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The Week in Torts – Cases from the Week of July 7, 2017
FLORIDA LAW WEEKLY
VOLUME 42, NUMBER 27
CASES FROM THE WEEK OF JULY 7, 2017
PROPOSAL FOR SETTLEMENT AMBIGUOUS AND UNENFORCEABLE WHERE THERE WAS A DISCREPANCY BETWEEN THE LANGUAGE IN THE PROPOSAL AND MUCH BROADER LANGUAGE IN THE RELEASE ATTACHED.
Dowd v. Geico General Insurance Co., 42 Fla. L. Weekly D1471 (Fla. 3rd DCA June 28, 2017):
The plaintiff was struck by an underinsured motorist while riding his bicycle within a pedestrian crosswalk. Geico served two proposals for settlement to the plaintiff. The language of the proposals sought to resolve all claims that the plaintiff had against Geico, as well as any claims for affirmative relief which “could have been raised as compulsory claims” by the plaintiff (as well as any current counterclaims).
The release attached to the proposal sought to release Geico from all actions that could have been or were raised in the case number associated with the lawsuit and any future action arising out of the accident.
On appeal, the plaintiff argued that the language in the proposals could not be reconciled with the language of the broad releases thereby resulting in an ambiguity. In reversing the trial court’s decision to enforce the proposals, the Third District wrote that a discrepancy between a limited proposal for settlement and a much broader release as was the case here created the type of ambiguity that runs afoul of the particularity requirement in the rule.
Because in this case, the plaintiff may still have had a viable PIP claim against Geico, and it was unclear under the terms of the releases whether such a claim was intended to be included among those being released, and because it was not a “compulsory” claim as set forth in the proposals, the court ruled such a case may fall within the release language, while not actually being addressed in the proposal itself. Accordingly, the plaintiff’s decision to accept or reject the proposals was reasonably effected by the ambiguity created among the documents.
AUTHOR’S NOTE: I am not 100% sure how this case gets reconciled with Mootry v. Bethune-Cookman Univ., Inc., 186 So.3d 15 (Fla. 5th DCA 2016) but such is life in the law of proposals for settlement!
THE TRIAL COURT’S FAILURE TO INSTRUCT THE JURY ONLY ON THE CONSUMER EXPECTATIONS TEST DID NOT RESULT IN A MISCARRIAGE OF JUSTICE AND WAS NOT CALCULATED TO CONFUSE OR MISLEAD THE JURY.
R.J. Reynolds v. Larkin, 42 Fla. L. Weekly D1472 (Fla. 3rd DCA June 28, 2017):
In this tobacco case, the trial judge gave both the “risk utility” and consumer expectations jury instructions on the defective product count. The trial judge granted a new trial to RJR based on the improper instruction.
The Third District reversed. Finding that RJR itself proposed the non-standard jury instructions which included features of both the consumer expectations test and the risk utility test, as well as other special instructions regarding federal preemption of the consumer expectations test, it could not really complain when the plaintiffs elected to proceed under the risk utility test as one of the two permissible legal theories and jury instructions for proving their product liability claim.
On this record, the trial court’s failure to instruct the jury on the consumer expectations test exclusively was not shown to have resulted in a miscarriage of justice or to have been calculated to confuse or mislead the jury.
Thus, the court reversed the order granting the motion for new trial with instructions to reinstate the jury’s verdict.