The Week in Torts – Cases from the Week of May 4, 2018

FLORIDA LAW WEEKLY

VOLUME 43, NUMBER 18

CASES FROM THE WEEK OF MAY 4, 2018

VERDICT AWARDING DAMAGES FOR PAST MEDICAL EXPENSES BUT NOTHING FOR PAST OR FUTURE PAIN AND SUFFERING WAS NOT LEGALLY INCONSISTENT.

Francis-Harbin v. Sensormatic Electronics, 43 Fla. L. Weekly D887 (Fla. 3^rd DCA April 25, 2018):

Plaintiff was shopping at a Walmart when a scissor lift struck her foot. The jury found that Walmart was 65% at fault, the plaintiff 20% at fault, and Sensormatic 15% at fault. It awarded the plaintiff $14,000 in past medical expenses and $96,000 for lost earnings. The jury awarded no past or future pain and suffering, future medical expenses or future lost earnings.

The plaintiff objected to the verdict as being legally inconsistent, which the trial court denied. Plaintiff then moved for a new trial or in the alternative for an additur.

A legally inconsistent verdict is one which contains two or more findings which as a matter of law cannot coexist. The simplest example of a legally inconsistent verdict according to the court, is when the jury in a negligence case answers “no” to the first question about there being negligence which was a legal cause of damage to the plaintiff, but then completes the remainder of the verdict form and awards damages to the plaintiff.

This verdict was not inconsistent as a matter of law, and instead its validity–or more accurately its adequacy–is dependent on the nature, quality and weight of the evidence presented. Juries are allowed to return such verdicts if the testimony and other evidence presented could support that determination.

It is OK for a jury to find a plaintiff entitled to medical expenses in a given case, and then simultaneously conclude that the plaintiff suffered no compensable damages for pain and suffering or other intangibles, if there is evidence to support that conclusion.

This record also failed to support that the verdict was inadequate or contrary to the manifest weight of the evidence. However, in this case, because the plaintiff did not provide an adequate record for consideration of the issues and relied solely on the exhibits admitted into evidence during the presentation of her case, the court found it could not review whether the verdict was against the manifest weight of the evidence or inadequate.

DOCUMENTS IN CLAIMS FILE PRIVILEGED WITHOUT SHOWING OF BAD FAITH–ALSO, NO SUCH THING AS “CLAIMS FILE” PRIVILEGE.

Homeowners Choice Property and Casualty Insurance Co. v. Avila, 43 Fla. L. Weekly D885 (Fla. 3^rd DCA April 25, 2018):

The plaintiffs submitted a claim to their homeowner’s insurer, and the insurer made some initial payments. However, the plaintiffs’ public adjuster challenged some of the payments that were made, and then sued for breach of contract for the alleged underpayments.

After filing the complaint, the plaintiff served a request for production on the insurer seeking any documents relating to the claim file, and then listing a whole host of related documents. The insurer contemporaneously filed a privilege log and the trial court conducted an in camera inspection of the disputed items. Despite the argument by the insurer that many of the documents were privileged, the court ordered some of them to be produced, finding they were not protected either by the work-product privilege or “claims file privilege.”

Following other precedent, the court reiterated that when there is no bad faith claim, the trial court has no basis to compel disclosure of the contents of an insurance claim file (because of work product) when the issue of coverage is in dispute and has not been resolved. These documents are protected by work-product privilege when they are in the claims file, and it is not necessary for the insurer to show they were prepared in anticipation of litigation.

The court also observed that there is no such thing as a “claims file privilege.” Noting the general applicability of the work-product privilege, the court also cited to the Fourth District’s decision in State Farm v. Aloni, 101 So.3d 412, 414 (Fla. 4^th DCA 2012) which recognized that an insured may in a specific case and as to a specific record in an insurer’s claims file, establish the necessity/good cause exception to the work-product doctrine as provided for it in Rule 1.280(b)(4).

TRIAL COURT ABUSED ITS DISCRETION IN GRANTING A NEW TRIAL AFTER DETERMINING THAT THE COMMENTS IN VOIR DIRE REGARDING INSURANCE, AND THE TESTIMONY REGARDING DEFENDANT’S CANCER RESEARCH IN MEDICAL SCHOOL IMPROPERLY SWAYED THE JURY–PLAINTIFF FAILED TO PRESERVE THE OBJECTION AND TRIAL COURT COULD NOT PRESUME THAT THE JURY DISREGARDED ALL OTHER EVIDENCE PRESENTED BECAUSE THE DEFENDANT HIMSELF HAD PARTICIPATED IN CONDUCTING CANCER RESEARCH.

Black v. Cohen, 43 Fla. L. Weekly D903 (Fla. 4^th DCA April 25, 2018):

In this rear-end case which resulted in a small verdict for the plaintiff, the court determined that comments in voir dire regarding insurance, as well as testimony regarding the defendant’s research in medical school improperly swayed the jury.

On the first issue, the 53 year old plaintiff, had sustained approximately $1,600 in damage to her bumper, and had given a contradictory version of the accident to her no-fault insurer.

While plaintiff did not seek treatment that day, she was seen by a neurologist who diagnosed her with cervical sprain/strain, ordered physical therapy and x-rays showed a narrowing of the disc space. An MRI taken three months later showed bulging lumbar discs causing some nerve impingement. Plaintiff was seen by an orthopedic surgeon who diagnosed her as having three herniated discs in the lower back and recommended a lumbar discogram. She also had an MRI of her cervical region revealing several herniated discs.

Her surgeon recommended a cervical discogram which she had in January 2008 on her low back. She had a discogram on her neck in June. Post-operatively she did well but then in October or 2008, 14 months after the accident, she returned to the orthopedic surgeon with complaints of right sided pain. For nine months, plaintiff saw no doctors and then in July of 2009 saw a series of orthopedists for her right sided neck pain. The new MRIs precipitated a recommendation for a cervical fusion.

Plaintiff’s counsel asked the jury to award plaintiff damages for the aggravation of a pre-existing condition, to find permanency, etc. The jury found the plaintiff 50% responsible and the defendant 50% responsible and concluded the plaintiff’s injuries were not permanent, awarding only $18,000 in past medical expenses.

Plaintiff’s counsel questioned prospective jurors on whether any of them had ever dealt with investigation claims, auto accidents, or worked for insurance companies or anything like that. Defendant’s counsel objected that this was “not an insurance case” and plaintiff’s counsel said he agreed. He just wanted to know if any of the jurors had worked for insurance companies in any capacity.

In her motion for rehearing, plaintiff’s counsel argued that the comments biased the jury and made it appear that the defendant did not have insurance. Unfortunately, the plaintiff’s failure to preserve that issue waived it for appeal.

On the second issue, the jurors were told that the defendant was absent because he was a student at the University of Florida and was making a presentation. He testified that he was a medical student doing research to receive his Ph.D., and was allowed to testify over objection that he was researching chemotherapy resistant prostate cancer and the mechanism of how it remains resistant to therapies.

The trial judge had reversed for a new trial finding the verdict was grossly inadequate, finding the ruling related to the discussion of the defendant’s research as well as the reference to insurance in voir dire. The court gave a curative instruction about the insurance, and plaintiff never expressed dissatisfaction with the jury and accepted it without reservation, failing to preserve the objection.

While the testimony about the cancer research was not probative, plaintiff did not allege nor did the court find that the defendant’s testimony was inadmissible, in fact, it was admissible as properly humanizing the defendant. Even if the court found the evidence inadmissible, it would find the court abused its discretion in ordering a new trial based on those comments.

INSURER WHO FAILED TO SERVE WRITTEN NOTICE OF UM, WAS THEN BARRED FROM CLAIMING THAT THE INSURED “ORALLY” MADE A KNOWING SELECTION REGARDING NON-STACKED UM COVERAGE.

Jervis v. Castaneda, 43 Fla. L. Weekly D908 (Fla. 4^th DCA April 25, 2018):

The plaintiff purchased UM coverage from Geico for two vehicles. He completed an online form which Geico argued constituted an election of non-stacked coverage.

Originally, the first judge ruled that the documentation used by Geico did not comport with F.S. 627.727 requiring that the insured be provided a form that in 12 point type contains certain warnings. When that form is signed, there is a conclusive presumption of a knowing informed rejection of coverage.

In this case, the purchaser had no electronic ability to “deselect” the form’s preselected waiver, and therefore the insured’s only choice was to passively accept or to cancel. That made the form void.

After summary judgment was granted on that issue, Geico then amended its affirmative defenses to assert that the insured made an oral rejection of stacked coverage.

Unfortunately for Geico, section 627.727, Florida Statutes, sets forth certain ground rules for UM coverage, and parameters for a written rejection of such coverage. Because, as the Fourth District so colorfully put it, “thinking about UM stacking is as enjoyable as a dramatic reading from the Internal Revenue Code,” the statute requires certain information to be placed before an insured’s eyes as a mandatory prerequisite to an “informed” and “knowing” decision about UM coverage.

Here, because the notice was ruled to be void, there was no section 627.727 notice at all. Without such notice, there can be no informed and knowing acceptance on the limitations of unstacking.

To allow an insurance company to prove that an insured orally and knowingly rejected stacked coverage in the absence of the statutory notice would undermine the legislature’s determination that such written notice is mandatory. Thus, there was effectively no rejection, and the insured was entitled to the stacked UM coverage.

TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION FOR DIRECTED VERDICT IN A SLIP AND FALL CASE, WHERE PLAINTIFF FAILED TO SUFFICIENTLY PLEAD PRIMA FACIE CASE UNDER THE NEGLIGENT MODE OF OPERATION THEORY.

Target Corp. v. Kaufer, 43 Fla. L. Weekly D935 (Fla. 4^th DCA April 25, 2018):

The plaintiff slipped on some liquid laundry detergent while shopping at Target. The testimony indicated that an unknown person walking in front of the plaintiff was carrying a gallon bottle of leaking laundry detergent right before he slipped on it.

Plaintiff sued Target, and the jury found Target partially liable, awarding the plaintiffs $250,000 in damages.

Target argued that the trial court had failed to grant its motion for directed verdict, because the plaintiff failed to sufficiently plead a prima facie case for negligence under the negligent mode of operation theory. In response, plaintiff argued that the negligent mode of operation was Target’s corporate policy of having a clear, very high-gloss, wet-look finish on its floors, which caused the bright overhead lights to reflect off the tile, thereby creating a dangerous condition by causing spills of clear and translucent liquids to be undetectable.

Pleading his claim under section 768.0710, negligent mode of operation, the question was whether Target’s uniform design of brightly lit stores and high-gloss floors created a negligent condition.

The court went through several cases analyzing what exactly a “mode of operation” is. In looking at whether the recently spilled laundry detergent was a result of a mode of operation chosen by Target (like the nursing home allowing residents to take food to their rooms which then allowed a grape to be on the floor which someone fell on in the Markowtiz v. Helen Homes of Kendall Corp. case).

In Markowitz, the nursing home’s practice of allowing patients to carry food from the dining room to their room is what created the foreseeable risk that the elderly patients would spill the food and create the dangerous condition on the premises. Target’s alleged negligent mode of operation is not what lead to the unidentified patron spilling the detergent.

Thus, because the presence of the laundry detergent was not a result of the specific mode of operation chosen by Target, the plaintiff failed to satisfy the elements for negligent mode of operation, and the court erred in denying Target’s motion for directed verdict.