The Week in Torts – Cases from the Week of March 20, 2020

New Rule-New Power

FLORIDA LAW WEEKLY
VOLUME 45, NUMBER 11
CASES FROM THE WEEK March 20, 2020

AMENDMENT TO RULES OF JUDICIAL ADMINISTRATION — CHIEF JUSTICE HAS AUTHORITY TO TAKE ACTION TO RESPOND TO PUBLIC HEALTH EMERGENCIES.

In Re: Amendments to the Florida Rules of Judicial Administration, 2.205, 45 Fla. L Weekly S101 (March 13, 2020):

The court on its own motion amended Florida Rule with Judicial Administration 2.205 (the supreme court) to recognize the Chief Justice’s authority to take actions necessary to respond to a public health emergencies affecting the courts of the State. The amendment became effective immediately.

TRIAL COURT PROPERLY GRANTED SUMMARY JUDGMENT BASED ON IMPACT RULE IN CASE INVOLVING THE LOSS OF THE CREMATED REMAINS OF A MISCARRIED BABY.

Williams v. Boyd-Panciera Family Funeral Care, Inc., 45 Fla. L Weekly D540 (Fla 4^th DCA March 11, 2020):

A funeral home lost the cremated remains of the plaintiffs’ miscarried baby. The plaintiffs then sought damages for their emotional distress, which resulted in a summary judgment for the defendant based on the impact rule (requiring that a plaintiff show that emotional distress suffered flows from physical injuries the plaintiff sustained by an impact, as a condition precedent to the recovery of emotional distress damages). As long as psychological trauma can be demonstrated to cause a demonstrable physical injury, no impact is necessary. However, the law bars recovery for purely psychic injuries that result from a trauma caused by someone else’s negligence.

In this case, the parties agreed there was no impact suffered. The court declined, though, to find the circumstances warranted an exception to the impact rule.

While the facts of the case were troubling and heart wrenching, the court found that the conduct did not go beyond being merely “negligent.” As such, there could not be a claim for intentional infliction of emotional distress, or one for “outrage.”

Unfortunately, as courts have concluded under numerous circumstances, even though there were real injuries suffered from the defendant’s negligence, if the law were to allow redress for every wrong that caused pure emotional injury, the implications would be too far reaching in a modern society, because not all wrongs can be compensated through litigation in the courts.

TRIAL COURT ERRED IN REVERSING JURY’S DEFENSE VERDICT, MISTAKENLY FINDING IT TO BE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE

Valenty v. Saraiva, 45 Fla. L Weekly D563 (Fla.2^nd DCA March 11, 2020):

The plaintiff motorcyclist and the defendant car driver were both driving eastbound. The defendant changed lanes, and the rear left side of his car collided with the front right side of the motorcycle.

The plaintiff testified he was driving his motorcycle 5 mph below the speed limit alongside the defendant’s car. The plaintiff argued that the defendant’s car unexpectedly moved into the left lane, and while the motorcyclist tried to avoid it, he was unable to get out of the way in time.

However, the defendant testified that he was driving behind a slow moving vehicle in the right lane, and there was a SUV not too far behind him in the left lane. Because the defendant wanted to pass the slow moving vehicle in front of him, he checked his rear-view mirror, saw that the SUV was to close for him to change lanes, and let it pass. The defendant then turned on his blinker and sped up to make room to pass where he began changing lanes. After he got a third of the way over, he heard brakes screeching, and seconds later felt the plaintiff’s motorcycle ride into his car. Defendant argued that he had checked behind him twice and had not seen the motorcycle either time, so the plaintiff must have been behind the SUV before changing lanes.

The plaintiff’s accident reconstruction expert opined that plaintiff was driving safely and that the defendant changed lanes without seeing the plaintiff causing the accident. The expert did not opine that the defendant was negligent, instead stating that the defendant’s intention appeared to be safe, but he failed to see the plaintiff’s motorcycle. He was also cross-examined about motorcycles only having one headlight and typically not driving in the center of a lane, and conceded that drivers looking in their rear view mirrors might believe they were seeing a car with two headlights when driving at night.

The court denied plaintiff’s directed verdict on causation. The jury found for the defendant.

Plaintiff moved for a new trial, arguing that improper and inflammatory comments by defense counsel during closing had prejudiced him, and also that the trial court should have granted a directed verdict on causation.

At the hearing, the trial court sua sponte considered whether the jury’s verdict was against the manifest weigh of the evidence. The judge stated on the record that it never entered his mind while waiting for the jury that there would be a defense verdict. In fact, he also said on the record that he found it to be a very surprising verdict. The judge then granted the motion for new trial, finding it was undisputed that the defendant cause the accident by crossing into the plaintiff’s lane.

Still, the appellate court found that the jury could have determined that the lane change was not negligent under the defendants’ version of the facts, and also that his lane change was deliberate and obvious. Because the defendant’s negligence was in dispute, the record made it impossible to say the evidence manifestly compelled a verdict in either direction. The trial court’s belief that liability was undisputed was not borne out by the record, and the court reversed the grant of the new trial.

TRIAL COURT ERRED IN DENYING MOTION TO COMPEL ARBITRATION IN A NURSING HOME CASE, WHERE THE AGREEMENT CONTAINED MULTIPLE SEVERABILITY CLAUSES.

4927 Voorhees Rowe, LLC. v. Tesoriero, 45 Fla. L Weekly 528 (Fla. 2^nd DCA March 13, 2020):

A woman resided in a nursing home for eight days in 2016. During her stay, her husband executed the voluntary binding arbitration agreement on her behalf. That agreement included a limitation on damages provision with caps.

Within the limitation of damages provision, there was a severability clause providing that if any terms were determined to be invalid or unenforceable, the intent would be to sever that provision, while enforcing the remaining terms. There was also a severability cause applicable to all provisions.

After the woman died and the plaintiff husband brought his lawsuit, the defendants moved to compel arbitration. Plaintiff argued the agreement was unenforceable because certain provisions violated public policy, by undermining the statutory remedies (i.e., the limitations on damages, and the clause requiring each party to pay their own fees).

Severability clauses in arbitration agreements can only be enforced if the offending provisions dos not go to the “essence” of the agreement and “with illegal portion eliminated there remain a valid legal obligation.” Here, the Plaintiff argued the severability provisions could not be severed because together, they went to the essence of the agreement.

The court explained, that the “essence” of an arbitration agreement is the selection of a forum to resolve disputes that’s an alternative to litigation in courts. Because these were “financial” provisions which could be severed, Plaintiff’s argument was not compelling, and that the offending provisions were severable from the arbitration agreement. It then certified conflict with the Fifth District, that has held to the contrary.

DEPARTURE FROM THE ESSENTIAL REQUIREMENTS OF LAW FOR TRIAL COURT TO COMPEL PRODUCTION OF PHOTOGRAPHS TAKEN BY INSURER’S INVESTIGATOR DURING A HOME INSPECTION ON THE BASIS THAT THERE WAS NO PRIVILEGE LOG—OBLIGATION TO FILE A PRIVILEGE LOG DOES NOT ARISE UNTIL AFTER THE COURT HAS RULED ON THE PARTIES NON-PRIVILEGE DISCOVERY OBJECTIONS.

Avatar Property and Cas Insurance Co. v. Jones, 45 Fla. L Weekly D588 (Fla. 2^nd DCA March 13, 2020):

Plaintiffs’ sued their homeowner’s insurance company for breach of contract after its denial of a hurricane water damage claim. The insurer’s investigator took photographs. After the plaintiff moved to compel better responses to discovery request and sought to overrule the insurer’s objections to the production of photographs and impose sanctions, the trial court ordered the production of the photos, finding that the insurance company had failed to file a privilege log.

In looking at the request for the photographs, the insured objected based both on work product and on overbreadth. The court ruled that the obligation to file a privilege log did not mature until the asserted “non-privilege objection” of overbreadth was resolved.

Thus, the trial court having compelled production of privileged documents before ruling on the non-privilege objections was a departure from the essential requirements of law.