Always protecting the “King,” even if it is a subject in disguise

THE WEEK IN TORTS

FLORIDA LAW WEEKLY

VOLUME 51 NUMBER 41

CASES FROM THE WEEK OF OCTOBER 16, 2026

PRIVATE MEDICAL CONSULTING COMPANY AND ITS EMPLOYEE ENTITLED TO SOVEREIGN IMMUNITY AS AGENTS OF THE STATE WHERE UNDISPUTED EVIDENCE ESTABLISHED STATE AGENCY’S RIGHT TO CONTROL THEIR SERVICES—CONTRACTUAL LABEL OF “INDEPENDENT SERVICE PROVIDER” DID NOT DEFEAT IMMUNITY

Crandall Medical Consulting, LLC v. Gainey, 51 Fla. L. Weekly D2075 (Fla. 1st DCA October 7, 2026):

The plaintiff personal representative sued a medical consulting company and its employee for alleged failures in providing services to a young adult with complex medical needs and developmental disabilities.

The young man had lived with his mother and other family members until the family lost its housing in August 2022. To prevent him from becoming homeless, the Department of Children and Families arranged an emergency placement in a group home. The Agency for Persons with Disabilities (APD) subsequently assumed responsibility for his services.

The plaintiff alleged that the defendant medical consulting company and its employee were responsible for assessing the young man’s needs and monitoring the services provided to him. According to the complaint, they failed to properly coordinate his care, monitor his condition, ensure that his needs were met, and arrange a transfer to an appropriate facility.

The defendants moved for summary judgment, asserting that they were agents of the APD and therefore entitled to sovereign immunity under section 768.28(9)(a), Florida Statutes.

Their deposition testimony established that the APD assigned their cases, required certification and training, supplied forms and templates, and monitored their work through an electronic reporting system. The employee testified that he had no discretion to reject assignments and provided coordination services only to individuals referred by the APD.

The plaintiff did not dispute those facts. Instead, he relied on language in the service agreement expressly describing the employee as an independent service provider rather than an officer, employee, or agent of the APD.

The trial court denied summary judgment, concluding that disputed factual issues remained concerning the defendants’ independence and APD’s control, but was reversed.

Whether a private contractor qualifies as an agent of the state for sovereign immunity purposes depends on the degree of control the state retains over the contractor’s work. The focus is on the state’s right to control, rather than merely the extent to which it actually exercises control.

Although the parties’ contractual description of their relationship is relevant, it is not dispositive. A contractor may qualify as an agent of the state for sovereign immunity purposes even when the contract describes the contractor as independent.

Here, the defendants established the APD’s control through undisputed deposition testimony. The plaintiff’s reliance on the contractual label did not create a genuine issue of material fact.

Because the complaint did not allege bad faith, malicious purpose, or wanton and willful disregard of human rights or safety sufficient to overcome the statutory immunity, the defendants were entitled to judgment as a matter of law.

SOVEREIGN IMMUNITY BARRED NEGLIGENCE CLAIMS AGAINST DCF BASED ON PLACEMENT OF VULNERABLE ADULT AND INVESTIGATION OF ABUSE HOTLINE REPORTS—TRIAL COURT ERRED BY TREATING SOVEREIGN IMMUNITY AS A FACTUAL QUESTION RATHER THAN A THRESHOLD LEGAL ISSUE

Florida Department of Children and Families v. Gainey, 51 Fla. L. Weekly D2077 (Fla. 1st DCA October 7, 2026):

This companion case arose from the same tragic circumstances involving a young adult with complex medical needs who was placed in a group home after his family lost its housing.

The plaintiff, initially acting as the young man’s guardian and later as personal representative of his estate, sued the defendant Department of Children and Families for negligence.

The plaintiff alleged that the defendant failed to properly train and supervise its Adult Protective Services personnel, negligently placed the young man in a facility unable to meet his medical needs, and improperly investigated and closed two abuse hotline reports concerning his care.

The defendant moved for summary judgment based on sovereign immunity. The trial court denied the motion, identifying numerous disputed facts about the placement, the services provided, and the handling of the abuse reports. The trial court reasoned that because the facts were disputed, it could not determine whether sovereign immunity applied.

The appellate court reversed this decision also.

On appeal, the plaintiff conceded that the negligent training and supervision claims were barred by sovereign immunity. That left the claims concerning placement decisions and the investigation and closure of the abuse hotline reports.

The appellate court explained that sovereign immunity is a threshold legal question that must be decided independently of whether the defendant actually acted negligently. The relevant inquiry is the nature of the governmental function challenged—not whether the plaintiff can prove that the government’s conduct was wrongful.

The defendant’s decisions concerning placement of vulnerable individuals and allocation of services involved discretionary governmental functions protected by sovereign immunity.

The same was true of the allegations concerning investigation and closure of abuse hotline reports. Investigating alleged violations of the law and determining appropriate enforcement or protective action are discretionary governmental functions. Neither the relevant statutes nor the common law supplied the unequivocal waiver of sovereign immunity necessary to permit the plaintiff’s claims.

The appellate court also rejected the suggestion that the defendant’s involvement in arranging the young man’s placement created a special relationship sufficient to eliminate immunity. The placement decisions themselves remained protected discretionary functions.

The trial court’s reliance on disputed facts concerning negligence was therefore misplaced. Even accepting the nature of the conduct alleged, sovereign immunity barred the claims.

FLORIDA SUPREME COURT AMENDS RULE 1.200 TO REQUIRE TRIAL COURTS TO CONSIDER THE AVAILABILITY OF THE PARTIES WHEN RESETTING A TRIAL THAT WAS NOT REACHED DURING ITS PREVIOUSLY SCHEDULED TRIAL PERIOD

In Re: Amendments to Florida Rule of Civil Procedure 1.200, 51 Fla. L. Weekly S325 (Fla. October 15, 2026):

The Florida Supreme Court considered proposed amendments to Rule 1.200(h), governing cases that do not reach trial during the trial period previously established by court order.

The Civil Procedure Rules Committee proposed amendments addressing the trial court’s obligation to promptly reset a case for trial. After reviewing the proposal and comments, the Court declined to adopt the Committee’s proposed language and instead adopted its own modification.

Under the amended rule, when a case is not reached during its scheduled trial period, the trial court must enter an order setting a new trial period as soon as practicable, considering the needs of the case, the resources of the court, and the availability of the parties.

Based on a comment, the Court specifically added the availability of the parties as a factor that must be considered when selecting the new trial period.

The rule continues to require the trial court’s order resetting trial to specify what further activity will or will not be permitted before the new trial period.

The amendment becomes effective January 1, 2027, at 12:01 a.m.

ON REMAND FROM FLORIDA SUPREME COURT, THE APPELLATE COURT REAFFIRMS THAT PUNITIVE DAMAGES REQUIRE SUFFICIENT ALLEGATIONS AND A MATCHING EVIDENTIARY PROFFER—PUNITIVE DAMAGES PERMITTED AGAINST ONE DEFENDANT BUT NOT AGAINST INSURANCE COMPANY OR ITS EMPLOYEE BASED ON ALLEGED DNA THEFT CONSPIRACY

Federal Insurance Co. v. Perlmutter, 51 Fla. L. Weekly D2103 (Fla. 4th DCA October 7, 2026):

This long-running litigation involved allegations that the defendants participated in a conspiracy to obtain and manipulate the plaintiffs’ genetic information to falsely implicate them in criminal activity involving threatening hate mail.

The plaintiffs alleged that one defendant enlisted an insurance company, its employee, and a forensic testing company to collect and test DNA without the plaintiffs’ consent, manipulate the results, and use the information to intimidate and retaliate against them, including harming one plaintiff’s business relationships with Disney.

The trial court permitted the plaintiffs to amend their counterclaims to seek punitive damages against the individual defendant, the insurance company, and its employee.

The appellate court initially reversed those orders, but then the Florida Supreme Court quashed the appellate court’s decision and remanded for reconsideration under the clarified standards governing amendments to plead punitive damages.

On remand, the appellate court affirmed the order permitting punitive damages against the individual defendant alleged to have initiated the conspiracy but reversed the orders permitting punitive damages against the insurance company and its employee.

The court explained that the Supreme Court’s decision clarified several important principles governing section 768.72, Florida Statutes.

At the pleading stage, a plaintiff need not establish punitive damages by clear and convincing evidence. The trial court must consider the plaintiff’s evidence and proffer in the light most favorable to the plaintiff, without weighing competing evidence or making credibility determinations.

However, the plaintiff must still present evidence from which a reasonable person could conclude that the defendant engaged in intentional misconduct or gross negligence as defined by the statute.

Importantly, the trial court must examine both the proposed amended pleading and the evidentiary proffer. The allegations must identify the conduct supporting punitive damages, and the evidence must support those particular allegations. Conclusory labels and allegations grouping multiple defendants together are insufficient.

Here, the proposed counterclaim repeatedly referred collectively to the defendants as conspirators without adequately identifying the particular wrongful acts committed by the insurance company’s employee. Nor did the evidence establish that the employee actually knew his conduct was wrongful and would probably cause injury.

The court also rejected the plaintiffs’ attempt to characterize the taking of depositions in related litigation as an abuse of process warranting punitive damages. The depositions served a legitimate litigation purpose, and the existence of an alleged ulterior motive did not transform their proper use into abuse of process.

The punitive damages claim against the insurance company failed as well.

Under section 768.72(3), punitive damages cannot be imposed vicariously against a corporate employer merely because an employee allegedly committed wrongful acts. The plaintiff must also establish the statutory requirements for corporate responsibility, including appropriate participation, ratification, or other qualifying conduct attributable to corporate management.

The evidence did not establish that a managing agent of the insurance company knowingly participated in or ratified the alleged misconduct. Nor could allegations against one individual defendant automatically establish the intentional misconduct of the other defendants.

The appellate court therefore affirmed the punitive damages amendment as to the individual defendant who allegedly initiated the scheme but reversed as to the insurance company and its employee.

The decision reinforces that even under the Supreme Court’s clarified and more plaintiff-friendly evidentiary standard at the pleading stage, punitive damages cannot rest on generalized conspiracy allegations or an evidentiary proffer that fails to connect the particular defendant to the statutory misconduct.

APPELLATE COURT SANCTIONS PLAINTIFFS AND THEIR ATTORNEY JOINTLY AND SEVERALLY FOR FILING BRIEF CONTAINING HALLUCINATED CASES, FABRICATED QUOTATIONS AND MISREPRESENTED HOLDINGS—RELIANCE ON CLIENT-SUPPLIED RESEARCH OR AI DID NOT EXCUSE FAILURE TO VERIFY AUTHORITIES

Kid International, LLC v. City National Bank of Florida, 51 Fla. L. Weekly D2119 (Fla. 4th DCA October 7, 2026):

The plaintiffs appealed a final summary judgment entered for the defendants on statute of limitations grounds. The appellate court affirmed the judgment without discussion of the merits.

The more interesting part of the opinion concerned the defendants’ motion for sanctions based on the plaintiffs’ appellate brief, which contained numerous nonexistent cases, fabricated quotations, and misrepresentations of actual judicial opinions.

The appellate court independently examined the authorities and found that the brief cited a nonexistent case seven times, attributed fictional quotations to actual opinions, and relied on cases that did not stand for the propositions asserted.

The problems had actually begun in the trial court, where the plaintiffs initially represented themselves and filed a complaint containing thirty-two case citations. Fifteen of those cases did not exist, two were accurately cited but had their holdings misstated, fourteen were inaccurately cited and had misstated holdings, and only one was accurately cited with the correct holding.

Although an attorney later appeared and filed an amended complaint, the appellate brief continued to contain serious citation problems.

After the appellate court issued an order to show cause, the plaintiffs’ attorney acknowledged the errors and accepted responsibility. He explained that he had accepted research materials supplied by his clients and that his firm also used generative artificial intelligence as part of its legal research and drafting process.

Counsel admitted that his verification procedures had failed to identify the nonexistent or inaccurate authorities before filing. He attempted to submit a corrected brief, but even that version failed to resolve all the problems.

The appellate court accepted counsel’s explanation and proceeded to decide the appeal based on the original brief, disregarding the fabricated and inaccurate authorities. However, importantly, it did not excuse the conduct.

The court explained that submitting hallucinated or inaccurately cited legal authorities is sanctionable regardless of whether the errors result from carelessness, misunderstanding, or reliance on generative AI.

The court further held that the authority to sanction such conduct extends to an opposing party’s motion for attorney’s fees under Rule 9.410(b), not merely sanctions imposed by the appellate court on its own initiative.

The appellate court granted the defendants’ motion for sanctions and awarded their reasonable attorney’s fees incurred in the appeal. It remanded for the trial court to determine the amount and held the plaintiffs and their attorney jointly and severally liable.

The courts seem to be teaching us this lesson week after week: AI may assist with legal research, and clients may supply authorities, but counsel remains responsible for independently verifying every case, quotation, and legal proposition submitted to a court.

CONTINGENCY FEE MULTIPLIER REVERSED WHERE INSUREDS FAILED TO ESTABLISH THAT THE RELEVANT MARKET REQUIRED A MULTIPLIER TO OBTAIN COMPETENT COUNSEL OR THAT THEY COULD NOT AFFORD TO PAY COUNSEL—$250,160 FEE AWARD REDUCED TO $125,080 LODESTAR FIGURE

Security First Insurance Co. v. Annon, 51 Fla. L. Weekly D2132 (Fla. 5th DCA October 9, 2026):

The plaintiffs were homeowners involved in a first-party property insurance dispute with their defendant insurer. The underlying dispute was resolved without trial, but the parties continued litigating the plaintiffs’ entitlement to attorney’s fees.

The trial court determined that the plaintiffs were entitled to fees under section 627.428, Florida Statutes, and calculated a lodestar attorney’s fee of $125,080. The defendant did not challenge that amount.

The trial court then applied a 2.0 contingency fee multiplier, which increased the award to $250,160.

The defendant appealed, arguing that the evidence did not support application of the multiplier. The appellate court agreed.

Under Quanstrom, the party seeking a contingency fee multiplier must establish, among other things, that the relevant market requires a multiplier to obtain competent counsel and that counsel could not mitigate the risk of nonpayment.

The plaintiffs did not testify at the fee hearing. Their fee expert acknowledged that he did not handle first-party property insurance cases, had not spoken with the plaintiffs, and had made no inquiry into whether other attorneys would have accepted the case without the possibility of a multiplier.

The appellate court found this evidence insufficient to establish that the plaintiffs would have experienced substantial difficulty obtaining competent counsel in the relevant market without a multiplier.

The evidence was also insufficient to establish that counsel could not mitigate the risk of nonpayment.

The court explained that an important consideration in evaluating this factor is whether the client could afford to pay a retainer or hourly fees. Here, there was no specific evidence establishing that the plaintiffs lacked the financial ability to do so.

The appellate court therefore reversed the multiplier and directed entry of an amended final judgment awarding the undisputed $125,080 lodestar amount.

The court also noted that the Legislature amended section 57.104 in 2023 to create a strong presumption that a lodestar fee is sufficient and reasonable, rebuttable only in rare and exceptional circumstances. Because the court reversed under the existing Quanstrom analysis, it did not decide whether that statutory amendment applied retroactively to the case.

The decision reminds us yet again that contingency fee multipliers require actual evidence concerning the relevant legal market and the client’s ability to obtain counsel—not merely generalized expert testimony about the risks of contingent representation.