Did you tell the cops?

FLORIDA LAW WEEKLY

VOLUME 47, NUMBER 46

CASES FROM THE WEEK NOVEMBER 20, 2022

“ROOT CAUSE ANALYSIS” FOUND IN EMPLOYER’S INCIDENT REPORT NOT PROTECTED BY ACCIDENT REPORT PRIVILEGE – DEFENDANT WAIVED PRIOR WORK PRODUCT PRIVILEGE BY PRODUCING REPORT

Rawe v. Coleman, 47 Fla. L. Weekly D2271 (Fla. 2^nd DCA Nov. 18, 2022):

After a crash involving a vehicle waiting to make a left turn in the median, with differing versions of what occurred, at trial, plaintiff’s counsel sought to impeach the defendant driver with the incident report his employer had prepared containing what the employer termed as a “Root Cause Analysis” of the crash. The defendant driver testified at trial that he had done nothing wrong. However, in the original “root cause analysis” from the date of the accident, he said otherwise.

Defendant raised both work product and accident report privileges. The trial court agreed that the report could not be used for impeachment. The court looked to § 316.066(4) (the Accident Report Privilege) and noted that it involves statements made by persons to law enforcement officers for the purpose of completing a crash report as required by the statute.

Here, the Root Cause Analysis was not based on any accident report. Even if it were, the subsequent adoption by the employer of a conclusion regarding the accident reached by an officer who had authored the accident report, did not directly implicate the accident report privilege when that conclusion did not make any specific reference to the report, or include or refer to a statement made by a person involved in the crash.

Because the defendant had produced the Root Cause Analysis form while preserving its objection, raising the accident report privilege, but not work product privilege, the court concluded that the defendant had waived work product as an objection.

Finding the exclusion of the report to be harmful, the court reversed for a new trial.

TRIAL COURT ERRED IN AWARDING CONTINGENCY RISK MULTIPLIER IN ABSENCE OF TESTIMONY REGARDING THE RELEVANT MARKET

Deutsche Bank v. Pereira, 47 Fla. L. Weekly D2287 (Fla. 4^th DCA Nov. 9, 2022):

To determine the application of a contingency fee risk multiplier, there must be evidence of whether the relevant market requires a multiplier to obtain competent counsel.

Because the record in the case had no evidence of that factor, it was error for the trial court to award a multiplier.

PLAINTIFF FAILED TO ESTABLISH ENTITLEMENT TO PUNITIVE DAMAGES AGAINST CORPORATE DEFENDANT UNDER EITHER DIRECT OR VICARIOUS LIABILITY

Grove Isle Assoc. v. Lindzon, 47 Fla. L. Weekly D2293 (Fla. 3^rd DCA Nov. 10, 2022):

A condominium owner alleged that his unit suffered severe water damage due to a failing roof assembly. After the association finally agreed to repair the roof, other problems were discovered, leading the plaintiff to amend his complaint to assert a claim for punitive damages.

The purpose of punitive damages is to punish the defendant for its wrongful conduct (not to award additional compensation) and to deter similar misconduct by it and other actors in the future.

Plaintiff asserted that in an effort to save money, the association had not retained a structural engineer to pull the necessary permits, even though the association’s own contractor advised it to.

The plaintiff sued the association, but not the property manager. In seeking punitive damages, the plaintiff necessarily intended to impute the property manager’s alleged intentional misconduct or gross negligence to the association.

To do so, a plaintiff must establish that the employees’ conduct meets the criteria outlined in § 768.72(2) (intentional misconduct or gross negligence) and also establish that (a) the employer, principal, corporation, or other legal entity actively and knowingly participated in such conduct; (b) the officers, directors or managers of the employer, principal, et al., knowingly condoned, ratified, or consent to such conduct; or (c) the employer, principal, corporation, et al., engaged in conduct that constituted gross negligence and contributed to the loss, damages, or injury.

The amended complaint did not specify whether the plaintiff’s claim for punitive damages was based on direct or vicarious liability, and the complaint did not contain allegations of wrongdoing by the association (only by the property manager while using the terms association broadly).

The complaint contained no separate independent allegations setting forth any actions taken by an association officer, director, or managing member. While the complaint referenced a single unnamed board member of the association, those references failed to allege active, knowing participation by the association with the misconduct by the property manager or the contractor’s employees.

For those reasons, there was also no vicarious liability properly alleged. In order to hold a corporate employer vicariously liable for punitive damages, the plaintiff must establish (1) fault on the part of the employee that rises to the level of willful and wanton misconduct and (2) some fault on the part of the corporate employer that rises to the level of at least ordinary negligence.

Because this complaint did not contain any allegations of even simple negligence against the association, the plaintiff failed to meet his heightened evidentiary standard for imposing punitive damages on the employer based on vicarious liability.

TRIAL COURT ERRED IN DENYING MOTION TO DISMISS MEDICAL MALPRACTICE COUNTS FOR FAILURE TO COMPLY WITH PRESUIT – FLORIDA LAW DOES NOT ALLOW PLAINTIFFS TO HOLD MEDICAL MALPRACTICE DEFENDANTS IN ABEYANCE WITHOUT PRESUIT, AND DOES NOT ALLOW THEM TO MERELY AMEND PLEADINGS LATER TO ASSERT CLAIM FOR MEDICAL NEGLIGENCE

Marin-Casariego v. Linale, 47 Fla. L. Weekly D2298 (Fla. 3^rd DCA Nov. 10, 2022):

The minor plaintiffs filed an amended complaint for products liability, along with an emergency petition for an injunction alleging a products liability claim against a co-defendant medical product manufacturer.

The amended complaint also alleged counts against several pediatricians for medical malpractice, asserting that the defendants negligently failed to insure that their facilities were clear of any dangerous bacteria and that the needles they were using were sterile.

The plaintiffs filed their lawsuit without engaging in presuit against the physicians. The plaintiffs asked to stay the case so they could then engage in presuit.

The court concluded that is not an option under Florida law. Plaintiffs cannot sue physicians before complying with statutory presuit requirements, and because that was never done, the trial court should have dismissed the amended complaint against the physicians.

SUMMARY JUDGMENT PROPERLY ENTERED FOR DEFENDANT STORE WHEN AN OFF-DUTY EMPLOYEE PUSHED A LOADED SHOPPING CART INTO THE PLAINTIFF – EVEN THOUGH THE EMPLOYEE WAS WEARING HER WORK CLOTHES AND BADGE, THERE WERE NO ISSUES OF FACT THAT SHE WAS ANYTHING BUT OFF-DUTY

Ibarra v. Ross Dress for Less, 47 Fla. L. Weekly D2301 (Fla. 3^rd DCA Nov. 10, 2022):

The incident happened at 5:29 PM, when a Ross employee came to shop before her shift that began at 6:00 PM.  The employee did not clock in for work until 5:58 PM.

Based on the record evidence, it was clear that the person who pushed the shopping cart into the plaintiff was not on duty or acting on the defendant’s behalf when the incident occurred.

In affirming summary judgment, the court concluded that the plaintiff failed to demonstrate “more than some metaphysical doubt as to the material facts.”

NOTHING ABOUT THE UM EXCEPTION TO § 627.428(1) ALTERS THE CONFESSION OF JUDGMENT DOCTRINE – INSURED’S ENFORCEABLE OJ ALSO MOOTED THE CASE IRRESPECTIVE OF THE CONFESSION OF JUDGMENT ISSUE

Allstate Fire & Cas. Ins. Co. v. Castro, 47 Fla. L. Weekly D2314 (Fla. 1^st DCA Nov. 9, 2022):

The plaintiff was rear ended by an uninsured motorist and had a UM policy with Allstate for $25,000 in benefits.

Allstate refused the plaintiff’s policy limits demand, and the plaintiff filed suit. Several months into the litigation, the plaintiff served Allstate with an offer of judgment in accordance with § 768.79 for $18,500. Allstate did not pay.

Several months after that, plaintiff filed a Civil Remedy Notice under § 624.155. A few days before the statutory deadline came for Allstate to respond, it issued a check for the policy limits.

The plaintiff then moved for entry of a confessed judgment and for attorneys’ fees under §768.79.

The court explained the confession of judgment doctrine and noted how the kind involved in this case was the one that occurs when a defendant abandons its pleading. A confession of judgment is substantially an acknowledgment that the debt is due according to the court. Thus, the payment of the claim is the functional equivalent of a confession of judgment or a verdict in favor of the insured.

When a confession of judgment occurs, a plaintiff is entitled to attorney’s fees under § 627.428 in a first party claim. However, Allstate properly argued that in this UM case, § 627.428 did not apply because subsection (8) says the statute does not apply to an action brought against a UM insurer unless there is a coverage dispute. The court rejected that plaintiff was entitled to attorneys’ fees under the confession of judgment doctrine.

Irrespective of the ruling on the entitlement of fees under § 627.428, because there was an offer of judgment, and the plaintiff “obtained” a judgment in excess of the threshold when comparing the tender of the policy limits to be $18,500 demand for judgment, the plaintiff was entitled to attorney’s fees under that statute.

TRIAL COURT DID NOT ERR IN CONCLUDING THAT THE INSURED’S CIVIL REMEDY NOTICE WHICH IMPLICATED NEARLY THE ENTIRE POLICY AND ALLEGED THAT THE INSURER HAD VIOLATED FIFTEEN STATUTES AND OVER TWENTY ADMINISTRATIVE REGULATIONS, WAS LEGALLY INSUFFICIENT FOR FAILING TO COMPLY WITH STATUTORY SPECIFICITY REQUIREMENTS – THE DEPARTMENT OF FINANCIAL SERVICES ACCEPTANCE OF THE CRN IS NOT ENTITLED TO GREAT DIFFERENCE

Demase v. State Farm, 47 Fla. L. Weekly D2318 (Fla. 5^th DCA Nov. 14, 2022):

A condition precedent to bringing a first party bad faith case is set forth in § 624.155(3). That statute requires that an insured provide timely notice of the alleged violation to the authorized insurer and to the Department, including the specific language of the statute that was violated, the facts and circumstances given rise to the violation, and the specific relevant policy language.

The plain language requires the policyholder to specifically state in the notice, specific information describing the insurer’s violations.

Even under the more lenient “substantial compliance” test, the plaintiff’s claim failed for “substantially complying” with the legal requirements regarding specificity.

Finally, contrary to the plaintiff’s argument, the Department’s acceptance of the CRN is not entitled to great deference.

THE FEDERAL PATIENT SAFETY AND QUALITY IMPROVEMENT ACT OF 2005 EXPRESSLY PREMPTS AMENDMENT 7 AS APPLIED TO A REPORT THAT QUALIFIED AS PATIENT SAFETY WORK PRODUCT WHEN THERE WAS ALSO NO “ADVERSE INCIDENT” WHICH REQUIRED REPORTING TO HCA UNDER SECTION 395.0197

Tallahassee Memorial Healthcare v. Wiles, 47 Fla. L. Weekly D2327 (Fla. 1^st DCA Nov. 14, 2022):

A woman who was 39 weeks pregnant noticed decreased fetal movement. She went to Tallahassee Memorial Healthcare, where the hospital monitored her for several hours before delivering the baby via Caesarian.

During delivery, meconium was discovered in the amniotic fluid. The newborn was born with respiratory difficulties, required resuscitation, ventilation and ultimately was diagnosed with cerebral palsy.

Twelve days after his delivery, a healthcare employee at the hospital created a safety event report. The report was produced to the Circuit Court for in-camera review.

As the litigation unfolded, the plaintiffs requested that the hospital disclose any “incident reports”. The hospital objected to disclosing the report at issue asserting that it was “patient safety work product” prepared “solely for submission to the patient safety organization” and was submitted to that organization.

The case goes through the development of the Federal Patient Safety and Quality Improvement Act of 2005, which became law one year after Florida’s voters adopted Amendment 7.

The court referenced the Florida Supreme Court’s ruling in Charles v. Southern Baptist Hospital. There, the court concluded that the adverse medical incident reports at issue were not patient safety work product, because Florida statutes and administrative rules require providers to create and maintain those records, and Amendment 7 provides patients with the constitutional right to access them. Thus, the Supreme Court explained those reports fell within the exception of information collected that is maintained separate from a patient safety evaluation system.

The First District found that the hospital’s safety event report did qualify as patient safety work product entitled to confidentiality for two reasons: First, unlike the issues in the Charles case, the report was submitted to the hospital’s patient safety organization.  Second, the document was not an “adverse incident report” based on an adverse incident as described in § 395.0197(5).

The court also concluded that the Federal Act preempts Amendment 7 because the two laws conflict in a way that it is impossible for a hospital to company with both.

Requiring the production of patient safety work product documents in response to Amendment 7 discovery requests would contravene the Act. The court acknowledged that federal preemption of a State law is “strong medicine not casually to be dispensed,” but held that the supremacy clause required that Amendment 7–which conflicts with Federal law and was enacted before the Federal law—had to give way to the later law.