The Week in Torts – Cases from the Week of May 19, 2017
FLORIDA LAW WEEKLY
VOLUME 42, NUMBER 20
CASES FROM THE WEEK OF MAY 19, 2017
TRIAL COURT REVERSIBLY ERRED IN DENYING CAUSE CHALLENGES DIRECTED TO THREE JURORS WHO INDICATED THAT THEY WOULD GIVE GREATER CREDENCE TO A LAW ENFORCEMENT WITNESS AND WERE NEVER REHABILITATED BY THE STATE–ISSUE PRESERVED FOR APPEAL.
Rodriguez v. State, 42 Fla. L. Weekly D1065 (Fla. 2nd DCA May 10, 2017):
Three jurors stated in voir dire that they would give greater credence to law enforcement witnesses. The state did not rehabilitate any of them. Still, the trial judge refused to strike them for cause.
After defense counsel got all of these jurors to agree that they would give law enforcement witnesses extra credibility, and the court denied the cause challenges to these jurors, defense counsel then exhausted defendant’s peremptory challenges, requested additional peremptory challenges once they had been exhausted, noted that the defense would have excused each of the jurors named if possible, and then objected to the panel which deliberated on the case. This is the correct process for insuring the preservation of a cause challenge.
The court reversed finding error which was preserved.
CAUSE OF ACTION FOR “NEGLIGENT PROCUREMENT OF COVERAGE” EXISTS.
Kendall South Medical Center v. Consolidated Insurance Nation, 42 Fla. L. Weekly D1071 (Fla. 3rd DCA May 10, 2017):
Plaintiff operates a medical center, and suffered a leak in the sprinkler system during routine maintenance which caused significant water damage. Plaintiff had a commercial property insurance policy which provided $100,000 in coverage. As a result of the sprinkler leak, however, plaintiff suffered property damage totaling approximately $260,000 and only received $16,000 back from the insurance company based on the policy’s “90% coinsurance clause.”
A coinsurance provision is one that imposes a penalty upon an insured who purchases coverage that is far less than the full value of the covered property. Such a clause reduces the payout in proportion to the extent to which the property is underinsured.
As a result of one bad payout, the plaintiff filed a negligence claim against the management company, suing for negligent procurement of insurance and breach of fiduciary duty against the insurer. However, the lower court struck that claim finding that it failed to state a cause of action.
The plaintiff alleged that it met with the insurer’s agent to obtain commercial property coverage that would cover the property equipment, supplies and improvements of the plaintiff insured. It believed it had a full $100,000 in coverage. Plaintiff asserted that the insurer had the duty to procure the insurance coverage as requested and that the coinsurance clause undermined that coverage.
The appellate court explained that it is well settled where an insurance agent or broker undertakes to obtain insurance coverage for another person and fails to do so, he or she may be held liable for resulting damages for that negligence. In this case, while the plaintiff inartfully claimed that the liability arose from the agent’s negligent failure to advise it that the procured policy was inadequate to address its expressed insurance needs, the allegations were still clear enough to state a valid cause of action for the negligent procurement of insurance.
PROPER TO GRANT NEW TRIAL ON DAMAGES AFTER ADDITUR WAS REJECTED–WITHOUT A FINDING OF PERMANENT INJURY, THE COURT LIMITED THE NEW TRIAL TO ECONOMIC DAMAGES ONLY.
Swanson v. Beilman, 42 Fla. L. Weekly D1102 (Fla. 5th DCA May 12, 2017):
The defendant appealed the trial court’s order granting a new trial on damages after she rejected the court’s additur. The court affirmed. However, because the jury found the plaintiff did not sustain a permanent injury, the court limited the new trial to economic damages only pursuant to section 627.737(2).
EVEN THOUGH ATTORNEY’S FEES NOT SOUGHT IN PLEADINGS, PROPOSAL FOR SETTLEMENT NOT INVALID FOR FAILING TO STATE WHETHER ATTORNEY’S FEES WERE PART OF THE CLAIM–ALSO NOT INVALID FOR NOT ADDRESSING PUNITIVE DAMAGES WHERE THEY ARE NOT SOUGHT IN THE COMPLAINT.
Aguado v. Miller, 42 Fla. L. Weekly D1110 (Fla. 1st DCA May 16, 2017):
The plaintiff sought to declare the defendant’s proposal for settlement invalid for failing to strictly comply with section 768.79 and rule 1.442, not stating that attorney’s fees were part of the claim or noting the amount offered to settle a claim for punitive damages.
Because the plaintiff did not seek either attorney’s fees or punitive damages in his complaint, the absence of a statement regarding fees or those damages did not render the proposal for settlement invalid.