Stop nitpicking!

FLORIDA LAW WEEKLY

VOLUME 49, NUMBER 47

NOVEMBER 22, 2024

TRIAL COURT ERRED IN INVALIDATING THE DRIVER’S PROPOSAL FOR SETTLEMENT BECAUSE IT DID NOT ADDRESS WHETHER THE OFFER INCLUDED SETOFFS—FEE ENTITLEMENT DEPENDS ON THE NET JUDGMENT AFTER SETOFFS AND TO MAKE THE OFFEROR REFERENCE ULTIMATE SETOFFS IS UNNECESSARY AND CREATES A RISK OF CONFUSION

United Cab of Broward, LLC v. Muller, 49 Fla. L. Weekly D2267 (Fla. 4th DCA Nov. 13, 2024):

The proposal for settlement at issue offered the plaintiff $5000 to settle all claims and damages, including attorneys’ fees, costs, and prejudgment interest. The proposal stated that no amount was allocated to punitive damages (as none were sought by the plaintiff). The proposal further required the plaintiff to execute a general release and confidentiality agreement and dismiss her claims against the driver with prejudice.

After a trial where the jury apportioned 50% of the fault to the plaintiff and the trial court set off PIP expenses and a Medicaid discount, the “net judgment” for the plaintiff amounted to $0.

In opposing the defendant’s entitlement to attorneys’ fees, the plaintiff asserted that the proposal was invalid because it did not state whether it would resolve all damages that would otherwise be awarded in a final judgment. The trial court ruled to invalidate the proposal because the defendant failed to state whether it was inclusive or exclusive of setoffs.

The court reminded us that not every ambiguity will invalidate a proposal for settlement, noting that only ambiguities that could reasonably affect the offeree’s decision to accept it will have such an effect. Courts should not nitpick proposals for ambiguities because the legislature intended for them to end judicial labor, not create more.

Florida law establishes that plaintiffs’ judgments are subject to reductions for PIP benefits, health insurance discounts, comparative negligence, and other statutory grounds. Neither Section 768.79 nor Rule 1.442 requires defendants to advise plaintiffs of these legal principles in a proposal for settlement.

Because the proposal met the strict requirements of the statute and rule, the trial court erred in refusing to enforce it.

NO ERROR IN FINDING THAT PLAINTIFF’S EXPERT WAS NOT A MEDICAL EXPERT QUALIFIED UNDER SECTION 766.102(5) AND 766.202(6) — PLAINTIFF’S PROPOSED MEDICAL EXPERT WAS NOT ENGAGED IN THE PRACTICE OF MEDICINE NOR WAS HE A HEALTH CARE PROVIDER AS REQUIRED BY LAW

Moncrieff v. Kolmer, 49 Fla. L. Weekly D2310 (Fla. 5th DCA Nov. 15, 2024):

The plaintiff’s Notice of Intent to initiate a medical malpractice suit included the affidavit of a physician who stopped working as a “patient treater” in 2015. After that point, his sole employment was as an expert witness at his consulting firm. The defendant moved to dismiss based on this flaw in the presuit affidavit.

In evaluating the affidavit, the physician’s testimony made clear that he had not evaluated or treated any individual in the context of a “physician-patient” relationship in the four years before the plaintiff’s surgeries (and it was more than six years before the plaintiff filed her suit). His practice during that time frame consisted solely of legal consulting.

Section 766.203(2) requires a medical malpractice plaintiff to conduct a pre-suit investigation and provide a verified written medical expert opinion from a medical expert as defined in section 766.202(6), to corroborate that reasonable grounds exist to support the claim.

Section 766.202(6) defines a medical expert as a person duly and regularly engaged in the practice of his or her profession who holds a healthcare professional degree from a university or college and who meets the requirements of expert witness as set forth in section 766.102. That statute requires that the expert has devoted professional time during the three years immediately preceding the date of the occurrence to a clinical practice, instruction, or clinical research.

The expert that the plaintiff retained was not regularly engaged in the practice of his profession. While his legal consulting work was no doubt related to the practice of his profession, it was not itself a medical practice.

Nor was the doctor a healthcare provider as required by the section because, as a legal consultant, he did not provide any health care.

The plaintiff urged the court to look beyond the statutory text to the purpose of the pre-suit screening requirements, stressing that the Florida Supreme Court has instructed courts to construe them in a manner that favors access to the courts. However, in the face of clear statutory text, the court found the plaintiff’s argument unpersuasive. Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of a legislative choice and it frustrates rather than effectuates legislative intent to “simplistically assume” that whatever furthers the statute’s primary objective must be the law.

In this case, the plaintiff quickly procured a qualified replacement expert after her first expert was stricken. This showed the court that its reading of the relevant statutes would not deny access to the courts and that the plaintiff could have easily obtained an expert whose qualifications satisfied the statutory requirements.

TRIAL COURT ERRED IN GRANTING A DIRECTED VERDICT FOR THE PLAINTIFF ON THE ISSUE OF CAUSATION, WHERE THE DEFENDANT INTRODUCED CONFLICTING EVIDENCE SHOWING THAT THE PLAINTIFF’S INJURIES COULD HAVE PREDATED THE ACCIDENT

Mickler v. Triplett, 49 Fla. Law Weekly D2312 (Fla. 5th DCA Nov. 15, 2024):

The plaintiff was rear-ended and declined treatment at the scene. Several hours later, she visited a walk-in clinic where she was given X-rays and prescribed anti-inflammatory medication and muscle relaxers. Weeks later, she began treatment with a chiropractor, which proved to be unsuccessful, and she was ultimately referred for surgery.

At trial, the plaintiff moved for a directed verdict on causation. She argued there was no dispute that she was treated for a strained/sprained neck in the walk-in clinic on the day of the accident. Therefore, the plaintiff argued that the defendant’s negligence was the legal cause of at least some damage to her.

The trial court agreed, granted a partial directed verdict, and removed the issue of causation from the jury instructions. The jury returned a verdict in excess of $1.6 million.

Because the defense had contested causation and rebutted the plaintiff’s medical and other causation evidence by presenting evidence that the plaintiff’s injuries could have been caused by something other than the accident in question, the court concluded that it was error for the trial court to have granted a directed verdict.

TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF THE DEFENDANT BASED ON ITS DETERMINATION THAT A TROLLEY CART IN A SUPERMARKET WAS OPEN AND OBVIOUS AS A MATTER OF LAW — GENUINE DISPUTE OF MATERIAL FACT EXISTED WHERE PLAINTIFF TESTIFIED THAT SHE DID NOT SEE THE CART BECAUSE IT WAS OBSTRUCTED, AND THE VIDEO EVIDENCE DID NOT CONCLUSIVELY AND CLEARLY NEGATE THAT TESTIMONY.

Muurahainen v. The TJX Companies Inc., 49 Fla. L. Weekly D2313 (Fla. 5th DCA Nov. 15, 2024):

A plaintiff tripped over a furniture trolley cart at a Home Goods store and was injured.

The trial court granted summary judgment in favor of the defendant finding that the cart was open and obvious as a matter of law, as could be seen from the store’s video and screenshots from the video.

In response, the plaintiff pointed to testimony of her unawareness of the cart before she tripped over it. She claimed that it was low to the ground, and that a wall of merchandise blocked her view as she left the cashier’s area to enter the sales floor.

One of the employees testified that the cart was not visible from the register where the plaintiff had been returning a prior purchase. Thus, the plaintiff argued that the trial court erred in finding there was not a triable genuine dispute of material fact.

In cases where video evidence utterly and completely discredits a testimonial account of the same events to the extent that no reasonable jury could believe the testimony, the trial court is justified in ignoring the witness’s testimony for summary judgment purposes.

However, despite having video available from multiple locations in the store, nothing duplicated the plaintiff’s visual perspective, nor did the video show exactly how the trip and fall occurred. In this case, it could not be said that the video evidence clearly, conclusively, and completely negated the plaintiff’s sworn testimony that her view of the cart was obstructed until she turned and was unaware of its presence until she tripped over it.

The court noted that if it were reviewing a judgment from a bench trial, or an order upholding a jury’s verdict in favor of the defendant, it might affirm. However, as that was not what was before it, and there remained triable issues, the trial court erred in granting summary judgment for the defendant.

ANOTHER CASE ARTICULATING THE STANDARD FOR PERSONAL JURISDICTION

Pipistrell Italia S.R.L. v. Ciccolini, 49 Fla. L. Weekly D2259 (Fla. 3d DCA Nov. 13, 2024):

In a case with very few facts, the court addressed the standard of review for personal jurisdiction, and the standard for evaluating minimum contacts.

When no evidentiary hearing is held, the facts presented by the plaintiff must be taken as true, and the plaintiff is entitled to all reasonable inferences from those facts. Once the factual basis for the motion is established, the court reviews the legal question of whether the facts are sufficient to make a prima facie case for jurisdiction, de novo.

To assess whether minimum contacts exist in a case involving specific jurisdiction over a defendant located outside the state, the defendant’s contacts must meet three conditions. First, they must involve some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum thus invoking the benefits and protections of its laws. Second, the contacts must be related to the plaintiff’s cause of action or have given rise to it. Third, the defendant’s contacts with the forum must be such that the defendant should reasonably anticipate being haled into court there.