The Week in Torts – Cases from the Week of November 1, 2019
$12,500,000 Award Upheld For Wrongful Death Of A Child.
FLORIDA LAW WEEKLY
VOLUME 44, NUMBER 44
CASES FROM THE WEEK OF NOVEMBER 1, 2019
SECOND DISTRICT UPHOLDS $12.5 MILLION DOLLAR COMPENSATORY AWARD FOR A SINGLE MOTHER’S LOSS OF HER FIFTEEN-YEAR-OLD SON – HOWEVER, REVERSES $15 MILLION DOLLAR AWARD OF PUNITIVE DAMAGES.
Florida Power and Light v. Dominguez, 44 Fla. L Weekly D2619 (Fla. 2nd DCA October 25, 2019):
The jury learned that for three years before fifteen-year-old Justin Dominguez was electrocuted while climbing a tall, “tree-like” stalk of bamboo, FPL, according to its own guidelines, knew it had to remove that bamboo (it was listed as a “critical” removal species by its own vegetation management guidelines), and had been explicitly advised by its own employees and contractors that the bamboo should be removed because it presented such a great danger.
FPL never did remove it and Justin was killed. His mother opted to pursue a direct corporate liability theory for punitive damages against FPL. FPL identified the person with the most knowledge about FPL’s vegetation management program for the entire West Coast of Florida for deposition and to answer interrogatories. That man, the vegetation management leader from almost the entire West Coast, took what the court described as a “see-nothing, know-nothing” approach. Still, in the end, not only did the court find that this vegetation management leader was not FPL’s “managing agent,” it found that even if he were, the conduct did not rise to the level warranting punitive damages.
NO ERROR IN DISMISSING THE RETIREE PLAINTIFF’S COMPLAINT – THERE IS NO STATUTORY OR COMMON LAW DUTY TO ENSURE THAT A RETIREE IS ENROLLED IN A “SUITABLE” HEALTHCARE PROGRAM.
Semerena v. The District Board of Trustees of Miami Dade College, 44 Fla. L Weekly D2572 (Fla. 3rd DCA October 23, 2019):
Plaintiff retired from a community college after 34 years as a professor there and enrolled in Medicare Part B to continue his health insurance coverage under the group plan as “supplemental” insurance to Medicare.
Plaintiff continued his group health insurance that allowed him to take advantage of his years of state employment and a state subsidy. Several years after he retired through, a different insurer took over as provider for the insurance that the plaintiff chose and plaintiff discovered he had been paying higher premiums.
The plaintiff filed a putative class action against both the Board of Trustees of the college and the insurance company, alleging (1) that the college as the plaintiff’s agent negligently failed to enroll him and others similarly situated in a group health plan appropriate for retirees enrolled in Medicare; (2) that defendant breached its fiduciary duty by failing to ensure that the money taken out of his pension to pay the premium was not grossly expensive; (3) that defendant was unjustly enriched by its actions by having the plaintiff pay full price for a secondary health policy thereby lowering the college’s risk pool; (4) that the defendant behaved unconscionably by binding the plaintiff to a non-negotiable insurance policy and charging him and other Medicare recipients excessive premiums; (5) that defendant negligently misrepresented the insurance options available to the plaintiff and induced him to choose the more expensive group health insurance to his detriment.
In dismissing the plaintiff’s complaint with prejudice, the court explained that the Board of Trustees had no statutory or common law duty to ensure that the plaintiff was enrolled in a “suitable” health insurance plan. There is no obligation for it to manage the policies or take into account its retiree’s individual financial needs and it is up to each individual retiree to assess his or her own financial and health care needs. Florida law has long held that a party to a contract is conclusively presumed to know and understand the contents, terms, and conditions of the contract. Since there was no duty, there could be no cause of action.
Similarly, the causes of action of unjust enrichment and unconscionability failed. The Board was not an agent for any of the health insurers that provided insurance for its retirees (and the contract between the Board and the insurance company specifically states that). The Board did not deceive the plaintiff or lure him into a bad bargain either. There are no negligent misrepresentations, and the bottom line is that the plaintiff always had the ability to shop for insurance outside of the choices provided by the Board or to choose an option within the menu.
NEED TO FILE A MOTION FOR ENLARGEMENT OF TIME TO SAVE AN UNTIMELY FILED MOTION FOR ATTORNEY’S FEES.
Fleming v. Blackwell – Gomez, 44 Fla. L Weekly D2578 (Fla. 3rd DCA October 23, 2019):
Courts have held that the excusable neglect provisions of rule 1.090(b) apply to the time limits of rule 1.525. Thus, when a party finds him or herself in a position of having missed the 30-day deadline to file a motion for attorney’s fees, the only way such a failure can be saved is with the filing of a motion pursuant to rule 1.090(b)(2), seeking an enlargement of time on the basis of excusable neglect to file on a motion for attorney’s fees.
JUROR’S LITIGATION HISTORY WAS IMMATERIAL AND TOO REMOTE IN TIME TO MATTER TO HER JURY SERVICE IN CASE – DENIAL OF MOTION FOR NEW TRIAL UPHELD.
Small v. Board of Commissioners, Miami Dade County, 44 Fla. L Weekly D2588 (Fla. 3rd DCA October 23, 2019):
After a verdict for a defendant, the plaintiff’s attorney discovered that the jury foreperson had not given candid answers during voir dire about the juror’s litigation history. Because that history was immaterial too, and remote in time from, the service in the plaintiff’s case, the court upheld the trial court’s denial of plaintiff’s motion for new trial, finding no abuse of discretion.
Unfortunately, the opinion does not detail what the litigation history was, how long in the past it had taken place, or what kind of case the plaintiff had, which would have been helpful for future cases.
FAILURE OF A MEETING OF THE MINDS REGARDING A RELEASE PROHIBITED ENTRY OF SUMMARY JUDGMENT FOR THE DEFENDANTS.
Basner v. Bergdoll, 44 Fla. L Weekly D2593 (Fla.1st DCA October 23, 2019):
The defendants tendered $50,000 in settlement of the plaintiffs’ auto accident claim. The insurer mailed a draft release and advised that the plaintiff should notify them if there were any changes to the release before making revisions.
The plaintiffs did not follow these instructions, instead scratching things out, initialing each revision, and then signing and notarizing the revised draft release and returning it. Plaintiffs also attached a handwritten question about the release to the document.
A couple of months later, the plaintiffs still had not heard back, and counsel returned the check and notified the defendants that the plaintiffs would be proceeding with litigation. The defendants moved for summary judgment on the basis of the release.
In reviewing the case, the court observed that the plaintiffs did not agree to the terms offered by the defendant’s insurer. The insurer asked the plaintiffs to release all claims against each of the three insured defendants, but the plaintiffs did not agree to those terms, instead agreeing only to “two” of the three defendants. The scratching out and initialing in the draft release amounted to a counteroffer and continued negotiation of an essential term of the release.
The court acknowledged the defendants’ view that there was implied acceptance of the plaintiff’s counteroffer because the check sent with the release was not canceled. However, it found that silence under such circumstances where there had been an alteration of an essential term of the release and an open question about the term without response (and no cashing of the check) could not show an implicit meeting of the minds.
TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT DETERMINING INSURER WAS REQUIRED TO PROVIDE UM COVERAGE TO RESIDENT RELATIVE, EVEN THOUGH INSURED’S OWN POLICY ONLY COVERED RESIDENT RELATIVES WHO DID NOT OWN AUTOMOBILES, AND THE RELATIVE OWNED A VEHICLE AT THE TIME OF THE ACCIDENT.
Owners Insurance Co. v. Allstate Fire and Casualty Insurance Co., 44 Fla. L Weekly D2618 (Fla. 2nd DCA October 25, 2019):
At the time of the accident, Allstate’s insured resided with his mother and stepfather who had a policy with Owner’s Insurance Company. Allstate sought a declaration that the insured was covered under the Owner’s policy, which covered resident relatives, but only those relatives who did not own an automobile. Conversely, the Allstate insured did own an automobile, but the trial court still concluded that the Owner’s policy provided UM coverage to the insured.
The court reversed. The legal question at issue was whether an insurer could exclude a resident relative who owns an automobile from UM coverage, without complying with the informed-acceptance and reduced-premium requirements of §627.727(9), when the policy did not provide liability coverage to that resident relative.
If an insurance policy provides liability coverage to a resident relative, then it must also extend the same level of UM coverage.
In this case, the insurance company neither obtained the informed acceptance nor provided the reduce rate required of insurers to include the statutory acceptance to the UM coverage mandated in their policies. Allstate contended those facts, rendering the Owners’ policy exclusion of resident relatives who own a vehicle invalid.
However, Owners did not need to rely on a statutory exception because UM coverage for the insured was not mandated in the first place. The statute requires policies to include UM coverage for persons insured thereunder. Because the Allstate insured owned his own automobile, he was not an insured under the policy. Because the policy did not provide the Allstate insured with bodily injury coverage, there was nothing to which the UM coverage was required to be the mutual equivalent.
The UM statute does not require insurance companies to provide coverage to all resident relatives. If a policy does not provide liability coverage to certain resident relatives then there is no mandate requiring UM coverage for those resident relatives. Thus, it was error to find that Owners had to provide the insurance in the case.