The Week in Torts – Cases From the Week of May 28, 2021
You Get What You Pay For
FLORIDA LAW WEEKLY
VOLUME 46, NUMBER 21
CASES FROM THE WEEK MAY 28, 2021
TRIAL COURT ERRED IN ALLOWING THE PLAINTIFF TO INTRODUCE THE TOTAL GROSS AMOUNT OF THE MEDICAL PROVIDERS’ BILLS, AND SHOULD HAVE LIMITED THE EVIDENCE TO THE DISCOUNTED AMOUNT MEDICARE PAID – THE ORIGINAL CHARGE IS IRRELEVANT BECAUSE IT DOES NOT TEND TO PROVE THAT THE CLAIMANT SUFFERED ANY LOSS BY REASON OF THE CHARGE
Gulfstream Park Racing Association v. Volin, 46 Fla. L. Weekly D1146 (Fla. 4th DCA May 19, 2021):
The court began by reminding us of its Thyssenkrupp holding, that when a provider charges for medical services or products, but then later accepts a lesser sum in full satisfaction by Medicare, the original charge becomes irrelevant because it does not tend to prove that the claimant has suffered any loss by reason of the charge.
The Court then quoted a concurring opinion Goble v. Frohman, stating that a fundamental principle of Florida law is that the measure of compensatory damages in a tort case is limited to the actual damages sustained by the aggrieved party. This means that the amount of doctor bills is not an “actual” damage if the debt is settled for a lesser amount by a source such as Medicare.
Also, while payments from an insurance company get set-off from verdicts, Medicare benefits are not set-off and are not considered a collateral source.
The court reasoned that Joerg did not implicitly overrule Thyssenkrupp or Cooperative Leasing, and that Joerg applied to future benefits provided by social legislation (such as Medicare and Medicaid benefits), and that the Supreme Court’s ruling was that future eligibility for those benefits was not admissible.
This case involved past medical expenses, not addressed by Joerg. The court then certified a question, asking the Supreme Court to resolve whether the holding in Joerg prohibiting the introduction of evidence of Medicare benefits for the purpose of a jury’s consideration of future medical expenses, also applies to past medical expenses?
Notably, the court’s opinion says nothing about the relevance that the complete amount of medical bills has as to other issues such as claims for future care, and pain and suffering.
SCHOOL BOARD’S SECURITY PLAN FOR HIGH SCHOOL BASKETBALL GAME A “PLANNING LEVEL” FUNCTION, THEREBY PROTECTED BY SOVEREIGN IMMUNITY
School Board of Broward County v. McCall, 46 Fla. L. Weekly D1144 (Fla. 4th DCA May 19, 2021):
The plaintiff sued the School Board for injuries sustained after a high school basketball game. When the game ended, a crowd of people leaving the school suddenly turned around and ran back onto the campus, and to avoid becoming an obstacle in the way of a running crowd, plaintiff turned and ran with the crowd. While running, he fell and injured his hip and shoulder. He sued the School Board alleging that it failed to provide adequate security.
The School Board moved for summary judgment based on sovereign immunity. It argued that the plaintiff’s claim for negligent security was a planning level function rather than an operational function.
The trial court denied the motion, concluding that security personnel decisions are operational, and that the question for the jury would be whether or not adequate measures were put into place to protect the community.
The Fourth District explained that planning level functions are generally interpreted to be those requiring basic policy decisions, while operational level functions are those that implement policy. It then concluded that the number and placement of security personnel constituted a discretionary decision protected by sovereign immunity, and reversed and remanded ordering that summary judgment be entered for the School Board.
TRIAL COURT ERRED IN ENTERING FINAL DEFAULT JUDGMENT WHERE DEFENDANTS HAD FILED A RESPONSIVE PLEADING BEFORE ANY DEFAULT WAS ENTERED –DEFENDANTS ALLOWED TO SEEK TO VACATE THE FINAL JUDGMENT THROUGH A MOTION FOR REHEARING UNDER RULE 1.530
Cano v. Guardianship of Mirdza Musa Kalnins Cano, 46 Fla. L. Weekly D1151 (Fla. 4th DCA May 19, 2021):
AN ADEQUATE ALTERNATIVE FORUM DOES NOT HAVE TO BE “EQUIVALENT” TO THE CHOSEN FORUM TO BE ADEQUATE
Lacaile v. Lesur, 46 Fla. L. Weekly D1160 (Fla. 3rd DCA May 19, 2021):
An alternative forum does not have to be equivalent to the chosen forum to be considered “adequate”. (Still, dismissal may be appropriate where the alternative forum does not permit litigation of the subject matter of the dispute at all).
Here, even though Michigan did not have a statute equivalent to ours (regarding expulsion of a member from a limited liability company), there was still nothing that would have prevented another jurisdiction from enforcing the provisions of Florida’s statute. And thus for the other reasons assessed by forum non conveniens analysis, dismissal was appropriate.
TRIAL COURT ERRED IN ENTERING JUDGMENT AGAINST A DEFENDANT WHO WAS NEVER SERVED WITH PROCESS – DEFENDANT DID NOT WAIVE SERVICE BY PARTICIPATING IN A TRIAL IN WHICH THE DEFENDANT DID NOT SEEK AFFIRMATIVE RELIEF
Dov v. Nirestates, 46 Fla. L. Weekly D1161 (Fla. 3rd DCA May 19, 2021):
A defendant who is not served with process may not be subject to the entry of final judgment.
WHEN A MEDICAL PROVIDER SELLS ITS ACCOUNTS RECEIVABLES TO A FACTORING COMPANY, SUCH INFORMATION IS DISCOVERABLE – NO EVIDENCE OFFERED TO SUPPORT PROVIDER’S CLAIMS THAT ANY DOCUMENT OR INFORMATION SOUGHT CONTAINED CONFIDENTIAL OR TRADE SECRET INFORMATION
Osceola County Board of County Commissioners v. Sand Lake Surgery Center, 46 Fla. L. Weekly D1176 (Fla. 5th DCA May 21, 2021):
After the healthcare facility in this case treated the two plaintiffs, it sold the plaintiffs’ unpaid accounts to a factoring company (the plaintiffs were treated pursuant to LOP’s).
The defendant sought to discover the amount of the original medical bills, and any discounts agreed to when the facility sold the accounts.
When the medical provider was served with the non-party subpoena, it advised that it had sold the outstanding accounts, at which point the defendant sought to depose the corporate representative of the healthcare provider. The provider objected to providing documents relating to payments made towards the bills and write-offs and discounts, asserting that such information was subject to trade secret or confidentiality provisions prohibiting the disclosure.
The court explained that when a trial judge addresses a non-party’s objections to producing allegedly confidential or trade secret documents, it must weigh the requesting party’s need for those records against the privacy interests of the objecting non-party.
The trial court had not followed the procedures of determining whether the request for production constituted trade secrets (i.e., was there a reasonable necessity for the production and if so, set forth its findings), nor had it required the party resisting the discovery to show that the information constituted “trade secret” information.
Here, the documents sought by the defendant from the healthcare provider were clearly relevant to the reasonableness of the medical expenses, in the absence of proof that the documents sought were trade secret or confidential in nature, the provider had to produce them. The Court quashed the order at issue.
TRIAL COURT ERRED IN REFUSING TO ENFORCE THE CONCLUSIVE PRESUMPTION SHOWING THAT THE INSURED HAD REJECTED NON-STACKING UM COVERAGE
State Farm v. Wilson, 46 Fla. L. Weekly D1183 (Fla. 2nd DCA May 21, 2021):
The court introduced its opinion by explaining that the case featured
a not-uncommon scenario in which the insureds purchased non-stacking uninsured motorist coverage and paid a premium twenty percent lower than what they would have been charged for stacking coverage. After sustaining injuries in an accident with an uninsured motorist, plaintiff sought the more expansive benefits provided by stacking coverage.
The plaintiff and her boyfriend lived together. State Farm issued a policy to both, with BI coverage of $25,000.00 per person and UM coverage equal to those limits.
When the policy was renewed, the insured boyfriend selected non-stacking UM coverage on the insured vehicle, doing so on a form approved by the insurance commissioner.
The policy terms applicable to the non-stacking coverage contained an “other owned vehicle” exclusion stating there would be no coverage for an insured who sustains bodily injury while occupying a vehicle owned by you or any resident relative if it is not your car.
Both the plaintiff and her boyfriend were named insureds on the policy, and there was only one vehicle listed.
The boyfriend also owned a motorcycle not insured under the State Farm policy, and while they were riding on it, the plaintiff was injured by someone operating an uninsured vehicle. State Farm denied plaintiff’s claim for UM benefits based on the policy language set forth above.
The court found that the trial judge’s consideration of the constitutional issue (it had ruled that application of the presumption would result in an unconstitutional access to courts) was misguided both because neither party’s pleadings raised the issue and the Attorney General was not notified, meaning that constitutionality was not an issue before the court. Even so, the court said that the constitutionality of the conclusive presumption was confirmed long ago.
The court also wrote that the trial judge’s conclusion that the selection/rejection form was ambiguous or otherwise inconsistent with the UM statute was an impermissible “end-run” around a clear legislative mandate. The legislature has authorized the conclusive presumption when an insured has signed the OIR-approved form to preempt litigation that has the goal of second-guessing substantive validity of legal sufficiency of the form’s content.
Because the plaintiff and her boyfriend had not applied or paid for stacking UM coverage, there was no ambiguity as to what type of coverage he selected, and the documents were susceptible to only one reasonable interpretation. As such, the plaintiff in this case was not entitled to coverage that they did not pay for.