The Week in Torts – Cases from the Week of August 2, 2019
White Men Are A Protected Class.
FLORIDA LAW WEEKLY
VOLUME 44, NUMBER 31
CASES FROM THE WEEK OF AUGUST 2, 2019
WHITE MALES ARE A PROTECTED CLASS IN JURY SELECTION.
Beal v. State, 44 Fla. L. Weekly D1906 (Fla. 3rd DCA July 24, 2019):
In this case involving a conviction of grand theft auto and other related charges, the issue on appeal was whether State’s peremptory challenge of a white male juror was proper after the trial court found that white males are not a protected class.
The court held that Florida law plainly articulates that white men fall under the protective class of gender, and therefore a strike is subject to a Melbourne analysis.
COURT REVERSES SUMMARY JUDGMENT ENTERED DUE TO HORIZONTAL IMMUNITY – THE KEY IS WHETHER THE WORK ON A JOB SITE IS BEING DONE PURSUANT TO A CONTRACT WITH A THIRD PARTY.
Heredia v. John Beach and Associates, 44 Fla. L. Weekly D1892 (Fla. 2nd DCA July 24, 2019):
Lennar Homes was developing a tract of land it owned in a residential community. As part of that work, it hired both a road contractor and a surveyor. An employee working for the surveyor ran over an employee working for the road contractor.
The trial court granted summary judgment against the plaintiff, finding that there was horizontal privity between the “subcontractors” and therefore, pursuant to section 440.10(b), the plaintiff’s claim was barred by workers’ compensation immunity.
The Second District reversed. It noted that work comp immunity has been broadly expanded by the legislature to include subcontractors and sub-subcontractors working on construction sites, and hereby precluding an employee of one contracting entity injured on the job from suing another contracting entity working on the same construction site. However, the Second District found that in order for a party to be considered a “contractor” pursuant to section 440.10(1)(b), the primary obligation in performing a job or providing a service must indeed arise out of a contract.
Stated another way, an entity alleged to be the contractor must have incurred a contractual obligation to a third party, and there must be a showing that the entity has delegated or sublet to a subcontractor whose employee is injured. The statutory terms “contractor” and “contract work” plainly and unambiguously envision a party performing work pursuant to a contract with another.
In this case, Lennar was acting on its own behalf as the owner of its own property. Thus, there was no record that it was performing work of any kind on behalf of any third party with respect to this development. Without a contract with a third party from which other contracts with subcontractors would be signed, horizontal immunity did not apply.
NO FEES FROM A MOTION FOR A SANCTIONS FILED AFTER A VOLUNTARY DISMISSAL.
Sidlosca v. Olympus Insurance Co, 44 Fla. L. Weekly D1908 (Fla. 3rd DCA July 24, 2019):
While a trial court has continuing jurisdiction to consider a motion for sanctions pursuant to section 57.105 even after a voluntary dismissal, the motion itself must be filed before the dismissal.
OFFER OF JUDGMENT NOT ENFORCEABLE WHEN “NET JUDGMENT” HAD TO TAKE PUNITIVE DAMAGES INTO ACCOUNT AND THERE WAS NO PUNITIVE DAMAGE CLAIM WHEN PLAINTIFF MADE HER PROPOSAL.
Palmentere Bros. Cartage Service v. Copeland, 44 Fla. L. Weekly D1936 (Fla. 1st DCA July 29, 2019):
A plaintiff injured in an accident with a tractor-trailer filed a proposal for settlement for $345,000.00 and specifically stated in the proposal that there were no claims for punitive damages so none of the proposed settlement amounts was for proposed damages.
Later in the case, the plaintiff amended her complaint to include a claim for punitive damages. The jury returned a verdict awarding $400,000.00 in compensatory damages (reduced by 10% for comparative fault), and $1 million in punitive damages.
The court reversed the award of attorney’s fees, which was entered based on the total verdict amount, finding that plaintiff had explicitly disclaimed punitive damages in her only settlement proposal. Thus, the award of fees based on a number inclusive of punitive damages was an “apples-oranges” comparison of the final judgment amount.
One dissenting judge asserted that Frosti v. Creel, 979 So. 2d 912 controlled. In that case, the plaintiff served a proposal for settlement, and then three years later served a second proposal specifying an amount to settle the punitive damages claim. There, the court had looked at the total amount of the judgment obtained in finding entitlement. The majority distinguished Frosti, because at least one of the proposals had included an amount for punitive damages, wherein this case, there was never an amount identified for punitive damages in the single proposal that plaintiff had filed.