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The Week In Torts – Cases from September 22, 2023
A law with strings attached
FLORIDA LAW WEEKLY
VOLUME 48, NUMBER 38
CASES FROM THE WEEK OF SEPTEMBER 22, 2023
TRIAL COURT ERRED IN FINDING ATTORNEY’S FEES NOT AWARDABLE UNDER SECTION 768.79, WHERE PLAINTIFF FILED A NOTICE OF VOLUNTARY DISMISSAL WITHOUT PREJUDICE, BUT DID SO AFTER SUMMARY JUDGMENT WAS GRANTED ON TWO OF THE THREE COUNTS OF THE COMPLAINT
Kuthiala v. Goldman., 48 Fla. L. Weekly D1850 (Fla. 5th DCA Sep. 15, 2023):
The plaintiffs filed a three-count complaint against the defendant, and served two proposals for settlement. The trial court granted the defendants motion for summary judgment on two of the three counts of the complaint, denying the motion on one of the counts. After the court ruled on the motions for summary judgment, the plaintiffs then filed a notice of voluntary dismissal without prejudice.
Thereafter, the defendant filed a motion to tax costs and fees based on the plaintiff’s rejection of her proposals for settlement. The trial court denied the request for fees under MX Investments v. Crawford, which holds that a dismissal without prejudice does not support an award of fees under section 768.79.
However, the court found this case distinguishable, because the trial judge had granted summary judgment on two of the three claims before the third claim was voluntarily dismissed. Thus, when the dismissal came in the face of the two losing counts, the court found an award of attorney’s fees and costs was proper.
TRIAL COURT ERRED BY STRIKING DEFENDANT’S PLEADINGS AND ENTERING DEFAULT AS A SANCTION WITHOUT FIRST CONDUCTING AN EVIDENTARY HEARING AND MAKING FINDINGS AS TO EACH OF THE SIX KOZEL FACTORS
City of Miami v. Marcos., 48 Fla. L. Weekly D1818 (Fla. 3rd DCA Sep. 13, 2023):
After the Defendant’s Counsel flouted several of the trial court’s orders, the trial court ultimately struck Defendant City’s pleadings, making it impossible for the City to defend against the liability allegations.
The Third District noted how appellate courts routinely reverse sanctioned orders when the procedure prescribed by Kozel is not followed.
Because the trial court in this case failed to conduct an evidentiary hearing before entering the default order, and the default order also failed to make express findings as to the Kozel factors, the court had to reverse and remand for additional proceedings.
TRIAL COURT ERRED BY ENTERING FINAL SUMMARY JUDGMENT RELATING TO PLAINTIFF’S CLAIMS AGAINST BOTH DEFENDANTS, WHERE ONE OF THE DEFENDANTS HAD NOT MOVED FOR SUMMARY JUDGMENT, AND PLAINTIFF WAS NOT PROVIDED WITH NOTICE OR AN OPPORTUNITY TO RESPOND AND PREPARE FOR A HEARING ON CLAIMS INVOLVING A NON-MOVING DEFENDANT
Serrano v. Epstein., 48 Fla. L. Weekly D1821 (Fla. 3rd DCA Sep. 13, 2023):
The trial court entered summary judgment not only against the moving defendant, but also against the non-moving defendant.
The appellate court reversed the finding that the plaintiff was not provided with notice or an opportunity to respond or prepare for the hearing.
NO ERROR IN DETERMINING THAT THE INSURERS’ REFUSAL TO ACCEPT PROPOSALS FOR SETTLEMENT COULD NOT FORM A BASIS OF A BAD FAITH CLAIM – – AN INSURER HAS NO DUTY TO ENTER INTO A CUNNINGHAM–TYPE AGREEMENT SUCH AS A CONSENT JUDGMENT FOR THE PURPOSES OF EXPEDITING BAD FAITH LITIGATION, AS THAT IS THE FUNCTIONAL EQUIVALENT OF AN EXCESS JUDGMENT
Markuson v. State Farm., 48 Fla. L. Weekly D1839 (Fla. 2nd DCA Sep. 15, 2023):
The underlying case arose out of an automobile accident where State Farm had offered to pay its policy limits of $300,000 and the plaintiff rejected the offer. The offer was made four months after the accident.
Two years and three years later the plaintiff issued two settlement offers to the State Farm insureds, seeking both the policy limits, and authority for the insureds to enter into a consent judgment in the amount of $1.9 million dollars (part of the offer is that the judgment would not be recorded or enforced against the insureds, and would also authorize the insureds to assign their rights to any claims against their insurance agent).
In return, the plaintiff would execute a release of all his claims against the defendants and file a satisfaction of the consent judgment. The proposal did not state that State Farm would be released from any bad faith liability. State Farm declined to accept the proposals and the jury reached a verdict over three-million dollars.
In the bad faith lawsuit, State Farm moved for summary judgment on both the plaintiffs’ common law bad faith claim as well as its statutory bad faith claim.
The plaintiff alleged State Farm acted in bad faith by failing to settle the personal injury action when it declined three of the plaintiffs’ proposals for settlement.
The trial court had concluded that State Farm owed no duty to enter into a consent judgment in excess of its policy limits. Also, none of the proposals agreed to release State Farm, leading the trial court to determine that State Farm did not act in bad faith when it refused to accept or negotiate with respect to the three proposals.
The 11th Circuit has determined that an insurer owes no duty under Florida law to enter into a Cunningham agreement or consent judgment in excess of the limits of the policy. The obligation to negotiate and settle claims on behalf of an insured is defined by and bounded within the insurance contract itself. An insurer does not ordinarily have a duty to pay a claim in excess of a policies limits. Based on this, the appellate court concluded that the trial court correctly determined that State Farm owed no duty to enter into such an agreement.
However, the court did reverse the circuit court’s entry of final judgment in favor of State Farm to the extent that the plaintiff’s claims raised other theories of bad faith governed by Boston Old Colony.
TRIAL COURT ERRED IN DENYING PLAINTIFF’S MOTION TO AMEND COMPLAINT TO ADD CLAIM FOR PUNITIVE DAMAGES – – PLAINTIFFS PROFFER WAS SUFFICIENT TO ASSERT A CLAIM FOR INTENTIONAL MISCONDUCT UNDER THE STATUTE
Bric McMann Industries, Inc. v. Regatta Beach Club., 48 Fla. L. Weekly D1849 (Fla. 2nd DCA Sep. 15, 2023):
This case made the point that the statute enacted in 1999, and not old case law preceding it, governs the evaluation of a proffer for punitive damages. Here, instead of relying on the language of section 768.72(2), the association quoted White Construction v. Dupont, arguing that the proffer did not meet that standard of showing a grossly careless disregard of safety and welfare or reckless indifference to the rights of others, equivalent to an intentional violation of them. It also mistakenly argued that the conduct has to be as culpable as what it takes to convict for manslaughter.
The argument overlooked that section 768.72 as revised in 1999 defines intentional misconduct (actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage would result, and despite that knowledge intentionally pursuing the course of conduct resulting in jury or damage). This is the standard that applies.
Under the correct standard, the court concluded that the trial court should have granted the plaintiff’s motion to amend.