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The Week in Torts – Cases from the Week of January 22, 2021
We See Right Through You…
FLORIDA LAW WEEKLY
VOLUME 46, NUMBER 3
CASES FROM THE WEEK JANUARY 22, 2021
COURT REVERSED FOR A NEW TRIAL FINDING THE TRIAL COURT SHOULD NOT HAVE ALLOWED THE STATE TO EXERCISE A PEREMPTORY CHALLENGE ON AN AFRICAN-AMERICAN JUROR, BECAUSE THE REASONS ARTICULATED FOR THE STRIKE WERE NOT GENUINE
Gibson v. State, Fla. L. Weekly D152 (Fla. 2nd DCA January 13, 2021):
The prosecutor gave three reasons for striking an African-American member of the venire: (1) that she expressed a fear of public speaking, and somehow related that to the defendant having the right not to testify; (2) that the potential juror demonstrated a non-verbal lack of interest or attentiveness; and (3) that the potential juror did not seem overly interested in the process, and was not interacting with the prosecutor. The trial court struck the juror.
In finding that the responses by the State were not genuine, the court pointed out that there was no one to confirm the juror’s inattentiveness or disinterest (if it is not observed on the record, the trial court must make some observation to support the strike for appeal).
Also, the State’s assertion that the potential juror was not interested in the proceeding was not supported when the State claimed that she only rated her interest in being there as a “3 out of 10,” when the State had accepted another venire person who rated her own interest as being a “1 out of 10.”
Finally, there was no connection between the public speaking comment and the defendant’s right not to testify. Because the court concluded the State had not presented a sufficient race-neutral basis for its peremptory strike of the venire person, it reversed for new trial.
INSUREDS MAY NOT RECOVER EXTRA-CONTRACTUAL, CONSEQUENTIAL DAMAGES IN A FIRST-PARTY BREACH OF INSURANCE CONTRACT ACTION AGAINST CITIZENS
Citizens Property Ins. Co. v. Manor House, 46 Fla. L. Weekly S21 (Fla. January 21, 2021):
In this case involving a first-party claim for breach of an insurance contract against Citizens, the insured sought to recover extra-contractual consequential damages for lost rental income. However, the Florida Supreme Court concluded that such damages are not available in first-party breach of insurance contract actions. Instead, the amount due to the insured is the amount owed pursuant to the express terms and conditions of the policy.
The court went on to further explain that while “extra contractual” damages are available in a separate bad faith action pursuant to §624.155, in this particular case, such damages were not recoverable anyway, because Citizens is statutorily immune from first-party bad faith.
FLORIDA SUPREME COURT AMENDS FLORIDA RULE OF JUDICIAL ADMINISTRATION 2.420(d) REGARDING PUBLIC ACCESS TO JUDICIAL RECORDS
In Re: Amendments to Florida Judicial Administration 2.420, 46 Fla. L Weekly D622 (Fla. 2021):
In 2010, the court had adopted a comprehensive set of amendments to Florida Rule of Judicial Administration 2.420. One of those amendments set forth a procedure for the clerks of court to designate court records as confidential. However, since that provision was enacted (Subdivision (d)(1)), news media organizations reported concerning delays in their access to non-confidential records, in part due to the requirement that clerks of court independently review all new filings for confidential information.
The court has now amended that rule to remove that requirement in certain civil cases. In this limited group of cases, the clerk will designate information or documents confidential, only when the filer of confidential information files a notice with the court, files a motion to determine confidentiality, or where the filing is deemed confidential by court order. Again, the rule only applies to a certain limited number of civil cases as explained by the rule.
THE TRIAL COURT DEPARTED FROM THE ESSENTIAL REQUIREMENTS OF LAW IN ORDERING THE DISCLOSURE OF MATERIALS AND PHOTOGRAPHS TAKEN BY THE INSURER’S ADJUSTER
Avatar Property & Casualty Ins. Co. v. Mitchell, 46 Fla. L. Weekly D168 (Fla. 3rd DCA January 13, 2021)
The homeowner insured reported a claim for damage to her residence. An adjuster came out and met with a loss consultant that the homeowner had retained. The adjuster prepared a post-loss report, and photographed the interior and exterior of the residence recording his observations on each of the photographs.
After a coverage dispute arose, plaintiff sought discovery of all of the photographs taken by the insurer of the property that day, as well as all statements containing information regarding a statement by the plaintiff at any time during the insurance company’s handling of the plaintiff’s loss, including adjuster notes, claim reports, interoffice memoranda, tape recordings, and transcripts.
The insurance company asserted work product privilege and filed a privilege log. However, following an in-camera inspection, the trial court ordered the insurer to produce the report as well as unredacted photographs.
The court issued the writ of certiorari. When the plaintiff retained a loss consultant and lodged a claim, the insurance company’s adjuster was tasked with investigating whether the claim was subject to coverage. Consequently, those materials constituted work product.
Also, the insured made no showing of exceptional circumstances required to justify disclosure. Without such a showing, it was error for the trial court to compel production of these work product materials.
ERROR TO GRANT SUMMARY JUDGMENT FOR GENERAL CONTRACTOR ON A CONSTRUCTION PROJECT BY AN EMPLOYEE OF A SUBCONTRACTOR BASED UPON AN OPEN AND OBVIOUS DANGER
Pratus v. Marzucco Construction, 46 Fla. L. Weekly D186 (Fla. 2nd DCA January 15, 2021):
Defendant was the general contractor overseeing a parking garage construction project. The plaintiff, an employee of an electrical subcontractor on the project, was injured when he stepped into an uncovered drain on the construction site. There were about 100 drains on the site, and whether the defendant had covered a particular drain, depended on the phase of construction.
The plaintiff had observed the subject drain both covered and uncovered at various times during his work on the site. The last time he was there, the door had been closed and marked with caution tape, but on the date of the accident, it had been removed.
The plaintiff sued the contractor for negligence, alleging the breach of duty to maintain the premises in a reasonably safe condition. Defendant moved for summary judgment, arguing no duty to warn because the danger was open and obvious. For reasons admittedly not clear to this reporter, there was no argument raised or discussed regarding workers’ compensation immunity.
Because the plaintiff was a business invitee on the property, the defendant (general contractor) owed him the duty to use reasonable care to maintain the property in a reasonably safe condition, along with a duty to warn of dangers, which the owners should have had knowledge of, and which were unknown to the invitee.
The court found that the plaintiff’s purported knowledge of the drain actually created a fact issue for the jury. Additionally, the plaintiff’s knowledge of a dangerous condition goes to the issue of his own comparative negligence and is not a basis to compel summary judgment for the defendant.