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The Week in Torts – Cases from the Week of February 9, 2018
FLORIDA LAW WEEKLY
VOLUME 43, NUMBER 6
CASES FROM THE WEEK OF FEBRUARY 9, 2018
TRIAL COURT ERRED IN OVERRULING OBJECTIONS TO DISCOVERY BASED ON ATTORNEY BEING LATE TO HEARING.
Chipotle Mexican Grill v. Quinones, 43 Fla. L. Weekly D256 (Fla. 4th DCA January 31, 2018):
Due to a calendaring error, defense counsel appeared 15 minutes late for a special set one-hour hearing, which was set to address a variety of discovery matters including objections to specific discovery. The trial court overruled the objections based on the attorney’s lateness, and did so without conducting an in camera inspection of various documents that defendant claimed to be privileged. The documents were specifically identified in a privilege log filed by the defendant.
The plaintiff argued that the defendant waived its claims of privilege by failing to timely object. However, the court said that failure to timely raise objections based on privilege does not automatically result in waiver, and that even when claims of privilege are untimely raised, the trial court is required to conduct an in camera inspection of documents claimed to be privileged. The failure to do so is a departure from the essential requirements of law. Also, the court noted that the obligation to file a privilege log does not arise until after a party’s written objections have been ruled upon.
ERROR TO GRANT SUMMARY JUDGMENT ON STATUTE OF LIMITATIONS GROUNDS, WHERE MATERIAL ISSUE OF FACT EXISTED AS TO WHETHER THE FACTS AND CIRCUMSTANCES WERE SUFFICIENT TO PUT THE PLAINTIFF ON NOTICE OF THE CAUSE OF ACTION, BEFORE THE EXPIRATION OF THE TIME.
Inlet Marina of Palm Beach v. Sea Diversified, Inc., 43 Fla. L. Weekly D257 (Fla. 4th DCA January 31, 2018):
The plaintiff marina had sued the defendant engineer for the engineer’s design of a concrete runway slab upon which forklifts transported boats from a boat barn to the water launch area. The slab had developed cracks and had deteriorated over time.
The engineer moved for summary judgment, arguing that the 4-year statute of limitations had barred the plaintiff’s cause of action and the trial court agreed entering that order.
The marina appealed, arguing that there were genuine issues of material fact as to when–with the exercise of due diligence–it discovered or should have discovered the latent design defect in the runway slab. Because the court agreed there were issues of fact in the record, the Fourth District reversed the summary judgment.
PORTION OF ORDER REQUIRING PRODUCTION OF PRIVILEGED ATTORNEY-CLIENT COMMUNICATIONS AND DOCUMENTS PROTECTED BY WORK-PRODUCT CONSTITUTED DEPARTURE FROM ESSENTIAL REQUIREMENTS OF LAW.
Sedgwick Claims Management v. Feller, 43 Fla. L. Weekly D271 (Fla. 5th DCA February 2, 2018):
The attorney-client privilege–unlike the work-product doctrine–is not concerned with the litigation needs of the opposing party.
After the trial court in this case conducted an extensive in camera review of the numerous documents at issue, the Fifth District concluded that several of those documents were privileged attorney-client communications, and requiring their production was a departure from the essential requirements of law. It also found two documents protected by work-product doctrine. Unfortunately, the opinion does not provide any information regarding why those documents were privileged.
TRIAL COURT ERRED IN REFUSING TO SET-OFF SOCIAL SECURITY DISABILITY PAYMENTS RECEIVED BY THE PLAINTIFF FROM THE JURY’S VERDICT–SECTION 768.76 DOES NOT REQUIRE A PARTY TO PRESENT EVIDENCE “TO MATCH” THE PERIOD COVERED BY THE DISABILITY BENEFITS, WITH THE PERIOD COVERED BY THE JURY’S AWARD OF PAST LOST WAGES.
Oswald Woudhuizen and Power Design, Inc. v. Smith, 43 Fla. L. Weekly D277 (Fla. 5th DCA February 2, 2018):
In a trial where an automobile accident victim sued for her medical bills, substantial lost wages, and loss of future earning capacity (the court does not mention non-economic damages, nor were any awarded), and where the defendant admitted negligence but contested causation and damages, the jury returned a verdict as follows: past medical expenses – $50,000; future medical expenses – $25,000; past lost earnings – $50,000; future lost earnings – $0.
After the trial, the defendant moved for final judgment, and asked the trial court to set-off certain collateral source payments which would reduce the $125,000 verdict down to $25,000.
The trial court set-off PIP benefits but had declined to set off the $93,569.40 in social security disability payments. The trial court found that the defendants could not show that the collateral source payments “duplicated the damages” awarded by the jury, and opined that it was likely that the jury awarded $50,000 for the first year after the crash, concluding that any claim that the verdict actually duplicated social security disability benefits which were paid, was too speculative.
The defendants argued that the trial court erred in failing to apply the set-off to the judgment for the social security for the five years between the accident date and the trial. Specifically, defendants argued that section 768.76 does not require a party to present evidence matching the “period covered by the disability benefits” with the “period covered by the jury’s award of past lost wages.” The Fifth District agreed.
According to the plain language of the statute, section 768.76 only requires evidence of a plaintiff’s receipt of benefits from a collateral source for losses sustained. It does not require a claimant to further prove that each dollar of collateral source was actually awarded by the jury. To hold otherwise the court said would not only conflict with the plain meaning of the statute, but would also require a party to request an itemized verdict form in every case, potentially as detailed as each individual item of care or benefit received.
The plaintiff also argued there should be no set-off because the legislative purpose behind section 768.76 is to avoid a duplication of benefits. The Fifth District said it is the statutory language that controls, not a purported legislative purpose.
Because the legislature chose to accomplish its purpose by requiring trial courts to reduce the amount of such award by the total of all amounts which had been paid for the benefit of the claimant, the court said it had no authority to require a line by line itemization in every verdict before giving effect to section 768.76(1), as the legislature declined to do so.
ERROR TO AWARD DAMAGES FOR FUTURE MEDICAL EXPENSES NOT REASONABLY CERTAIN TO BE INCURRED–THE COURT REMANDED FOR REMITTITUR OR NEW TRIAL ON THE ISSUE OF FUTURE ECONOMIC DAMAGES.
Hitchcock v. Mahaffey, 43 Fla. L. Weekly D282 (Fla. 5th DCA February 2, 2018):
Florida law restricts recovery of future medical expenses to those “reasonably certain” to be incurred. Plaintiffs have the burden at trial to establish through competent substantial evidence that future medical expenses “will more probably than not be incurred.”
In this case, the amount of $5,365 for future surgery was admitted, but the jury awarded $250,000 for the futures. The court reminded us that the amount of past medical expenses incurred does not–at least by itself–provide a reasonable basis for a jury to compute future medical expenses.
Thus, without competent substantial evidence to support the award, the court remanded either for a remittitur in the amount of $5,365, or, if the parties could not agree to that remittitur, to a new trial solely on the issue of the loss of future economic damages only.