The Week in Torts – Cases from the Week of April 12, 2019
Accident Report Privilege Not Really A Privilege
FLORIDA LAW WEEKLY
VOLUME 44, NUMBER 15
CASES FROM THE WEEK OF APRIL 12, 2019
ACCIDENT REPORT PRIVILEGE DOES NOT PRECLUDE DISCOVERY OF STATEMENTS MADE BY INDIVIDUALS IN ACCIDENT FOR PURPOSES OF COMPLETING REPORT–WHILE SUCH STATEMENTS ARE INADMISSIBLE AT TRIAL, THEY ARE SUBJECT TO DISCOVERY–STATUTE MAKES PROTECTED INFORMATION INADMISSIBLE, BUT NOT PRIVILEGED.
Anderson v. Mitchell, 44 Fla. L. Weekly D899 (Fla. 2nd DCA April 5, 2019):
Defendant sought certiorari review of an order overruling his objections to certain deposition questions, and compelling additional depositions, in an automobile accident case. The defendant asserted that the accident report privilege set forth in section 316.006(4) precluded the discovery of statements made by individuals involved in the accident, for the purpose of completing a crash report.
The court ruled that the accident report privilege is not a true privilege precluding the disclosure of statements. Instead, it is a law of admissibility, precluding the use of the statement at trial. As such, the court ruled the statements were in fact subject to discovery.
NO FEES WHEN TRIAL COURT LACKED JURISDICTION TO AWARD THEM.
Florida Organic Aquaculture, LLC v. Advent Environmental System, 44 Fla. L. Weekly D883 (Fla. 5th DCA April 5, 2019):
The plaintiff made an offer of judgment which the defendant did not accept. After trial, the trial court entered final judgment on plaintiff’s behalf and reserved jurisdiction to order attorney’s fees and costs. Plaintiff filed said motion. The trial court granted the plaintiff’s motion as to costs but denied it as to fees.
The plaintiff timely moved for rehearing, and to stay the case pending Florida Supreme Court review of another case in front of it on conflict jurisdiction. When the court finally rendered its decision, plaintiff scheduled its motion for rehearing. The trial court denied it.
Plaintiff then filed a motion for reconsideration of the order denying its motion for rehearing, and two weeks later the trial court granted a hearing. At that hearing, the defendant argued that the trial court lacked jurisdiction to reconsider the denial of a motion for rehearing. The trial court disagreed, and vacated its April 2016 order in February of 2017. It then entered a final judgment granting the plaintiff costs and fees.
The issue for the court’s determination was whether the trial court lacked jurisdiction to enter these orders and the judgment granting fees after it denied plaintiff’s original motion for a hearing in October of 2016. The court concluded that the order denying plaintiff’s motion for attorney’s fees following the final judgment that reserved jurisdiction to consider cost and fees was a final order when the trial court entered it in April of 2016.
The plaintiff’s subsequent motion for a rehearing was proper pursuant to Rule 1.530, because it was timely directed at a final order. However, the entry of an order denying a motion for rehearing then divests the trial court of jurisdiction to conduct further proceedings. After the trial court rules on a motion for rehearing, it retains jurisdiction only to enter post “decretal” orders to effectuate the judgment, or to consider motions pursuant to Rule 1.540.
In this case, the plaintiff did not allege any of the grounds set forth in Rule 1.540 in its motion for reconsideration as a basis for relief and only argued the merits of the original disputed legal issue. Accordingly, the court had no jurisdiction to enter the final judgment for fees and the court vacated the order.
ERROR TO DENY MOTION FOR ATTORNEY’S FEES BASED ON MOVANT’S FAILURE TO COMPLY WITH E-MAIL SERVICE RULES.
Barbeque Integrated, Inc. v. Winn-Development, LLC, 44 Fla. L. Weekly D887 (Fla. 5th DCA April 5, 2019):
Because the Florida Supreme Court has ruled that the plain language of § 768.79, Florida Statutes and Rule 1.442 does not require service by email, the email service provision of Rule 2.516 does not apply, and movant’s motion for fees was held to be enforceable.