The Week in Torts – Cases from the Week of March 19, 2021
How Many Accidents?
FLORIDA LAW WEEKLY
VOLUME 46, NUMBER 11
CASES FROM THE WEEK MARCH 19, 2021
NO ERROR IN TRIAL COURT INSTRUCTING JURY THAT MULTIPLE IMPACTS CAN CONSTITUTE ONE ACCIDENT, IF THERE IS ONE PROXIMATE CONTINUING CAUSE OF INJURY
Belt v. USAA Casualty Ins. Co., 46 Fla. L. Weekly D540 (Fla. 4th DCA March 10, 2021):
While traveling on I-95, the plaintiff was first struck by a pickup truck, was then hit by a phantom vehicle traveling next to her that did not stop, and was then struck by a third vehicle, driven by an uninsured motorist. Plaintiff alleged that the second two impacts constituted two separate accidents, and she sought recovery against her UM carrier for both.
USAA contended that there was only one “incident” under its policy, which defined a “hit and run” vehicle as one which could not be identified, but causes an accident involving bodily injury. The policy also provided that the insurance company’s maximum limit of liability for each person would be for damages sustained in each accident, and the most the insurance company would pay, would be the amount shown on the declaration page regardless of the number of vehicles involved in that accident.
At trial, the plaintiff presented evidence demonstrating that there had been approximately one full minute between the impacts. The defendant presented evidence that it had only been a few seconds.
To assist the jury in resolving the issues, the trial court instructed it that it could find whether the multiple impacts constituted one accident or multiple accidents. The appellate court agreed that such an instruction was proper under the circumstances.
COURT ALLOWS DEFENDANT TO SET OFF SETTLEMENTS PAID BY DERIVATIVELY LIABLE TORTFEASORS, FROM NON-BINDING ARBITRATION AWARD
Irvin v. L J’s Package and Lounge, 46 Fla. L. Weekly D521 (Fla. 2nd DCA March 10, 2021):
The plaintiff was significantly injured in a car accident with a drunk driver. Plaintiff sued both the drunk driver, as well as the two bars that he asserted had served the defendant driver despite knowing that the driver was habitually addicted to alcohol.
The plaintiff resolved his claim with the first bar. After that, he agreed to non-binding arbitration with the driver. The only issue for the arbitrator was the extent of the plaintiff’s damages (which the arbitrator concluded were in excess of $11,000,000). The arbitration award noted that there were potentially other tortfeasors, but did not address the fault of any others who could be culpable. The award also noted that it was not meant to be dispositive of other issues or evidence outside the record.
After the 30-days for the plaintiff to file a trial de novo passed, the defendant driver moved for entry of final judgment. The plaintiff then reached a confidential settlement with the second bar that had served the defendant driver. The trial court required the disclosure of the amount of that settlement, as well as the one that the plaintiff had entered into with the first bar, and the defendant sought a set off for both settlements.
In opposing the setoffs, the plaintiff cited § 44.103(5) which provides that an arbitration decision is final if a request for a trial de novo is not filed within the time provided by the rules (30-days), and without that, the presiding judge merely enters orders and judgments to carry out the terms of the decision. The plaintiff asserted that the trial court had no authority to grant set offs after the time for the request for trial de novo had passed, emphasizing the finality of the arbitrator’s decision.
The Second District generally agreed, but explained that while the trial court lacked discretion to alter the decision of the arbitrator, arbitrator’s decision did not encompass – rather it expressly avoiding passing upon – the liability of the released third parties, whose settlement payments the defendant had a statutory right to set off against the award, because it covered the same damages pursuant to § 46.015(2) and § 768.041(2). Finding that the final judgment did enforce the arbitration award, and did not alter the findings of the arbitrator, the appellate court also found that the set offs were consistent with the terms of the arbitration decision.
The plaintiff argued that he was improperly deprived of notice that the arbitration award could be reduced by a future settlement at the time he was required to make the decision about whether or not to request a trial. The court rejected the due process argument, noting that two separate statutes requiring trial courts to set off the amount of settlement paid by released parties provided notice, and the plaintiff was aware of the second bar’s potential liability at the time of the arbitration and deadline to reject the award.
The court then explained that neither the plaintiff nor the defendant driver was required to argue the liability of the two bars, because the arbitrator would have neither a reason nor a logical ability to balance the tortious culpability of the defendant driver against that of the bars, because the bars’ liability was derivative and completely overlapping of the damages caused by the defendant driver.
The court also said the plaintiff was not deprived of an opportunity to litigate the set off issue before the trial court after the arbitration award became final, admonishing that the trial court was statutorily prohibited from allowing the plaintiff to recover twice for the injuries caused by the defendant driver, and also that enforcement of the statutory set off after the deadline for the parties to request the trial de novo, did not abrogate any of the requirements of the arbitration statute.
NOTE: This is perhaps a new variation on the theme that derivatively liable tortfeasors are not “joint tortfeasors” (precluding set off), but does seem to turn that concept on its head a bit.
TRIAL COURT ABUSED DISCRETION IN GRANTING REMITTITUR WHERE VERDICT WAS SUPPORTED BY COMPETENT SUBSTANTIAL EVIDENCE, AND THE COURT LACKED ANY COMPETENT SUBSTANTIAL EVIDENCE TO SUPPORT ITS FINDING ON REMITTITUR
Fernalld v. Abb, Inc., 46 Fla. L. Weekly D542 (Fla. 4th DCA March 10, 2021):
Plaintiff filed a four-count complaint arising out of age discrimination, defamation and retaliation, seeking damages in excess of $3,000,000 for back pay and future damages. The jury awarded the plaintiff $550,000.
The defendant moved for remittitur, arguing that the award was clearly indicative of prejudice, passion, or corruption, and asserted that the amount shocked the court’s conscience. The trial court stated on the record that it didn’t know where that number came from, that there were a lot of inconsistencies in the testimony and ultimately that it “didn’t see” that the plaintiff’s emotional distress was attributable to the defendant. The court did not make any specific findings on the remittitur factors.
The Fourth District reversed. Without any findings supporting the remittitur factors, it found the trial judge’s misgivings about the evidence and the jury’s verdict could not support the reduction in the face of a verdict supported by competent substantial evidence.
FOR AN INSURER TO ESTABLISH A COVERAGE DEFENSE BASED ON AN INSURED’S FAILURE TO SATISFY POST-LOSS OBLIGATIONS AMOUNTING TO A FORFEITURE OF COVERAGE, THE ANALYSIS ALSO REQUIRES THE FACT FINDER TO DETERMINE WHETHER ANY ALLEGED BREACH PREJUDICED THE INSURER
Nunez v. Universal Property & Cas. Ins. Co., 46 Fla. L. Weekly D528 (Fla. 3d DCA March 10, 2021):
The insurer in this homeowner claim arising out of water loss sought a directed verdict based on the plaintiff’s failure to attend an examination under oath (EUO). The insurer asserted that because the plaintiff had failed to sit for the EUO, she forfeited her rights to receive insurance benefits. The plaintiff argued that it was unreasonable for the insurer to request an EUO 110 days after the claims were reported. The trial court directed a verdict in favor of the insurer.
The appellate court reversed, finding that the jury needed to determine whether the insured’s failure to attend the EUO was a material breach of the contract, and if so, whether the plaintiff proved that the material breach did not prejudice the insurance company (the burden shifts if the insurer proves that there was a material breach).
TRIAL COURT ERRED IN GRANTING PLAINTIFF’S MOTION TO ENFORCE SETTLEMENT BASED ON A PROPOSAL FOR SETTLEMENT
Ketterling v. Morris, 46 Fla. L. Weekly D547 (Fla. 1st DCA March 10, 2021):
The plaintiff was a passenger in a vehicle that crashed with another vehicle. Shortly before trial, the owner and driver defendant served a joint proposal to the plaintiff for $20,000 to settle all claims arising out of the accident. On the same day, the defendant served the offer on the plaintiff, the plaintiff coincidentally served an offer on each of them individually.
Shortly before the proposals were set to expire, the defendant owner filed a notice accepting the plaintiff’s offer to settle. The next day, the plaintiff then filed a notice accepting the offer that the defendants had made to her.
The defendants objected to the plaintiff’s acceptance. The record showed that the defendants had not withdrawn their offer in writing, nor had it expired. However, they argued that their joint offer could not have remained valid after the plaintiff accepted the owner’s offer, because she could not have released the owner from liability twice.
The court agreed with the defendant. Since the owner had accepted the plaintiff’s offer prior to the plaintiff accepting the defendants’ joint offer, the plaintiff would not have been able to fulfill her obligation under their offer, thereby rendering the joint offer no longer valid. Therefore, the court reversed the enforcement of settlement, reinstating the claims against the defendant driver.
TRIAL COURT PROPERLY USED THE “CURRENT RATE” APPROACH RATHER THAN “PRESENT RATE” APPROACH WHEN CALCULATING THE AMOUNT OF ATTORNEY’S FEES AWARDABLE FOR THE PERIOD BETWEEN SERVICE OF A VALID PROPOSAL FOR SETTLEMENT IN 2010 AND THE FINAL JUDGMENT ENTERED IN 2015 – BECAUSE THE CURRENT RATE APPROACH TACITLY INCLUDES AN ADJUSTMENT FOR THE TIME VALUE OF MONEY, IT WAS ERROR FOR THE TRIAL COURT TO ALSO AWARD PREJUDGMENT INTEREST ON THE FEE AWARD
Philip Morris v. Brown, 46 Fla. L. Weekly D549 (Fla. 1st DCA March 11, 2021).