The Week in Torts – Cases From the Week of July 23, 2021
The Trifecta – Jurisdiction, Venue and Forum Non Conveniens
FLORIDA LAW WEEKLY
VOLUME 46, NUMBER 29
CASES FROM THE WEEK JULY 23, 2021
NO PERSONAL JURISDICTION WHEN PLAINTIFF FAILED TO MAKE PROPER ALLEGATIONS TO SATISFY REQUIREMENTS OF LONG-ARM STATUTE.
Rossocorsa v. Romanelli, 46 Fla. L. Weekly D1619 (Fla. 4th DCA July 14, 2021):
Two Florida residents sued an Italian automobile dealership that sold Ferraris. The defendant’s primary place of business is in Italy.
The plaintiff had contacted the defendant in Italy looking for a specific racecar for its team. Ultimately, the defendant sold the vehicle, knowing that it was going to ship to Florida.
The driver plaintiff suffered serious injuries and alleged that a failure existed in the vehicle’s braking system. He sued for strict liability, contending that the tortious act occurred when the vehicle was delivered.
The allegations in the complaint established that the vehicle was designed and manufactured in Italy, that the racing entity purchased and took possession of the vehicle in Italy, and that it had it shipped back to Florida. The accident and injury occurred in Connecticut.
The court concluded that those facts did not establish that a tortious act was committed in Florida.
The breach of implied warranty of fitness for a particular purpose also lacked a connection to Florida. None of the acts alleged required by the contract of sale were to be performed in Florida. Breach of warranty occurs at the time of delivery. Since the breach of implied warranty for fitness for a particular purpose occurred at delivery and delivery was in Italy, the failure to perform acts as required by the contract did not take place in Florida either.
Without a tortious act or breach of contract in Florida, the plaintiff failed to establish statutory long-arm jurisdiction, and the trial court should have granted the motion to dismiss for lack of jurisdiction.
THE TRIAL COURT ERRED IN ENTERING ORDERS TRANSFERRING VENUE SUA SPONTE, WITHOUT ANY SHOWING THAT PLAINTIFF’S CHOSEN VENUE WAS IMPROPER OR THAT THE TRANSFER WAS APPROPRIATE ON FORUM NON CONVENIENS GROUNDS
Total Health Associates v. GEICO, 46 Fla. L. Weekly D1620 (Fla. 4th DCA July 14, 2021):
The county entered an order transferring venue sua sponte, without any showing that the plaintiffs’ chosen venue was improper, or that transfer was appropriate on forum non conveniens grounds. The court ordered the parties to show cause as to why the cases were not controlled by Advanced Diagnostic Group v. Ocean Harbor Cas. Ins. Co., and reversed the transfer.
TRIAL COURT ABUSED DISCRETION IN DENYING MOTION TO TRANSFER VENUE WHERE THE ACCIDENT OCCURRED SOMEWHERE ELSE, AND THE ONLY CONNECTION TO THE COUNTY WHERE THE CASE WAS PENDING WAS THE FACT THAT THE NON-RESIDENT’S REGISTERED AGENT AND ONE OF ITS FUELING HUBS WERE LOCATED THERE.
Eagle Transport Corp. v. Roch-Hernandez, 46 Fla. L. Weekly D1627 (Fla. 4th DCA July 14, 2021):
Plaintiffs brought a wrongful death action in Broward County based on an accident that occurred in Alachua County. The decedent who resided in Alachua County had collided with a tractor-trailer owned by the defendant. The parties’ only connection to Broward County was that Eagle Transport had a registered agent there, as well as a fueling hub. Eagle Transport’s principal address was in North Carolina and the truck driver lived in Duval County. The personal representative was a resident of Miami-Dade.
Defendants moved to dismiss or transfer the action to Alachua County, based on §47.172. Defendants argued that Alachua County was a more convenient forum because that was where the accident occurred, where liability was contested, and where most of the material witnesses lived.
The court explained that Florida courts have consistently held that it is an error to deny a motion to transfer venue, where an accident occurs in a county other than the forum county, and where the witnesses are located in the county in which the accident occurred.
Here, none of the witnesses resided in Broward, and most of the material liability witnesses were in Alachua. As such, the trial court erred in denying the motion to transfer.
INSURED’S FAILURE TO COMPLY WITH CONDITION PRECEDENT REQUIRING AN EXAMINATION UNDER OATH, BARRED THE ASSIGNEE PROVIDER FROM RECEIVING PIP BENEFITS
Miracle Health Services, Inc. v. Progressive Select, 46 Fla. L. Weekly D1608 (Fla. 3rd DCA July 14, 2021):
The PIP insured’s assignee sued Progressive for breach of contract, asserting that it failed to pay benefits under the insured’s PIP policy. Progressive answered, and moved for summary judgment, alleging the provider was not entitled to receive benefits because the insured had failed to comply with the EUO condition precedent set forth in the statute in 2012. The provider responded, arguing that because three sets of bills were overdue prior to the first scheduled EUO, that fact discharged the insured from her statutory and contractual duty.
The court wrote that it must assume the Legislature intended to enact that section for a useful purpose and that the plain language of the section requires compliance with the policy provision of submitting to an examination under oath as a condition precedent to receiving PIP benefits.
Thus, the court ruled that the trial court properly granted summary judgment in favor of the insurance company based on the insured’s failure to submit to the examination under oath, and irrespective of when the carrier denied payment.
NOTHING IN §57.105 ALLOWS FOR AN ASSESSMENT OF COSTS
Law Offices of Alexander Borell v. In Re: Jesus Cala Acevedo, 46 Fla. L. Weekly D1612 (Fla. 3rd DCA July 14, 2021):
Without a transcript, the court was constrained by the record to presume that the trial court’s findings on §57.105 fees were correct.
However, we should all know that there is nothing in the text of §57.105(1) that provides for an award of costs, and therefore, the court had to reverse the award on that basis.
COURT’S RULING DENYING MOTION TO DISMISS BASED ON FORUM NON CONVENIENS AFFIRMED
Cordis Corp. v. Ednesome, 46 Fla. L. Weekly D1615 (Fla. 3rd DCA July 14, 2021):
The Alabama resident plaintiff alleged that defects existing in the defendant’s vena cava filter caused his injuries. The Defendant, Cordis, is a Florida corporation that maintained an office in Miami and used that office as the central location for handling product complaints, quality control, risk management training, and regulatory compliance.
Based on a review of the record, which included the trial court’s order addressing each of the forum non conveniens factors, the appellate court affirmed, finding the trial court did not abuse its discretion. There are seven other reported cases of out-of-state plaintiffs from the same underlying case, which the court also affirmed.
PLAINTIFF DENIED DUE PROCESS WHERE ORDER SETTING CASE FOR TRIAL SENT BY EMAIL TO PLAINTIFF’S ATTORNEY WHO HAD WITHDRAWN A YEAR EARLIER; ALTHOUGH THE COURT HAD DIRECTED ALL PLEADINGS BE SENT TO PLAINTIFF AT PLAINTIFF’S P.O. BOX, THEY WEREN’T, AND THE PHONE CALL TO PLAINTIFF THE DAY BEFORE COMMENCEMENT OF TRIAL DID NOT PROVIDE THE NOTICE REQUIRED BY RULE 1.440(c).
Fain v. Spivey, 46 Fla. L. Weekly D1619 (Fla. 4th DCA July 14, 2021):
Under these circumstances, the lack of notice was clearly prejudicial because the Plaintiff was forced to appear unprepared and without witnesses or documents.
HERE WE GO AGAIN – – ANOTHER TOBACCO CASE REVERSED BASED ON ANOTHER CLOSING ARGUMENT MADE BY THE SAME ATTORNEY AND REPORTED IN THE LAST TWO WEEKS IN TORTS EDITIONS
R. J. Reynolds Tobacco Co. vs. Neff, 46 Fla. L. Weekly D1628 (Fla. 4th DCA July 14, 2021)
The closing arguments in this punitive damages case included another passage read from George Orwell’s 1984, a quote from Martin Luther King, Jr. regarding the arc of the moral universe bending towards justice, and comments advising the jury about how much the lawyer loves tobacco cases, so he is able to say things that are “beautiful and true.” Counsel punctuated his comments by calling the Tobacco lawyer a “scoundrel.”
The court observed that some of these arguments containing quotes and references were improper because there was no nexus between the case and the comments.
In the special concurrence by Judge Forst, he observed how counsel’s tactics essentially snatched defeat from the jaws of victory.
In her special concurrence, Judge May wrote that even though these comments were improper, in this context they could be considered harmless because, with the tobacco evidence and Engle rulings, she did not believe there could be any reasonable possibility that they affected the verdict.