The Week in Torts – Cases from the Week of November 4, 2016
FLORIDA LAW WEEKLY
VOLUME 41, NUMBER 44
CASES FROM THE WEEK OF NOVEMBER 4, 2016
THE SUPREME COURT SAYS THAT PROPOSALS FOR SETTLEMENT SHOULD BE FREE FROM REASONABLE AMBIGUITY–IT DOES NOT REQUIRE THE ELIMINATION OF EVERY AMBIGUITY.
Anderson v. Hilton Hotels Corp., 41 Fla. L. Weekly S500 (Fla. November 3, 2016):
A man who was robbed and attacked outside of an Embassy Suites sued various Hilton Hotel entities. His wife also brought a consortium claim.
The two individually served proposals for settlement separately against the various entities. While they were brought individually, the last paragraph stated that the “proposal was inclusive of all damages claimed by plaintiff, including all claims for interest, costs and expenses and any claims for attorney’s fees.” Attorneys from one law firm represented Hilton and two other entities, and attorneys from a separate firm represented a third entity. Throughout both trials for the “ease of reference,” the entities were collectively referred to as “Embassy Suites” and a non-Hilton entity, Secure America was referred to separately.
Near the close of trial, the attorneys representing the three common entities stated it would be appropriate and less cumbersome to simply talk about their client as the “Embassy Suites” in closing. However, plaintiff’s attorney proposed instructing the jury about agency/vicarious liability for those three entities. Defense counsel objected.
All parties agreed collectively to refer to the defendants as Embassy Suites without further instructing the jury on agency or vicarious liability, and advised the jury to consider all three entities as one for the purposes of its deliberations.
The jury then found the “Embassy Suites” entities 72% negligent and the other entity 28%, and awarded $1.7 million in damages. However, because the plaintiff failed to request a verdict assigning separate findings of fault among the various entities, the trial court denied fees, because the plaintiff’s individual proposals were not exceeded.
The Fifth District affirmed and also found that the term “plaintiff” in the offer could have reasonably been interpreted to include both the plaintiff and his consortium plaintiff wife which rendered it ambiguous.
In reversing, the supreme court admonished that while a proposal under both the statute and rule must be sufficiently clear and free of ambiguity to allow the offeree the opportunity to fully consider the proposal, given “the nature of language,” it may be impossible to eliminate all ambiguity. The purpose of the proposal for settlement and the offer of judgment statute is to end judicial labor, not create more, and the law simply requires that a proposal be sufficiently clear and definite to allow the offeree to make an informed decision without needing clarification. If ambiguity within the proposal could reasonably affect the offeree’s decision, the proposal does not satisfy the particularity requirement of the rule.
Relying on cases from other districts, the supreme court concluded that the reading of the plaintiff’s offer as espoused by the defendant’s, the trial court in the Fifth District was “unreasonable and in contravention of this Court’s direction in Nichols.” They found the proposal clearly and consistently used the singular term “plaintiff” which was defined as Troy Anderson in the first paragraph, and was clear that the proposal was designed any and all claims the plaintiff–Troy Anderson–had against the specific defendant entity.
There is nothing in the offer of judgment statute that requires a plaintiff to obtain a judgment against a specific defendant where there are multiple parties to the action. The plaintiff must simply obtain a judgment that is at least 25% greater than the offer. In this case, the fact that all parties agreed to refer to Hilton, W2007 and Interstate as Embassy Suites collectively for the purposes of minimizing juror confusion, it did not affect the plaintiff’s entitlement to attorney’s fees when the entitlement was contingent only upon a satisfactory offer of settlement and judgment that was 25% greater than the offer. Because the trial court had entered judgment against all of the respondents for over $1.2 million, the fact that the plaintiff had offered to settle with the three entities differently meant that the final judgment obtained did exceed the threshold amount.
In concluding its opinion, the supreme court said that the nit picking of the offers by the courts below to find otherwise, unnecessarily injects ambiguity into the proceedings and creates more judicial labor, not less. Also, the fact that the parties chose to collectively refer to some of the respondents for the sake of convenience before the jury did not alter the entitlement.
STATUTE IMPOSING CAPS ON NONECONOMIC DAMAGES AND PERSONAL INJURY MEDICAL MALPRACTICE CASES IS NOW ALSO UNCONSTITUTIONAL IN THE SECOND DISTRICT–ERROR TO SET OFF A PRETRIAL SETTLEMENT WITH A DEFENDANT PHYSICIAN AGAINST ECONOMIC DAMAGES AWARDED AGAINST THE DEFENDANT HOSPITAL.
Port Charlotte HMA, LLC v. Suarez, 41 Fla. L. Weekly D2393 (Fla. 2nd DCA October 26, 2016):
This case involved a mismanaged treatment of a woman’s preeclampsia, forcing delivery of a baby at 26 weeks, and resulting in severe neurological impairments. The baby was so profoundly impaired, she was unable to do basic things, and fully dependent on 24-hour care for the rest of her life.
Prior to trial, plaintiff settled with one of the physicians. After the trial, the jury found the negligence of the hospital and the other physician was the legal cause of the child’s injuries. The jury awarded over $26 million in damages.
The hospital moved to reduce the jury verdict pursuant to section 766.118(3) (caps on damages). It asserted that the Fourth District’s case of North Broward Hospital v. Kalitan was relied on by the trial court erroneously, and that the ruling in McCall should not be extended to personal injury medical malpractice cases (as opposed to wrongful death medical malpractice cases). Recognizing that section 766.118 applies to both personal injury and wrongful death actions, the Second District concluded that the Fourth District properly applied the McCall holding to personal injury medical malpractice actions, and concluded that injured parties with noneconomic damages in excess of the caps would not be fully compensated either, just like those bringing claims for wrongful death.
However, the trial court relied on D’Angelo v. Fitzmaurice, and granted the hospital’s motion for set off based on the pretrial settlement with one of the defendant doctors not found liable. Notably, that case was based on multiple defendants jointly and severally reliable for the same damages.
In 2006, however, the legislature amended section 768.81(3) and specifically deleted the provision of joint and several liability that applied to economic damages. The statute now reads that the court enters judgment against each party on the basis of the parties’ percentage of fault, and not on the basis of joint and several liability. Therefore, the holding in D’Angelo based on specific language authorizing a set off against economic damages on the basis of joint and several liability does not apply to cases arising under the 2006 version of the statute.
ERROR TO DISMISS PLAINTIFF’S COMPLAINT WITH PREJUDICE BASED ON THE PLAINTIFF’S FAILURE TO TIMELY COMPLY WITH ORDER COMPELLING DISCOVERY AND COUNSEL’S FAILURE TO APPEAR AT THE HEARING–CANNOT BE A FINDING OF WILLFUL NONCOMPLIANCE WITHOUT CONSIDERING THE SIX KOZEL FACTORS OR CONSIDERING A LESS SEVERE SANCTION.
EMM Enterprises v. Bendavid, 41 Fla. L. Weekly D2404 (Fla. 4th DCA October 26, 2016).
ACCIDENT REPORT PRIVILEGE DOES NOT CONFER BENEFIT ON A PERSON WHO FLEES FROM THE SCENE OF AN ACCIDENT RESULTING IN DEATH–IN THIS CRIMINAL CASE, TRIAL COURT PROPERLY DENIED THE DEFENDANT’S MOTION TO EXCLUDE STATEMENTS MADE BY HER CONCERNING THE CRASH AFTER SHE FLED FROM THE SCENE.
Williams v. State, 41 Fla. L. Weekly D2405 (Fla. 3rd DCA October 26, 2016):
When a person abandons her duty to remain on the scene of an automobile accident which results in death, and leaves the scene of the accident, the accident report privilege set forth in section 316.066(4) does not confer any benefit or privilege on that person.
TRIAL COURT ERRED IN DENYING DEFENDANT INSURER’S MOTION TO DISMISS CLAIM FOR UM BENEFITS BASED ON IMPROPER VENUE, WHEN ENDORSEMENT TO POLICY CONTAINED A MANDATORY FORUM SELECTION CLAUSE–EVEN IF ENDORSEMENT IS INCONSISTENT WITH THE BODY OF THE POLICY, THE ENDORSEMENT CONTROLS.
Allstate v. Hradecky, 41 Fla. L. Weekly D2413 (Fla. 3rd DCA October 26, 2016):
This policy had an unambiguous endorsement which contained a mandatory forum selection clause for bringing any suit for UM benefits in Pennsylvania. The insured’s address listed on the declarations page was in Pennsylvania.
Plaintiff was rear-ended in Florida, suing in Monroe County, where he was hit. Allstate moved to dismiss the UM count against it in the amended complaint, alleging that dismissal was required based on the mandatory forum selection clause contained in the endorsement entitled “Pennsylvania Auto Amendatory Endorsement.”
Florida law treats insurance policies like contracts, and ordinary contract principles govern the interpretation and construction of the policy. When the trial judge denied Allstate’s motion to dismiss, he specifically found that the general venue provisions of the policy prevailed over the forum selection clause contained in the endorsement. Yet, the law in Florida is clear that to the extent an endorsement is inconsistent with the body of the policy, the endorsement controls.
In this case, the endorsement modified and amended the insurance contract with respect to forum selection. Thus, even if there were an ambiguity between the endorsement and the body of the policy, the endorsement–which the court found was clear–controlled.
There is an additional analysis, however, of whether the endorsement’s forum selection clause is mandatory or permissive, which depends on language indicating exclusivity. If the forum selection clause indicates that any litigation must or shall be initiated in a specific forum, the clause is mandatory. Absent such language, the clause is permissive.
In this case, the language was mandatory, and without a showing that the mandatory clause is unreasonable or unjust, the trial court must enforce it. It is simply not enough to show that litigation in the forum would result in additional expense or inconvenience (the plaintiff argued the incongruity of litigating how his negligence claims against the tortfeasor in Florida, and the UM carrier in Pennsylvania).
The standard to challenge a mandatory forum selection clause as unreasonable or unjust requires the litigant to establish that the trial of the case outside of Florida would be so gravely difficult and inconvenient, that he or she for all practical purposes would be deprived of his or her day in court.
The trial court made no such finding, nor could it have. The plaintiff never argued that the endorsement’s clause was unreasonable or unjust; he simply argued that it would be judicially uneconomical for him to litigate the claims separately.
The court reversed the trial judge’s denial of Allstate’s motion to dismiss the count based on improper venue and remanded for entry of an order of dismissal.