The Week In Torts – Cases from November 19, 2021
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FLORIDA LAW WEEKLY
VOLUME 46, NUMBER 46
CASES FROM THE WEEK NOVEMBER 19, 2021
THE 1999 AMENDMENT TO SECTION 768.73 LIMITING PUNITIVE DAMAGE AWARDS FOR THE “SAME ACT OR CONDUCT” APPLIES TO WRONGFUL DEATH ACTIONS, EVEN WHERE THE DECEDENT DIED AFTER THE EFFECTIVE DATE OF THE AMENDMENT
Sheffield v. R. J. Reynolds Tobacco, Co., 46 Fla. L. Weekly S346 (Fla. SC Nov. 18, 2021):
The Supreme Court resolved conflict among the various district courts, concluding that even when lung cancer was diagnosed in victims that were part of the Engle progeny before the 1999 amendment to section 768.73 limiting punitive damages against defendants for “repeat” conduct, the statute was abundantly clear in its scope that it applied all (not some) causes of action arising after October 1, 1999.
The Court reminded us that it adheres to the “supremacy-of-text principle,” and that the words of a governing text are of paramount concern and what they convey in their context is what the text means. Here, the cause of action for wrongful death did not arise until after October 1, 1999.
The plaintiff asserted that her deceased husband once had a mature cause of action in 1994, when his lung cancer was diagnosed, and therefore should not be subject to the amendment enacted in 1999. While the Court recognized a degree of continuity between the wrongful death and the personal injury action, and further recognized that to a certain extent wrongful death actions are derivative, ultimately Florida law has long characterized the Wrongful Death Act as creating a new and distinct right of action, from the right of action the decedent had prior to death.
The court rejected the plaintiff’s argument that the terms “arise” and “accrue” are synonymous. Thus, while the term “arise” may mean “to originate” and plaintiff asserted that the case originated or stemmed from her deceased husband’s 1994 lung cancer, this is different from when the wrongful death action actually “accrued” which was upon the death.
Because the Court ruled that the 1999 amendments to section 768.73 do apply to Engle progeny wrongful death actions in which the decedent died after the effective date of the amendments, the plaintiff in this case could not recover punitive damages.
ON REHEARING, THE COURT REITERATES THAT TAMPA ELECTRIC COMPANY WAS ENTITLED TO WORKERS’ COMPENSATION IMMUNITY AS A STATUTORY EMPLOYER, BUT FOUND IT HAD NO JURISDICTION TO CONSIDER THE COURT’S OTHER RULING FINDING ISSUES OF FACT PRECLUDED ENTRY OF SUMMARY JUDGMENT IN THE UTILITY’S FAVOR
Tampa Electric Company v. Gansner, 46 Fla. L. Weekly D2398 (Fla. 2nd DCA Nov. 10, 2021):
Tampa Electric, a public utility, owned an electrical generating facility where the plaintiffs were working. The plaintiffs were actually employed by an entity with which Tampa Electric had contracted to provide maintenance work at the power plant. The two plaintiffs were about to perform work on an access door of one of the condenser units, when the door blew open and unleashed a mass of water, causing significant injuries.
Tampa Electric asserted it was immune based on workers’ compensation immunity. It argued that it was the plaintiffs’ statutory employer, and as such, the exclusivity provision of section 440.11 limited plaintiffs’ remedies to the workers’ compensation benefits they had received through their employer.
The Second District agreed with Tampa Electric’s argument that it had a regulatory obligation to maintain its equipment, thereby creating an implicit obligation to supply electricity. Because Tampa Electric was obligated to supply electricity and needed generating equipment to execute on that duty, it was the plaintiffs’ statutory employer, having had a contract to provide electricity. To that extent, the court agreed that Tampa Electric was immune.
However, the court was unable to assess whether there were factual questions precluding summary judgment (another argument) because it had no jurisdiction to do so.
A THOROUGH ORDER ENTERED BY THE TRIAL COURT FINDING THAT THE PLAINTIFF’S PROFFER WAS SUFFICIENT TO SUPPORT THE CLAIM OF PUNITIVE DAMAGES PRECLUDED CERTIORARI REVIEW OF THE ORDER ALLOWING THE AMENDMENT
Alvarez v. Cantor, 46 Fla. L. Weekly D4205 (Fla. 3rd DCA Nov. 10, 2021):
The record showed that the trial court complied with the procedural requirements of section 768.72(1). The plaintiff proffered evidence in support of his claim for punitive damages, and following the hearing, the trial court entered a thorough order finding that the plaintiff’s proffer was sufficient to support the claim for punitive damages against the defendants, both individually and collectively. As such, certiorari review was not available to review the court’s ruling.
PROPOSAL FOR SETTLEMENT AGREEING TO ENTITLEMENT TO FEES BUT NOT AMOUNT STILL A VALID PROPOSAL
Safepoint Insurance Co. v. Williams, 46 Fla. L. Weekly D4206 (Fla. 3rd DCA Nov. 10, 2021):
An insurance company served a proposal for settlement on its insured for the property damage claim made over damages to her home. The proposal offered a number to settle the claims, including all litigation costs and prejudgment interest, while also stipulating to her entitlement to attorneys’ fees without enumerating them.
When the verdict did not exceed the proposal that plaintiff rejected, the court still found that it was valid. The court addressed the September decision of the Florida Supreme Court in CCM Condo. Ass’n, Inc. v. Petri Positive Pest Control, Inc., where the Florida Supreme Court clarified that the definition of “judgment obtained” in section 768.79(6) includes, in addition to damages, pre-offer attorneys’ fees, pre-offer costs, and pre-offer prejudgment interest.
However, the Third District observed that neither section 768.79, Rule 1.442, nor the White/CCM Condo case specifically require that the amount of attorneys’ fees and costs be quantified in order to create a valid offer. The rule permits, but does not require that a Proposal for Settlement include attorneys’ fees. No Florida court has held that the plaintiff’s reasonable pre-offer attorneys’ fees must be quantified and included in the total amount of the proposal to create a valid offer of judgment.
ANY CLAIM FOR A SET-OFF IN AN INSURANCE CONTRACT CASE MUST BE RAISED BY THE INSURANCE COMPANY AS AN AFFIRMATIVE DEFENSE
United Automobile Insurance Co. v. ISOT Medical Center, 46 Fla. L. Weekly D2408 (Fla. 3rd DCA Nov. 10, 2021):
CERTIORARI REVIEW IS NOT AVAILABLE TO REVIEW ARGUABLY ERRONEOUS RULINGS ON THE QUALIFICATIONS OF A MEDICAL EXPERT WHO SUBMITS AN AFFIDAVIT IN MEDICAL MALPRACTICE PRE-SUIT
University of Florida v. Carmody, 46 Fla. L. Weekly D2434 (Fla. 1st DCA Nov. 10, 2021):
The defendant sought certiorari review arguing that the plaintiff failed to comply with the pre-suit medical expert corroboration requirement under section 766.203(2), Fla. Stat. (2016). The defendant asserted that the trial court should have dismissed the medical malpractice lawsuit, because the plaintiff’s medical doctor expert was unqualified to address the standard of care applicable to a certified nurse practitioner who rendered the care.
The court concluded that because the plaintiff did submit an affidavit and followed the statutory process, certiorari to examine the qualifications themselves was improper. The court followed the Supreme Court’s decision in Williams v. Oken, recognizing that its decision conflicted with recent cases by the Second and Fifth Districts, and certifying conflict.
THE TRIAL COURT HAS A MANDATORY DUTY TO SET A CASE FOR TRIAL WHEN IT IS PROCEDURALLY AT ISSUE
Bush-Radomski v. Krisam, 46 Fla. L. Weekly D2444 (Fla. 5th DCA Nov. 12, 2021):
When a case is procedurally at issue under Rule 1.440, a trial judge has a mandatory duty to set the case for trial.