The Week in Torts – Cases from the Week of February 16, 2018

FLORIDA LAW WEEKLY

VOLUME 43, NUMBER 7

CASES FROM THE WEEK OF FEBRUARY 16, 2018

TRIAL COURT DEPARTED FROM ESSENTIAL REQUIREMENTS OF LAW IN ORDERING DEFENDANT TO PRODUCE A SURVEILLANCE VIDEO OF PLAINTIFF PROTECTED BY ATTORNEY WORK-PRODUCT PRIVILEGE, WHERE DEFENDANT DOES NOT INTEND TO USE THE VIDEO AT TRIAL–THE FACT THAT DEFENDANT INTENDS TO USE AN EARLIER SURVEILLANCE VIDEO DOES NOT REQUIRE THAT DEFENDANT PRODUCE THE LATER ONE.

Hunt v. Lightfoot, 43 Fla. L. Weekly D343 (Fla. 1^st DCA February 9, 2018):

The plaintiff served discovery requests seeking copies of all videos, photographs, reports, invoices, documents and any other items and/or documents pertaining to any and all surveillance performed on the plaintiff. The defendant objected on grounds of attorney work-product, but agreed to produce copies of anything that she intended to use at trial in accordance with the court-mandated exhibit exchange.

The trial court held a hearing on the objection. Defense counsel advised the trial court that the plaintiff had been given a copy of the 2014 surveillance video that defendant intended to use at trial, and that there was additional surveillance conducted in 2016, but defendant did not intend to use that video.

Plaintiff’s counsel referred to the decision in Dodson v. Persell, and argued that although defendant was not required to disclose the contents of surveillance that she did not intend to use, she was required to disclose the existence of all surveillance. The trial court overruled defendant’s objection and ordered her to provide the person who took the film in 2016, when it was taken and where it was taken.

After defendant provided this information, the plaintiff filed a motion to compel production of the video itself. In direct contradiction to the position taken by his attorney at the prior hearing, the plaintiff argued in the motion to compel that the contents of all the surveillance must be disclosed because the defendant intended to use a “portion” of the surveillance at trial.

The First District explained how it expedited consideration of the defendant’s petition for writ of certiorari based on the impending trial date (good to know), and issued an unpublished order granting the petition and quashing the challenged order.

In filing this opinion to explain that ruling, the court observed that it was undisputed that the defendant did not intend to use the 2016 surveillance video at trial. Thus, the content of the video was not discoverable absent a showing of extraordinary circumstances (which were not made, nor even attempted to be made).

In response to the plaintiff’s argument that because the defendant intended to use the 2014 surveillance video, that the 2016 video also had to be produced, the First District did not find the argument or the federal cases on which it was based persuasive, because the videos did not depict a continuous period of surveillance such that principles of fairness and completeness required the production of the later video in conjunction with the earlier one. Rather, the videos involved entirely separate periods of surveillance that were two years apart and conducted by different companies.

The court then said taken to its logical end, plaintiff’s argument was tantamount to saying that all attorney work-product on a particular subject will be discoverable if any evidence of the subject is presented at trial. If that were correct, then an attorney consulting with an expert on a particular issue in preparing for trial but electing to use a different expert on the issue would still be opened to discovery.

That said, the court recognized that in Northup v. Acken, the court held that a defendant whose attorney had gathered depositions previously given by one of the plaintiff’s experts in unrelated cases, was still required to produce all of the depositions in discovery where he intended to use certain unspecified portions of the depositions to impeach the witness at trial.

However, plaintiff’s reliance on that case was misplaced, the court said, because in Northup the defendant refused to produce any of the depositions that he might use for impeachment, whereas in this case, the defendant produced the only video that he intended to use at the trial. Thus, while Northup stands for the proposition that a party must disclose materials–including attorney work-product–that the party may use at trial, it does not require disclosure of attorney work-product that the party unequivocally does not intend to use at trial.

WHEN RETURN OF SERVICE IS ACCEPTABLE ON ITS FACE, SERVICE OF PROCESS IS PRESUMED VALID–DEFENDANT HAS BURDEN OF OVERCOMING THE PRESUMPTION BY CLEAR AND CONVINCING EVIDENCE.

Williams v. Nuno, 43 Fla. L. Weekly D301 (Fla. 3^rd DCA February 7, 2018):

The defendant moved to dismiss the complaint, asserting insufficiency of service of process, and stating that contrary to the return of service, the person the process server gave a summons and complaint to did not reside at the defendant’s usual place of abode as required under section 48.031(1)(a).

The return of service reflected that the process server delivered a copy of the complaint and the summons to a man at the defendant’s usual place of abode, reflected that the man was over the age of 15 and a co-resident at the residence.

The defendant stated in an affidavit that the man was actually an employee (a security guard) and never resided at that residence. The defendant provided the person’s specific address, stated the person was not a member of the defendant’s household and stated that he was not authorized to accept complaints on behalf of the defendant.

The security guard testified that when the process server handed him the complaint, he never asked if he resided at the defendant’s household or if he was a member of it. However, the man who had been served did not corroborate his testimony with any documentation such as a driver’s license, a lease of his alleged other residence, or utility bills.

In contrast, the process server testified that prior to identifying himself as the process server, he asked the man if he lived at the defendant’s Miami Beach residence and the man responded with yes. At the conclusion of the evidentiary hearing, the trial court ruled that based on the credibility of the evidence, the interest each witness had in the outcome of the case and the reasonableness of the testimony, that the service of process was valid and denied the motion to dismiss the complaint.

The court held that trial court’s factual determinations, including credibility determinations, are ordinarily not disturbed on appeal.

Additionally, while the party invoking the court’s jurisdiction has the burden of proving proper service of process, if the return of service is regular on its face then the service of process is presumed to be valid, and the party challenging the service has the burden of overcoming that presumption by clear and convincing evidence.

Here, the parties did not dispute that the return of service was regular on its face, and as such it was presumed valid. As the trial court’s ruling was based on a credibility determination after receiving conflicting testimony, the court deferred to it and affirmed the ruling.

WHEN CALCULATING THE AMOUNT OF PIP BENEFITS DUE, THE DEDUCTIBLE IS TO BE SUBTRACTED FROM THE TOTAL MEDICAL CHARGES BEFORE APPLYING STATUTORY REIMBURSEMENT LIMITATIONS PROVIDED FOR IN SECTION 627.736(5)(a)1.b.–COURT CERTIFIES THE QUESTION.

Progressive Select Insurance Co. v. Florida Hospital Medical Center a/a/o Jonathan Parent, 43 Fla. L. Weekly D318 (Fla. 5^th DCA February 9, 2018):

The decision of the circuit court being reviewed provided that when calculating the amount of PIP benefits due to the insured, section 627.739(2) requires the deductible to be subtracted from the total medical care charges before applying the statutory reimbursement limitations provided for in section 627.736(5)(a)1.b. The respondent hospital contended that the court applied the correct law in utilizing this methodology. The insurance company argued that the statutory limitations must be applied first, and that the deductible should be subtracted after getting to that amount.

In this case, the automobile accident victim incurred medical bills in excess of the deductible amount of $1,000 provided in his insurance policy with Progressive. The victim assigned his PIP benefits to the hospital, and when the hospital billed the insurance company for the treatment, it took the total charge ($2,781), subtracted the man’s deductible ($1,000), and then multiplied the statutory reimbursement found in 627.736(5)(a)1.b. (75%) to that amount ($1,781 x 75%) and arrived at $1,335.75. The hospital then multiplied that amount by 80% and billed the insurance company for $1,068.60.

Progressive paid the bill, but it used a different payment methodology. It took the total hospital charge of $2,781 and multiplied it by the 75%. Thus, instead of arriving at $1,781, it arrived at $2,085.75.

Progressive then subtracted the $1,000 deductible, leaving it with $1,085.75 which was then multiplied by 80% making the amount owed by the insurer only $868.60.

The Hospital filed suit seeking the $200 difference, and the county court entered final judgment in favor of the hospital, finding that the plain language of section 627.739(2) required Progressive to subtract the deductible before applying the reimbursement limitations in 627.736(5)(a)1.b.

Before issuing its opinion, the Third District noted that second-tier certiorari review is limited to determining whether the circuit court (1) accorded procedural due process, or (2) applied the correct law. Here, the question of the correct law was at issue, and the court found certiorari relief could only be granted if the insurance company demonstrated a violation of clearly established principles of law, resulting in a miscarriage of justice.

The court began its analysis with section 627.739, which states that insurers may offer policies with deductibles, and that the deductible must be applied to “100% of the expenses and losses described in section 627.736,” further noting that after the deductible is met, each insured is eligible “to receive up to $10,000 in total benefits” described in 627.736(1) that the reduction should not be applied to reduce the amount of benefits received in accordance with section 627.736(1)(c).

The court found this statute indicated that the deductible applied to 100% of the expenses and losses, whereas the benefits referred to the calculated amount after the deductible had been applied to the total expenses and losses, and after application of the statutory reimbursement limitations found in section 627.736.

The Third District concluded that the laws that currently exist, thereby require that the deductible be applied to 100% of the expenses and losses. It agreed with the hospital’s application of the law, but certified the issue as one of great public importance to the Florida Supreme Court for resolution.