The Week in Torts – Cases from the Week of July 27, 2018
FLORIDA LAW WEEKLY
VOLUME 43, NUMBER 31
CASES FROM THE WEEK OF AUGUST 3, 2018
TRIAL COURT ERRED IN AWARDING A LESSER AMOUNT OF COSTS ASSOCIATED WITH FEE CLAIM BECAUSE ATTORNEY WAS AWARDED SIGNIFICANTLY LESS THAN THE AMOUNT HE SOUGHT–A PARTY WHO RECOVERS JUDGMENT IS ENTITLED TO RECOVER COSTS-PERIOD.
Hawks v. Libit, 43 Fla. L. Weekly D1663 (Fla. 2nd DCA July 25, 2018):
An attorney represented a client in a family trust dispute. He was discharged before the suit was resolved, and filed a notice of claim of charging lien pending final resolution. The attorney claimed the client owed him over $150,000 for legal fees. The court granted the attorney a lien of a little over $37,000.
The attorney then moved for costs pursuant to section 57.041(1), but the client opposed the motion, and sought costs as the prevailing party under the same action. The court denied the attorney’s motion, and granted the client’s finding that the client was the prevailing party because he was awarded significantly less than the amount he sought. The court then ordered the attorney to pay the client over $7,000 in costs because her claim was equitable in nature.
Section 57.041(1) provides that the party recovering judgment shall recover all his or her legal costs and charges which shall be included in the judgment. The law has held that the “party recovering judgment” as opposed to the “prevailing party” is entitled to an award of costs.
In Wolfe v. Culpepper Constructors, 104 So.3d 1132 (Fla. 2nd DCA 2012), the Second District sat en banc and receded from the prevailing party standard that it had been previously applied to section 57.041. Since that decision, the standard applied is “the party recovering judgment” and not the “prevailing party” when it comes to taxing costs.
There is nothing in the statute or the law to suggest that equitable claims are somehow treated differently, the losing party argued. Instead, when the party recovers judgment, that is the party who is entitled to costs.
THIRD DISTRICT REVERSES ENTRY OF SUMMARY JUDGMENT IN FAVOR OF A GUN MANUFACTURER WHEN THERE WERE FACTUAL ISSUES AS TO WHETHER THE LAWSUIT WAS A “QUALIFIED CIVIL LIABILITY ACTION” THAT WOULD TRIGGER THE FEDERAL “PROTECTION OF LAWFUL COMMERCE AND ARMS ACT.”
Martinez v. Taurus International Manufacturing, 43 Fla. L. Weekly D1645 (Fla. 3rd DCA July 25, 2018):
A 21-year-old purchased a .45 caliber pistol from a pawn shop, made by the defendant manufacturer. The young man took the pistol into the apartment’s bathroom where he was living, and locked the door. The pistol discharged and the young man died as a result of a gunshot wound to his head. While both the Hialeah Police Department and Miami-Dade Medical Examiner concluded that the young man committed suicide, his parents and the estate brought an action against Taurus for pistol defect.
In 2005, Congress adopted the “Protection of Lawful Commerce and Arms Act” to insulate gun manufacturers from civil liability for harm caused by those who criminally or unlawfully use fire arms. To effectuate its purpose, the act prohibits a “qualified civil liability action” from being brought in any federal or state court. The act defines a “qualified civil liability action” as one brought by any person against a manufacturer or a seller of a qualified product for damages” resulting from criminal or unlawful misuse of a qualified product by the person or a third party.” Congress exempted six classes of lawsuits from the act.
In order for the trial court to make an immunity determination at the summary judgment stage, the defendant had to establish the absence of any genuine issue of material fact as to each of the elements. Here, the manufacturer contended that the gun purchaser must answer certain specific questions under oath, and in this case, the purchaser had committed perjury by stating that he had never used or was addicted to any depressive, stimulant, narcotic, controlled substance or marijuana. The court stated that while the record contained evidence from which a finder of fact could conclude that at the time the young man had committed perjury in answering those questions, there was a view of the record where that was not the case.
The trial court also concluded that after the young man purchased the pistol, his continued possession of it constituted an ongoing violation of 18 U.S.C. 922(g)(3) because he allegedly consumed illegal drugs during that period. While defendant was able to demonstrate that the young man used illegal drugs prior to his purchase of the pistol, the summary judgment record did not conclusively establish that he was an unlawful drug user after the purchase.
Thus, after a de novo review, the court could not conclude as a matter of law that the young man acquired the subject pistol in violation of the statute or that he continued to possess the pistol in violation of that statute. Therefore, without reaching an issue of whether such violations of a statute would constitute the requisite “unlawful misuse” of a firearm so as to characterize the instant lawsuit as a “qualified civil liability action” the court had to reverse the entry of summary judgment.
TRIAL COURT ERRED IN AWARDING FIRM AMOUNTS INCURRED IN THE PROSECUTION OF ITS CHARGING LIEN.
Abt v. Metro Motors Ventures, Inc., 43 Fla. L. Weekly D1672 (Fla. 4th DCA July 25, 2018):
A client discharged Steinger, Iscoe & Greene because she was unhappy with how it handled her case. Steinger, Iscoe & Greene filed a charging lien.
The trial court awarded the firm $38,570 for its attorneys’ and legal assistant fees, but also awarded it another $21,000 for costs, for the prosecution of the lien.
Because attorneys have no right to collect the costs incurred in the prosecution of a charging lien, the court reversed and remanded for the trial judge to remove the cost amount from the judgment.
ASBESTOS MANUFACTURER SHOULD HAVE BEEN DISMISSED FOR LACK OF PERSONAL JURISDICTION, WHEN ITS BOOKKEEPER’S AFFIDAVIT SHOWED THAT IT HAD NO OFFICES OR EMPLOYEES IN FLORIDA, DID NOT ADVERTISE IN FLORIDA, DID NOT SELL PRODUCTS IN FLORIDA DURING THE TIME OF THE PLAINTIFF’S EXPOSURE, AND THERE WAS NO PROOF TO CONTEST THOSE ALLEGATIONS.
Southern Wall Products v. Bolin, 43 Fla. L. Weekly D1673 (Fla. 4th DCA July 25, 2018):
For a Florida court to have jurisdiction over a defendant under the long arm statute, the court must apply a two-prong analysis. First, the court determines whether the facts as pleaded were sufficient to support personal jurisdiction under the long arm statute, section 48.193; and second, if the first requirement is met, the court determines whether the federal constitutional due process requirement of minimum contacts have been met.
If the plaintiff has sufficiently alleged a basis for the long arm jurisdiction, the burden then shifts to the defendant to contest those allegations by affidavit or proof, or to claim that the federal minimum contacts requirement is not met by affidavit or other verified evidence.
Here, the defendant’s bookkeeper asserted that the facts as pleaded were not sufficient to support long arm jurisdiction. As for the minimum contacts analysis, the contacts with the forum state must directly relate to the challenged conduct or transaction.
While there was a marketing of defendant’s product nationally, and while it could have been that the product in this instance may have been used at one time in Florida, that does not satisfy the minimum contacts analysis. The plaintiff presented no evidence that the defendant purposely availed itself of the privilege of conducting activities in or target activities at Florida. It had no contact at all with Florida and there was no evidence that it was marketing its product in the state, that it employed agents in the state, or had agreements with distributors or any contact which would suggest purposeful availment of privileges of the forum. As such, the case should have been dismissed for lack of jurisdiction.
NEW TRIAL REQUIRED AFTER VERDICT FOR PLAINTIFF IN A CASE OF NEGLIGENT SUPERVISION BY A PHYSICIAN OF A NURSE PRACTITIONER.
Defilippo v. Curtin, 43 Fla. L. Weekly D1677 (Fla. 4th DCA July 25, 2018):
The jury found that a doctor had negligently supervised an advanced registered nurse practitioner, which caused the death of a patient at a drug detoxification facility. The physician was an independent contractor at the facility, and the ARNP was hired to provide nursing services as an independent contractor.
Under the physician’s general supervision agreement, the ARNP was authorized to perform any service for which she was licensed to practice, including admitting patients into the detox facility. The physician would then generally supervise for routine health and management and common health problems, provide referrals, etc. When the physician entered the agreement he was supervising approximately eight ARNPs at five to seven different facilities through similar agreements.
When the patient entered the facility before 8:00, the ARNP but not the physician was there. The detox facility staff told the ARNP that the patient had track marks consistent with intravenous drug use and her assessment was that the patient was experiencing withdrawal. The plan was to begin the detox process the next morning. However, the ARNP did not contact the physician for consultation or review. When she left the facility around 11:00 p.m., she instructed the staff to do a bed check every 15 minutes and to take the patient’s vital signs every 30 minutes. At some point however, the patient died, and the facility’s staff did not discover him until they checked on him hours later.
The estate sued the physician, the ARNP and the facility. Only the physician had not settled before trial. Before trial, the physician moved in limine to exclude evidence of his having exceeded the maximum number of offices he could supervise under section 458.348.
The trial judge had erroneously precluded the doctor from testifying that he was not at the detox facility when the patient was admitted and was not notified of the patient’s existence until after the patient died. This error was not harmless, nor was the evidence cumulative, and thus the error was reversible.
Additionally, the trial judge should not have given an instruction on section 458.348, because it was reasonably calculated to confuse or mislead the jury when the facts did not support giving the instruction to the extent that causation was an issue. That section asserts that a physician engaged in providing primary health care services may not supervise more than four offices, in addition to the primary practice location. It also states that a physician engaged in providing specialty health care may not supervise more than two offices in addition to the primary location.
Because the estate presented no evidence to prove that the physician’s violation of section 458.348 proximately caused the patient’s death, it was error to give the instruction. Without proximate cause evidence, the jury instruction served no purpose other than to confuse and the error was not harmless. Since the trial court gave the instruction, a reasonable possibility existed that a juror who believed the estate did not prove its negligence of the original claim could nevertheless have held the physician liable, simply because he violated section 458.348.
Finally, the trial court erred in granting Plaintiff’s motion to allocate 100% of the responsibility to the physician, when negligence was allocated against one of the non-parties.
Basing its decision on a case from the Fifth District, where the defendant had pursued a comparative negligence theory with liability against a non-party throughout the trial, the trial court instructed the jury that the trial court would take into account the jury’s fault allocation in entering the final judgment. After the jury returned a verdict finding the defendant and the non-party equally liable, the trial court made the post-verdict determination that the defendant alone was 100% liable for damages.
The appellate court found that to do this was error (and reallocated the jury’s allocation of fault). The court reasoned that the trial court misled the jury into believing its verdict would control the outcome, and as such, the liability would be distributed equally between the defendant and the non-party. This was problematic because the jury may have reached a different verdict on damages, had it known that the defendant would bear the entire amount.
Here, the jury was told if you find the employees of the detox facility were negligent in any degree, the court in entering judgment will reduce the total amount of damages by the percentage of negligence that you find were caused by the employees of the facility. The court found the jury may have reached a different verdict on damages had it known that the physician would bear the entire amount. Instead of setting aside the jury’s verdict and allocating fault to the detox facility, the court should have ordered a new trial.
WHILE A PARTY SEEKING FEES UNDER SECTION 768.79 MUST FILE A MOTION WITHIN 30 DAYS OF ENTRY OF THE JUDGMENT PURSUANT TO RULE 1.525, WHERE ENTITLEMENT HAS ALREADY BEEN DETERMINED BY THE TRIAL COURT IN THE FINAL JUDGMENT, THE TIMING REQUIREMENTS OF RULE 1.525 DO NOT APPLY.
Fournier v. Calvo, 43 Fla. L. Weekly D1680 (Fla. 4th DCA July 25, 2018):
In this case, the trial court had found entitlement to fees when entering final judgment. The timing requirements of rule 1.525 do not apply where entitlement to attorney’s fees and costs has already been determined by the trial court, and thus, the defendant’s failure to file his motion within 30 days of entry of the final judgment did not waive his entitlement to fees.
Additionally, the fee judgments entered under section 768.79 should be entered in favor of the party, and not the attorney in the case. Attorneys are not personally awarded fees under section 768.79 unless they are parties to the action.
TRIAL COURT ERRED IN DENYING MOTION TO QUASH SUBSTITUTE SERVICE WHERE JURISDICTIONAL ALLEGATIONS CONTAINED IN COMPLAINT WERE INSUFFICIENT TO INVOKE SUBSTITUTED SERVICE-ACTUAL KNOWLEDGE OF CASE DOES NOT CURE INSUFFICIENT SERVICE OF PROCESS.
Moss v. Estate of Hudson, 43 Fla. L. Weekly D1697 (Fla. 5th DCA July 27, 2018):
Plaintiff filed a wrongful death complaint arising out of an automobile accident. The complaint alleged that the defendant was a resident of Hernando County. After several unsuccessful attempts to personally serve the defendant, plaintiff attempted to obtain substituted service through the Secretary of State pursuant to section 48.171.
The defendant moved to quash, stating that the requirements for substituted service had not been met. The trial court denied the motion, finding that the defendant was represented, was aware of the case, and was accountable herself of any due process. The court further found that the plaintiff had clearly demonstrated sufficient attempts to personally serve the defendant.
Because substituted service of process statutes provide an exception to the general rule that a defendant must be personally served, they must be strictly construed to protect due process guarantees. Here, the trial court erred in denying the plaintiff’s motion to quash because she was “aware” of the case. Actual knowledge of a suit does not cure insufficient service of process. Moreover, counsel’s appearance and the filing of the motion to quash, without more, does not waive6 a defense of a lack of personal jurisdiction.
Here, the plaintiff’s initial complaint was defective because it lacked in the allegations that the defendant was either a non-resident, a resident of Florida who subsequently became a non-resident, or a resident concealing her whereabouts. Under those circumstances, when the complaint is devoid of jurisdictional allegations required for substituted service, the defendant cannot properly be served under the substituted service statute. Thus, the trial court should have quashed the service in this case.