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The Week In Torts – Cases from May 10, 2024

Appellate Litigation In the News Personal Injury The Week in Torts BY

The newly married widow has a claim after all

FLORIDA LAW WEEKLY

VOLUME 49, NUMBER 19

MAY 10, 2024

SPOUSE WHO MARRIES DECEDENT AFTER INJURY BUT BEFORE DEATH NOW HAS A CLAIM FOR WRONGFUL DEATH

Ripple v. CBS Corp., 49 Fla. L. Weekly S123 (Fla. May 9, 2024):

Before his death, a man filed a complaint against the defendant, alleging negligence and strict liability based on the defendant’s having exposed him to asbestos from the 1950s to the 1990s. He was diagnosed with mesothelioma on May 22, 2015, and on July 4, 2015, the decedent married the woman with whom he had lived for decades. The man died in November of 2015.

The defendants moved for summary judgment on the spouse’s claim, arguing that because she was not married to the decedent at the time of his asbestos exposure, she could not recover damages under section 768.21(2). Defendants based their argument on Florida’s common law rule that a party must have been legally married to the injured person at the time of the injury, in order to assert a claim for loss of consortium. They argued that a person may not marry into a cause of action and that the law must draw a line as to liability.

The defendants went even further, arguing that even though they believed the wife had not claim, the man’s adult children were also prohibited from recovering under section 768.21(3), because the man had a “surviving spouse” at the time of his death. The trial court agreed to both arguments.

The supreme court observed that at the threshold, it had to determine whether a spouse who married the decedent after the onset of the injury that caused the decedent’s death could be a “surviving spouse” under section 768.212 of the Wrongful Death Act. The court found that under the Wrongful Death Act, the plaintiff was the surviving spouse under the law.

Analyzing section 768.21(2), the court noted that the surviving spouse may also recover for the loss of the decedent’s companionship and protection, and for mental pain and suffering from the date of injury.

The court said that the plain language of that section indicates that a spouse who marries the decedent after the onset of the injury that caused the decedent’s death is indeed a “surviving spouse” under the subsection. Because the act does not define the term “surviving spouse,” the court gave the phrase its ordinary meaning.

The court concluded that a surviving spouse under the statute is a spouse at the time of the decedent’s death because the ordinary meaning of a “surviving” spouse means that the spouse has outlived the other spouse.

The survivorship under the statute is determined at the time of the decedent’s death. The court buttressed its ruling by looking at section 768.17, which shows the legislature’s intent for the act to shift the losses resulting when wrongful death occurs, from the survivors of the decedent, to the wrongdoer.

The court also rejected the common law “marriage before injury” rule that the defendants argued in their effort to defeat the plaintiff’s claim. A wrongful death claim is not a continuation of a common law personal injury claim; instead, it accrues once the decedent dies from the injury.

Thus, under the act, the surviving spouse does not pursue a distinct cause of action based on loss of consortium. Instead, the act contemplates a stand alone wrongful death claim. It is not clear that the “marriage before injury” rule, which is a common law defense to a cause of action based on loss of consortium can also serve to eliminate an element of statutory damages in wrongful death.

The supreme court acknowledged the potential anomaly that its ruling could create; i.e., because the surviving spouse was not married to the decedent at the time of injury, she could not have pursued a common law action for loss of consortium if he had survived the injury. The court said it was up to the legislature, not the courts, to decide whether that was a problem that needed fixing, and if so, how.

The supreme court then explained that the jury, in considering the evidence, could determine whether a spouse’s conduct amounts to an attempt “to marry into a claim,” and said that nothing in its decision prevented juries from considering the timing and duration of the couple’s marriage when evaluating her claim for damages.

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PEOPLE HAVE A REASONABLE EXPECTATION OF PRIVACY IN THE CONTENTS OF THEIR CELL PHONE, AND THUS DISCOVERY ORDERS MUST PROPERLY BALANCE THE COMPETING INTERESTS INVOLVED

Roque v. Sweezy, 49 Fla. L. Weekly D92921 (Fla. 3rd DCA May 1, 2024):

The plaintiff filed a petition seeking a writ of certiorari quashing the trial court’s order requiring a forensic expert to make a complete copy of the entire contents of her cell phone, including deleted data, which would then have been provided to the plaintiff’s attorney.

The litigation involved a claim by the petitioner against her former domestic partner and two related companies for breach of fiduciary duty and other claims arising out of business disputes between the parties. The petitioner also claimed abuse, assault, and defamation against the partner.

The defendant asserted that, upon information and belief, he believed that the petitioner had pertinent information on her cell phone regarding the alleged incidents of verbal, physical, and emotional abuse, and believed it was necessary to request a forensic review of her cell phone to prevent spoliation.

The trial court granted the motion for forensic review, ordering that the expert make a single copy of the entire contents of the cell phone, including deleted data, and that the copy of the contents would then be reviewed by the plaintiff’s attorney. The attorney would then be required to produce only non-privileged items that fell within the scope of the actual order.

The parties did not dispute that the plaintiff had a reasonable expectation of privacy in the contents of her cell phone. Where such expectation exists, however, a trial court is required to balance that right against the need for the discovery, and the burden is on the party seeking disclosure to establish that the invasion of privacy is warranted, and the court must use the least intrusive means to allow the other party to obtain the discovery sought.

Simply because copying the entire cell phone was the easiest way to obtain the evidence does not satisfy well-established law that protects such information from disclosure without the appropriate showing.

Here, because the defendant failed to establish that there was any actual or threatened alteration, deletion, or destruction of the data on the plaintiff’s cell phone and failed to provide a less intrusive means to obtain the information, the trial court departed from the essential requirements of law in granting the motion containing such broad relief.

TRIAL COURT ERRED IN GRANTING DEFENDANT’S MOTION TO ENFORCE SETTLEMENT WHERE PLAINTIFF’S OFFER TO SETTLE EXPRESSLY STATED IT WAS CONTINGENT ON THE DEFENDANT INSURER’S VERIFICATION THAT THERE WERE NO OTHER POLICIES WHICH WOULD HAVE PROVIDED COVERAGE FOR THE ACCIDENT, AND IT TURNED OUT THAT AN ADDITIONAL POLICY WAS HELD BY THE CO-DEFENDANT THAT WAS NOT DISCLOSED UNTIL AFTER ACCEPTANCE OF THE SETTLEMENT

Fundora v. Dango, 49 Fla. L. Weekly D924 (Fla. 3rd DCA May 1, 2024):

The plaintiffs sent a demand letter to the insurer which sought a statement setting forth information regarding each known policy of insurance. In response, the insurer sent a letter disclosing one policy. The disclosure certified that the disclosure was being made pursuant to section 627.4137 and was true and correct.

When the plaintiff later offered to settle with the defendants, she made clear that the proposal was contingent upon written confirmation that there was no other available coverage. Two weeks later, the insurance company accepted the demand, and on the same day, sent another letter advising that there was an additional insurance policy covering the co-defendant that could provide coverage for the accident.

The trial court enforced the settlement, but the court reversed, noting that the plaintiff’s request for information about known policies was an essential term of the offer to settle which the insurer did not comply with, therefore rendering the settlement unenforceable.

TRIAL COURT DEPARTED FROM ESSENTIAL REQUIREMENTS OF LAW BY ALLOWING INSURER TO DESIGNATE AS PRIVILEGED ANY FILE MATERIALS REVIEWED BY ITS CORPORATE REPRESENTATIVE DURING HIS DEPOSITION, AND THEN PREVENTING CROSS-EXAMINATION OF THE CORPORATE REPRESENTATIVE ON THOSE MATERIALS

Hamilton v. Citizens Property Insurance Co., 49 Fla. L. Weekly D931 (Fla. 3rd DCA May 1, 2024):

In this first-party insurance case, the plaintiffs sought certiorari review of an order granting a protective order filed by the defendant insurer. The challenged order authorized the petitioner to depose the insurance company’s corporate representative and required the corporate representative to bring the entire claims file to the deposition for the purpose of having his recollection refreshed. It allowed Citizens to designate as privileged any portion of the file’s contents, even those portions of the file relied upon by the witness during his testimony.

Allowing the insurance company to preserve the privilege of the file materials reviewed by the corporate representative during his deposition and preventing cross-examination thereon constituted a departure from the essential requirements of law. The ruling violated section 90.613, which allows cross-examination of materials upon which a witness refreshes his or her recollection.

A RULE 1.530 MOTION FOR REHEARING DIRECTED TOWARDS AN ORDER DENYING A RULE 1.540(B) MOTION IS GENERALLY NOT AUTHORIZED AND DOES NOT TOLL THE TIME TO APPEAL

Seventh Ave Village v. Perez, 49 Fla. L. Weekly D936 (Fla. 4th DCA May 1, 2024):

The defendant moved to vacate the final judgment under Rule 1.540(b). Before appealing, the defendant moved for clarification or rehearing of the order pursuant to Rule 1.530. After the trial court denied that motion, the defendant filed its notice of appeal. This was 62 days from the entry of the order denying the motion to vacate.

Because the motion for clarification or rehearing did not toll the rendition of the order denying the motion to vacate, the notice of appeal was untimely.