The Week in Torts – Cases from the Week of October 5, 2018
FLORIDA LAW WEEKLY
VOLUME 43, NUMBER 40
CASES FROM THE WEEK OF OCTOBER 5, 2018
NO AMBIGUITY IN TWO IDENTICAL PROPOSALS FOR SETTLEMENT MADE TO TWO SEPARATE DEFENDANTS.
Allen v. Nunez, 43 Fla. L. Weekly S421 (Fla. October 4, 2018):
The plaintiff in an automobile accident case made two separate proposals for settlement for the same amounts to the owner of the vehicle and the driver of the vehicle.
The only difference between the two proposals was the name of the defendant to whom they were directed. The trial court granted the plaintiff’s motion to enforce the proposals, finding they were sufficiently clear and unambiguous.
The Fifth District reversed, finding that the language in the proposal stating that it was inclusive of all damages claimed by the plaintiff could be reasonably interpreted to mean that the acceptance of the proposal would have resolved the entire claim against both defendants.
The Fifth District relied on a decision where the plaintiff had made separate proposals both to an individual defendant and to a corporate defendant. Each was specific as to the one defendant named therein, and each stated that as a condition of the proposal the plaintiff would voluntarily dismiss with prejudice any and all claims against the specific defendant named in the proposal.
Attached to the proposal, however, was a copy of the proposed notice of voluntary dismissal with prejudice to be filed if it was accepted, but the attached dismissal notice named both defendants and indicated that the case would be dismissed against both of them.
The Second District had affirmed the trial court’s finding that the proposals were ambiguous, because while the body of the proposals did not indicate that both defendants would be dismissed, the notices of dismissal attached to them did.
In this case however, the court held that the district court was “nitpicking” the offers, and unnecessarily injecting ambiguity into the proceedings, creating more judicial labor, not less. The court observed that when two codefendants each receive a proposal for settlement in which they are specifically named, each codefendant should possess all the information necessary to determine whether to settle.
The proposal in this case clearly and consistently used the singular term “plaintiff” and made clear that the proposal was designed to settle “any and all claims of plaintiff” against each of the two named defendants who were clearly delineated in their proposals. The supreme court reversed, finding the proposals were not ambiguous.
NO ERROR IN FINDING FLORIDA DEPARTMENT OF HEALTH WAS NOT CONTRACTUALLY REQUIRED TO AFFORD SOVEREIGN IMMUNITY PROTECTION FOR DOCTOR CLAIMING HE TREATED THE DECEDENT UNDER THE VOLUNTEER HEALTHCARE PROVIDER PROGRAM.
Dinnerstein v. Florida Department of Health, 43 Fla. L. Weekly D2209 (Fla. 4th DCA September 26, 2018):
Because there was no evidence showing that the decedent was ever a patient in the volunteer program, and it was undisputed that no referral was made using the normal referral process for the program within 48 hours of the commencement of the emergency treatment, there was no evidence to connect the decedent with the volunteer program at the Florida Department of Health’s clinic. There was also no evidence that the physician’s treatment of the decedent was part of that program.
Thus, because the undisputed facts established that the physician never obtained a referral for the decedent or her consent to treatment under the volunteer program, and as such, the Florida Department of Health did not have a duty to afford him sovereign immunity under the act, the Florida Department of Health did not breach the parties’ contract when it declined to afford the doctor sovereign immunity.
ALLEGATIONS OF EX PARTE COMMUNICATIONS FORM A PRIMA FACIE BASIS FOR DISQUALIFICATION.
Haas v. Suleiman Habib Yousef, 43 Fla. L. Weekly D2214 (Fla. 3rd DCA September 26, 2018):
The petitioner sought an emergency writ of prohibition to review the denial of her motion to disqualify the trial judge. Because the petitioner’s allegations of ex parte communications formed a prima facie basis for disqualification, the Third District ordered a response. When none was filed, the court granted the emergency petition, directed the disqualification to the trial judge and remanded for further proceedings.
THIRD-PARTY SPOLIATION CLAIMS SHOULD GENERALLY BE ABATED OR DISMISSED UNTIL THE UNDERLYING TORT CLAIM IS RESOLVED.
Amerisure Insurance Co. v. Rodriguez, 43 Fla. L. Weekly D2225 (Fla. 3rd DCA September 26, 2018):
The plaintiff sued the defendant for personal injuries he suffered when he was knocked off from the top of a gasoline tanker truck he was fueling. Plaintiff had collected worker’s compensation benefits through his employer’s carrier, the defendant, Amerisure Insurance Co.
The plaintiff learned that his employer and the insurance company had possession of a videotape of his accident which would have helped him to prove his case against the defendant. However, both negligently lost or destroyed the video. Plaintiff then amended his complaint to add a count suing them for damages, alleging the loss of the video and that it significantly impaired the plaintiff’s ability to prove his claim or to address the comparative negligence defense affecting the plaintiff’s recovery in the case.
The court noted the difference between first-party and third-party spoliation claims.
First-party claims are those where the defendant has allegedly lost, misplaced or destroyed the evidence, and the defendant was the tortfeasor in causing the plaintiff’s injuries or damages.
In contrast, third-party spoliation claims occur when a person or an entity–though not a party to the underlying action causing the plaintiff’s injuries or damages–lost, misplaced or destroyed evidence critical to the action. The Florida Supreme Court has held that no independent cause of action for spoliation will lie against a first-party tortfeasor. Instead, spoliation in that context should be addressed by the trial court, imposing sanctions and presumptions.
This case involved a classic third-party spoliation claim. The court relied on a case where the appellate court had affirmed the dismissal of a third-party spoliation claim because it was premature, when the underlying negligence claims had not yet been resolved. The plaintiff reflected the consensus of authority that held third-party spoliation claims should be abated or dismissed until the underlying tort claim is resolved. The court agreed with that authority.
The court then mentioned a product liability/third-party spoliation claim concerning an allegedly defective product, where the court ruled that the two claims should be tried together. The court observed that that decision is contrary to subsequent decisions in the Third District which hold that actions for spoliation do not accrue until the underlying action is resolved.
TRIAL COURT ERRED IN DISMISSING WRONGFUL DEATH COMPLAINT WHICH LISTED PLAINTIFFS AS CO-PERSONAL REPRESENTATIVES OF THE DECEDENT’S ESTATE, ALTHOUGH AT THE TIME OF FILING OF THE COMPLAINT THE PLAINTIFFS HAD NOT ACTUALLY BEEN APPOINTED–THE PROBATE COURT DID ULTIMATELY APPOINT ONE OF THE PLAINTIFFS AS PERSONAL REPRESENTATIVE, AND THE COURT FOUND THAT THE SUBSTITUTION AND APPOINTMENT RELATED BACK TO THE ORIGINAL FILING.
Lindor v. Florida East Coast Railway, 43 Fla. L. Weekly D2228 (Fla. 3rd DCA September 26, 2018):
When the original trial counsel filed this wrongful death complaint naming the co-personal representatives as the plaintiffs, they had not actually been appointed by the probate court. It was not until a subsequent law firm got involved and made sure that the probate court had actually appointed the personal representative, that the named plaintiff personal representative was in fact “duly appointed.” This had not occurred prior to the expiration of the statute of limitations, and the trial court dismissed the plaintiff’s complaint.
The Third District reversed. It found that under the facts, substitution of the properly designated personal representative was the proper course of action, and that it did relate back to the time of the filing of the original complaint. The court reversed and remanded for reinstatement of the action.
ERROR TO GRANT SUMMARY JUDGMENT FOR THE INSURED ON ISSUES OF CAUSATION AND DAMAGES, WHERE THERE WAS EVIDENCE OF PRE-EXISTING CONDITIONS RELATED TO CAUSATION.
State Farm v. Ferranti, 43 Fla. L. Weekly D2233 (Fla. 5th DCA September 28, 2018):
A negligent driver struck the plaintiff’s vehicle from behind. Plaintiff sued State Farm for UM coverage. The plaintiff had alleged severe permanent injury to his head, neck, body, limbs and nervous system, aggravation of a pre-existing condition, pain and suffering, and property damage. The plaintiff also asserted injuries to his neck, lower back and hip.
The plaintiff moved for partial summary judgment on the issues of liability and causation relying on Pack v. Geico. There, the court noted that a plaintiff may generally recover the medical expenses for diagnostic testing which were reasonably necessary to determine whether the accident caused injuries, irrespective of whether the jury finds the accident to be the legal cause of the injury.
State Farm conceded negligence was not an issue (just causation and damages). State Farm relied on the plaintiff’s deposition testimony to establish fact issues regarding pre-existing medical conditions which had included lower back pain from a prior car accident. State Farm argued the issue of causation presented a jury question, and that the motion was premature. The trial court granted the plaintiff’s motion, ruling that causation was established as a matter of law because the tortfeasor was a legal cause of some loss, injury or damage to the plaintiff.
The Fifth District reversed. It found Pack did not apply in these circumstances because Pack involved the denial of a motion for new trial after a jury returned a verdict for zero damages, on undisputed evidence that there had been the suffering of minimal neck sprain. The plaintiff had not sought summary judgment on the limited issue of diagnostic expenses, but rather on the issue of causation.
The plaintiff’s deposition supported State Farm’s position that fact questions existed, and therefore partial summary judgment was entered erroneously.
The court then addressed the plaintiff’s motion asking the court to grant a motion in limine preventing State Farm from introducing evidence of plaintiff’s prior injuries and treatments related to his lower back. State Farm contended that the plaintiff’s lower back injuries were intertwined with medical causation, and directly related to issues of legal causation and damages.
The plaintiff asserted that because the plaintiff had dropped a claim for specified damages (regarding his lower back), it was no longer relevant.
The court disagreed, finding that the lower back injury was relevant to other claims for neck and back injuries, as it related to overall damages for permanency and pain and suffering. Therefore it was error to grant the motion in limine.