The Week in Torts – Cases From the Week of May 21, 2021
Sorry, G4S, You Only Get LIMITED Immunity
FLORIDA LAW WEEKLY
VOLUME 46, NUMBER 20
CASES FROM THE WEEK MAY 21, 2021
ERROR TO TRANSFER VENUE WHERE MOTION WAS NOT VERIFIED OR SUPPORTED BY AFFIDAVIT
Miracle Chiropractic & Rehab v. 21st Century Centennial Ins. Co., 46 Fla. L. Weekly D1078 (Fla. 4th DCA May 12, 2021):
The Fourth District reversed an order granting the defendant’s motion to transfer venue because the motion was not verified or supported by an affidavit.
However, on remand, the court allowed the defendant to file an affidavit. Presuming the provider presented evidence supporting its venue selection, the Court ruled that the trial court should hold an evidentiary hearing to resolve any relevant factual disputes, and then make a decision as to whether the plaintiff’s venue selection was legally supportable.
TRIAL COURT ERRED IN ENTERING PARTIAL SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF BECAUSE POLICY PROVISION DID NOT PROVIDE COVERAGE FOR THE WRONGFUL DEATH
GEICO v. Walker, 46 Fla. L. Weekly D1079 (Fla. 4th DCA May 12, 2021):
An adult was holding his stepfather’s collector’s item 1992 Porsche in his garage. The stepfather lived primarily in Venezuela. While the stepson had his own set of keys, he knew the vehicle was a collector’s item and knew he was not supposed to drive the vehicle.
On the day that the stepson was involved in a fatal accident (killing himself and the plaintiff’s wife), he was covered by the stepfather’s insurance policy with Allstate. However, the stepson had his own policy with GEICO, and the plaintiff sought coverage under the “non-owned auto” provision of that policy.
That provision provided that there would be coverage for non-owned vehicles “furnished or available for regular use” (other than a temporary substitute auto).
The trial court had found that the vehicle was not available for the insured’s usual, normal or customary use, and instead was there for an occasional special or incidental use, due to its collectible nature.
The appellate court disagreed. It found that the driver had been keeping the vehicle for ten years, had his own set of keys, and had not been restricted from using the vehicle by the stepfather.
Because the non-owned auto-provision of the GEICO policy was unambiguous, and the undisputed facts reflected that the vehicle was available for regular use, the Court reversed the coverage finding.
G4S WHICH SUPPLIED SECURITY SERVICES TO BROWARD COUNTY WAS ENTITLED TO LIMITED SOVEREIGN IMMUNITY AS AN “AGENT” OF THE GOVERNMENT UNDER §768.28(5); BUT NOT FULL IMMUNITY AS FOUND IN §768.28(9)(a)
Lovelace v. G4S Secure Solutions, 46 Fla. L. Weekly D1081 (Fla. 4th DCA May 12, 2021):
Despite plaintiff’s argument that there was a fact question as to whether G4S could be an “agent” of the government, the court found that its contract with Broward County demonstrated a level of control, rendering G4S an “agent” of the County.
The contract provided that Broward County had the right to review and approve security guards, to remove security guards, to review personnel files, to audit G4S’ records and to make changes to the security guard requirements. Broward County also required G4S’ employees to abide by the County’s rules and regulations, and it was Broward County that set the criteria, qualifications, training and testing requirements for the employees. G4S employees were required to comply with Broward County’s post-orders and the agreement between the parties enumerated 29 tasks the County required of G4S security guards.
Most importantly, though, the Court rejected G4S’ brazen argument that it was entitled to full and complete immunity as if it were an employee of the government (like a teacher or public works worker or law enforcement officer) who could not be held personally liable under the statute.
The Court ruled that G4S was certainly not entitled to full and complete immunity under §768.28(9) as the trial court found. Instead, the Court said G4S was entitled to limited immunity under §768.28(5), which allows “corporations primarily acting as instrumentalities or agencies of the state,” to receive immunity subject to the sovereign immunity cap amounts.
NEW TRIAL REQUIRED WHERE TRIAL COURT UPHELD STATE’S CHALLENGE TO DEFENDANTS ATTEMPT TO STRIKE A JUROR OF LATIN DESCENT WHEN THE RECORD DID NOT SUPPORT THAT DEFENDANT’S PROFFERED REASON FOR THE STRIKE WAS NOT GENUINE.
Brannon v. State, 46 Fla. L. Weekly D1088 (Fla. 3rd DCA May 12, 2021):
During voir dire, a male of Hispanic descent disclosed that both his sister and brother-in-law were employed in law enforcement. The trial court asked the juror whether he had ever been pulled over by a police officer for a traffic stop and replied that he had, and had been issued a ticket for a broken taillight, which he promptly paid.
When the defendant sought to exercise a peremptory strike on that juror, the State interposed a Melbourne challenge and requested a race-neutral reason for the strike, asserting that this was the second male of Latin descent that the defendant had struck. In response, defendant’s counsel stated that the juror’s immediate payment of the traffic ticket and repair of the taillight suggested that the juror wanted to curry favor with the police.
Rather than asking the State to rebut that response, the trial court ruled that the challenge was not race-neutral. The judge said he did not “get the sense” that the juror tried to pay the ticket to curry favor with police officers, so he did not find that to be a genuine reason for the strike.
The court never asked whether this proffered reason was race-neutral, and immediately assumed it was. Because the trial court never reached the genuineness inquiry, it determined, albeit implicitly, that the proffered reason was race-neutral (because otherwise, the trial court would have disallowed the strike without reaching the genuineness issue).
The court concluded that while their articulated reason “may have been feeble” it was facially race-neutral. The court explained that the fact that the juror had two family members in law enforcement was actually a better reason that had not actually been articulated, but was reflected on the record. Because the proffered reason for exercising the strike was genuine and the trial court erred in finding otherwise, the court was compelled to reverse for a new trial.
TRIAL COURT DEPARTED FROM ESSENTIAL OF LAW IN GRANTING PLAINTIFF’S MOTION TO AMEND HER COMPLAINT TO ADD PUNITIVE DAMAGES WHEN PLAINTIFF FILED EVIDENCE IN SUPPORT OF HER MOTION WITHIN 20-DAYS OF THE HEARING, CONTRARY TO THE REQUIREMENTS OF RULE 1.190(f)
The Bentley Condominium Association v. Bennett, 46 Fla. L. Weekly D1101 (Fla. 3rd DCA May 12, 2021):
Rule 1.190(f) provides a clear line of demarcation, indicating the trial court may not conduct a hearing on a claimant’s motion for leave to file an amended complaint seeking punitive damages within 20 days of a claimant’s filing of evidence or proffer of evidence in support of the motion. Here, the plaintiff filed evidence on February 24, 2021, and the hearing was to be on February 26, 2021. Plaintiff should have canceled the hearing and had it rescheduled for a date 20 days after the filing of her reply and evidence. Based on this only, the court reversed.
THE COURT REVERSES FOR ENTRY OF SUMMARY JUDGMENT BASED ON AN UNTIMELY NOTICE GIVEN TO A PURPORTED “AGENT” OF THE SOVEREIGN – SUMMARY JUDGMENT ENTERED AGAINST THE PLAINTIFF
City of Jacksonville v. Boman, 46 Fla. L. Weekly D1112 (Fla. 1st DCA May 12, 2021):
The plaintiff fell with her left leg down in a manhole and her right knee on the ground beside it. The manhole cover rotated on its axis right before plaintiff stepped into it and caused serious injuries to both legs. The accident happened on December 5, 2013, and the pre-suit notice limit date ran on December 5, 2016, pursuant to §768.28(6)(a).
While the plaintiff timely notified the City of Jacksonville of a potential claim, there was no dispute that she failed to timely notify the right defendant, which was the Jacksonville Electric Authority (JEA). §768.28(6)(a) requires notice of the claim in writing within three years to the “appropriate agency” as well as “The Department of Financial Services.” In this case, the plaintiff did not give notice to the “appropriate agency” within the three years (and also failed to notify The Department of Financial Services).
The plaintiff had argued that she had properly given notice to the City and that the City’s claims adjuster could have presented the claim to JEA. The court found that was not compliant with the statute. The trial court had found that the plaintiff’s notice of claim was legally sufficient when it was sent to the City because the City and the JEA share the risk management group and the court concluded that JEA had constructive notice of the claim through plaintiff’s communications with the claims adjuster. The trial court further ruled that the JEA was stopped from denying sufficient notice for the same reasons.
The First District disagreed with these conclusions and reversed for entry of Final Summary Judgment in favor of the City and JEA.