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The Week In Torts – Cases from September 22, 2022
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FLORIDA LAW WEEKLY
VOLUME 47, NUMBER 38
CASES FROM THE WEEK SEPTEMBER 22, 2022
PLAINTIFF FAILED TO PRESERVE ARGUMENT THAT PROPOSAL FOR SETTLEMENT DID NOT COMPLY WITH REQUIREMENTS OF RULE 1.442
Thompson v. GEICO, 47 Fla. L. Weekly D1899 (Fla. 4th DCA Sep. 14, 2022):
The plaintiff asserted that GEICO’s proposal for settlement had failed to comply with the requirements of Rule 1.442. Irrespective of the merits, the court concluded that the plaintiff failed to preserve the argument by timely raising it in the circuit court as described below.
After GEICO moved for entitlement of fees, the plaintiff did not file a written response. The trial court conducted a hearing during which the plaintiff contended that the offer was not made in good faith. However, plaintiff never argued that the proposal failed to comply with Rule 1.442. The trial court granted GEICO’s motion for entitlement to fees.
The plaintiff moved for rehearing, arguing for the first time that the proposal was defective as a matter of law for failing to state whether attorney’s fees were part of the legal claim. It also filed a second motion for reconsideration, again arguing that the proposal was defective for failing to comply with Rule 1.442. At that time, plaintiff submitted a memorandum acknowledging that it was raising an issue that had not been presented to the court. Plaintiff argued that the order determining entitlement was not a “final” order and therefore subject to reconsideration at any time prior to judgment.
The court rejected plaintiff’s argument. It found that while a trial court does have inherent authority to reconsider a non-final order and modify or retract it, it was not an abuse of discretion for the trial court to deny a motion for reconsideration raising an issue that could have been, but was not, raised at the pretrial hearing. The trial court’s refusal to consider the issue based on untimeliness was affirmed.
COURT FINDS CERTIORARI NOT PROPER TO CHALLENGE TRIAL COURT’S NON-FINAL ORDER ADOPTING SPECIAL MAGISTRATE’S RECOMMENDATIONS IMPOSING DISCOVERY SANCTIONS FOR SPOLIATION IN AN EMPLOYMENT DISCRIMINATION CASE
Seaway Biltmore, Inc. v. Abuchaibe, 47 Fla. L. Weekly D1875 (Fla. 3rd DCA Sep. 9, 2022):
The plaintiff worked as a reservations agent at the Biltmore Hotel for six years. The Biltmore fired her. She sued for age discrimination and retaliation.
A special master conducted multiple hearings on discovery matters, ultimately issuing a report and recommendation on the imposition of sanctions for spoliation of evidence. The trial court approved the magistrate’s order. From that order, the defendant filed a petition for writ of certiorari.
The court denied the petition. It found that even if the court instructed the jury to presume, the missing documentation was intentionally destroyed, and an adverse party may present evidence and argument against the presumption. In any event, any error may be remedied on appeal, so there is no irreparable harm.
IN A DISSENTING OPINION, ONE JUDGE RULES THAT THE UNFULFILLED ASSURANCES BY THE CITY’S POLICE DEPARTMENT THAT IT WOULD ESCORT THE DECEASED FROM HER WORKPLACE TO HER HOME AND MAKE SECURITY CHECKS, CREATED A DUTY UNDER THE UNDERTAKER’S DOCTRINE (UNFORTUNATELY, THE MAJORITY HELD TO THE CONTRARY)
Jayne v. Beef O’Brady’s of DeFuniak Springs, LLC, 47 Fla. L. Weekly D1881 (Fla. 1st DCA Sep. 14, 2022):
A woman was murdered by a co-worker at her home. The plaintiff alleged that the murderer had been violent against women at the restaurant where they both worked, and had an explosive temper.
The City defendant, through its police department, had made specific assurances to the victim that it would escort her home from her workplace, do security checks of her home, and issue a trespass warning against the co-worker. The police department did none of those things, and the co-worker murdered this innocent woman after she returned home from work unescorted.
The trial court dismissed the case with prejudice. It found that the allegations failed to establish a duty. The majority affirmed without an opinion.
In his detailed dissent, however, the dissenting judge pointed to cases he believed supported a duty, where the plaintiff also alleged a special relationship or an undertaking of a duty by the City, and the courts agreed.
TRIAL COURT IN A BAD FAITH CASE DEPARTED FROM THE ESSENTIAL REQUIREMENTS OF LAW BY COMPELLING PRODUCTION OF DOCUMENTS THAT INCLUDED COMMUNICATIONS BETWEEN ADJUSTERS PROSPECTIVELY ASSIGNED TO HANDLE THE BAD FAITH CASE, AND INSURER’S COUNSEL – TRIAL COURT SHOULD HAVE CONDUCTED AN IN-CAMERA INSPECTION
Allstate Ins. Co. v. Ray, 47 Fla. L. Weekly D1919 (Fla. 2nd DCA Sep. 16, 2022):
The plaintiff sued Allstate for bad faith for failure to adequately defend a personal injury claim. After a $44 million verdict, which was remitted to $18 million and accepted, the Estate sued Allstate for bad faith. The Estate asserted Allstate was in bad faith for failing to reach a settlement and for breaching its duty to defend by rejecting the opportunity to have a new trial, instead binding the Estate to an $18 million debt.
The Estate sought documents including communications among Allstate adjusters, all of which Allstate contended pertained to the merits and defense of the bad faith action.
The court rejected Allstate’s claims of work product and attorney-client privilege because they had occurred prior to the conclusion of the underlying litigation, reasoning that such items had to have related to the handling of the underlying claim.
The court ordered production of the remaining documents in Allstate’s privilege log for an in-camera inspection, so that it could determine whether they related to the defense of the underlying tort claim and therefore were discoverable.
Allstate acknowledged that the work product materials related to the underlying claim were discoverable in the first-party bad faith action, but argued that the trial court departed from the essential requirements of law when it held that documents pre-dating the conclusion of the underlying litigation necessarily pertained to the underlying tort litigation.
Citing Allstate v. Ruiz, the court explained that work product protection is not available for some materials in the context of a bad faith action, but that case did not do away with the attorney-client privilege.
Where requests implicate both attorney-client privilege and work product privilege, the trial court should conduct an in-camera inspection to determine if the requested materials are in fact covered by the attorney-client privilege.
Because the trial court here ordered the disclosure of the communications without conducting such an inspection, the trial judge departed from the essential requirements of law.