The Week in Torts – Cases from the Week of August 14, 2020
We Won’t Hold You To It
FLORIDA LAW WEEKLY
VOLUME 45, NUMBER 32
CASES FROM THE WEEK AUGUST 14, 2020
IMPORTANT AMENDMENTS TO THE NEW CIVIL COVER SHEET FORM.
In Re: Amendments to the Florida Rules of Civil Procedure, Florida Small Claims Rules and Florida Rules of Appellate Procedure-Jurisdictional Amounts, 45 Fla. L Weekly S218 (Fla. August 13, 2020):
In the November 14, 2019 opinion of the Court, it amended the Civil Cover Sheet form, along with the instructions for “non” small claims county court cases. Part of the change was to increase the county court jurisdictional limit to $30,000, effective 1/1/2020.
The court amended section II (Amount of Claim) on the form, replacing the dollar sign and space with six different claim amount range options from “$8,000 or less” to “over $100,000.” The form also now states that the estimated amount of the claim is requested for data collection and clerical processing purposes only, and should not be used for any other purpose. This change was made in response to comments expressing concern about plaintiffs feeling bound by the amount set forth in the civil cover sheet, and should now give comfort that that will not be the case.
TRIAL COURT ERRED IN DIRECTING VERDICT FOR THE PLAINTIFF ON CAUSATION AND PERMANENCY AS TO PLAINTIFF’S KNEE INJURY CLAIM—INSURANCE COMPANY’S FAILURE TO CALL AN EXPERT WITNESS TO REBUT PLAINTIFF’S EXPERT TESTIMONY WAS NOT FATAL TO THE INSURER’S RIGHT TO HAVE THE DISPUTED ISSUE DECIDED BY A JURY.
United Services Automobile Association v. Rey, 45 Fla. L Weekly D1855 (Fla. 3rd DCA August 5, 2020):
The plaintiff injured in an automobile accident sued the driver and owner of the other vehicle, and also brought a UM claim against her own insurer, USAA.
The only issues to be decided were causation, permanency and damages (the defendants admitted negligence). On the second day of trial, plaintiff settled with the owner and driver, proceeding only against USAA.
Plaintiff introduced evidence that she had suffered a prior injury to her left knee in 2001, while attending the US Naval Academy. She hurt it again in August 2010.
She reported the second injury to her treating physician, whose records reflected that she had fallen and her knee “popped out.” She had surgery for a torn meniscus two months before the accident.
After the accident, plaintiff reported that her knee hurt really badly. She treated with a physician under a letter of protection (LOP).
The physician concluded that plaintiff suffered an ACL tear caused by the car accident and further testified that the injury was permanent. However, the physician’s records and testimony revealed contradictions both in the plaintiff’s testimony and in his own.
For example, the physician testified that the plaintiff told him she had complete resolution of her prior knee symptoms just before the accident, but at trial, she denied ever having told the doctor that, admitting that she was still experiencing some pain and popping and clicking.
There was also a physical therapy note ten days after the accident and prior to the second surgery indicating that plaintiff had been performing some type of therapy when her left knee cracked causing her pain. An MRI right after the accident found plaintiff’s ACL intact.
USAA did not call an expert to rebut plaintiff’s expert’s testimony. Based on that, plaintiff moved for a directed verdict, asserting that there was no expert witness to rebut her expert which necessitated a conclusion of injury as a matter of law. The trial court granted the DV, and the jury was asked only to determine plaintiff’s damages.
The Second District admonished that a DV should rarely be granted in negligence actions. The court observed that a directed verdict takes away jury resolution—a constitutional right—from a civil litigant.
The court reversed the granting of the directed verdict, finding that the absence of the expert to rebut the physician’s testimony was not fatal to USAA’s right to have the disputed issues decided by a jury. The testimony and records created issues requiring juror resolution of the evidence and credibility. It ordered a new trial.
CIRCUIT COURTS HAVE CONCURRENT JURISDICTION IN MATTERS OF EQUITY, REGARDLESS OF THE AMOUNT IN CONTROVERSY.
Leibner v. Seider, 45 Fla. L Weekly D1865 (Fla. 4th DCA August 5, 2020):
The trial court erred in refusing to exercise jurisdiction over the petitioner’s action which sought equitable relief. Circuit courts have concurrent jurisdiction in matters of equity, regardless of whether the amount in controversy exceeds the county court’s jurisdictional threshold.
COURT MUST VACATE DEFAULT FINAL JUDGMENT WHERE THE DEFENDANT FILED AN ANSWER PRIOR TO THE ENTRY OF THE DEFAULT.
Azure-Moore Investments v Hoyen, 45 Fla. L Weekly D1868 (Fla. 4th DCA August 5, 2020):
Under the plain language of Florida Rule of Civil Procedure 1.500(c), an answer filed prior to entry of default precludes entry of default judgment, thus requiring the court to vacate the default judgment that had been entered.
WHEN A PARTY’S WITNESS OR REPRESENTATIVE TESTIFIES WITHOUT OBJECTION TO WORK PRODUCT PRIVILEGED MATERIAL, THE PARTY WAIVES THE OBJECTION.
Quest Diagnostics v. Hall, 45 Fla. L Weekly D1877 (Fla. 5th DCA August 7, 2020):
Plaintiff sued Quest after sustaining injuries in an accident allegedly caused by one of the Quest couriers. Plaintiff asked Quest to produce the incident report in the case, as well as the statement taken of the plaintiff.
Quest objected, claiming that the request called for the production of privileged items prepared in anticipation of litigation. It filed a privilege log, specifically listing an incident report, and an investigation report.
Subsequently, plaintiff deposed one of Quest’s designated corporate representatives. The witness testified without an objection that everything she learned about the accident, she learned from reading the written on the “accident form”.
Because Quest failed to object when that question was asked, and allowed its corporate representative to voluntarily disclose information from the incident report it was trying to protect, the information became fair game because the cat was “out of the bag.”
TRIAL COURT ERRED IN STRIKING DEFENDANT’S TIMELY REQUEST FOR A TRIAL DE NOVO– THE ALTERNATIVE REQUEST FOR TRIAL DE NOVO AFTER A NON-BINDING ARBITRATION WAS SUFFICIENT, EVEN THOUGH THE REQUEST FOCUSED ON ONLY ONE OF THE TWO THEORIES OF LIABILITY
Dungarani v. Benoit, 45 Fla. L Weekly D1879 (Fla. 5th DCA August 7, 2020):
The parties in this medical malpractice wrongful death case entered into non-binding arbitration over defendant’s objection. The arbitration resulted in a decision awarding the plaintiff over $3.6 million dollars.
The arbitrator noted that plaintiff had two theories of liability, finding liability with respect to the second theory. Following the decision, the defendants sought a trial de novo with respect to that theory. However, they alternatively requested a trial de novo on all issues in the “Wherefore” clause.
§44.103 and Rule 1.820 govern court-ordered nonbinding arbitration. The plain language of §44.103(5) prohibits partial requests for trials de novo.
After explicitly noting that it was engaging in a textualist interpretation of the statute (citing to the Scalia and Garner text, Reading Law: The Interpretation of Legal Texts) the court concluded that §44.103 did not permit defendants to request a partial trial de novo. Even so, because the request alternatively sought a trial de novo on all issues in the case– precisely the type of request contemplated and permitted by §44.103 and Rule 1.820–the court ruled that the trial de novo could go forward on both theories.
IN A TRAGIC MEDICAL MALPRACTICE CASE, A JURY FOUND THAT NEITHER THE NEGLIGENT PHYSICIAN’S MEDICAL MALPRACTICE CARRIER WAS IN BAD FAITH, NOR DID HIS ATTORNEYS COMMIT LEGAL MALPRACTICE—THE TRIAL COURT PROPERLY DENIED THE DOCTOR’S MOTION FOR DIRECTED VERDICT AGAINST HIS MALPRACTICE INSURER, AND NONE OF THE EVIDENTIARY RULINGS NECESSITATED A NEW TRIAL.
Samiian v. Johnson, 45 Fla. L Weekly D1887 (Fla. 1st DCA August 7, 2020):
This case arose after the death of a man in his thirties who was earning $1,000,000 dollars per year, died after an elective surgical procedure done by a plastic surgeon. The defendant doctor had left the patient in the care of an unlicensed technician after the surgery. The physician had only $250,000 in coverage. The carrier tendered the limits one year after the procedure, when the plaintiff demanded it.
When he received the carrier’s check, plaintiff’s counsel advised he needed to review the doctor’s financials before releasing the doctor.
Part of the evidence adduced at the combined bad faith/legal malpractice trial was that the attorney defending the doctor in the underlying case had spoken to nine experts and was unable to procure one. The attorney testified that this was the most egregious case with the worst liability facts he had seen in thirty-one years, and was also the one with the biggest damages he had seen in thirty-one years. As the lawyer described it, the case was “indefensible, inflammatory, and really just a tragic situation.”
Before he received the check back pending a review of the financials, the attorney sent a written offer to arbitrate with the Estate, which the plaintiff accepted. The defense lawyers offered arbitration, feeling that it was necessary to take punitives out of the picture completely. The arbitrator awarded over $35 million dollars in damages (plus interest).
The doctor asserted that offering arbitration was legal malpractice, because the attorney made the offer before the plaintiff received the doctor’s financials, which may have led the plaintiff to accept the policy limits. The lawyer testified he urged the doctor to offer some of his own money on top of the policy limits, but the doctor steadfastly refused to do.
As to the bad faith, FPIC (the insurer) tendered the limits after the claim was made, which it testified was standard practice (even though the claim was not made until a year later). The adjuster from the insurance company said the attorney left no stone unturned and had worked hard to come up with a defense, though he concluded the case was indefensible.
FPIC argued that the trial court did not err in instructing the jury on causation given the fact that the case was not one about a failure to settle, but rather one where the offer to arbitrate allegedly undercut the doctor’s ability to settle for the policy limits.
The trial court found the case to be atypical, and believed the issue of what caused the doctor’s alleged damages was in dispute (and the court agreed). Also, because the doctor had sought to consolidate the legal malpractice case with the bad faith case, trial court’s instructions appropriately covered the excess damages. That fact was immaterial as the jury never even reached the issue of damages because it determined that the insurance company did not act in bad faith, and that the lawyers were not negligent.