Court rules statute says what it says

FLORIDA LAW WEEKLY

VOLUME 49, NUMBER 48

NOVEMBER 29, 2024

THE FIRST POST 2023 TORT REFORM DECISION—THE TRIAL COURT PROPERLY REFUSED TO APPLY SECTION 768.0427 TO RESTRICT EVIDENCE OF MEDICAL EXPENSES BECAUSE THE STATUTE ACCORDING TO ITS PLAIN LANGUAGE BECAME EFFECTIVE AFTER THE ACTION WAS FILED — THE STATUTE DOES NOT APPLY RETROACTIVELY.

Wolf v. Williams, 49 FLA weekly D2363 and (Fla. 5^th DCA Nov. 25, 2024):

The plaintiff sued the defendant for his negligence in a car accident. The defendant admitted negligence. The trial proceeded as to the extent of the plaintiff’s injuries only.

The defendant asked the trial court to apply Section 768.0427, the statute regarding medical expenses which became effective in March of 2023 as part of Florida’s tort reform package. The trial court refused to apply the statute retroactively because the statute’s plain language states that it only applies to causes of action filed after its effective date (and this case was filed before that date).

In this first appellate decision addressing the Tort Reform Act of 2023, this court rejected the defendant’s argument that section 768.0427 could apply to causes of action filed before the effective date of the Act. It reiterated that the plain language of the statute precluded such application.

The other issue on appeal dealt with plaintiff’s counsel’s use of “defense organizations” while questioning witnesses about their possible financial connections to the case, to describe certain entities in the case. The defendant objected, arguing that “defense organizations” was a euphemism to improperly inform the jury that the defendant was covered by insurance. The trial court rejected this argument and ruled  that the term did not imply the existence of liability insurance.

The appellate court affirmed, concluding that the trial court did not abuse its discretion in finding that the term was a permissible way to ascertain financial bias, and that the questioning did not warrant a new trial after the jury awarded a plaintiff’s verdict.

NICA NOTICE WHICH STATED THAT ALL PHYSICIANS “CURRENTLY OR LATER” EMPLOYED BY HOSPITAL’S OB/GYN DEPARTMENT PARTICIPATE IN NICA FOUND TO BE SUFFICIENT TO CONSTITUTE “NOTICE” TO PATIENTS

McDonald v. Florida Birth-Related Neurological Injury Compensation Association, 49 Fla. L. Weekly D2332 (Fla. 1st DCA Nov. 20, 2024):

The claimant mother gave birth in September of 2015. In November of 2020, she filed a petition seeking NICA benefits.

The mother claimed that the defendant hospital failed to give her proper notice of the NICA participation of its physicians. The parties agreed that the physician who delivered the plaintiff’s child was employed by the hospital at the time, but the Hospital had not expressly listed the physician in its notice, simply stating instead that “ALL” physicians currently or later employed with the OB/GYN department participated in NICA.

The plaintiff claimed on appeal that the ALJ erred in concluding that the malpracticing physician had complied with the section 766.316 requirement that she notify the plaintiff of her participation in NICA, and further erred in determining that the plaintiff did not overcome the rebuttable presumption contained in that section because she failed to show that the notice given was insufficient.

The court concluded that no language in Section 766.316 requires a physician to personally notify a patient of his or her NICA participation. Therefore, the ALJ correctly found that the hospital’s notice advising that “all” of its physicians participated was sufficient.

While the ALJ ultimately concluded that the plaintiff was entitled to compensation under NICA, he also found the claim was time-barred which the appellate court affirmed, leaving the claimant with no remedy.

COURT REVERSED SUMMARY JUDGMENT GRANTED FOR DEFENDANT IN A SLIP AND FALL CASE– GENUINE ISSUES OF MATERIAL FACT EXISTED ABOUT WHETHER THE FLOOR WAS WET AT THE TIME OF THE PLAINTIFF’S FALL, AS WELL AS TO WHETHER THE DEFENDANT HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF IT

Ruth v. Guerrieri Management Inc., 49 Fla. L. Weekly D2359 (Fla. 5th DCA Nov. 22, 2024):

The plaintiff entered a Taco Bell intending to use its restroom before ordering. She testified that as she was walking inside the restroom she slipped and fell on a wet floor that had been freshly mopped and sustained injuries.

The plaintiff testified there was no rain on that date and that she immediately walked to the restroom upon entering the restaurant. The hallway floor was not wet, and she did not notice any signage as she entered the restaurant and entered the restroom.

While the plaintiff admitted that a photograph taken after the incident showed a wet floor sign in the hallway, she explained that the sign was located at the corner of the hallway leading into the dining room and was not visible to patrons until they were exiting and walking back into the dining room. There was no dispute that there was no wet floor sign inside the restroom or immediately outside of it.

The plaintiff testified she was not looking down directly at her feet when she entered the restroom and only felt the wetness when she slipped. Taco Bell’s witness stated that the floor was visibly mopped and that the plaintiff was negligent for failing to see the visibly mopped floor and ignoring the signage. The defendant admitted that the floor had been recently mopped with a lightly dampened mop but disputed that the floor was wet at the time of the incident.

The manager admitted that the floors were mopped prior to the fall, “guessing” the mopping had taken place 30 minutes before it. The manager confirmed that the floors were supposed to be “dry mopped,” using a mop that is barely moist. The manager also testified the store had only two wet floor signs and there was nothing taped to the door to indicate that the restroom had been mopped. The depositions of the plaintiff and the manager were contradictory on several points.

The trial court erroneously granted summary judgment for Taco Bell, agreeing with it that there was no evidence to support that the floor was wet at the time of the fall besides the plaintiff’s testimony. However, the record contained genuine issues of material fact which precluded summary judgment.