERE THE INSURER WAS NOT GIVEN THE 60 DAY NOTICE AND OPPORTUNITY TO CURE AS REQUIRED BY SECTION 624.155

Progressive American Insurance Co. v. Gonzalez, 50 Fla. L. Weekly D641 (Fla. 3rd DCA Mar. 19, 2025):

Progressive appealed a $25 million final consent judgment in a bad faith action, where the parties had reserved the right to appeal issues related to a civil remedy notice and the requirements under section 624.155.

The plaintiff had provided notice of the bad faith claim to the Department of Financial Services but had not supplied Progressive with that notice until 75 days after it was given to the department (and 15 days after the bad faith action was filed).

The case was governed by the 2018 version of Section 624.155, which gave the plaintiff a statutory remedy at bad faith but included a 60-day window as a period of cure, to encourage the payment of the underlying claim and avoid unnecessary bad faith litigation.

Here, there was nothing to show that Progressive had received the civil remedy notice within 60 days of the suit being filed. The plaintiff argued that because the statute is written in passive voice, stating that the department and the authorized insurer “must be given” 60-days written notice of the violation as a condition precedent to bringing an action, that did not compel direct notice to Progressive because it was given to the Department.

However, the court noted that the statute clearly provides that notice must be given to the authorized insurer as a condition precedent to the filing of statutory bad faith action. Thus, under the plain language, if there is no notice, there can be no statutory bad faith.

The plaintiff also asserted that the insurance company should have logged into the Department’s website regularly to search for newly filed civil remedy notices. While acknowledging that the suggested interpretation would resolve some of the interpretive problems in the statute, the court held firm that the purpose of the statute is to provide the insured with a notice and 60-day window to pay the claim and avoid the bad faith lawsuit. It observed that the statutory scheme begins to fray if the running of the 60-day cure period begins from the date of the filing with the Department, rather than the date of notice to the insurer as the statute seems to require.

After reconciling the various provisions of the statute with reference to all textual and structural clues bearing on the meaning of the disputed text, the court concluded that the filing with the Department did not constitute giving notice to the insurer in the version of the statute at issue. To say that Progressive was required to have a process in place to look at the Department’s website would be to require adding in language that the statute does not have. Under more recent versions of the statute, the Department is required to send a copy of the civil remedy notice to the carrier, but that was not the case under the 2018 version, resulting in the granting of summary judgment for Progressive.

TRIAL COURT DID NOT DEPART FROM ESSENTIAL REQUIREMENTS OF LAW BY ALLOWING DEFENDANT TO ISSUE SUBPOENAS TO NON-PARTY HEALTH CARE PROVIDERS SEEKING PLAINTIFF’S MEDICAL RECORDS – REQUEST THAT THE PRODUCTION BE LIMITED TO 10 YEARS BEFORE THE ACCIDENT WAS PROPERLY REJECTED WHERE PLAINTIFF ADMITTED THAT SHE HAD BEEN DISABLED FROM A BACK INJURY FOR NEARLY 40 YEARS

Valyou v. Navedo, 50 Fla. L. Weekly D685 (Fla. 2nd DCA Mar. 21, 2025):

The plaintiff sued the defendant for injuries sustained in an automobile accident. The defendant served two notices under Rule 1.351, demonstrating the intent to subpoena several non-parties for various records, including medical records for a chiropractor, hospital and dentist.

The plaintiff objected to the issuance of those subpoenas, asserting that the production would violate her privacy rights. Plaintiff requested the trial court either limit the breadth and scope of the subpoenas to documents that related to her neck and back or in the alternative conduct an in-camera review. After a hearing, the trial court overruled the plaintiff’s objections.

The plaintiff argued in her petition that the subpoenas were too broad because they had no temporal limitation, no limitation in scope, no limitation indicating that they were for a one-time use, and that they stated on their face that they would disseminate the plaintiff’s date of birth (the plaintiff did not raise the one-time use or date of birth arguments to the lower court, so they were not considered as part of the writ).

The argument regarding restricting these records for a 10-year period was overruled because the plaintiff conceded she had been disabled from a back injury since 1987. The plaintiff argued against production of her dental records based on the fact she wasn’t making any claim regarding anything dental.

The court concluded that the plaintiff’s claims for bodily injury damages allowed for the production of the requested records and found there was not support to limit the records to her generalized claims for neck and back damages.

As a final matter, the plaintiff never requested or expressed a need for an in-camera review of the records until after the objections were denied. The court found that the trial judge properly denied the plaintiff’s belated and non-specific demand following her complete failure to establish that it was highly probable that the subpoena’s issuance would result in the production of irrelevant records. The moral of the story is to request the in-camera inspection at the outset.