The Week In Torts – Cases from May 27, 2022
Say goodbye to nonmonetary conditions
FLORIDA LAW WEEKLY
VOLUME 47, NUMBER 21
CASES FROM THE WEEK MAY 27, 2022
THE SUPREME COURT CHANGES THE LANGUAGE REGARDING NONMONETARY CONDITIONS IN THE RULE GOVERNING PROPOSALS FOR SETTLEMENT
In Re: Amendments to Florida Rule of Civil Procedure 1.442, 47 Fla. L. Weekly S137 (Fla. May 26, 2022):
The Supreme Court amended subdivisions 1.422(c)(2)(C) and (D) to remove the provisions allowing litigants to include “nonmonetary terms” in their proposals for settlement (the rule still allows voluntary dismissals of all claims with prejudice as a condition, and any other nonmonetary terms permitted by statute).
The court advised that the changes are intended to align Rule 1.442 with the substantive elements of Florida’s offer of judgment/proposal for settlement statutes.
Section 768.79, Florida Statutes, does not provide for the inclusion of nonmonetary terms in a proposal for settlement. Instead, the statute simply contemplates a comparison of monetary amounts, requiring that the settlement offer state the total amount, and state with particularity the amount offered to settle a claim for punitive damages.
Section 70.001(4)(c) however, contains a list of nonmonetary terms that governmental entities are allowed to include in settlement offers, when government action inordinately burdens private property rights such as the transfer of development rights and swops or exchanges.
These changes make much more sense, as it was always difficult to understand how the jury’s verdict needed to assess whether the proposal was “beat” or not, could ever be decisive regarding “nonmonetary” terms.
DECLARATORY RELIEF IS NOT ONLY AVAILABLE TO RESOLVE PURPORTEDLY AMBIGUOUS INSURANCE POLICY LANGUAGE – IT IS ALSO AVAILABLE TO RESOLVE QUESTIONS CONCERNING THE APPLICATION OF UNAMBIGUOUS POLICY PROVISIONS TO A DISPUTED SET OF FACTS
Cintron v. Edison Ins. Co., 47 Fla. L. Weekly D1079 (Fla. 2nd DCA May 18, 2022):
In this property damage case regarding losses from Hurricane Irma, the plaintiffs filed a lawsuit seeking a declaratory judgment over the interpretation and construction of their contractual rights, obligations, and exclusions contained in the policy vis a vis the facts surrounding the claim. The insurer moved to dismiss, arguing that plaintiffs failed to meet the pleading requirements necessary to seek declaratory relief under Florida law. The trial court ultimately dismissed the plaintiffs’ complaint with prejudice.
The purpose of a declaratory judgment is to afford parties relief from insecurity and uncertainty with respect to rights, statutes, and other equitable or legal relations. Thus, courts should liberally construe requests for declaratory relief.
The plaintiffs here satisfied the pleading requirements by demonstrating a bona fide dispute between the insurer and the insureds. The court also explained that the availability of declaratory relief is not contingent upon the existence of purportedly ambiguous policy language. It is also available to resolve questions concerning the application of unambiguous policy provisions to a disputed set of facts.
SIX-MONTH STAY OF PROCEEDINGS PROVIDED BY SECTION 631.67 FOR INSOLVENT INSURERS, DOES NOT REQUIRE THE INSURER BE NAMED AS A PART, SO LONG AS THE INSOLVENT INSURER REMAINS OBLIGATED TO PROVIDE A DEFENSE
Juravin v. DCS Real Estate Investments, 47 Fla. L. Weekly D1080 (Fla. 5th DCA May 17, 2022):
LODESTAR FIGURE NOT SUPPORTED BY COMPETENT SUBSTANTIAL EVIDENCE WHERE FEE EXPERT ADMITTED HE DID NOT CONDUCT A LINE ITEM ANALYSIS OF THE TIME RECORDS AS REQUIRED – TRIAL COURT ALSO FAILED TO MAKE SPECIFIC FINDINGS AS TO THE DETERMINATION OF THE NUMBER OF HOURS REASONABLY EXPENDED
Certain Underwriters at Lloyd’s London v. Candelaria, 47 Fla. L. Weekly D1086 (Fla. 3rd DCA May 18, 2022):
In another property damage case arising out of Hurricane Irma, after a five-day trial, the jury returned a verdict in favor of the insureds’ for $52,000, exceeding the insurer’s estimate of $41,000 for the hurricane-related damages.
The insureds sought attorney’s fees along with a lodestar multiplier and prejudgment interest. The insureds’ fee expert opined in part that “in an abundance of caution and being overly conservative,” he cut 7.5% of all the hours, concluding that the trial court should award a lodestar of $372,975 based on the randomly reduced number of hours.
The expert provided no further explanation for why the billing was excessive and needed to be reduced, nor did he itemize which hours and for what services he found excessive.
The expert opined that a 2.45 multiplier was appropriate because this was the first case that he had seen go to trial, and there were other complex issues. The expert testified he is usually “uber-conservative” on multipliers, but thought that in this instance, it was appropriate and he should be aggressive. He maintained that the insureds’ counsel’s law firm was one of the “best shops,” and that its lawyers are trial lawyers, not settlement lawyers.
Conversely, the insureds’ expert undertook a side-by-side comparison of the work-product against the amount of time billed. He reviewed each time entry, making notations to denote entries that were problematic.
The insurer’s expert testified that a multiplier was not appropriate because there was no evidence that the insureds were rejected by any other law firms, nor was there any evidence presented that no other competent counsel in South Florida would have taken the case. He actually listed several firms that would have taken the case.
The court reversed the trial court’s order awarding the plaintiffs the full amount of attorney’s fees. It explained that the insureds’ expert had failed to conduct a line-by-line analysis of the billing, instead applying an arbitrary blanket reduction to the number of hours expended.
The trial court also failed to make specific findings as to disputed time entries, and noted that it only examined a few of the time sheets, as opposed to “engaging in the exceedingly painstaking and time consuming task” of sorting through numerous time sheet entries to assess their context and amounts.
Refusing to accept the arbitrary methodology, the court reversed, awarding the number of hours testified to by the insureds’ expert.
The court also found the insureds failed to present competent substantial evidence to support the contingency risk multiplier. The only relevant evidence introduced regarding whether counsel was able to mitigate the risk of non-payment was that the client was a “blue collar guy” with minimal education.
ALLEN CHARGE IS NOT APPROPRIATE UNLESS THE JURY EXPRESSES DEADLOCK DURING DELIBERATIONS
Blackman v. State, 47 Fla. L. Weekly D1092 (Fla. 3rd DCA May 18, 2022):
In this criminal case, after hours of deliberation, the jury wrote that it could not reach a unanimous verdict “today.” This was on the heels of one of the jurors confessing that the verdict was not hers.
Based on the totality of the circumstances, the court agreed that the jury never expressed deadlock, and therefore the Allen charge was not necessary.
A JUDGE’S ADVERSE RULINGS MAY NOT SERVE AS A BASIS FOR DISQUALIFICATION
Watrell v. Watrell, 47 Fla. L. Weekly D1098 (Fla. 1st DCA May 18, 2022):
COURT FINDS NO JURISDICTION OVER A SOUTH KOREAN COMPANY THAT MANUFACTURED BATTERIES USED IN THE VAPING DEVICE THAT INJURED THE PLAINTIFF IN FLORIDA
Samsung SDI v. Fields, 47 Fla. L. Weekly D1101 (Fla. 1st DCA May 18, 2022):
A Florida resident was seriously burned when his vaping device, made by a Texas company and sold in Florida by a Georgia company, exploded and caught fire. The plaintiff sought to sue Samsung, a South Korean company that manufactured the batteries in the device at the time. The trial court found that Samsung’s activities satisfied the long-arm statute.
The First District disagreed. The device used by the plaintiff contained small, cylindrical Samsung 18650 lithium batteries. However, two representatives for the South Georgia Vapor Company testified that the store that sold the batteries to the plaintiff had no existing relationship with any Samsung entity.
In an amended declaration, Samsung’s representative conceded that Samsung had several business contacts with Florida, four of which were contracts with utility companies to provide large-size energy storage system batteries, control modules, and rack frames for power-grid applications. Importantly, none of the equipment involved the small, cylindrical batteries that were at issue.
Both parties stipulated that general jurisdiction did not apply, making the question about specific jurisdiction. Under the statute, specific jurisdiction exists if the defendant operates, conducts, engages in, or carries on a business venture in Florida. While Samsung acknowledged that it engaged in some business activities, the statute requires that the cause of action has to arise from those business activities in Florida; i.e., the connexity requirement.
There must be also a nexus or substantial connection between the cause of action and the defendant’s activities within the state. The court found that the plaintiff failed to connect his injury to Samsung’s business activities, since the most substantial part of those activities were the sale of large ESS batteries to utility companies that had nothing to do with the batteries sold to make this vape pen.
There was also no evidence that Samsung committed a tortious act within the state. The plaintiff was injured in Florida, but that by itself was not enough to find that the defendant committed a tort within the state. Because the complaint did not allege that Samsung committed a tortious act within Florida, it was error for the trial court to conclude it had personal jurisdiction under this provision.
There is also basis for long-arm jurisdiction when an entity causes injury to persons or property within the state. This provision requires that the non-resident manufactured or serviced the product which was used within the state, in the ordinary course of commerce and trade and injured a person. By the plain language, though, the defendant’s actions must occur at or about the time of the injury.
The plaintiff failed to show that these batteries that exploded were used in Florida in the ordinary course of commerce and trade. In fact, Samsung specifically prohibits its 18650 batteries from being used in vaping devices and did not sell them for that purpose. South Georgia Vapor also could not identify who sold the batteries to them, undermining jurisdiction under this provision either.
The court reversed for lack of personal jurisdiction and dismissed the case against Samsung.