The Week in Torts – Cases from the Week of August 28, 2020
That Really WAS A Mistake — You’re Off The Hook
FLORIDA LAW WEEKLY
VOLUME 45, NUMBER 34
CASES FROM THE WEEK AUGUST 28, 2020
EXCUSABLE NEGLECT SUPPORTED PLAINTIFF’S MOTION SEEKING TO WITHDRAW A PROPOSAL FOR SETTLEMENT THAT WAS MADE FOR $10,000.00 INSTEAD OF $100,000.00—TRIAL COURT ERRED IN DENYING THE MOTION TO WITHDRAW.
Dale v. Chaub, 45 Fla. L Weekly D1976 (Fla. 4th DCA August 19, 2020):
An attorney’s paralegal sent a proposal for settlement to an insurance company seeking the policy limits of $100,000.00. Instead of making the proposal for $100,000.00, the proposal erroneously stated it was for $10,000.00. The attorney realized the mistake when the defendant sent a check for $10,000.00 the next day.
Despite the obvious error, the court denied a motion to withdraw the proposal and later denied a motion for reconsideration, which was based upon the fact that the attorney did not have authority from the client to settle the claim for $10,000.00.
Plaintiff’s counsel decided to send a proposal for settlement and directed his paralegal to send on to each insurance company for their policy limits. The paralegal mistakenly misconstrued the instructions and sent the $10,000.00 one to the party where the policy limits were $100,000.00.
As soon as the defendant filed a notice of acceptance and issued the check for $10,000.00, the plaintiff’s attorney filed a motion to withdraw the proposal due to the paralegal’s inadvertent error in sending the wrong proposal. Attached to the motion was an email chain between the attorney and the paralegal, as well as the paralegal’s affidavit. The motion also pointed out that $10,000.00 was an obvious error because the plaintiff’s medical bills were in an excess of $58,000.00 and the defendant had already offered to settle the case in excess of $10,000.00.
At the hearing, the plaintiff’s attorney advised of the facts set forth in the motion, and also stated that he prepared the proposal for settlement himself, to avoid these kind of errors. He advised that the paralegal mistakenly prepared and served the proposal herself—which she should not have done—and did so without the attorney’s approval.
On a motion for reconsideration, the plaintiff also raised that there was no authority given to settle for that amount.
In Florida, a contract cannot be set aside on the basis of unilateral mistake unless (a) the mistake is the result of an inexcusable lack of due care or (b) the other party has so changed its position in reliance on the contract that rescission would be unconscionable.
In this case, the court found that the miscommunication between the paralegal and the attorney did not constitute inexcusable negligence. Additionally, because the settlement of a case requires the consent of the client, and because there was not authority from the client to settle for $10,000.00 (it was to settle for the policy limits of $100,000.00) that provided an additional reason for the court to grant the motion to withdraw the proposal.
TRIAL COURT EXCEEDED ITS JURISDICTION TO ENFORCE THE TERMS AND CONDITIONS OF A MEDIATED SETTLEMENT AGREEMENT WHEN IT EXTENDED THE DEADLINE FOR PERFORMANCE UNDER THE AGREEMENT.
Pinero v. Zapata, 45 Fla. L Weekly D1981 (Fla. 3rd DCA August 18, 2020):
After litigating a matter for sixteen months, the parties entered into a settlement agreement. Pursuant to its unambiguous terms, the defendant was to tender $200,000.00 to the plaintiff by a certain date and if she failed to do so, she had an automatic one-month extension to pay the settlement sum. In the event that the money was not tendered by the second month, the agreement stated the defendant would then relinquish her interest in the subject properties by a quitclaim deed. If the defendant did pay the settlement sum by the agreed deadline, she was then required to obtain refinancing on the properties to relieve the plaintiff of any further financial obligation by a certain date.
The parties did not include a provision for any further extensions beyond the express provision for a single extension as set forth. They did not add a provision for impossibility, an act of God, or any term that might alter the mandatory language. To the contrary, there was a merger clause that underscored their intention to exclude other terms from the agreement.
The trial court approved the agreement by joint motion and dismissed the case, reserving jurisdiction to enforce its terms. However, because the agreement was entered right before the pandemic broke out, the trial court observed the dire circumstances present because of it (these dates were to be met in April, May and June of 2020), and granted an extension.
The trial court was obligated to enforce the mediated settlement Agreement as voluntarily agreed to by the parties, and this ruling essentially voided its provisions, which was not permissible. As such, because the defendant did not keep up her end of the bargain, the penalty provisions kicked in, and the trial court erred in ruling otherwise.
TRIAL COURT DID NOT DEPART FROM ESSENTIAL REQUIREMENTS OF LAW BY ALLOWING PLAINTIFF TO AMEND HIS COMPLAINT TO ADD A CLAIM FOR PUNITIVE DAMAGES, NOTWITHSTANDING THAT THE TRIAL COURT FAILED TO MAKE ANY EXPRESS FINDINGS THAT THE PLAINTIFF MET HIS EVIDENTIARY BURDEN.
Watt v. Lo, 45 Fla. L Weekly D1997 (Fla. 1st DCA August 19, 2020):
The defendant was impaired by alcohol and marijuana use when he drove his car into the plaintiff and seven other pedestrians. Plaintiff sued defendant for negligence, and then later moved for punitive damages.
The amendment for punitive damages came after the defendant had pled guilty in the related criminal case to multiple counts of DUI.
During the hearing, the parties discussed the trial court’s gatekeeping role in determining whether a punitive damages claim can proceed. The court ruled that the amendment was proper, but made no affirmative or express finding that plaintiff made the required evidentiary showing under §768.72(1).
The question presented by the petition was whether such a finding is required. The Third, Fourth, and Fifth Districts have all ruled that such a showing is necessary, and that a trial court must make an “affirmative finding” of a reasonable evidentiary basis for the punitive damages claim before one may proceed.
The First District disagreed. Reading the plain language of §768.72(1), it held that nothing within the statute requires a trial court to make such an express or affirmative finding, and all that is required is a showing based on the evidence in the record as proffered by the claimant.
Here, the trial court followed its oral ruling with a written order granting the motion after noting that it had reviewed the court file, the filings of the parties and had heard argument of counsel.
Thus, even without an express or affirmative finding that the plaintiff met his evidentiary burden under §768.72(1), the trial court’s decision complied with the procedural requirements of the statute.
ANOTHER CASE REJECTING THE DISCOVERY OF FINANCIAL RELATIONSHIP INFORMATION FOR A DEFENDANT PURSUANT TO WORLEY; QUESTION CERTIFIED AGAIN.
Owens v. Welborn, 45 Fla. L Weekly D2003 (Fla. 5th DCA August 21, 2020):
In this Fifth District case, the defendant sought a protective order, trying to prevent discovery made pursuant to Boecher, concerning the financial relationship between the defendant’s attorney, the liability insurer and the defendant’s medical experts. The defendant acknowledged Worley, but argued against its selective enforcement, which allows plaintiffs access to this type of discovery, but not defendants.
The Fifth District again explained that under Worley, current Florida law does not treat personal injury plaintiffs and defendants equally when it comes to disclosure of the relationship between law firms and medical experts. The court followed Worley, but again certified the question as one of great public importance.
TRIAL COURT PROPERLY DETERMINED THAT ADVANCED PAYMENT MADE BY AN INSURER SHOULD BE TREATED AS A SET-OFF FROM THE VERDICT PRIOR OF ENTRY OF FINAL JUDGMENT.
Solomon v. State Farm, 45 Fla. L Weekly D2006 (Fla. 5th DCA August 21, 2020):
Plaintiff sued his UM carrier after suffering injuries from an automobile accident. The jury returned a verdict in his favor. After computing the setoffs, the trial court entered judgment in favor of State Farm.
Plaintiff argued that the trial court erred in treating an “advance payment” made by the insurer as a set-off. Before the trial, State Farm had tendered $185,000 as an advance payment to the plaintiff, with a cover letter explaining that it was a good faith payment that would be credited against any final determination of damages. The jury returned a verdict finding the total damages were approximately $280,000.
The parties agreed to two set-offs totaling $141,000. After determining that State Farm was also entitled to a set-off for its advance payment, and recognizing that the total of the set-off combined exceeded the award by the jury, the trial court entered final judgment in favor or State Farm.
The plaintiff argued that the advance payment should not be treated like a setoff, and instead asserted it should be applied as a credit towards the satisfaction of plaintiff’s judgment.
Relying on decisions from the First DCA and the West Virginia Supreme Court, where insurers made advance payments and the courts ultimately treated them as setoffs, the Fifth District agreed with State Farm. The court noted that if it accepted the plaintiff’s argument, the plaintiff would have been able to recover costs, even if the face of a defense verdict.