FJA Journal - Nov/Dec 2016

JOURNAL FLORIDA JUSTICE ASSOCIATION

Florida Justice Association • November/December 2016 • #593 ®

FLORIDA JUSTICE ASSOCIATION

y p p a H ys a d i l o H our Family Y d n a u o Y g Wishin Season y a d li o H is th y Peace and Jo

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NOVEMBER-DECEMBER 2016 - NO. 2014 593 March March 2014

CONTENTS HIGHLIGHTS 6 21, 36

On the Cover:

Best wishes from the FJA for a joyous holiday season and a healthy and prosperous new year!

Supreme Court rejects use of the third party beneficiary doctrine to enforce a nursing home arbitration provision

42

The scope and propriety of closing arguments addressing the issue of whether a defendant should be liable for punitive damages

46

Practical pointers for executing an enforceable PFS

51

Recent research provides guidance for enhancing your skills at influence and persuasion

Making the most of focus groups

IN THIS ISSUE

®

Will the spread of autonomous vehicles drive federal preemption of state tort law?

Florida Supreme Court rejects “nitpicking” and clarifies PFS ambiguity and strict construction issues

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55

Make plans now to attend Workhorse 2017!

What does the future hold for the Civil Justice System?

pg 8

5 President’s Message — Jimmy Gustafson 6 Executive Director’s Message — Debra Henley 8 Special Focus: Workhorse 10 Cases and Commentaries — Kenneth D. Kranz 12 Legislative Notes 18 Tips for Auto Practitioners — Dale Swope 23 Medical Malpractice — Scott R. McMillen and Allison McMillen 24 Products Liability — William C. Ourand 28 Worker’s Compensation — Michael J. Winer 32 Evidence — Matt Schultz 36 Civil Procedure — Roy D. Wasson 42 Closing Argument — Philip Burlington, Barbara Green and Chris Carlyle 46 FJA Appellate Practice Section – Maegen Peek Luka 51 FJA Young Lawyers Section – Pat McArdle 55 The Briefcase – Paul Scoptur and Phillip Miller 58 Member Outreach 60 FJA CLE Calendar 61 EAGLE 64 Index

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2016-2017 FJA OFFICERS, EXECUTIVE COMMITTEE AND BOARD OF DIRECTORS PRESIDENT James W. Gustafson, Jr.

EXECUTIVE DIRECTOR Debra Henley

PRESIDENT-ELECT Dale M. Swope

EXECUTIVE COMMITTEE Laurie Briggs Tiffany M. Faddis Christopher N. Ligori Todd J. Michaels Eric Romano

TREASURER Lake H. (Trey) Lytal, III SECRETARY Leslie Mitchell Kroeger IMMEDIATE PAST PRESIDENT Todd E. Copeland

DIRECTORS 2015-2017 Hubert R. Brown William T. Cotterall Clifton C. Curry, Jr. Tiffany M. Faddis Philip A. Gold Jason F. Lamoureux Damian B. Mallard Todd J. Michaels H.K. Skip Pita Anthony Quackenbush Waylon Thompson Nicole C. Vinson Gregory M. Yaffa

If you are a Paralegal Member of the FJA, your Membership Includes Access to the Paralegal List Server

DIRECTORS 2014-2016 Vanessa Brice Laurie Briggs David C. Dismuke Elizabeth Finizio Steven Jaffe James L. Magazine Daniel A. Mowrey H. L. Larry Perry Matthew N. Posgay Daniel Vazquez Steve Watrel Jason Whittemore

DIRECTORS AT LARGE P. Hutchison Brock Stephen F. Cain Cameron M. Kennedy Christopher N. Ligori Kenneth J. McKenna Curry Pajcic Eric Romano PRESIDENTIAL APPOINTMENTS Mike Morgan AMICUS CURIAE COMMITTEE Phil Burlington

APPELLATE PRACTICE SECTION Adam Richardson WORKERS’ COMPENSATION SECTION Richard E. Chait YOUNG LAWYERS SECTION Jonathan Gilbert Heather Freeman WOMEN’S CAUCUS Fay O. Pappas Mallory R. Widgren

Network with other FJA paralegal members and ask your most pressing questions. To sign up for the

JOURNAL STAFF

Paralegal List Server, contact the FJA

EDITOR-IN-CHIEF Kenneth D. Kranz

Membership Department at (850) 521-1093.

JOURNAL COORDINATOR Jan Brown

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MARKETING COORDINATOR Kalon Hopkins

LOCAL TLA REPRESENTATIVES Shannon Del Prado James W. Guarnieri Scott L. Henratty Daniel A. Iracki Gloria Seidule William D. Umansky Bernard F. Walsh AAJ OFFICER Julie Braman Kane AAJ BOARD OF GOVERNORS Sean C. Domnick Brenda Fulmer Rodney G. Gregory James R. Holland Nicholas C. Johnson Ricardo Martinez-Cid Herman J. Russomanno Andrew Weinstein JeanMarie Whalen Edward H. Zebersky AAJ STATE DELEGATES Troy Rafferty Clancey Bounds Daryl D. Parks

PRESIDENT’SMESSAGE

2016 ELECTIONS CREATE

OPPORTUNITIES AND CHALLENGES The 2016 Election Is Over. After 240 Years, Earth’s Oldest Democracy Endures.

by FJA President Jimmy Gustafson

F

loridians cast 9.5 million votes in the election. That is the second largest number of voters among the states. No matter where you fall on the ideological spectrum, I believe we can agree that every vote cast represented our country as a stronghold for citizenship, liberty and justice.

The values that unite Americans are the ones we should embrace as we boldly move forward to address the bold opportunities and significant challenges we face in 2017.

The Florida Justice Association is grateful for the active participation of our members in the political process. From our members who ran for office to those who dedicated your time, talent or treasure to candidates, your activity, on your own or as part of this association, makes our profession stronger.

Elections matter. As important as the presidency is to our national identity and our federal government, what happens down ballot has a great influence on people in their hometowns.

This year was unusual in Florida as every seat in the Legislature was up for election. As a result, there’s a lot of new blood in Tallahassee.

There are impressive, bold and visionary new leaders assuming power in the Florida House and Senate. We’ll see lots of old and new faces sitting in the chambers.

With 20 new members, the Florida Senate is welcoming its largest freshman class in history (with half the Senate serving in their first term) and the Florida House has its second largest freshman class in history with 46 new members.

We’re proud to have worked as partners to each of the four legislative caucuses – including Senate President Joe Negron and House Speaker Richard Corcoran and the minority leaders of the House and Senate. Through the generosity of our members, the Florida Justice Association played a key role in determining the outcomes of many races.

Among our biggest victories was the election of FJA Past President Gary Farmer to the Florida Senate. We are also proud that FJA members Sean Shaw and Erin Grall are members of the Florida House of Representatives.

What’s next? We will turn our attention to the important business at hand. While he has shaken up the status quo with aggressive and laudable ethics proposals, Speaker Corcoran also has identified “court reform” as a House priority issue. In that light, it’s important to remember a wise quote from U.S. Senator Mike Enzi of Wyoming, “If you’re not at the table, you’re on the menu.”

The new Legislature has the power to change laws that could impact your practice. With this in mind, the Florida Justice Association will actively engage in the legislative process and defend citizens’ access to the civil justice system in our state. We also will promote a proactive agenda during the 2017 Legislative Session including: •

Standing up for responsible workers’ compensation reform;

•

Modernizing auto insurance for Florida drivers by replacing Florida’s broken PIP insurance system and replacing it with mandatory bodily injury coverage with coverage for medical payments; and

•

Ensuring medical records costs are in line with federal law.

•

Other pro- individual and corporate responsibility legislation

2017 will also feature the beginning the scheduled 20 year review of Florida’s Constitution. The Governor, Speaker, President and Chief Justice will name members of the Constitution Revision Commission. That powerful group can rewrite the rules that guide our state government and could have a wide-ranging impact on the practice of law in Florida. Your Florida Justice Association team is preparing to follow the Commission’s work once it begins.

It has been a historic and memorable 2016. As the year ends, the Florida Justice Association and its outstanding staff is looking forward to a successful 2017. Join us. Let’s embrace the opportunities we have and tackle the challenges face together.

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EXECUTIVEDIRECTOR’SMESSAGE

WHAT DOES THE FUTURE HOLD

FOR THE CIVIL JUSTICE SYSTEM?

by Executive Director Debra Henley

“All Change is Not Improvement, All Movement is Not Forward” Circuit Judge Hugh Taylor, Chair of the Style & Drafting Committee 1966-1968 Constitution Revision Commission, quoting “a wiser man than me.”

A

s part of the FJA’s Law School Outreach Program, I had the opportunity to moderate a distinguished panel on the Constitution Revision process, discussing its ground breaking impact on Florida’s history and the upcoming 20172018 Constitution Revision Commission (CRC). The CRC has expansive power to put a wide range of important and potentially controversial measures before the voters in 2018. A few of the areas within its purview include: education, the environment, gun control, religious freedom, privacy, the death penalty, Article V, reapportionment, the makeup of the Cabinet, as well as the process for amending the Florida Constitution including the citizen’s initiative.1 At the same time, we are most assuredly “in for” monumental changes at the federal level, as President-Elect Trump ushers in a new era in American politics. AAJ has already sounded the warning, and is gearing up to defend the rights of consumers and injured victims and their families at the federal level. I urge all FJA members to also be AAJ members, to respond to their requests for victim stories, letters to state agencies, participation in lobby days, and to do what is needed in the coming months.

For the 2017-2018 legislative sessions here in Florida the forecast looks good. As a result of our success in the primary elections, FJA is well positioned to meet the challenges of the session, to work on opportunities to improve the workers compensations system, and to bring Florida’s auto insurance law into the mainstream. In my 26 years with FJA I cannot recall a session when we have had the benefit of legislative leadership in both chambers more oriented toward a fair and balanced civil justice system.

On the home front at the FJA, I am proud to report that in my seven years as your Executive Director we have: •

Increased the number of women, minorities and young lawyers on the Board of Directors, and installed 2 elected women Executive Committee members.

• Created the Law School Outreach Program, introduced during President Gary Farmer’s year, and have made over 25 visits to law schools.

•

Ignited and engaged young lawyers in the work of the FJA and into leadership roles on mock trial, membership and lobbying.

Seats on the Young Lawyers Board are now highly competitive, and next year FJA will introduce a “Leadership Academy” to groom and train future leaders of the FJA.

•

Achieved record breaking success with Annual Convention, Workhorse and Masters of Justice programs and increased the

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popularity of our webinar programs under the guidance of CLE Chair Steve Watrel.

• Increased Journal advertising revenue as a result of lawyer advertising and increased vendor interest in FJA’s most popular member benefit.

As a result of substantial advertising revenue, for the first time in FJA history, the Journal production is self sustaining.

•

Revamped the FJA website twice, added mobile compatibility and apps, upgraded our iMIS database system, and conducted a comprehensive tech audit that has provided a road map to maximize our tech capabilities, digital presence, mobility and member benefits into the future.

• Hit an all time high on EAGLE contributions in 2015, steadily increasing over the last several years and surpassing the record set in 2003.

• Racked up significant defensive victories in the Legislature.

• Achieved unparalleled participation in the FJ PAC’s fundraising efforts for legislative races.

• Stabilized FJA membership numbers from a 2003-2010 downward spiral. Most importantly for FJA’s future, we have increased the number of young lawyers in the ranks. Retention is always an issue as competition for membership dollars and participation in other law related activities increases. Additionally, improvements in automation will increase convenience for members to pay dues, upgrade, access benefits and keep in touch with the latest news and information important to their practices.

• Created new list serves for the Women’s Caucus, Young Lawyers and trucking practitioners, in addition to medical malpractice, auto, nursing home, and property insurance.

• Dedicated the FJA to collaborating with local trial lawyer associations to assist each other with event promotion, calendar coordination, membership retention and to encourage plaintiff trial lawyers to support their local and state associations.

I have always been committed to looking for ways to improve our operations and to introduce new benefits. The FJA operations are stable, we are respected in the Capitol, and our members overall are doing well.

Nevertheless, there will be changes, opportunities and challenges ahead for the FJA. I sincerely appreciate the support of our membership over all these years and hope that the future holds good health, happiness and prosperity for all of you, your families and your clients.

Thank you.

For those of you who are interested in learning more about the history of the CRC, I highly recommend reading “The Making of Modern Florida”

by Professor Mary Adkins, Fredric C. Levin College of Law, University Press of Florida, 2016.

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FJA JOURNAL IS AVAILABLE ONLINE!

24-Hour Access In 5 Steps the Florida Justice Association #1 Visit website #1 at www.floridajusticeassociation.org

#2

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From the “RESOURCES” tab on the top menu bar, select “FJA Journal” Log in when prompted Click the cover image for the issue you’d like to read You will then be redirected to a new webpage with your online version of the Journal — accessible anytime, anywhere on your mobile device, tablet or computer!

www.FloridaJusticeAssociation.org | November/December 2016 | 7

SPECIALFOCUS:WORKHORSE

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CASES&COMMENTARIES

In Brief

By KENNETH D. KRANZ • FJA JOURNAL EDITOR-IN-CHIEF

T

he Supreme Court remanded ten workers’ compensation attorney’s fee cases to the First District for reconsideration in light of its decision striking down the fee schedule in Castellanos v. Next Door Co., So.3d , 41 FLW S197 (Fla. 4-28-2016). Taylor v. Rodney Gunder Plastering and Stucco, LLC, So.3d , 41 FLW S379 (Fla. 9-6-2016); Stephens v. Domino’s Pizza, So.3d , 41 FLW S379 (Fla. 9-6-2016); Weimar v. L’Oreal USA S/D, Inc., So.3d , 41 FLW S380 (Fla. 9-6-2016); Zaldiver v. Dyke Industries, Inc., So.3d , 41 FLW S380 (Fla. 9-6-2016); Zaldivar v. Prieto, So.3d , 41 FLW S380 (Fla. 9-6-2016); Leon v. Miami Dade Public Schools, So.3d , 41 FLW S380 (Fla. 9-6-2016); Ferrer v. Truly Nolen of America, Inc. , So.3d , 41 FLW S380 (Fla. 9-62016); Flores v. Vanlex Clothing Corp. , So.3d , 41 FLW S380 (Fla. 9-6-2016); Mayorga v. Sun Electronics International, Inc., So.3d , 41 FLW S380 (Fla. 9-6-2016); and Gonzalez v. McDonald’s, So.3d , 41 FLW S380 (Fla. 9-6-2016).

The Supreme Court sided with the Second, Fourth and Fifth Districts in holding that the third-party beneficiary doctrine cannot be used to enforce an arbitration provision in a contract to which the resident has not agreed. Mendez v. Hampton Court Nursing Center, So.3d , 41 FLW S394 (Fla. 9-22-2016). The case involved an arbitration clause in a nursing home contract that had been signed by the resident’s son, who signed as the “representative” of his father but did not have a power of attorney. The Court quashed the decision of the Third District that held the agreement was enforceable under the third-party beneficiary doctrine, rejected the similar position taken

by the First District, and approved the conflicting decisions from the Second, Fourth and Fifth Districts which held that a resident is not bound by a contract that he or she did not sign, where the signing party did not agree to the contract on the resident’s behalf or lacked the authority to act for the resident.

The Supreme Court adopted Bar Rules addressing competent representation and increasing the mandatory CLE requirement.

In Re: Amendments to Rules Regulating the Florida Bar 4-1.1 and 6-10.3, So.3d , 41 FLW S411 (Fla. 9-29-2016). The comment to Rule 4-1.1 was amended to state that competent representation may involve a lawyer’s association with, or retention of, a non-lawyer advisor with established technological competence in the relevant field and representation and also involves “safeguarding confidential information relating to the representation, including but not limited to, electronic transmission and communications.” The Court also increased the mandatory minimum CLE hours per cycle from 30 to 33, with the three additional hours required to be in approved technology programs. The changes take effect January 1, 2017.

The Court declined to adopt Bar-proposed amendments to Rule 4-1.5 regarding fees for subrogation and lien resolution services in personal injury and wrongful death cases where a contingency fee is charged. In Re: Amendments to Rule Regulating the Florida Bar 4-1.5—Fees and Costs for Legal Services, So.3d , 41 FLW S421 (Fla. 10-6-2016). While declining to adopt the Bar’s proposed amendments, the Court went on to state: “[W]e wish to reemphasize that lawyers

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representing clients in personal injury, wrongful death, or other cases where there is a contingent fee should, as part of the representation, also represent those clients in resolving medical liens and subrogation claims related to the underlying case. This should be done at no additional charge to the client beyond the maximum contingency fee, even if the attorney outsources this work to another attorney or non-attorney. Although it may be true that, given the complexity of modern litigation, there will be some cases where the amount of work required to resolve a lien is more than initially anticipated, the notion of the percentage fee contract contemplates that there will be some cases that are profitable for the lawyer handling the claim and others that are unprofitable. That risk and reward is built into the contingency fee contract. If the circumstances of a particular case are such that the fee generated under the contingency fee agreement is expected to be insufficient for the work of resolving any outstanding lien, the attorney and client can seek leave of court pursuant to rule 4-1.5(f )(4)(B)(ii) of the Rules Regulating the Florida Bar to obtain an increased fee appropriate for the circumstances of the specific case.”

Three attorneys were disbarred for egregious misconduct in an elaborate joint scheme that involved soliciting healthcare provider clients with PIP claims against Progressive Insurance Company.

The Fla. Bar v. Kane, So.3d , 41 FLW S426 (Fla. 10-6-2016). In addition to the primary PIP claims they were pursuing, the attorneys also brought in specialized bad faith counsel to pursue a separate action against the insurer on behalf of thirty-seven of their clients for systematically refusing to pay valid claims. The Court found that the evidence supported the conclusion that the PIP lawyers intended to add more clients to the bad faith action once the claims had been perfected and that both they and the bad faith attorneys hoped to use the threat of bad faith claims for all of their clients, not just the named thirty-seven plaintiffs, to pressure the insurer to settle. Ultimately, the PIP attorneys settled the PIP claims for a large amount of money, whereupon they discharged the bad faith attorneys, voluntarily dismissed the bad faith case, and abandoned the bad faith claims for the clients who were not named plaintiffs in the bad faith case, with the result that they were able to take a substantial amount in fees. The Court found: “[The PIP lawyers] secretly negotiated an aggregate settlement that created conflicts of interest between lawyers and clients, and left the bad faith attorneys with no compensation for their significant work [on the bad faith case involving the thirty-seven plaintiffs]; in allocating the settlement funds, they abandoned their PIP clients’ bad faith claims in favor of a greater fee for themselves; and they withheld from clients nearly all the material information about the settlement, entirely to further their own interests. … This considerable violation of respondents’ ethical responsibilities to their clients and the legal system, entirely for their own financial interest and at the expense of their clients, warrants disbarment.”

Supreme Court holds that “if attorney’s fees are not sought in the pleadings, an offer of settlement is not invalid for failing to state whether the proposal includes attorney’s fees and whether attorney’s fees are part of the legal claim.” Kuhajda v. Borden Dairy Co. of Alabama, LLC, So.3d , 41 FLW S471 (Fla. 10-20-2016).

The Court quashed the decision of the First District on appeal and

approved the conflicting decision in Bennett v. American Learning Systems of Boca Delray, Inc., 857 So.2d 986 (Fla. 4th DCA 2003). The First District had held that an offer of settlement that fails to address attorney’s fees is invalid even if no fees have been sought in the case.

The Court held that Bennett correctly held that “an offer of judgment need not strictly comply with the requirements of rule 1.442(c)(2)(F) when fees are not sought in the pleadings.”

Supreme Court adopts an extensive set of proposed changes to the Mediator Rules that are “intended to close existing gaps in the rules, memorialize and clarify current procedures, and address situations for which no direction existed.” In Re: Amendments to the Florida Rules for Certified and Court-Appointed Mediators, So.3d , 41 FLW S477 (Fla. 10-27-2016). The Court noted that the redraft, which the Court adopted with some modifications, resulted from several years’ work by the Supreme Court Committee on Alternative Dispute Resolution Rules and Policy and the Dispute Resolution Center.

“Where a prisoner filed an action alleging that he suffered physical injury due to the negligent or wrongful acts or omissions of the employees of a governmental entity, the one-year statute of limitations period in section 95.11(5)(g)--a provision enacted as part of a chapter law that was intended to curb frivolous filings by prisoners – does not apply. Instead, the four-year statute of limitations in section 768.28(4) governs.” Green v. Cottrell, So.3d , 41 FLW S506 (Fla. 11-10-2016). Here, the prisoner alleged that he suffered both physical and emotional injuries after being attacked by fellow inmates and that prison officials failed to exercise reasonable care to protect him despite his requests to be relocated away from the potential aggressors. The Court found that the one-year statute of limitations set forth in §95.11(5)(g), Fla. Stat., only applies to prisoner actions that relate to “conditions of their confinement,” which the Court concluded does not encompass the situation where a prisoner alleges that he has suffered actual physical injury due to the negligent or wrongful act or omission of an employee of a government entity.

In an Engle progeny tobacco case, plaintiff’s closing argument that “crossed the line into ‘take responsibility’ and ‘apologize’ territory” was not justified by the fact that the plaintiff was seeking punitive damages. Cohen v. Philip Morris USA, Inc., So.3d , 41 FLW D2073 (Fla. 4th DCA 9-7-2016). Noting that it is improper to suggest in closing argument that a defendant should be punished for contesting damages at trial or defending a claim, or for disparaging the defendant for defending itself and failing to take responsibility for its actions, the court found: “To obtain punitive damages, a plaintiff must establish ‘by clear and convincing evidence the defendant is guilty of intentional misconduct or gross negligence.’ … In Engle progeny cases, the plaintiff can do this by showing, for example, that a cigarette manufacturer was aware of but publicly denied the addictive and harmful nature of cigarettes. … The disputed arguments in this case were not clearly linked to proving intentional misconduct or gross negligence. Rather than focusing on the timing of the manufacturer’s denials and what the evidence reflected they knew when they made the denials, counsel made broader accusations—that tobacco companies never admitted

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CASES&COMMENTARIES

guilt and never apologized, and failed to do either during the course of trial.” See also R.J. Reynolds Tobacco Co. v. Calloway, So.3d , 41 FLW D2188 (Fla. 4th DCA 9-23-2016), where another Engle verdict was reversed for a new trial because of the cumulative effect of similar improper comments and argument.

statutes make such interference with the duties of an ombudsman unlawful and provide for damages and equitable relief, there was no indication that the legislature intended the Department itself to be sued for “interference” in the internal management and operation of the program.

Nothing in §400.0061 or §400.0083, Fla. Stat., evinces a legislative intent to waive sovereign immunity with respect to claims brought by a state-appointed long-term care ombudsman alleging interference with the operation of the program and the performance of her duties. State of Fla., Dept. of Elder Affairs v.

Caldwell, So.3d , 41 FLW D2101 (Fla. 1st DCA 9-8-2016). Among other things, the plaintiff, who served as a regional ombudsman, made negative comments about the Department’s operation of the ombudsman program to the U.S. Agency on Aging during the course of its investigation into the Department’s practices. Shortly after the AOA released its report that was critical of the Department, the plaintiff was informed that she served at the pleasure of the Secretary of the Department and that he no longer needed her services. Following her termination she filed suit, alleging that the Department had interfered with her position and the function of the ombudsman program in violation of state law. The court found that while the

Where the plaintiff, a resident at an assisted living facility (ALF), transitioned to an affiliated skilled nursing facility (SNF) within the same retirement community, an arbitration agreement executed as part of the residency agreement for the ALF did not apply to claims that arose relating to the resident’s stay at the SNF because those claims were beyond the scope of the ALF agreement. Olson v. Fla. Living Options, Inc., So.3d , 41 FLW D2111 (Fla. 2nd DCA 9-92016). The SNF argued that it was an intended third-party beneficiary to the agreement based on its relationship with the ALF. The court did not decide that issue, but rather determined that the claims asserted against the SNF arose out of the resident’s stay at the SNF and had no nexus to the ALF, and they were thus not within the scope of the arbitration agreement executed with the ALF. The trial court erred in allowing a party to call a reporter as a witness just before the start of the trial without any prior notice to the reporter or any showing that the reporter had relevant testimony.

Palm Beach Newspapers, LLC v. Colin, So.3d , 41 FLW D2125 (Fla.

LEGISLATIVE NOTES

W

ith the general election over and the legislature constituted for the next biennium, activity is rapidly picking up. While the composition of the legislature did not change dramatically, the Democrats did pick up enough seats in the House to deprive the Republicans of the 2/3 supermajority they have enjoyed in recent times. Republicans now hold a supermajority in neither chamber, which limits among other things their ability to waive the rules over the objection of the minority party.

At the Organizational Session on November 22, new members were sworn in, leaders were selected, and each chamber adopted the rules to be used for the coming biennium. The Speaker’s proposed House Rules contained some far-reaching changes that promise to bring “an unprecedented level of openness and transparency” to the legislative process, and he was able to convince the full House to adopt them.

Upcoming will be the important announcement of each chamber’s committee chairs and members.

Following the Organizational Session, things will begin happening quickly in the run up to the opening day of the 2017 Regular Session on March 17. Keep on top of legislative matters at www.flsenate.gov and www.myfloridahouse.com.

CALENDAR: November 22

Organizational Session

December 5-9

Interim Committee Meetings (House Only)

December 12-16

Interim Committee Meetings (Senate Only)

January 9-13

Interim Committee Meetings

January 23-27

Interim Committee Meetings

February 6-10

Interim Committee Meetings

February 13-17

Interim Committee Meetings

February 20-24

Interim Committee Meetings

March 7-May 5

2017 Regular Legislative Session

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Manufacturers should provide safety.

We fight to make sure they do.

Crashworthiness

Ted Leopold | Leslie Kroeger 877.515.7955 | cohenmilstein.com Palm Beach Gardens, FL | Washington, DC | New York, NY | Philadelphia, PA | Chicago, IL | Raleigh, NC Antitrust | Catastrophic Injury & Wrongful Death | Civil Rights & Employment | Consumer Protection | Employee BeneďŹ ts / ERISA Ethics & Fiduciary Counseling | Human Rights | Managed Care Abuse | Medical Malpractice | Public Client | Securities Litigation & Investor Protection | Unsafe & Defective Products | Veterans Rights & BeneďŹ ts | Whistleblower / False Claims Act

www.FloridaJusticeAssociation.org | November/December 2016 | 13

CASES&COMMENTARIES

4th DCA 9-14-2016). The reporter was briefly excluded under the rule of sequestration. He was permitted to return after the testimony of two other witnesses and, after taking the stand, was eventually asked a single question and then excused. “A reporter covering a judicial proceeding should not be called as a witness without prior notice. A professional journalist enjoys a qualified privilege under section 90.5015, Fla. Stat.

(2016), to not be a witness or disclose information the journalist has obtained while gathering news. To effectuate this privilege, the reporter has a due process right to reasonable notice that he or she may be a witness, so as to have a meaningful opportunity to assert the privilege.”

In a case alleging retaliatory discharge for seeking workers’ compensation benefits, the court affirmed the jury’s finding of liability but concluded that the award was excessive in light of the absence of medical evidence that the employer’s conduct caused the employee’s medical condition to worsen or caused the employee to suffer past or future psychological harm; it further found that “the fact that the Employee cried on the stand, as noted by his lawyer at oral argument, simply is not sufficient.” Faith Freight Forwarding Corp. v. Anias, So.3d , 41 FLW D2214 (Fla. 3rd DCA 9-28-2016).

It held the lower court’s failure to grant a motion for remittitur was an abuse of discretion.

An arbitration provision in a nursing home residency agreement that contains an attorney’s fee provision in violation of public policy may be severed from the agreement where the provision does not go to the essence of the agreement. Hochbaum v. Palm Garden of Winter Haven, LLC, So.3d , 41 FLW D2265 (Fla. 2nd DCA 10-5-2016). The provision in question violated public policy because it required the parties to equally bear the fees associated with arbitration, in contravention of the plaintiff’s statutory right to seek a full award of her fees under the prevailing party attorney’s fees provision of §514.1111, Fla. Stat. The court nevertheless affirmed the order compelling arbitration, with an instruction to strike the attorney’s fees provision from the agreement, finding: “Here the offending provision deals only with attorney’s fees. The provision does not require the arbitration to be conducted in accordance with certain rules, and it does not limit the compensatory or punitive damages that [plaintiff] may recover in arbitration. Therefore, the offending provision is severable from each agreement because it does not go to the essence of the agreement.” The court also noted that severance of the provision would not require a “drastic rewriting of the agreements” and would “preserve the intent of the parties to adjudicate their disputes in arbitration.”

While the general rule is that a plaintiff is “entitled to recover for those medical expenses incurred for any diagnostic testing which was reasonably necessary to determine whether the accident caused her injuries,” there are exceptions, including where there is a lack of candor with treating physicians and conflicting medical opinions on whether the accident caused any injury, as was the case here.

Finkel v. Batista, So.3d , 41 FLW D2279 (Fla. 3rd DCA 10-5-2016).

The court determined that the trial court erred in granting plaintiff a new trial after the jury awarded plaintiffs no damages.

Where it was discovered after trial that a juror had posted a series of tweets on his Twitter account during jury selection and trial, the trial court did not abuse its discretion in denying the plaintiff’s motion for a new trial where nothing in the tweets discussed any specific facts or parties involved in the case, no other jurors saw or had any discussions about the postings, and the trial court acted within its discretion to assess the juror’s credibility and accept his explanation that the misconduct was neither intentional nor willful, but rather resulted from the juror’s misinterpretation of the scope of the court’s instructions to the jurors. Murphy v. Roth, So.3d , 41 FLW D2282 (Fla. 10-5-2016).

In a slip and fall premises liability case, the trial court erred in equating the standard of care with the defendant’s compliance with its own internal policies and procedures, effectively determining that a breach of the policies and procedures was a per se breach of the standard of care. Wal-Mart Stores, Inc. v. Wittke, So.3d , 41 FLW D2381 (Fla. 2nd DCA 10-21-2016). The court noted: “Internal policies and procedures may be admissible if they are relevant to the standard of care … however, ‘evidence that the rule was violated is not evidence of negligence unless and until the jury finds … that the internal rule represents the standard of care’.” Here, the trial court erred by elevating the alleged violation of internal policies and procedures to the status of a legal duty, setting aside the defense verdict and granting the plaintiff a new trial.

The Second District agreed with the Fourth District that the Supreme Court’s decision in Estate of McCall v. United States, 134 So.3d 894 (Fla. 2014), holding unconstitutional the statutory medical malpractice caps on wrongful death noneconomic damages set forth in §766.118, Fla. Stat., is properly applied to personal injury medical malpractice actions as well as to wrongful death actions. Port Charlotte HMA, LLC v. Suarez, So.3d , 41 FLW D2393 (Fla. 2nd DCA 10-26-2016). The court concluded that the Fourth District properly applied McCall to personal injury medical malpractice actions in North Broward Hospital v. Kalitan, 174 So.3d 403 (Fla. 4th DCA 2015). The FJA, represented by Lincoln J. Connolly, participated as Amicus.

In a wrongful death action against a sheriff alleging negligence of a 911 operator who responded to a call about a medical emergency, the plaintiff failed to allege facts necessary to establish a special relationship and the undertaker’s doctrine was inapplicable. Jordan v. Nienhuis, So.3d , 41 FLW D2464 (Fla. 5th DCA 11-4-2016). The plaintiff had called 911 when her husband had a medical emergency inhibiting his ability to breathe. The 911 operator told her that help was on the way and questioned her about her husband’s condition.

When his condition worsened and he lost consciousness, the operator advised her to leave him on the floor and await assistance from EMS personnel, who administered CPR when they arrived, but the husband ultimately died. In the ensuing suit, the plaintiff alleged that the 911 operator was negligent in giving her instructions on how to care for her husband, assuring her that help was on the way, and leading her to believe there was no need to render further aid; and, as a result of her reliance on these assurances, she did not explore alternative options for

14 | November/December 2016 | www.FloridaJusticeAssociation.org

WHO Answer: John H. (Jack) Hickey/ Hickey Law Firm.

That’s who.

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(Jack)

has a combination of 17 years representing cruise lines, over tens of millions of dollars in gross recoveries in 2015 alone, and Double Board Certification in Admiralty & Maritime and Civil Trial?

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Hickey:

Represented the cruise lines for 17 years. Double Board Certified Civil Trial Lawyer (The Florida Bar and the National Board of Trial Advocacy). Board Certified Admiralty & Maritime (The Florida Bar).

P R AC TI C E A R E AS

L EADE R SH I P Past

President

of

the

Dade

County

Negligent event planning

Bar

Association; Currently: Board of Governors of The Florida Bar

Inadequate security

R ES ULTS Recovery totaling tens of millions of dollars in

Slip and falls

2015 alone. One settlement ranked #1 in Florida and #6 in the U.S. by the National Law Journal’s Top 50 Verdicts and Settlements of 2015.

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CASES&COMMENTARIES

responding to the emergency, thereby placing her husband in a zone of danger. The Fifth DCA agreed with the trial court that the plaintiff had failed to allege facts sufficient to show that a special relationship had been created, and that the duty owed was only that owed to the general public. As for the undertaker’s doctrine, the court concluded it was not applicable in this situation: “The undertaker’s doctrine applies when government agents engage an injured party, and then either control a situation and increase the risk of harm to the injured party or induce third parties--who would have otherwise rendered aid—to forbear from doing so, thereby placing the injured party in a greater ‘zone of risk.’ … It is not enough that a risk merely exists or that it is foreseeable. Instead, the defendant’s conduct must create the risk or control the situation before liability may be imposed.”

In a defamation action where a statement must have been made with “express malice” in order for there to be liability, it was error for the jury instructions to permit the jury to infer liability on the basis of whether the defendants knew their statement was false or made the statement with reckless disregard for the rights of the person, irrespective of the defendant’s primary motive. Crestview Hospital Corp. v. Coastal Anesthesia, P.A., So.3d , 41 FLW D2479 (Fla. 1st DCA 11-9-2016). Here, the chief executive officer of the defendant hospital had complained to the hospital’s anesthesia contractor that one of its anesthesiologists had been behaving disruptively—cursing at nurses and hospital staff and unnecessarily delaying the surgery of an elderly patient-- and that the hospital no longer wanted him assigned there. The contractor subsequently removed the doctor and forced him to resign, which eventually led to the lawsuit in which the doctor alleged that the hospital ruined his career by baselessly labelling him “disruptive.” The court found that under the circumstances this communication constituted an evaluation of a worker to which the law extends a conditional privilege to the speaker and presumes good faith, even when communications are critical. Someone who claims defamation arising from such a privileged communication must prove “express malice” on the part of the speaker, which the court noted means for the primary purpose of gratifying the utterer’s ill-will, hostility and desire to harm the subject of the utterance. Judgment for the plaintiff was reversed and a new trial was ordered.

The trial court erred in entering summary judgment in an action against a public school bus driver for individual negligence where there remained disputed issues of material fact as to whether he acted in a manner that would place him beyond the protection of sovereign immunity. Davis v. Baez, So.3d , 41 FLW D2510 (Fla. 3rd DCA 11-9-2016). Plaintiff was an 18-year-old high school student who was hit by a car when crossing the street to reach a school bus stop. At the time of the accident, it was dark outside and the bus had not yet arrived at the bus stop. In her suit, the student alleged that the bus driver and the school board were negligent for failing to instruct her to wait on the opposite side of the street until the bus arrived at the designated stop and halted traffic by activating its flashing lights and “Stop” arm, thereby allowing her to cross safely. Testimony reflected that the bus driver on his own initiative, and contrary to school board policy, had told the plaintiff that she had to cross the street before the bus arrived and be waiting at the bus stop or he would not pick her up. The court noted that while it may be true that ordinarily the

school board and the driver would not owe a duty to plaintiff before she was actually on the bus, there remained a question whether, by voluntarily undertaking to act in requiring the plaintiff to cross the street before the bus arrived, the driver created a foreseeable zone of risk for the plaintiff and thereby owned a duty to her. Here, the court found, the allegations and the evidence supported the application of the undertaker doctrine and the conclusion that, by voluntarily undertaking to act and affirmatively telling the plaintiff that she was required to cross the street and be waiting at the bus stop when the bus arrived, the driver created a foreseeable zone of risk and was under a duty to act with reasonable care. The court also noted that the only count remaining in the case was a single count for the individual negligence of the bus driver, so, although the general facts of the case permitted the application of the undertaker doctrine, individual negligence could only be established if the plaintiff proved that the driver’s actions were outside the course and scope of his employment or were committed in bad faith or with malicious purpose of in a manner exhibiting wanton and willful disregard of human rights, safety or property. See §768.28(9)(a), Fla. Stat.

In a case of first impression, the Third District holds that the “impact rule” applies to the torts of negligent hiring, negligent retention and negligent supervision. G4S Secure Solutions USA, Inc. v. Golzar, So.3d , 41 FLW D2514 (Fla. 3rd DCA 11-9-2016).

The case involved an employee of a private security company hired to work in a residential community. The employee, while on patrol in the neighborhood, used his cellular phone to record through the plaintiff’s window a video of the plaintiff (a young woman who was about to enter her senior year in high school) in a state of undress.

At trial there was no evidence that the plaintiff had suffered any type of physical injury, and it was undisputed that the security guard never touched or had any other physical contact with the plaintiff. “Florida’s impact rule provides that ‘before a plaintiff can recover damages for emotional distress caused by the negligence of another, the emotional distress must flow from physical injuries the plaintiff sustained in an impact. The rule actually requires some impact on the plaintiff, or, in certain situations, the manifestation of severe emotional distress such as physical injuries or illness.’ … The Florida Supreme Court has crafted limited exceptions to the rule, recognizing that certain torts are necessarily devoid of physical harm and are of such a nature that the only foreseeable damages resulting from those torts are emotional damages that are non-economic in nature.” The court held that, while it was sympathetic with the plaintiff and found the defendant’s behavior to be reprehensible, those considerations were not sufficient to waive the applicability of the impact rule in these torts.

16 | November/December 2016 | www.FloridaJusticeAssociation.org

Ken Kranz, FJA Journal Editor-in-Chief

Mr. Kranz is Editor-In-Chief and columnist for the FJA’s monthly Journal. Mr. Kranz has 40 years of legislative experience and formerly served as the Senior Legislative Counsel with various responsibilities related to the FJA legislative activities.

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www.FloridaJusticeAssociation.org | November/December 2016 | 17

TIPSFORAUTOPRACTITIONERS

VERDICT FORM

Asking Whether the Defendant’s Negligence was “The Cause” Instead of “A Cause” was The Cause of a Defense Verdict. Or, Maybe it was Just A Cause of the Defense Verdict. Or, Maybe it Wasn’t?

BY DALE SWOPE

I

n a rear-end collision case, the trial court elected to bifurcate the trial on liability from damages, despite the inordinate expense associated with that. Finkel v. Batista, So.3d , 2016 WL 5874614 (Fla. 3d DCA 2016). That sometimes makes sense if liability is hotly contested, and damages would be very expensive to prove, but this was a rear-end collision with a claim of soft tissue damages – the kind of thing that normally gets resolved in lightning speed with minimal expense.

At the first trial, the defendant was, perhaps not surprisingly, found to be 100 percent at fault.

At the trial for damages, the verdict form asked whether the negligence of the defendant was “the cause” of damages to the plaintiff (who did not object), and the jury’s answer was in the negative. The issue on appeal was whether, notwithstanding this verdict, the plaintiff could recover the cost of being medically checked out immediately after the accident.

The authority for this claim is well established, going back to at least Blanford v. Polk County, 410 So.2d 667 (Fla. 2d DCA 1982). We all have heard stories of people who suffered minor mishaps who thought they were fine, were not, and instead suffered some occult injury that got worse quickly, due to not being detected.

So, the idea is that Blanford only has application in those situations where the plaintiff was not actually injured – otherwise, these initial diagnostics would be included in the past medicals.

It therefore is utterly inconsistent with Blanford to create an “exception” for those situations where the plaintiff’s claim of injury is undermined (remembering that Mr. Blanford’s OWN claim was successfully undermined with an initial report he completed saying he was not injured).

That point seems to have been lost in a line of cases that recognize just such an “exception,” starting, it seems, with State, Dept. of Transp. v.

Rosario, 782 So. 2d 927 (Fla. 2d DCA 2001). The Finkel court renewed this extraneous line by reversing the trial court decision and directing judgment for the defense.

The court in this case and some earlier ones like Hernandez v. Gonzalez, 124 So. 3d 988 (Fla. 4th DCA 2013), seem to base their decision at least in part on a strategic decision by the plaintiff to force an “all or nothing” polarized verdict from the jury, rather than seeking summary judgment on the past medicals and ask the jury the question of causation as “the” cause rather than the more traditional lower standard of “a” cause.

The additional discussion of the evidence at trial revolving around the plaintiff’s apparent failure to mention subsequent accidents to treating doctors and others, obviously could have no logical bearing on the reasonableness of his diagnostic consultation from the initial injury and just seems like an unnecessary criticism to justify a harsh result.

Forum Selection Clause Beats Basic Venue Rules In a case involving an accident caused by an on-duty Sheriff, through application of the home venue privilege, the Sheriff had an absolute right of venue in the county where its office was. Allstate Fire and Cas. Ins. Co. v. Hradecky, So.3d , 2016 WL 6249155 (Fla. 3d DCA Oct. 26, 2016); See Dept. of Agric. v. Middleton, 24 So. 3d 624 (Fla. 2d DCA 2009) (The home venue privilege is an absolute right belonging to a governmental agency.).

There is also a rule that has been around forever that says when you have venue against one defendant, you have venue for the entire case.

A recent bad faith opinion even discussed this well-established venue principle. See Hartford Fire Ins. C. v. Smith, So.3d , 2016 WL 6611193 (Fla. 4th Nov. 9, 2016) (If venue lies in one county for any of the counts asserted, it is the correct venue for all other counts.).

18 | November/December 2016 | www.FloridaJusticeAssociation.org

FROM MIKE PAPANTONIO

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The plaintiff in this case seemed therefore, to have the option, and exercised that option by bringing suit against both defendants in the home venue for the Sheriff. The second defendant, the UM insurer, however, had a contract with an exclusive venue provision. Disregarding the real question on which venue provision or rule actually controlled, the court dismissed the UM benefits count because of this forum selection clause contained within the UM contract.

The court did not address the more nuanced question about what to do with conflicting mandatory venue provisions or rules when two defendants are liable for the same tort, and instead treated it like a simple forum selection clause analysis debating whether the venue provision was a “may” or “shall” and found that it was a “shall” and stopped the analysis.

There is also a larger question here, that relates to the public policy of permitting UM insurance companies to name whatever venue they want for claims against them, no matter where the claim arose.

This was a foreign policy, but the court never mentioned that as a distinguishing feature.

If the courts were to unthinkingly follow this rule, you could easily have a situation where the Florida Fly-By-Night Mutual Insurance Company (“FFMIC”) could establish its “home office” in a strip mall in, say, Day, Florida and mandate venue for all UM claims to be brought exclusively in Lafayette County (population 8,000). Eventually, someone else will have to address whether mandatory venue provisions like this should be permitted in the auto policies that are the very paradigm of a contract of adhesion.

Juror Lied and You Got a Bad Verdict. Deal With it?

During voir dire the plaintiff’s attorney asked whether anyone had been involved in an auto accident and jurors that raised their hands were questioned more and some were excluded. One of the jurors that did not raise his hand ended up on the jury and it turned out he had actually been involved in an accident, but failed to disclose this information. Murphy v. Roth, So.3d , 2016 WL 5803658 (Fla. 4th DCA 10-5-2016).

It gets worse. During trial, that very juror demonstrated his bias against the plaintiff by posting things to twitter like “I got picked as a juror...

I hate this s––– I’m so pissed, I even half a–––ed all my answers and I dressed terrible” and “Everyone is so money hungry that they’ll do anything for it.”

Plaintiff didn’t learn of these tweets until after trial, and was granted an interview where the juror admitted he was actually talking about an accident that he and his father were involved in. Plaintiff then filed a motion for retrial and the Fourth District affirmed the denial of that motion, since the juror said he “didn’t understand the question.”

Could you really imagine this outcome if the case had been one with a $12 million verdict and the defendant was filing the motion because the juror said something similarly negative about insurance companies?

Plaintiff is the “Master of Her Pleadings” and May Join the UM Bad Faith Count, Even if it Spoils the Insured’s Access to its Beloved Federal Court Since the Supreme Court made clear that it was within the trial court’s discretion to enter judgment on an excess UM verdict and reserve jurisdiction to hear the bad faith claim, insurers have been whining that this procedure destroys their “fundamental right” to remove the bad faith claim to Federal Court. After losing their plea to the trial court’s discretion, some carriers have then removed to federal court once the bad faith claim is filed.

This is generally not ok, because in addition to the 30 day deadline to remove that runs from the time the case is “removable,” there is also a one year, overall time limit that runs from the date the original lawsuit was filed. To be able to avoid remand, the carriers have to convince the federal court that the bad faith case is a “new and different claim” that was really only commenced after the verdict. They whine that they couldn’t remove before the amendment because the amount in controversy was limited, or because the non-diverse tortfeasor was included and so if they aren’t allowed to remove now, they might have to go to trial in that icky state court where people wear cotton socks.

That logic has been adopted infrequently by some district courts, but was tossed, convincingly, in Lee v. Allstate, 2016 WL 6246911 (M.D. Fla. Oct. 26, 2016). The decision is worth keeping in your research folder because it contains all the beneficial passages about removal being a limited right, and the plaintiff’s entitlement to choose its forum being superior to the defendant’s right to remove.

Amount in Controversy in a UM Case Should NOT Include an Implied Amount for Non-economic Damages In a UM action with $12,188 in past medicals, the carrier removed saying, essentially, by the time you add in earnings losses, future medicals, pain and suffering etc., the amount in controversy was over $75,000. The plaintiff had said as much in the demand letter.

The court found the threshold for diversity jurisdiction was not met and remanded to state court. DiCapua v. State Farm Mut. Ins. Co., 2016 WL 6156095 (M.D. Fla. Oct. 24, 2016).

Amount in Controversy in a UM Case Should DEFINITELY Include an Implied Amount for Non-economic Damages Spoiler alert – this case is mostly interesting because of how it sandwiches between the DiCapua and Cadle cases above and below.

In Staley v. Liberty Mut. Ins. Co., 2016 WL 6123369 (M.D. Fla. Oct. 20, 2016), on plaintiff’s motion for remand, the court looked to the past medicals of $63,724.43 along with a demand letter and the Civil Remedy Notice of Insurer Violation (“CRN”) to find that the amount in controversy clearly exceeded $75,000.

Even if the reason you became a lawyer is because math doesn’t like you, it is clear that the court is considering the potential for damages other than the past medicals, unlike the DiCapua court. The court felt so strongly that this was appropriate that it directed briefing

20 | November/December 2016 | www.FloridaJusticeAssociation.org

about whether the plaintiff should pay sanctions for even trying to get a remand!

aid, valiantly attempting to cut through the cluttering underbrush to at least get started in clearing the quagmire.

In a UM Case the Carrier Does NOT Need to Consider an Implied Claim for Non-economic Damages in its Evaluation, to Avoid Bad Faith In a recent Eleventh Circuit opinion, Cadle v. GEICO Gen. Ins. Co., F.3d , 2016 WL 5539815 (11th Cir. 9-30-2016), the court draws a bright-line rule that to hold a carrier liable for bad faith in a UM claim in a case where the provable specials are less than the policy, the carrier must be aware of evidence from which it could at least infer permanent injury, before the 60 day CRN expires.

In Anderson v. Hilton Hotels Corp., So.3d , 2016 WL 6538663 (Fla. 11-3-2016), the defendants thought they had pulled a quick one over on the plaintiff. He was seriously injured in an Embassy Suite’s parking lot, and the ownership/control of that lot was clouded between three separate but related entities.

Although this decision is not great, it does provide one small morsel of reprieve. By saying that the permanency of the injury must be known within the 60-day cure period, it implies that you can continue to provide medicals and other evidence during that cure period and the permanency doesn’t need to be established before serving the CRN.

As the case rolled toward the actual trial, these three defendants were all represented by a single attorney. At his suggestion or with his approval, the court simplified the verdict form and instructions to refer to them all jointly as “Embassy Suites.” When the plaintiff proposed instructions on the vicarious relationship between them, the defense lawyer resisted saying “I don’t think it is necessary to do that,” since another consensual instruction advised the jury that all three of those defendants were “one and the same.”

Supreme Court Takes on the Proposal for Settlement Challenge Over the past ten years, the history of the development of law related to the proposal for settlement (“PFS”) has been an unhappy one plagued by inconsistencies between the PFS rule and statute, and within the body of judicial decisions. The Supreme Court has now come to our

Each of them, Hilton Hotel Corporation, W207 Equity Inns Realty, LLC, and Interstate Management Company, LLC, received a PFS from the plaintiff in separate amounts, and none were accepted.

The verdict came back big – and put 72 percent liability on “Embassy Suites.” Judgment was entered against all three defendants for 72

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TIPSFORAUTOPRACTITIONERS

percent of the damages awarded and that judgment triggered the heck out of the plaintiff’s proposals.

Then when the plaintiff moved for fees, the defendant pulled a card from its sleeve and said, basically – since you can’t say for certain which defendant was responsible for what percentage of the damages, you can’t establish that the verdict against any of them was actually 125% of the separate offers you made to each of them. And, if you add all the proposals up together, the judgment was not big enough to trigger that consolidated total.

So. Very. Clever.

Unfortunately, the trial judge bought that argument, denied the plaintiff’s fee motion, and the Fifth District affirmed. Each proposal from the plaintiff offered to settle “any and all claims” asserted against each defendant, and the court found that since this didn’t clearly state whether that included the consortium claim, it was ambiguous.

The Supreme Court reversed, and remanded for the plaintiff’s fees to be awarded. More important than the narrow holding, was the basis for it. The Court dusted off great old heirloom PFS cases like White v.

Steak and Ale of Fla., 816 So. 2d 546 (Fla. 2002), Perez v. Circuit City Stores, Inc., 721 So. 2d409 (Fla. 3d DCA 1998), and TGI Friday’s, Inc. v. Dvorak, 663 So.2d 606 (Fla. 1995) to reaffirm that the enquiry required to determine entitlement to fees should not be a hard one.

We don’t need to look at the verdict, or understand the mental processes of the plaintiff. We need only look at the judgment obtained, get a calculator with a fresh battery, and do the math. Absent bad faith by the offeror, the entitlement to fees is a “mandatory right” to be enforced by the court.

Moreover, the search for strained and artificial ambiguities has ended.

The court endorsed the rule that not every ambiguity a panicked offeror might inject into the analysis by “nitpicking” will invalidate a proposal.

The purpose of this statute is to reduce judicial labor and the only way it can do that is if offerees feel the pressure to accept. That, in turn, will only happen if fee awards are enforced when appropriate without artificial, strained “nitpicking” resistance.

Only if the ambiguity is so severe that it is impossible for the offeree to make an informed decision without clarification on a matter that could reasonably affect the offerees decision, will it be considered unenforceable.

Whether a proposal was ambiguous when it said there was no claim for fees “at this time” implying fees could be taxed later (it was). Maines v. Fox, 190 So.3d 1135 (Fla. 1st DCA 2016).

Whether a PFS was ambiguous when it said it was “inclusive of all damages” when there were two defendants (it was). Nunez v. W. Riley Allen, 194 So.3d 554 (Fla. 5th DCA 2016).

Whether a PFS was ambiguous when it said it was inclusive of all attorneys’ fees and costs but did not expressly say whether attorneys’ fees were part of the legal claim (it was). Deer Valley Realty, Inc. v. SB Hotel Associates LLC, 190 So.3d 203 (Fla. 4th DCA 2016).

Whether the change of the corporate name after serving its PFS rendered it ambiguous (it did not). Vanguard Car Rental USA, LLC v. Suttles, 190 So.3d 672 (Fla. 3d DCA 2016). Or, whether a PFS was ambiguous for failing to say whether the claims would be resolved by release, dismissal or other means (it was not). Manuel Diaz Farms, Inc. v. Delgado, 193 So.3d 71 (Fla. 3d DCA 2016).

Whether the statute and rule require a PFS to contain a certificate of service (they do not) and whether using “his” instead of “her” to refer to a female plaintiff rendered a PFS ambiguous (it did not). Floyd v.

Smith, 160 So. 3d 567 (Fla. 1st DCA 2015).

Of course, many areas of confusion remain, such as: Whether filing a motion to extend automatically tolls the thirty day period to respond. See Ochoa v. Koppel, 197 So.3d 77 (Fla. 2d DCA 2016) (holding it does not automatically toll the time to respond) conflict certified with Goldy v. Corbett Cranes Services, Inc., 692 So. 2d 225 (Fla. 5th DCA 1997) (holding it does automatically toll the time to respond).

While the Supreme Court made clear that a proposal should apportion the amount to settle the claims between each plaintiff to be valid, Audiffred v. Arnold, 161 So. 3d 1274 (Fla. 2015), a proposal does not need to apportion between vicariously liable defendants. Saterbo v.

Markuson, So.3d , 2016 WL 5113913 (Fla. 2d DCA 9-21-2016) See also Miley v. Nash, 171 So. 3d 145 (Fla. 2d DCA 2015) (holding a PFS that required the release of two defendants did not necessarily render it a joint one).

A journey of a thousand miles begins with a single step.

This decision and the Kuhajda v. Borden Dairy Co. of Alabama, LLC, So.3d , 2016 WL 6137289 (Fla. Oct. 20, 2016) opinion from two weeks earlier could signal a whole new era and common sense approach to this critical area of law.

These new Supreme Court cases should implicitly overrule and diminish the number of cases we see on the appellate dockets for questions on ambiguity, such as:

22 | November/December 2016 | www.FloridaJusticeAssociation.org

Dale M. Swope

Mr. Swope is the founder of Swope, Rodante, P.A. in Tampa. He is a member and senior fellow of the FJA Executive Committee and founder and past President of the Tampa Bay Trial Lawyers Association. He specializes in cases involving catastrophic personal injury, wrongful death and insurance bad faith claims.

M

MEDICALMALPRACTICE

EDICAL

ALPRACTICE

by Scott R. McMillen & Allison McMillen

F

lorida Supreme Court holds nursing home resident suing for negligence is not bound by arbitration clause in contract resident did not sign or agree to. Mendez v.

Hampton Court Nursing Center, LLC, So.3d , 41 FLW S394 (Fla. 9-22-16). During a patient’s nursing home admission, his adult son signed the nursing home’s contract on a line titled “Resident’s Representative.” The son did not have a power of attorney or other legal authority to bind his father to the contract. During his time in the nursing home, the father developed an eye infection that required the eye’s removal. The son obtained power of attorney and sued the nursing home for negligence and statutory violations. The trial court granted the nursing home’s motions to stay proceedings and to enforce an arbitration clause in the contract the son had signed. The Third District Court of Appeal affirmed on the grounds that the father was the intended third-party beneficiary of the contract, so he was bound by its arbitration clause. The Florida Supreme Court granted review on the basis of express conflict, and reversed the decision below. The Court explained that “the third-party beneficiary doctrine enables a non-contracting party to enforce a contract against a contracting party – not the other way around.” The Court acknowledged that it has held in the past that a non-contracting party should not be able to enjoy the benefits of a contract between two other parties without also bearing the contract’s burdens. However, the Court held, that rule does not apply where – as here – the non-contracting party is not seeking to enforce the contract, but is suing on other grounds. According to the Court, the distinction makes sense because the purpose behind the third-party beneficiary doctrine was originally to do justice for the non-contracting party. Justices Canady and Polston dissented, with separate written opinions.

Second District affirms trial court ruling that Section 766.118 caps are unconstitutional in non-wrongful death medical malpractice cases; also reverses set-off against economic damages. Port Charlotte HMA, LLC v. Suarez, So.3d , 2016 WL 6246703 (Fla. 2d DCA 10-26-16). The mother of a premature baby who suffered severe neurological injuries at birth brought a medical malpractice suit against the hospital and two doctors involved. She settled with one of the doctors before going to trial. The jury found the other doctor 70 percent at fault and the hospital 30 percent at fault, and awarded over $23,000,000 in damages, including $5,250,000 in non-economic damages. The hospital moved to reduce the jury verdict based on the caps on non-economic damages in §766.118, Florida Statutes, but the trial court denied the motion, finding the caps unconstitutional under Broward Hospital v. Kalitan, 174 So. 3d 403 (Fla. 4th DCA

2015). (That Fourth District case had evaluated the holding in McCall v. United States, 134 So.3d 894 (Fla. 2014), that the caps were unconstitutional in medical malpractice wrongful death cases, and ruled that based on McCall, the §766.118 caps are unconstitutional in non-wrongful death medical malpractice cases, as well.) The trial court granted the hospital’s motion to apply a set-off to its share of the economic damages based on the plaintiff’s pretrial settlement with one of the doctors. After applying a set-off of $193,395.30, the trial court entered final judgment against the hospital for over $6 million.

The hospital appealed, and the plaintiff cross-appealed. The Second District Court of Appeal held that the trial court had correctly followed Kalitan, because as the only district court decision on the issue at the time, it was binding precedent. Furthermore, the Second District held, the Kalitan court was correct in applying McCall’s reasoning to personal injury medical malpractice cases. Next, the Second District looked at whether the trial court erred in applying a set-off for economic damages.

In doing so, the trial court had relied on D’Angelo v. Fitzmaurice, 863 So.2d 311 (Fla. 2003). However, the Second District explained, the set-off statutes were originally enacted at a time when multiple defendants were jointly and severally liable for all damages. When D’Angelo was decided, defendants still had joint and several liability for economic damages under §768.81, Florida Statutes, and the D’Angelo court held that set-off for economic damages was proper. Since that time, §766.81 has been amended to abolish joint and several liability altogether. Therefore, the Second District reasoned, the holding in D’Angelo did not apply, and the trial court erred in applying a set-off to the economic damages.

Scott R. McMillen

Mr. McMillen is the founder of McMillen Law Firm, P.A, with a principal office in Orlando and satellite offices around the state and in Atlanta, Georgia. He is currently a member of Florida Bar Board of Governors, and a past President of the Central Florida Trial Lawyers Association, The Orange County Bar Association and The Legal Aid Society of the Orange County Bar Association. Mr. McMillen has been representing medical negligence victims throughout Florida and Georgia for nearly 30 years.

Allison McMillen

Ms. McMillen graduated magna cum laude from the University of Miami School of Law in 2007. Ms. McMillen is a member of The Order of the Coif, the Central Florida Trial Lawyers Association, the Central Florida Association for Women Lawyers, and the George C. Young First Central Florida American Inns of Court. She practices with the McMillen Law Firm, P.A., in its Orlando office.

www.FloridaJusticeAssociation.org | November/December 2016 | 23

PRODUCTSLIABILITY

FEDERAL OVERREACH:

NHTSA Foreshadows Possible Preemption of State Tort Law

by William C. Ourand

S

elf-driving cars are already being tested, and will become increasingly more common in the years to come. There are good reasons to be optimistic about this technology, as it has the potential to reduce crashes. But make no mistake: the battle over tort liability for self-driving car crashes has already begun, and there is a very real possibility that automakers and software companies may secure a sweeping victory in the form of federal preemption. We are at a critical juncture in this fight as the National Highway Traffic Safety Administration (“NHTSA”) just released its initial guidance on the topic. NHTSA’s guidance contains several unfortunate statements which may foreshadow a massive power grab by federal bureaucrats—one that could completely displace state law and deny Floridians the right of access to the civil justice system.

This article will analyze the troubling aspects of the NHTSA guidance, expose the hollow arguments advanced against automotive products liability law and in favor of federal preemption, and provide recommendations for consumer advocates who wish to remain informed and engaged in the fight.

NHTSA’s Troubling Statements NHTSA’s 116 page policy statement, published in late September, makes it clear that the Agency is firmly intent on following “an ambitious approach to accelerate the [self-driving car] revolution.”1 To achieve this objective, NHTSA’s guidance provides best practices for manufacturers, and a model state policy that the agency hopes will avoid “a patchwork” of “incompatible” state laws.2 NHTSA also provides extensive discussion as to its current regulatory powers, regulatory powers it may ask Congress for in the future, and the roles that the states and the federal government should play in the oversight of self-driving cars.3 These last three points of discussion are where the troubling statements are featured.

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Most notably, in the section entitled “The Federal and State Roles,” NHTSA cryptically observes that “[t]he Supreme Court has . . . found that State laws may be preempted if they stand as an obstacle to the accomplishment and execution of a NTHSA safety standard.”4 In support of this proposition, NHTSA cites to SCOTUS’s decision in Geier v. American Honda Motor Co., 529 U.S. 861 (2000). This citation is particularly alarming because the Geier decision represents one of the worst losses consumers have ever suffered on the federal preemption battlefront.

In Geier, the Court held that so-called “no-airbag” products liability lawsuits—which alleged that certain vehicles were defective due to having been designed, made, and sold without airbags—were preempted because of what the Court perceived to be a conflict with federal “objectives.”5 Remarkably, the Court looked past the Motor Vehicle Safety Act’s express saving clause, which specifically preserves state tort lawsuits, and instead relied upon mere “comments” made by former Department of Transportation Secretary Barbara Dole back in the 1980s, which the Court felt reflected the “Secretary’s view” in passing the regulation at issue.6 Scholars have characterized this approach as representing a particularly “aggressive” form of preemption analysis.7 And the decision was unsurprisingly followed by a wave of preemption arguments advanced by manufacturers in lawsuits across the country.8 Given this background, it is incredibly troubling that NHTSA chose to cite to Geier in its discussion of the “Federal and State Roles” in overseeing self-driving cars. Of course, it remains to be seen whether and what preemptive language, if any, NHTSA will invoke when crafting binding rules or safety standards for autonomous vehicles. At this time, the NHTSA guidance only mentions that state laws “may be preempted” if they “stand as an obstacle to the accomplishment and execution” of a standard, and no such standards have been promulgated.

But it is hard to read NHTSA’s statement and citation to Geier as anything other than a warning shot over the bows of state courts.

Also troubling is the fact that NHTSA discusses the possibility of seeking large expansions of its own power from Congress, including a federal statute providing for a type of pre-market approval process for self-driving cars.9 Consumer advocates should be very wary of a pre-market approval process, as this type of approval has resulted in preemption of medical drugs and devices, among other things.

Moreover, past experience has shown that products bearing a federal bureaucratic stamp of approval, like those products approved pursuant to the Food and Drug Administration’s (“FDA”) pre-market approval process, can and still do fail once they reach the market. Unfortunately, consumers, their healthcare insurers, and society as a whole often wind up bearing the full burden of injuries caused by defective medical products, as the FDA pre-market stamp of approval typically results in preemption of state tort lawsuits, with only a few narrow exceptions.10 The introduction of a similar process for self-driving cars could lead to a similar outcome, depending on the language employed in the statutes and regulations.

Finally, NHTSA also asserts that the States should determine “how to allocate liability among [autonomous vehicle] owners, operators,

passengers, manufacturers, and others when a crash occurs,” and suggests that States should considering working to develop “consistent solutions.”11 NHTSA even proposes the establishment of a “commission to study liability and insurance issues and make recommendations to the States.”12 While it is refreshing that NHTSA seems to acknowledge that any such discussion should occur at the State level, the notion of developing new, “consistent solutions” is troubling. The States have already developed their own systems for allocating fault for car crashes. Each State’s tort law system has methods to attribute fault to humans (auto negligence claims), machine defects (products liability), or other factors (i.e. roadway maintenance problems). NTHSA fails to provide any reason why these current state law remedies will be unworkable in the future.

Products Liability Should Remain a Vital Part of Our System While NHTSA only recently published its initial guidance on autonomous vehicles, academics and other legal commentators have been discussing and debating liability for self-driving car crashes for almost a decade. Those arguing in favor of preemption of state tort law invoke the same general arguments: namely, they claim that federal regulators are better at enacting and enforcing safety standards than civil juries,13 that tort liability “may lead to inefficient delays in the adoption of these technologies,”14 and that products liability law is incapable of dealing with this new technology.15 These arguments are hollow and fail to account for several critical differences between federal regulation and state tort litigation.

At the outset, there is simply no evidence that NHTSA will excel at developing and enforcing the robust kinds of safety standards needed to protect the public. NHTSA, like other federal agencies, has been historically underfunded, lacking in technical expertise, and prone to “agency capture” concerns.16 It is tragically unsurprising, then, that critical safety defects like the exploding Takata airbags and GM ignition switch debacle were effectively concealed from the Agency for several years. The ongoing Takata airbag crisis is perhaps the most egregious example of NHTSA’s limitations, as the Agency simply rubber stamped a series of shifting explanations from Honda and Takata for many years—before media scrutiny and pressure from Congress finally forced the Agency to begin taking more drastic action.17 Put simply: NHTSA’s track record does not bode well, and it most certainly does not warrant the complete elimination of consumers’ rights to pursue state law products liability remedies.

Products liability cases also serve an important truth-finding function for society as a whole. Each and every automotive crash is unique, and the determination as to whether a product had a defect that caused or contributed to a crash must necessarily be made only after carefully reviewing the circumstances of that particular crash. The jury system allows for this type of case-by-case analysis to be conducted in open court, with each party having a fair opportunity to present their claims and defenses. Federal regulations, on the other hand, force regulators to make a generalized assessment of the risk and utility of a proposed design, often without significant, or any, real-world data to analyze.

In addition, there is simply no evidence that state tort law has somehow delayed the development of self-driving cars. At most, those advocating

www.FloridaJusticeAssociation.org | November/December 2016 | 25

PRODUCTSLIABILITY

this position have relied upon self-serving quotes from automakers or tech companies looking to break into the field.18 These statements, however, are belied by the reality that Tesla, Uber, and other companies are already moving forward with “AutoPilot” features, self-driving rideshare operations with no human drivers, and other forms of fully or partially autonomous technology.19 Accordingly, concerns that tort liability is somehow stifling self-driving car development are speculative and un-supported by marketplace realities.

Furthermore, proponents of federal preemption also overlook the cost externalization problem of this outcome. If self-driving cars were shielded by federal law against state tort liability, then injured consumers and their families, health insurers, and society in general will be forced to shoulder the full burden of injuries caused by defective vehicles. This would starkly contrast with the public policy currently embodied by Florida’s product liability jurisprudence, which is built on the foundational principal that: “The cost of injuries or damages, either to persons or property, resulting from defective products, should be borne by the makers of the products who put them into the channels of trade, rather than by the injured or damaged persons who are ordinarily powerless to protect themselves.”20 Finally, there is little reason to worry that products liability law will be incapable of resolving disputes in the autonomous vehicle context.

Products liability doctrine matured over the last 100 years—the same time period during which society as a whole has grown more technologically complex. Scholars have noted that “[p]roducts liability has been one of the most dynamic fields of law since the middle of the 20th century,” and that it has “proven to be remarkably adaptive to new technologies.”21 This is particularly true in the automobile defect context, as the law has evolved and adopted along with consumer vehicles, which have already become increasingly sophisticated.

In short, “[p]roducts liability law is capable of handling the new [autonomous vehicle] technology just as it handled the incorporation of seat belts, airbags, and cruise control.”22 How Consumer Advocates Can Stay Involved and Help Win the Battle It is important to remember that the NHTSA guidance is just the federal agency’s first, non-binding word on the subject. Notably, NHTSA began working on this guidance years ago, and consulted with Big Auto and other industry stakeholders (including software companies venturing into autonomous vehicles).23 The Agency did not meaningfully consult with consumers or consumer safety advocates.24 Indeed, the guidance document itself acknowledges that “[w]hile the Agency sought input from various stakeholders during the development of the Policy, it recognizes that not all interested people had a full opportunity to provide such input.”25 Moving forward, NHTSA has stated that it intends to publish additional self-driving car guidance “sometime within the next year.”26 And the Agency has promised to host workshops for the public, and to accept input through other means.27 Consumers and consumer advocates should attend and participate in such workshops, and provide clear and unequivocal input to the effect that NHTSA should not act

to strip away or usurp consumers’ state law rights to pursue products liability claims.

Of course, elections also matter. Moving forward, consumer advocates should consider whether a candidate is likely to side with Big Auto, software companies, and federal regulators, or instead will fight for consumers’ right to avail themselves of the civil justice system. While the 2016 race has already concluded, the mid-term Congressional elections are just around the corner. Significantly, NHTSA’s authority derives from the Federal Motor Vehicle Safety Act.28 And NHTSA itself has acknowledged that it may be forced to go back to Congress to seek more legal authority should it wish to enact a pre-market approval process or take other action not presently authorized by the Act.29 Conclusion Self-driving cars are already here, and they are only going to become more common in the years to come. This technological breakthrough will radically transform our roadways, and may have an equally large, and potentially devastating, impact on our civil justice system. Existing preemption jurisprudence has created a gateway for manufacturers to secure an early, case-killing victory. And, unfortunately, NHTSA’s initial guidance contains several troubling statements that may foreshadow such an outcome. Accordingly, consumer advocates must remain informed and engaged to help keep the courthouse doors open for the injured consumers of tomorrow. ____________ NHTSA, Federal Automated Vehicles Policy: Accelerating the Next Revolution in Roadway Safety, pp. 5-6 available at http://www.nhtsa. gov/nhtsa/av/av-policy.html (Sep. 2016).

2 Id. at 6-7.

3 Id. at 7-8.

4 Id. at 38 n. 53.

5 Geier v. Am. Honda Motor Co., Inc., 529 U.S. 861, 875 (2000).

6 Id. at 868-85.

7 John C.P. Goldberg and Benjamin C. Zipursky, The Supreme Court’s Stealth Return to the Common Law of Torts, 65 DePaul L. Rev. 433, 450 (Winter 2016) 8 Jill D. Jacobson & Rebecca S. Herbig, The Transformation of Preemption Law, available at http://www.bowmanandbrooke. com/insights/~/media/Documents/Insights/News/2007/12/ The%20Transformation%20of%20Preemption%20Law/Files/ JacobsonHerbigFTDPreemption/FileAttachment/The%20 Transformation%20of%20Preemption%20Law. 9 NHTSA, Federal Automated Vehicles Policy, supra note 1 at 71.

10 Riegel v. Medtronic, Inc., 552 U.S. 312, 128 S. Ct. 999 (2008); Wyeth v. Levine, 555 U.S. 555, 129 S. Ct. 1187 (2009).

11 NHTSA, Federal Automated Vehicles Policy, supra note 1 at 44.

12 Id. 13 Note, CYBERLAW AND VENTURE LAW: Autonomous Vehicle Regulation: How an Uncertain Legal Landscape May Hit the Brakes On Self-Driving Cars, 31 Berkeley Tech. L.J. 851 , 871 (2016).

14 idhi Kalra, James Anderson, Martin Wachs, Liability and Regulation of Autonomous Vehicle Technologies, RAND Corporation, California PATH Research Report, UCB-ITS1

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PRR-2009-28 (April 2009), available at https://merritt.cdlib.org/d/ ark%3A%2F13030%2Fm55x29z8/1/producer%2FPRR-2009-28. pdf 15 Note, CYBERLAW AND VENTURE LAW, supra note 13 at 862.

16 Benjamin Levin, ARTICLE: MADE IN THE U.S.A.: CORPORATE RESPONSIBILITY AND COLLECTIVE IDENTITY IN THE AMERICAN AUTOMOTIVE INDUSTRY, 53 B.C. L. Rev. 821, 863 (2012).

17 William Ourand, The Takata Airbag Defect: What Florida’s Consumer Advocates Need to Know, available at http:// newsomelaw.com/blog/2015/09/08/the-takata-airbag-defect-whatfloridas-consumer-advocates-need-to-know-william-c-ourand-esq/.

18 Note, Autonomous Cars and Tort Liability, 4 J. Law, Tech., & The Internet 81, 84 (2012).

19 Alex Davies, We Take a Ride in the Self-Driving Uber Now Roaming Pittsburgh, Wired, available at https://www.wired.com/2016/09/selfdriving-autonomous-uber-pittsburgh/ (Sep. 14, 2016).

20 West v. Caterpillar Tractor Co., 336 So. 2d 80, 92 (Fla. 1976) 21 John Villasenor, Products Liability and Driverless Cars: Issues and Guiding Principles for Legislation, Brookings Institute, available at https://perma.cc/UNZ3-GDE2 (April 2014).

Note, “Look Ma, No Hands!”: Wrinkles and Wrecks in the Age of Autonomous Vehicles, 46 New Eng. L. Rev. 581.

23 C. Richard Newsome, NHTSA’s Autonomous Car Guidelines: Top Ten Things We Learned This Week, available at http://newsomelaw. com/blog/2016/07/20/nhtsas-autonomous-car-guidelines-top-tenthings-learned-week/.

24 Id. 25 NHTSA, Federal Automated Vehicles Policy, supra note 1 at 8.

26 Id. 27 Id. at 11.

28 49 U.S.C. §§ 3010, et seq.

29 Id. at 68, 72.

22

William C. Ourand, Jr. Will Ourand graduated magna cum laude from the Florida State University College of Law where he served for two years on the editorial board of the Law Review. After graduation, he was inducted into the Florida State Chapter of the Order of the Coif. He is currently an associate at Newsome Melton, where he represents consumers in products liability and class action lawsuits.

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www.FloridaJusticeAssociation.org | November/December 2016 | 27

WORKERS’COMPENSATION

RECENTCASES

By Michael J. Winer

OF NOTE

T

he injured workers of Florida have benefitted tremendously by some recent court decisions that expanded benefits. In the last edition, we brought you a summary of the Supreme Court of Florida opinion in Westphal v. City of St. Petersburg,194 So. 3d 311, 327 (Fla. 2016) in which the Court held the 104-week limitation on temporary total disability benefits (TTD) in §440.15(2)(a), Florida Statutes (2009), unconstitutional as applied to Westphal and all others similarly situated, as a denial of access to courts under article I, section 21, of the Florida Constitution. The court revived the previous version of the statute which provided 260 weeks of temporary benefits, prior to reaching MMI. This was a landmark decision that provided much needed indemnity benefits to severely injured workers. However, the Westphal court was not asked to address the related issue of workers who remain temporarily and partially disabled (TPD) beyond the 104 week limitation, such that they also could not return to work. As a result, many JCCs were denying benefits to injured workers so affected, as the JCCs do not have the jurisdiction to decide constitutional questions.

Such was the scenario presented in Jones v. Food Lion, Inc., and Risk Management Services, (Fla. 1st DCA 11-9-2016) (TPD and 104 Week Limitation). There, the parties agreed at the time of the June 8, 2015, hearing that claimant had not reached maximum medical improvement per his healthcare providers, that he was at that time temporarily partially disabled (TPD), and that he otherwise would be eligible for temporary partial disability benefits but for the expiration of the 104-week eligibility limitation found in paragraph 440.15(4) (e), Florida Statutes (2011). The JCC declined to extend this Court’s reasoning in Westphal I to the facts of the case before him, concluding that the Westphal I opinion addressed only the circumstance wherein a claimant was temporarily totally disabled at the end of the 104 weeks of eligibility.

The DCA recognized that on June 9, 2016, the Florida Supreme Court released Westphal v. City of St. Petersburg (Westphal II), 194 So.3d 311, 327 (Fla. 2016), in which the Court held paragraph 440.15(2)(a), Florida Statutes (2009), unconstitutional as applied to Westphal and all others similarly situated, as a denial of the right of access to courts

guaranteed by article I, section 21, of the Florida Constitution. The Court reasoned:

by Michael J. Winer

cut[ting] off disability benefits after 104 weeks to a worker who is totally disabled and incapable of working but who had not yet reached maximum medical improvement ... deprives an injured worker of disability benefits under these circumstances for an indefinite amount of time – thereby creating a system of redress that no longer functions as a reasonable alternative to tort litigation.

Id. at 313.

The Court concluded there was no demonstration of “an overwhelming public necessity to justify the Legislature’s elimination of temporary total disability benefits after 104 weeks.” Id. at 327.

The claimant argued here that the Supreme Court’s reasoning in Westphal II applies equally to those claimants, like him, who are temporarily partially disabled when the 104-week eligibility period expires under paragraph 440.15(4)(e). Based on the reasoning and directive of the Supreme Court in Westphal II, the DCA “necessarily agreed”. Being medically released for some level of employment (e.g., lightduty) is not the equivalent of working. See Wyeth/Pharma Field Sales v. Toscano, 40 So. 3d 795, 800 (Fla. 1st DCA 2010) (“Simply being able to work and search for work, however, is not the economic equivalent of an earning capacity.”). Whether totally disabled or partially disabled at the end of 104 weeks, a claimant whose temporary indemnity is cut off by paragraph 440.15(2)(a) or (4)(e) would be deprived of disability benefits for an indefinite amount of time.

The DCA concluded that the Supreme Court’s use of the phrase “temporary disability benefits” implies that the reasoning of Westphal II also encompasses any “gap” created by application of the 104-week cap on temporary total and partial disability benefits. Accordingly, as the Supreme Court concluded in Westphal II, the appropriate remedy is the revival of the pre-1994 statute that provided for a limitation of 260

28 | November/December 2016 | www.FloridaJusticeAssociation.org

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www.FloridaJusticeAssociation.org | November/December 2016 | 29

WORKERS’COMPENSATION

weeks of temporary total disability benefits. Westphal II, 194 So.3d at 327. Applying that reasoning here led to the conclusion that, as of the time of the hearing below, claimant in fact was entitled to temporary partial disability benefits and remained eligible until the expiration of 260 weeks. See §440.15(4)(c), Fla. Stat. (1991). Thus, instead of being limited to just 104 weeks of temporary benefits, injured workers who are confronted with long and protracted recoveries (which often times which are due to having to litigate and establish their entitlement to benefits) now get up to 260 weeks of temporary benefits for disabilities that are either temporary or permanent.

Here are the rest of the latest case law summaries: Sansone v. Frank Crum/Frank Winston Crum Ins., Inc., (Fla. 1st DCA 11-2-2016) Entitlement to Attorney Fees/Medical Benefits The claimant fell from a scaffold and the E/C initially denied compensability which prompted the claimant to file a PFB for indemnity, payment of an outstanding hospital bill and attorney fees. Within 30 days of the filing of the PFB, the E/C accepted compensability, paid indemnity and accepted responsibility for the hospital bill. However, the E/C paid the bill several weeks later, which was more than 30 days after the receipt of the PFB. The claimant then sought attorney fees, arguing that he obtained payment of the hospital bill for their client.

The JCC denied entitlement. The DCA affirmed and noted that under Fla. Stat. section 440.34(3)(b), entitlement does not attach until 30 days after the E/C received the PFB. However, the question here is whether the claimant’s petition finally succeeded when the employer accepted responsibility for the hospital bill (which was before the thirty days ran) or when the employer actually paid the hospital bill (which was after). The DCA reasoned that in this case, the actual benefit the claimant received was not the E/C’s payment to the hospital; it was his being relieved of any obligation to pay the hospital himself. The claimant became “insulated from financial responsibility” for the hospital bill after the E/C accepted responsibility. After that point, when and how much is paid becomes a matter between the carrier and health provider. Thus, no fee was owed by the E/C. City of Dania Beach/PGCS v. Zipoli, (Fla. 1st DCA 10-10-2016) Statute of Limitations/Elements of Estoppel This case represents an unfortunate retreat from the Gauthier decision which had provided harsh consequences for carriers who fail to fulfil their obligations in a self-executing system. Here, the DCA reversed the JCC’s finding that the E/C was estopped from asserting a statute of limitations defense against the claimant’s request for benefits. The claimant sustained a compensable lowback injury on January 16, 2009.

The E/C provided both medical treatment and indemnity benefits. In September 2009, the E/C notified the claimant that he had attained overall MMI, was due impairment benefits, and that his claim was subject to the one year statute of limitations (SOL) for medical benefits.

The parties stipulated that MMI was reached on 7-28-2009 with a 7 percent PIR. The E/C stipulated they made one late payment and never paid penalties and interest on the late payment. The last IB

payment was 11-3-2009. The claimant last obtained treatment with his authorized doctor in May of 2010.

The claimant asserted that the E/C was estopped from asserting the statute of limitations because the E/C failed to fulfill its mandatory duty to pay, thus leaving the claimant unaware of his entitlement to certain classes of benefits. The claimant relied on Gauthier v. Florida International University, 38 So.3d 221 (Fla. 1st DCA 2010), where this Court concluded that the claimant had detrimentally relied on the E/C’s failure to comply with its statutory duties—specifically, to obtain an MMI and PIR and pay IBs based on that PIR—leaving the claimant unaware of her potential entitlement to benefits and foreclosing her ability to toll the statute of limitations.

The DCA found the JCC erred in applying estoppel, which requires (1) the E/C misrepresented a material fact; (2) Appellant relied on the misrepresentation; and (3) Appellant changed her position to her detriment because of the misrepresentation. The DCA also found that the JCC too broadly construed their 2010 Gauthier case, in which detrimental reliance by the claimant on the E/C’s failure to pay IBs was shown. The DCA found that the claimant admitted he received the “initial brochure” advising him of his rights, and that reliance on the statements of the doctor’s office as to the viability of the claim could not translate into a statement by the E/C upon which the claimant relied. In Gauthier, payment of the impairment benefits would have tolled the statute of limitations defense. Therefore, the absence of the filing of a PFB by the claimant was due to the E/C’s failure to acquire MMI and PIR information, failure to file appropriate DWC forms, and failure to convey accurate information concerning claimant’s PIR or to initiate IB payments to claimant – which the E/C was on actual notice were due pursuant to the serious and permanent nature of her injuries. By contrast, in this case, there is no record evidence that the claimant detrimentally relied on a misrepresentation or omission made by the E/C. Further, the DCA found no record evidence of the E/C’s knowledge of the doctor’s office’s discussion with the claimant.

Rather the E/C acquired the MMI and PIR, filed the appropriate forms documenting the assignment and change of medical status, sent a letter to the claimant advising of entitlement to IBs, and initiated payment of the IBs. Gauthier does not permit an inference of detrimental reliance whenever and wherever an E/C has failed to meet a statutory obligation.

Great Cleaning Corp./Ascendant v. Bello, (Fla. 1st DCA 9-62016) Average Weekly Wage/Calculation of Wages The DCA reversed the JCC’s determination of the claimant’s AWW, finding that §440.14(1)(a) applied. Claimant worked part time but changed to full time in the 21 days prior to her work accident. The E/C argued her AWW should be established per subsection (1)(a) by adding up her wages in the 13-week period and dividing by 13 ($251.96).

The claimant contended that her AWW should be calculated based only upon her full time work for the three weeks before her accident.

The JCC agreed with the claimant, calculated that amount at $653.83, but awarded an AWW of $577.50 as that was the highest amount claimant sought in the Pretrial Stipulation. The DCA found the JCC erred, noting that while the pre-2003 section of the statute required “90% of the customary full time hours,” the legislature amended the

30 | November/December 2016 | www.FloridaJusticeAssociation.org

applicable 2003 statute to require only 75 percent of the customary hours. Thus, in accordance with the change in law, and contrary to the JCC’s apparent assumption, the application of paragraph (a) is not dependent on the evidence of “fulltime hours of employment.

Instead, as indicated in the first sentence of paragraph (a), the proper analysis begins with a determination of “the employment” in which the injured employee was working on the date of the accident. The DCA relied on WalMart Stores v. Campbell, 714 So.2d 436, 438 (Fla. 1998) (holding that plain language of statute means that resorting to alternate method of AWW calculation under §440.14(1)(d) is not sanctioned where paragraph (a) applies and that under the plain language of the statute, the AWW paragraph (a) applies “in all cases where a claimant has worked in one employment for substantially the whole of thirteen weeks prior to an industrial accident but has worked in a concurrent employment for only a portion of the thirteenweek period.”). Here, although claimant had been working fulltime for the E/C for three weeks, it is undisputed that she worked in one employment for the E/C for substantially the whole of the thirteen weeks prior to her accident.

Thus, she got stuck with an AWW of $251.96 which was much lower than her full time work during the three weeks before her accident, which was $653.83.

offer of $25,100, he was discharged by the claimant. The successor attorney obtained a settlement offer of $39,150, which the claimant accepted. The successor attorney presented a motion for attorney fees relative to the settlement, and the prior attorney filed a Petition for a Quantum Meruit (QM) fee. The claimant agreed that the prior attorney properly filed a lien, agreed to entitlement to a QM fee, and that the amount ($1,375) was reasonable. The JCC, however, denied the former claimant attorney’s fee, noting he did not show why he was discharged or what benefit he obtained for the claimant. The DCA found the JCC abused her discretion in ignoring the parties’ stipulation as to entitlement and amount, absent a finding that the prior attorney failed to present sufficient evidence to establish a stipulated fact. A prior attorney in WC is entitled to a reasonable QM fee when there is a valid contract of representation, and following discharge the contingency (obtaining benefits) occurs.

Salzman v. Reyes, (Fla. 1st DCA 8-18-2016) Attorney Fee Liens/Quantum Meruit Claimant’s prior attorney represented the claimant under a contract of representation for approximately a year. After he obtained a settlement

Michael J. Winer of The Law Office of Michael J. Winer, P.A. practices in the areas of plaintiff’s workers’ compensation and appeals, personal injury, insurance disputes, and business litigation. Since 2002, Mr. Winer has been Board Certified in Workers’ Compensation Law, having been recertified in 2007.

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EVIDENCE

EVIDENCE

by Matt Schultz

from his or her memory, the facts are being offered from the record or memorandum.” Ehrhardt, Florida Evidence § 803.5 at 1049 (2016 ed.).

TRIAL NOTEBOOK: Hearsay Exceptions – Recorded Recollection (§ 803(5)) The provisions of s. 90.802 to the contrary notwithstanding, the following are not inadmissible as evidence, even though the declarant is available as a witness: RECORDED RECOLLECTION.—A memorandum or record concerning a matter about which a witness once had knowledge, but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made by the witness when the matter was fresh in the witness’s memory and to reflect that knowledge correctly. A party may read into evidence a memorandum or record when it is admitted, but no such memorandum or record is admissible as an exhibit unless offered by an adverse party.

•

•

Also known as a “past recollection recorded,” the memorandum may be read into evidence if the following are shown: (1) the witness once had knowledge of the matter, (2) the witness cannot recall it in a manner permitting full and accurate testimony, (3) the memorandum or record was made by the witness when the matter was fresh in the witness’s memory and (4) the witness vouches for the accuracy or correctness of the memorandum.

“The foundation may be laid by testimony that the witness remembers making an accurate record of the fact or event or by testimony that the witness is confident that the facts would not have been written unless they were true.” Ehrhardt, Florida Evidence § 803.5 at 1049 (2016 ed.).

•

The rule “does not rigidly require that the record be made contemporaneously with the event.” It need only be made while the event was “fresh” in the witness’s mind. Ehrhardt, Florida Evidence § 803.5 at 1049 n. 4 (2016 ed.).

•

Distinguish from refreshing recollection. When a witness refreshes their recollection by reference to a document or other matter, the witness is testifying from present memory.

Under 803(5), “[r]ather than the witness supplying the facts

Caselaw The rule appears to permit evidence when it is shown (by whatever means) that the memorandum was accurate; however, the Florida Supreme Court rejected a “totality of the circumstances” test for determining accuracy and instead held the hearsay statement is inadmissible unless the witness “vouch[es] for its accuracy or correctness.” Polite v. State, 116 So. 3d 270 (Fla. 2013).

A tape recording qualifies as a “memorandum or record” for purposes of the rule. Montano v. State, 846 So. 2d 677, 680 (Fla. 4th DCA 2003), approved sub nom. Polite v. State, 116 So. 3d 270 (Fla. 2013) (“The statute refers to a ‘memorandum or record,’ language broad enough to include a tape recorded statement.”)

A court reporter’s record of a confession is admissible where the court reporter does not recall the confession but had personally recorded it verbatim. The court reporter’s inability to identify the defendant personally was cured by testimony from an attorney that the defendant gave the statement at issue. Middleton v. State, 426 So. 2d 548, 551-52 (Fla. 1982). See also Pendleton v. State, 348 So. 2d 1206, 1208 (Fla. 4th DCA 1977) (“a court reporter’s testimony, read from original shorthand notes taken during robbery trial at which defendant admitted former convictions, was admissible as past recollection recorded”).

A defendant restaurant may not admit an accident report as a past recollection recorded where the manager had “complete recall” of the events in question. Note: It also was not admissible as a business record given its lack of trustworthiness based on the defendant’s “business motive to fabricate.” Stambor v. One Hundred Seventy-Second Collins Corp., 465 So. 2d 1296, 1297 n.2 (Fla. 3d DCA 1985).

“There is a clear and obvious distinction between the use of a memorandum for the purpose of stimulating the memory and its use as a basis for testimony regarding transactions as to which there is no independent recollection. In the former case it is immaterial what constitutes the spur to memory, as the testimony, when given, rests

32 | November/December 2016 | www.FloridaJusticeAssociation.org

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EVIDENCE

solely upon the independent recollection of the witness. In the latter case the memorandum furnishes no mental stimulus, and the testimony of a witness by reference thereto derives whatever force it possesses from the fact that the memorandum is the record of a past recollection, reduced to writing while there was an existing independent recollection.

It is for that reason that a memorandum, to be available in such cases, must have been made at or about the time of the happening of the transaction, so that it may safely be assumed that the recollection was then sufficiently fresh to correctly express it.” Middleton v. State, 426 So. 2d 548, 551 (Fla. 1982) (quoting Volusia County Bank v. Bigelow, 33 So. 704, 706 (Fla. 1903)).

RECENT EVIDENCE CASES OF INTEREST NOTE: Recent cases may not be released for publication.

An utterance may be “excited” even hours after the exciting event.

A detective’s rendition of a shooting victim’s out-of-court statement is admissible where, although given “a few hours after the shooting” and the victim was still “very emotional at times.” The Third DCA held “that a reasonable person could conclude that [the victim] was still agitated and traumatized from the shooting.” Rolle v. State, 2016 WL 5939715 (Fla. 3d DCA Oct. 13, 2016).

Accident report privilege does not protect one who flees the scene. “[T]he accident privilege in section 316.066(4) does not confer any benefit or privilege on a person who abandons her duty to remain at the scene of any automobile accident which results in death, and who chooses instead to leave the scene of an accident, contrary to section 316.027(1)(b) of the Florida Statutes (2013).” Williams v. State, 2016 WL 6432950 at *1 (Fla. 3d DCA Oct. 26, 2016).

Error to admit document created by party’s employee in anticipation of litigation without more. The company created a document for litigation which was then relied upon by its expert at trial to opine that industry standards had been met. It was not offered as a business record (note here the line of cases holding that documents created in anticipation of litigation are not trustworthy for purposes of the business records exception). Without addressing other potential evidentiary issues, such as the expert’s use of the document, the court concluded: “The critical problem with Exhibit 115 is that no evidence was introduced to show what records were relied upon to produce the data contained in Exhibit 115 and no such records were ever produced or disclosed to [its opponent].” Masci Corp. v. Fortiline, Inc., 41 Fla. L. Weekly D2045, 2016 WL 4585938 (Fla. 5th DCA Sept. 2, 2016).

A party should be permitted to cross an expert on facts the expert has said don’t affect his opinion. In an insurance dispute involving two water leaks damaging the insured’s kitchen, its expert opined that the second leak did not impact his opinion. The trial court precluded cross-examination on the second leak. The Fourth DCA reversed: “Finally, prohibiting inquiry into the second leak was also an abuse of discretion. Although the insured’s expert claimed the second leak did not impact his opinion, the jury, not the trial court, should have had the opportunity to decide whether the insured’s expert was to be believed.

Thus, the insurer should have been given the opportunity to present

facts that may weigh on the reliability and credibility the opinion of the insured’s expert.“ Prepared Ins. Co. v. Gal, 2016 WL 5939749 at *3 (Fla. 4th DCA Oct. 13, 2016) (citations omitted).

Fabre defense and “empty chair” defense are not the same. “There is a distinct legal difference between asserting an ‘empty chair’ defense and seeking an apportionment of fault under Fabre. To present an ‘empty chair’ defense, a defendant may ‘point to an empty chair’ by arguing that ‘a non-party is responsible for the plaintiff’s injuries.’ To present an ‘empty chair’ defense, the defendant need only answer the complaint with a general denial and argue to the jury that the injury was due to the negligence of a non-party to the suit…. Conversely, if the defendant wishes to seek an apportionment of fault against a nonparty, it must identify the nonparty and plead the negligence of that nonparty as an affirmative defense. If these requirements are met, then the nonparty defendant may be placed on the verdict form and the jury may consider and allocate the percentage of fault attributable to the nonparty defendant.” Vila v. Philip Morris USA Inc., 2016 WL 5939721 at *3 (Fla. 3d DCA Oct. 13, 2016) (internal citations omitted).

“Internal policies and procedures may be admissible if they are relevant to the standard of care.” Wal Mart Stores, Inc. v. Wittke, 2016 WL 6137357 at *1 (Fla. 2d DCA Oct. 21, 2016) (collecting cases).

Mortgage company’s “screenshot” met the business records exception to the hearsay rule to show an original note was copied into its predecessor servicer’s system. “Where a business takes custody of another business’s records and integrates them within its own records, the acquired records are treated as having been ‘made’ by the successor business, such that both records constitute the successor business’s singular ‘business record.’ The authenticating witness need not be the person who actually prepared the business records. As such, it is not necessary to present a witness who was employed by the prior servicer …. Rather, the records of a prior servicer are admissible where the current note holder presents testimony that it had procedures in place to check the accuracy of the information it received from the previous note holder. The testifying witness just needs to be well enough acquainted with the activity to provide testimony. Once this predicate is laid, the burden is on the party opposing the introduction to prove the untrustworthiness of the records.” Ocwen Loan Servicing, LLC v. Gundersen, 2016 WL 5404195 at *2 (Fla. 4th DCA Sep. 28, 2016) (internal quotations and citations omitted). Accord Miller v.

Bank of Am, N.A., 2016 WL 6393773 (Fla. 5th DCA Oct. 28, 2016) (computer screen shot of loan transfer history inadmissible where bank employee showed a lack of knowledge about the creation, accuracy, and trustworthiness of the document).

34 | November/December 2016 | www.FloridaJusticeAssociation.org

Matt Schultz

Mr. Schultz is a shareholder at Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor, P.A. in Pensacola. A former federal law clerk and research assistant to Charles Ehrhardt, he received his J.D. with highest honors from Florida State University in 2002, where he served as Senior Articles Editor of the FSU Law Review. He focuses on trial work with a current emphasis on the Engle progeny tobacco litigation.

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www.FloridaJusticeAssociation.org | November/December 2016 | 35

CIVILPROCEDURE

CIVIL PROCEDURE:

I

Florida Supreme Court Clarifies Proposal For Settlement Ambiguity And Strict Construction Issues

By Roy D. Wasson

n two recent cases the Supreme Court of Florida overturned decisions of district courts of appeal invalidating proposals for settlement (“PFS”) based on perceived ambiguities and overly-strict construction of the applicable rule and statute.

In overview, the Court held that it is not necessary to remove all possible ambiguities from a PFS, only those ambiguities that are “reasonable.” The Court disapproved of lower courts’ increasing willingness to engage in “nitpicking” of a PFS to find ways to invalidate them. The Court also modified the law requiring courts to “strictly construe” Fla. R. Civ. P. 1.442 in a circumstance where such strict construction would defeat the intended purpose of the statute it is designed to implement, § 768.79, Fla. Stat.

In Anderson v. Hilton Hotels Corp., No. SC15-124; 2016 Fla. App. LEXIS 2421 (Fla. 11-3-16), the Court quoted from §768.79, Fla. Stat. and Fla. R. Civ. P. 1.442, which set forth the substantive and procedural requirements for a PFS, respectively. The Court then reaffirmed the principle of law known to control the enforceability of PFSs, to wit: “Proposals under the offer of judgment statute must strictly conform to these statutory and procedural requirements to entitle the offeror to attorneys’ fees because the statute is in derogation of the common law that ordinarily requires each party to pay its own attorneys’ fees.” Id. at ** 11-12. See also, e.g., Pratt v. Weiss, 161 So. 3d 1268, 1271 (Fla. 2015) (citing Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So. 2d 276, 278 (Fla. 2003); Gershuny v. Martin McFall Messenger Anesthesia Prof ’l Ass’n, 539 So. 2d 1131, 1132 (Fla. 1989)).

However, the Court in Anderson retreated from the ever-increasing practice by district courts of appeal to use hyper-technical readings of PFSs to find possible ambiguities, stating as follows:

Id. Ultimately, “[p]roposals for settlement are intended to end judicial labor, not create more.” Id. (quoting Lucas v. Calhoun, 813 So. 2d 971, 973 (Fla. 2d DCA 2002)). Accordingly, courts are discouraged from “nitpicking” proposals for settlement to search for ambiguity. Carey-All Transp., Inc. v.

Newby, 989 So. 2d 1201, 1206 (Fla. 2d DCA 2008) (citing Nichols, 932 So. 2d at 1079).

Id. at ** 12-13 (emphasis added).

The Court reversed the Fifth District’s affirmance of the trial court’s determination that the plaintiff’s PFS was unenforceable as ambiguous.

The alleged ambiguity was the failure to mention the plaintiff’s wife’s loss of consortium claim. The Court found that the PFS “consistently used the singular term ‘PLAINTIFF’, which was defined as Troy Anderson in paragraph 2.” Id. at *18. Further, the Court noted the significance of the fact that Troy Anderson’s wife had simultaneously served her own PFS seeking to resolve her consortium claim: “If a party receives two simultaneous offers from two separate parties, common sense dictates that the offeree should possess all the information necessary to determine whether to settle with one or both of the offerors.” Id. Most notable about the Anderson case, however, is the way the Supreme Court dealt with the issue of comparing individual PFS amounts on three offers made to related corporations to the amount of the entire judgment entered against them collectively. The Court described the relationship between the defendants and the offers made to them by separate PFSs as follows:

Additionally, the proposal under the statute and rule must be sufficiently clear and free of ambiguity to allow the offeree the opportunity to fully consider the proposal. State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So. 2d 1067, 1079 (Fla. 2006). However, this Court has not required the elimination of every ambiguity–only reasonable ambiguities: We recognize that, given the nature of language, it may be impossible to eliminate all ambiguity. The rule does not demand the impossible. It merely requires that the settlement 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 will not satisfy the particularity requirement [of Rule 1.442(c)(2)(C)-(D)].

36 | November/December 2016 | www.FloridaJusticeAssociation.org

On September 26, 2008, Anderson was the victim of an armed robbery, carjacking, and shooting that occurred in the parking lot of an Embassy Suites hotel in Orlando.

Anderson filed an action against Respondents Hilton Hotels Corporation (Hilton), W2007 Equity Inns Realty, LLC (W2007), Interstate Management Company, LLC (Interstate), and SecurAmerica, LLC for negligence. Hilton was the parent company of the Embassy Suites franchise; W2007, an investment fund, owned the Embassy Suites hotel where Anderson was attacked; Interstate was the management company that oversaw daily operations of the hotel and hired SecurAmerica to provide security services for the hotel.

Anderson’s wife, Paula Anderson, also sought damages from the Respondents for loss of consortium.

In October 2011, Anderson proposed separate offers of settlement to Hilton, W2007, and Interstate. He made a separate offer to SecurAmerica in March 2012. Anderson

offered to settle his claims with Hilton for $650,000, W2007 for $100,000, Interstate for $650,000, and SecurAmerica for $300,000.

Id. at * 2.

During the trial the attorney representing the three related hotel entities, Hilton, W2007, and Interstate agreed that each of those entities were acting as each other’s agents, and could be treated as a single entity.

The Court stated: Anderson’s counsel agreed collectively to refer to those defendants as “Embassy Suites” without further instructing the jury on agency or vicarious liability. The court read the jury the following instruction:

jury further found that “Embassy Suites” was 72% negligent, and SecurAmerica was 28% negligent. Ultimately, the jury found that Anderson sustained a total of $1,702,066 in damages. The trial court entered judgment in favor of Anderson and against Hilton, W2007, and Interstate “collectively hereinafter referred to as EMBASSY SUITES pursuant to the Verdict form agreed to

by Plaintiff and all Defendants” in the amount of $1,225,487.52, and against SecurAmerica in the amount of $476,578.48.

Id. at ** 6-7.

The Court rejected both of the Defendants’ arguments that the three individual PFSs served upon the Embassy Suites Defendants separately could not be compared to the collective judgment entered against them, as follows:

Members of the jury, you can assume, for purposes of your deliberation, that Interstate Hotel and Resorts, Inc., Hilton Hotels Corporation, and W2007 Equity Inns Realty, LLC, are considered one and the same.

These defendants will be referred to in the jury instructions and verdict form as Embassy Suites.

The Respondents also insist that Troy Anderson’s proposals cannot be enforced because he served individual offers to each Respondent, but only obtained judgments against “Embassy Suites” and SecurAmerica; thus, the collective judgment against “Embassy Suites” cannot be compared to individual offers made to Hilton, W2007, and Interstate when vicarious liability was not pled or found below. Alternatively, the

The jury found “Embassy Suites” and SecurAmerica to be negligent for Anderson’s injuries and that Anderson was not comparatively negligent. The

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CIVILPROCEDURE defendant-respondents argue that Troy Anderson offered to settle with the collective “Embassy Suites” Respondents for $1.4 million (based on offers to Hilton for $650,000, W2007 for $100,000, and Interstate for $650,000), but obtained a judgment against “Embassy Suites” for $1.25 million, which the Respondents assert does not satisfy the 25% threshold of section 768.79(1). . . . * * * Further, it is clear that this entitlement to attorneys’ fees hinges on the “judgment obtained,” as opposed to a verdict form returned by the jury. § 768.79(6), Fla. Stat. (defining “judgment obtained” by a plaintiff as “the amount of the net judgment entered, plus any postoffer settlement amounts by which the verdict was reduced”); Frosti, 979 So. 2d at 916; White v. Steak & Ale of Fla., Inc., 816 So. 2d 546, 549-50 (Fla. 2002) (citing Perez v. Circuit City Stores, Inc., 721 So. 2d 409, 412 (Fla. 3d DCA 1998)). However, neither section 768.79 nor Rule 1.442 specifies that a plaintiff must obtain a judgment from a designated party to be entitled to attorneys’ fees. This entitlement is only dependent upon a sufficient offer and judgment obtained, not a judgment “obtained from designated offerees.” Thus, the district court’s concern with Anderson’s failure to request an assignment of fault among Hilton, W2007, and Interstate was misplaced. * * * Moreover, Troy Anderson is also entitled to attorneys’ fees based on his separate offers to Hilton, W2007, and Interstate.

Anderson offered to settle with Hilton for $650,000, with W2007 for $100,000, and with Interstate for $650,000. The trial court entered a judgment against these Respondents in the amount of $1,225,487.52, which is approximately 189% of the offers Anderson made to Hilton and Interstate, and approximately 1225% of the offer made to W2007. The only way that these offers could not satisfy the statutory requirement would be if the offers were to be aggregated, which cannot be tolerated under a strict construction of section 768.79. See id.; see also Pratt, 161 So. 3d at 1271 (explaining that the offer of judgment statute must be strictly construed). Thus, Troy Anderson’s offers to Hilton, W2007, and Interstate complied with the requirements of section 768.79 and Rule 1.442; upon obtaining a judgment that was at least 25% greater than any one of these offers, Troy Anderson became entitled to attorneys’ fees. The fact that the judgment entered by the trial court did not specify that Hilton, W2007, and Interstate were jointly and severally liable to Anderson for this judgment did not otherwise destroy this entitlement.

Id. at **21-27 (emphasis added).

Another recent Florida Supreme Court case on the issue of attorney’s fees under a proposal for settlement is Kuhajda v. Borden Dairy Co., No. SC15-1682; 2016 Fla. LEXIS 2334; 41 FLW S471 (Fla. 10-2016). There the court considered whether an offer of settlement that fails to address attorney’s fees is invalid even though no attorney’s fees had been sought in the case, reversing the First District’s decision invalidating the PFS. The First District certified that its decision was

in direct conflict with the decision of the Fourth District in Bennett v.

American Learning Systems of Boca Delray, Inc., 857 So. 2d 986 (Fla. 4th DCA 2003). The Court held that if attorney’s fees are not sought in the pleadings an offer of settlement is not invalid for failing to state whether the proposal includes attorney’s fees and whether attorney’s fees are part of the legal claim, approving the decision of the Fourth District in Bennett on the conflict issue.

Kuhajda served defendants Borden Dairy and Greenrock with identical offers of judgment specifying that the offers included costs, interest, and all damages or monies recoverable under the complaint and by law. Kuhajda prevailed on her negligence claim against Borden Dairy and Greenrock, and the jury awarded her damages sufficiently in excess of the amount contained in her offers of judgment to trigger the payment of fees under §768.79(1), Fla. Stat. Following entry of judgment in her favor, the trial court granted Kuhajda’s motion to tax attorney’s fees and costs in accordance with §768.79 and Florida Rule of Civil Procedure 1.442. Id. at 242. The trial court determined that the failure to include the attorney’s fees language in the offer of judgment did not create an ambiguity because Kuhajda never sought attorney’s fees in her complaint.

On appeal, the First District held that an offer of judgment must strictly comply with Florida Rule of Civil Procedure 1.442(c)(2)(F) even when the complaint does not include a claim for attorney’s fees.

Id. The First District explained that in Diamond Aircraft Industries, Inc. v. Horowitch, 107 So.3d 362 (Fla. 2013)–a case where the plaintiff sought attorney’s fees in the complaint—the Supreme Court held that an offer of judgment failed to strictly comply with rule 1.442(c)(2) (F) because it did not state that the offer included attorney’s fees and whether attorney’s fees were part of the legal claim. Id. The First District reasoned that because Diamond Aircraft made the test for determining the validity of an offer of judgment strict compliance, rather than the absence of ambiguity, an offer must strictly comply with rule 1.442(c) (2)(F) even when attorney’s fees are not sought in the complaint. The First District thus reversed the order granting Kuhajda’s motion to tax attorney’s fees and costs and certified conflict with the Fourth District’s decision in Bennett.

Rule 1.442(c)(2)(F) provides that a PFS “shall . . . state whether the proposal includes attorneys’ fees and whether attorneys’ fees are part of the legal claim.” The Court noted that it previously has held that § 768.79 and Rule 1.442 must be strictly construed because they are in derogation of the common law rule that each party should pay its own fees. See, e.g., Audiffred v. Arnold, 161 So.3d 1274, 1279 (Fla. 2015); Campbell v. Goldman, 959 So.2d 223, 227 (Fla. 2007) (“[S] trict construction is applicable to both the substantive and procedural portions of the rule and statute.”); Lamb v. Matetzschk, 906 So.2d 1037, 1040 (Fla. 2005) (reaffirming a strict construction of rule 1.442).

In modifying the “strict construction” doctrine to eliminate the requirement to strictly construe provisions in Rule 1.442 that are not necessary to implement the purposes of the statute, the Court held as follows:

38 | November/December 2016 | www.FloridaJusticeAssociation.org

Here, we consider a circumstance in which rule 1.442(c)(2) (F) contains a requirement to include in a settlement proposal a specific element that section 768.79 does not require. The

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CIVILPROCEDURE

purpose of section 768.79 is to “reduce litigation costs and conserve judicial resources by encouraging the settlement of legal actions.” Gorka, 36 So. 3d at 650; see Unicare Health Facilities, Inc. v. Mort, 553 So. 2d 159, 161 (Fla. 1989) (explaining that rule 1.442 “was implemented solely to encourage settlements in order to eliminate trials if possible”).

The only purpose of rule 1.442 is to provide a procedural framework to implement the substantive requirements of section 768.79 regarding settlement proposals. See Se. Floating Docks, 82 So. 3d at 79; Willis Shaw, 849 So. 2d at 278. Rule 1.442(c)(2)(F)’s requirements relating to attorney’s fees are totally irrelevant to the settlement of a case in which attorney’s fees are not sought.

Attorney’s Fees Under Proposal For Settlement—Bad Faith Issue.

Florida law on recovery of attorneys’s fees based on proposals for settlement under section 768.28, Fla. Stat. applies in federal diversity actions. Where the party serving an unambiguous proposal recovers a judgment in the requisite amount, an award of fees is mandatory absent a showing of bad faith. The burden of showing bad faith is on the party opposing fees. In Cacciamani v. Target Corp., No. 1612386; 2016 U.S. App. LEXIS 18975 (11th Cir. Oct. 21, 2016), the court affirmed a fee award to the defendant in a personal injury case, rejecting the argument that the proposed release attached to the PFS made the offer void because it falsely stated that the plaintiff did not need further medical care; holding: We agree with the district court that Mr. Cacciamani has not met his “burden to prove that the offeror acted in bad faith.”

Mr. Cacciamani points to no evidence showing that Target knew, at the time it made the offer, that the statement “no further medical treatment is needed” was incorrect. Indeed, the only evidence Mr. Cacciamani points to indicating that Target knew about his ongoing medical treatment was a response to interrogatories from June 2014, over a year after the settlement offer was made.

We decline to invalidate Kuhajda’s offers of judgment solely for violating a requirement in rule 1.442 that section 768.79 does not require. The procedural rule should no more be allowed to trump the statute here than the tail should be allowed to wag the dog. A procedural rule should not be strictly construed to defeat a statute it is designed to implement.

Kuhajda, supra, at **7-8 (emphasis added).

It may have been reasonable for Mr. Cacciamani to reject the settlement offer and to refuse to stipulate that he would no longer need medical care because he knew he would need continuing care. That, however, is not the relevant inquiry.

Instead, we look to whether Target acted in good faith and had a reasonable foundation to make the offer. ... Target did not find out about Mr. Cacciamani’s ongoing medical treatment until over a year later. In light of these circumstances, and without any contrary evidence, we cannot say that the district court clearly erred in finding that Target acted in good faith and is entitled to an award of attorney’s fees under Florida’s “shall” rule in § 768.79.

Thus, between the Anderson case’s modification of the ambiguity rule to permit enforcement of a PFS notwithstanding a “nitpicking” ambiguity, on the one hand, and Kuhajda’s retreat from the “strict construction” requirement on provisions in Rule 1.442 that are not necessary to accomplish the purposes of the statute, the Supreme Court of Florida has made it a lot easier to recover fee awards based on rejected PFSs. CASE SUMMARIES IN CIVIL PROCEDURE – FEDERAL COURT Appeal of Order Granting Motion To Dismiss Waives Right to Amend. In Farquharson v. Citibank, N.A. No. 15-14766; 1016 U.S. App. LEXIS 19545 (11th Cir. Oct. 31, 2016) the Eleventh Circuit Court of Appeals affirmed the district court’s grant of a motion to dismiss the complaint, which order had also granted leave to amend the complaint. This case is notable because it stands for the proposition that—even if an amendment to the complaint would have cured the defect that led to dismissal—by appealing the dismissal order instead of accepting the trial court’s grant of leave to amend, the plaintiff waived his right to amend thereafter. The court stated: Plaintiffs were within their rights to appeal the Order dismissing their Amended Complaint rather than to amend it, as the district court authorized them to do. Garfield v.

NDC Health Corp., 466 F.3d 1255, 1260 (11th Cir. 2006); Schuurman v. Motor Vessel “Betty K V”, 798 F.2d 442, 445 (11th Cir. 1986). However, by filing an appeal–instead of taking advantage of the district court’s invitation to amend–Plaintiffs waived any right to further amendment.

Garfield, 466 F.3d at 1260; Schuurman, 798 F.2d at 445 (“Once the plaintiff chooses to appeal before the expiration of time allowed for amendment, however, the plaintiff waives the right to later amend the complaint, even if the time to amend has not yet expired.”).

Id. at ** 4-5 (emphasis added).

Id. at **10-11.

Vacating Clerk’s Default Does Not Require Showing of Excusable Neglect. In a multi-defendant case where one defendant failed to timely respond to the complaint, the plaintiff obtained a clerk’s default.

Soon thereafter, the defaulted defendant’s counsel appeared and moved to set aside the default. The district court granted that motion, over the plaintiff’s argument that the defendant had failed to show excusable neglect leading to the default. The Eleventh Circuit affirmed, stating:

40 | November/December 2016 | www.FloridaJusticeAssociation.org

First, we address the district court’s decision to vacate the clerk’s entry of default against Citigroup. We review a decision to vacate an entry of default for an abuse of discretion. Gibbs v. Air Canada, 810 F.2d 1529, 1537 (11th Cir. 1987).

Under Federal Rule of Civil Procedure 55, when a defendant fails to “plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party’s default.” Fed. R. Civ. P. 55(a). However, the court itself may later “set aside an entry of default for good cause.”2 Fed. R. Civ. P. 55(c); see also Perez v. Wells Fargo N.A., 774 F.3d

1329, 1331 (11th Cir. 2014) (“Rule 55’s standard of ‘good cause’ for setting aside an entry of default judgment–not the higher one of ‘excusable neglect’ applicable to missed deadlines outside the default context–governs the court’s determination of whether, despite her one-time error in not responding to a pleading, the non-moving party should get the opportunity to have her case considered on the merits before final judgment against her is entered.”). “Good cause” does not have a precise definition or description; nor should it.

Instead, it is a context-dependent determination to be made by a district court, and a court’s assessment will depend on the particular facts. See Compania Interamericana Exp.-Imp., S.A. v. Compania Dominicana de Aviacion, 88 F.3d 948, 951 (11th Cir. 1996) (“It is also a liberal [standard]–but not so elastic as to be devoid of substance.”) (quoting Coon v. Grenier, 867 F.2d 73, 76 (1st Cir. 1989)). In doing so, courts will typically assess “whether the default was culpable or willful, whether setting it aside would prejudice the adversary, and whether the defaulting party presents a meritorious defense.” Id.

one of the counts of the complaint, where the exception announced in Stockman v. Downs, 573 So. 2d 835 (Fla. 1991) was applicable.

The Stockman case had held that “[w]here a party has notice that an opponent claims entitlement to attorney’s fees, and by its conduct recognizes or acquiesces to that claim or otherwise fails to object to the failure to plead entitlement, that party waives any objection to the failure to plead a claim for attorney’s fees.” Id. at 838. Here the party opposing the claim for fees was on notice based upon the fact that “[a]ll three counts of the complaint alleged that Ms. Zurro had been required to obtain counsel and that she was obligated to pay counsel a reasonable fee, and count 1 included an express demand for fees,” thereby providing sufficient notice to the defendant that attorneys’ fees would be sought under all three counts.

Third District Refuses To Adopt “Apex Doctrine” Against Deposing High Level Executives. The Third District Court of Appeal denied a petition for writ of certiorari seeking to block the deposition of one of the party’s chief executive officers and president, rejecting Remington’s argument “that lower-level management personnel dealt with the day-to-day operation of Southernmost House and that those employees should, at least, be deposed first.” Remington Lodging & Hospitality, LLC v. Southernmost House, Ltd., No. 3d16-1729; 2016 Fla. App. LEXIS 16202 AT *2 (Fla. 3d DCA 11-2-2016). Repeating the principle “that trial courts have broad discretion in overseeing discovery matters and in granting and denying motions for protective order,” the court rejected the petitioner’s request “to adopt and follow the federal line of cases concerning discovery known as the ‘Apex Doctrine,’ which shields upper level executives and corporate officers from depositions absent a showing that such executives and officers have special knowledge of the events in question and the information cannot be obtained through lesser intrusive means.”

Of note, the district court analyzed this issue under the more exacting “excusable neglect” standard of Rule 60(b).

It did not need to do so. Rule 55(c) provides that “[t]he court may set aside an entry of default for good cause, and it may set aside a final default judgment under Rule 60(b).” Fed. R. Civ P. 55(c) (emphasis added). Since only a clerk’s entry of default (rather than a final default judgment) was filed in this case, the less exacting “good cause” standard applies.

See Perez v. Wells Fargo N.A., 774 F.3d 1329, 1331 (11th Cir. 2014); E.E.O.C. v. Mike Smith Pontiac GMC, Inc., 896 F.2d 524, 528 (11th Cir. 1990) (noting that the “excusable neglect” standard is “more rigorous” than the “good cause” standard).

Farquharson v. Citibank, N.A. No. 15-14766; 1016 U.S. App. LEXIS 19545 at *5-6 (11th Cir. 10-31-2016) .

Independent Jurisdictional Basis Required For Permissive Counterclaim. In Prieto v. Scheeler’s Café De Marco, Inc., No. 2:16-cv139-FTM-99CM; 2016 U.S. Dist. LEXIS 152537 (M.D. Fla. 11-32016), the plaintiff had filed a lawsuit in federal court based upon federal question jurisdiction. The defendant filed a counterclaim for breach of oral contract under Florida state law. However, there was no independent federal subject matter jurisdiction because the parties were not diverse. “Therefore, the Court finds that thte counterclaim is unrelated to the FLSA claim, and thus is permissive rather than compulsory. Because defendants have presented no independent basis for federal subject-matter jurisdiction, the permissive counterclaim is dismissed.” Id. at *2.

CASE SUMMARIES IN CIVIL PROCEDURE – STATE COURT Failure To Plead Claim For Attorneys’ Fees In Wherefore Clause.

In reversing the trial court’s denial of appellant’s claim for attorneys’ fees, the Second District Court of Appeal in Zurro v. Wells Fargo Bank, N.A., No. 2d15-175; 2016 Fla. App. LEXIS 16161 (Fla. 2d DCA 11-2-2016), held that the party’s request for attorneys’ fees was improperly denied by the trial court based upon the failure to include such a request in

That’s all for this Civil Procedure column. If you have not read all the rules from start to finish in a while, now is the time to get started.

It is difficult to make time for such excitement, but all we can do is Keep Tryin’! _____________ Although the plaintiff’s attorney in Bove is also challenging on rehearing the Second District’s holding that a notice of intent must be received by the prospective defendant before the expiration of two years, not just mailed before two years has elapsed, that issue is not addressed in the present article.

1

Roy D. Wasson is board certified in Appellate Practice with

extensive courtroom experience in more than 600 appeals and thousands of trial court cases. He is an EAGLE Patron, a former member of the FJA board of directors, a Fellow of the Academy of Florida Trial Lawyers, a past chairman of the FJA Appellate Practice Section, and a member and past chair of the Amicus Curiae Committee. Roy is a recipient of the FJA Gold EAGLE, Silver EAGLE and Bronze EAGLE awards, th. Legislative Leadership Shoe Leather Award, and the S. Victor Tipton Award for Legal Writing. He has served as chair of The Florida Bar Appellate Court Rules Committee, its Appellate Certification Committee, and its Appellate Practice Section.

www.FloridaJusticeAssociation.org | November/December 2016 | 41

CLOSINGARGUMENT

CLOSING ARGUMENT

by Philip M. Burlington, Barbara Green and Christopher V. Carlyle

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his article addresses the scope and propriety of closing arguments on the issue of whether a defendant should be found liable for punitive damages. Under the bifurcated trial procedure adopted by the court in W.R. Grace Co. v. Waters, 638 So.2d 502 (Fla. 1994), this issue is customarily tried and argued to the jury at the same time as liability for compensatory damages, while the jury’s determination of the amount of the punitive damages, if necessary, is tried and argued separately.

When arguing for punitive damage liability, there are potential problems involved in making arguments which would be inappropriate in a strictly compensatory damage case. There is also the problem of arguing the requisite outrageous or criminal nature of the defendant’s conduct in a manner that does not violate standard precepts governing closing argument. There is not a significant amount of case law on this issue, however a recent line of cases in the Fourth District culminating in a split en banc decision in R.J. Reynolds Tobacco Co. v. Calloway, 2016 WL 5404053 (Fla. 4th DCA 2016) has focused on the issue.

This article will address those cases but first provide some background regarding the legal standards applicable to imposing liability for punitive damages.

It is of course well-established that the policies underlying an award of punitive damages are punishment and deterrence. As a result, it is appropriate to utilize a “conscience of community” or “send a message” argument in cases involving punitive damages, see Ocwen Financial Corp. v. Kidder, 950 So.2d 480 (Fla. 4th DCA 2007). That holding was clarified in R.J. Reynolds Tobacco Co. v. Gafney, 188 So.3d 53, 58 (Fla. 4th DCA 2016) as follows: In Ocwen, we held that such arguments are permissible where claims for both compensatory and punitive damages are before the jury. See 950 So.2d at 482. However, today we clarify that even when both claims are at issue, a plaintiff may not utilize “send a message” and conscience of the community arguments when discussing whether the plaintiff should be compensated, due to the potential for the jury to punish through the compensatory award.

Thus, when addressing the issue of liability for punitive damages in a bifurcated action, you should be very careful to limit your “conscience of the community” and “send a message” arguments solely to that portion of your closing which addresses punitive liability.

It is important to recognize that arguing liability for punitive damages requires addressing factual considerations that go beyond the prima facie elements of the torts which must be proven to justify the compensatory damages. Case law is clear that simply proving that a defendant committed an intentional tort is not sufficient, in itself, to entitle a plaintiff to punitive damages. See Air Ambulance Professionals, Inc. v.

Thin Air, 809 So.2d 28, 30 (Fla. 4th DCA 2002) (“Record evidence may support an intentional tort, but not necessarily an award of punitive damages. Citing Potter v. S.A.K. Dev. Corp., 678 So.2d 472, 473 (Fla. 5th DCA 1996); Weinstein Design Group, Inc v. Fielder, 884 So.2d 990, 1001 (Fla. 4th DCA 2004) (“This court has made it clear that punitive damages are reserved for particular types of behavior which go beyond mere intentional acts”).

• Additionally, when liability for punitive damages is sought in a case based on negligence, proof of gross negligence is insufficient and the character of the negligence necessary to sustain punitive liability must be the same as required to sustain a conviction for manslaughter, i.e., culpable negligence. Carraway v. Revell, 116 So.2d 16, 20 (Fla. 1959).

• Other than using the manslaughter standard as an analogy, the most common description of what needs to be proven beyond the basic elements of the tort is as follows: A legal basis for punitive damages exists where torts are committed in an outrageous manner or with fraud, malice, wantonness or oppression.

Wackenhut Corp v. Canty, 359 So.2d 430 (Fla. 1978). A more generic description is provided in Arab Termite and Pest Control of FL v. Jenkins, 409 So.2d 1039, 1042-43 (Fla. 1982): Punitive damages apply to wrongdoing not covered by the criminal law, where the private injuries inflicted partake of public wrongs. They are to be measured by the enormity of the offense…

These standards are obviously not precise, and are only designed to provide guidelines for a vast array of potential factual situations.

However, it is clear that determining conduct is “outrageous” or evaluating the “enormity of the offence” requires to some degree an

42 | November/December 2016 | www.FloridaJusticeAssociation.org

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emotional response by the jury. This has been explicitly recognized by the Florida Supreme Court in American Cyanamid Co. v. Roy, 498 So.2d 859, 861 (Fla. 1986): We repeat our observation in White limiting punitive damages to truly culpable behavior in order to emphasize that such damages, “reserved to those kinds of cases where private injuries partake of public wrongs,” Ingram v. Pettit, 340 So.2d 922, 923-24 (Fla.1976), are assessed in a dramatically different manner than compensatory damages. Unlike the latter, punitive damages are in a sense explicitly based on juror emotion, in that one function of the award is to express society’s collective outrage at unacceptable behavior. The damages awarded are therefore based not on the plaintiff’s actual damages but upon the wealth of the defendant and the perceived need to punish and deter. See Lassiter, 349 So.2d at 626. [Emphasis supplied.]

See also Weinstein Design Group, supra [quoting same language]; Air Ambulance Professionals, supra [quoting same language].

Given that the Florida Supreme Court has recognized that the jury’s determination of liability for punitive damages is to some degree an emotional response, it would appear that closing argument should be permitted to influence that emotional response. This may seem inconsistent with the statement in Murphy v. International Robotic Systems, Inc., 766 So.2d 1010, 1028 (Fla. 2000) that an attorney should not give a closing argument that is “designed to inflame the emotions of the jury rather than prompt a ‘logical analysis of the evidence in light of the applicable law.’” However, Murphy did not involve a claim for punitive damages. Furthermore, the Supreme Court said in Murphy the purpose of closing argument is to help the jury understand the issues in the case by “applying the evidence to the law applicable to the case,” quoting Hill v. State, 515 So.2d 176, 178 (Fla. 1987). If the imposition of punitive liability is to some degree, an emotional response by the jury, counsel should be able to address that in closing argument, within reasonable limits.

There is necessarily some difficulty in arguing the factual issues regarding the “enormity” of the defendant’s wrongs and the “outrageousness” of the conduct without some degree of emotion. Additionally, since it is necessary for a plaintiff to prove more than just the prima facie elements of their cause of action to justify punitive damages, these arguments may be critical to the determination of the issue of liability for punitive damages.

As noted previously, the Florida Supreme Court has repeatedly stated that the conduct sufficient to justify punitive damages must either rise to the level of specific crimes or be in the nature of a public wrong or criminal act. Nonetheless, in Philip Morris USA, Inc. v. Tullo, 121 So.3d 595 (Fla. 4th DCA 2013), an Engle tobacco case, the court held it was improper for the plaintiff to compare the selling of cigarettes to providing heroin to a drug addict, stating: Likewise the comments referring to heroin addicts were also improper. Although there was evidence in the record establishing that nicotine has similar addictive properties to 44 | November/December 2016 | www.FloridaJusticeAssociation.org

heroin, the challenged closing comments did more than allude to the addictive nature of nicotine; they implied that the tobacco companies were as culpable as drug dealers.

However, criminal culpability has been recognized as a benchmark for punitive liability, and would also seem to be encompassed within the outrageous of the wrongful conduct.

Similarly, in Calloway, supra, the majority noted the following comments of plaintiff’s counsel to be improper: [T]he fact of those things ... is that intentional wrongful conduct, the recklessness towards human life, the indifference towards human life. That which though, not criminal, virtually is criminal. And if you kill somebody for money ... that’s criminal.

It would seem that if punitive damage liability is to be based on essentially criminal conduct, it should not be improper for plaintiff’s counsel to argue that the defendant’s conduct is comparable to particular crimes, assuming the evidence supports that characterization. However, based on existing law, counsel need to be very careful in doing so, and probably should avoid it entirely despite its relevance to the punitive damage analysis.

In a compensatory damages case it is improper to argue that the defendant has failed to take responsibility for its conduct since the purpose of the damage award is solely to compensate “not to make the defendant care, ‘take responsibility,’ or say it was sorry,” Intramed, Inc. v. Guider, 93 So.3d 503, 507 (Fla. 4th DCA 2012). Additionally, it is improper to argue in closing that a defendant should be punished for contesting damages at trial. See Allstate Ins. Co. v. Marotta, 125 So.3d 956 (Fla. 4th DCA 2013).

In Calloway, the court applied the same prohibition in a tobacco case where punitive liability was at issue. However, in Calloway, as in many tobacco cases, the jury was given many preemptive instructions determining that the defendants had been negligent, had created a defective product, had conspired to omit, conceal and misrepresent critical health information, etc. It would seem that failure of a defendant to accept responsibility for those established facts would be pertinent to a jury’s decision whether it was justified in “sending a message” through a determination of punitive liability.

Additionally, in virtually every Engle tobacco case portions of the “Frank Statement” are read to the jury which includes a statement of the tobacco defendants made in 1954 that “We accept an interest in people’s health as a basic responsibility, paramount to every other consideration in our business” (emphasis added). Tobacco Ind. Res. Comm., A Frank Statement to Cigarette Smokers (Jan. 4, 1954), http://archive.tobacco. org/History/540104frank.html. With such evidence, it might appear appropriate to address the failure of a defendant to accept the responsibility it previously professed in determining the

“enormity” of its wrongful conduct. However, the Fourth District ruled to the contrary in Cohen v. Phillip Morris USA, Inc., 2016 WL 4649570 (Fla. 4th DCA 2016).

While these issues will no doubt recur in the extensive tobacco litigation occurring in our state, one can easily imagine the same concern in the context of a more generic punitive damage case.

For example, in a car accident trial, where the defendant had been driving under the influence of alcohol and refused to acknowledge responsibility for drinking and driving, that would seem to be a relevant consideration for the jury in determining whether punitive damages were appropriate. However, under the existing case law it appears doubtful that such an argument would be accepted, even though it seems consistent with the policy underlying punitive damages.

In summary, this article may not answer many questions or draw any bright lines regarding the scope and propriety of closing arguments in punitive liability cases. However, it is hoped that the article will help trial lawyers clarify their thinking in determining how to argue the punitive damages in their cases. It is hoped that there will be further clarity of those issues forthcoming from other district court decisions and perhaps even the Florida Supreme Court. But, be aware of the risks and the boundaries imposed by current case law in judging the best way to make the argument in your particular case.

Philip M. Burlington

is a partner in the law firm of Burlington & Rockenbach, P.A. He is a Board Certified Appellate Practice attorney, who limits his practice to trial support and appeals in civil cases. Admitted to The Florida Bar in 1979, he received his B.A. degree at Johns Hopkins University in 1975 and his J.D. degree at the University of Florida in 1978. Mr. Burlington has served as Chairman of the FJA Amicus Curiae Committee and is a member of the FJA Board of Directors. Mr. Burlington is the recipient of the 2000 S. Victor Tipton Award for achievement in legal writing.

Barbara Green

handles appeals and litigation support for plaintiffs in civil cases.

Admitted to The Florida Bar in 1978, Ms. Green received her B.A. from the Univ. of Florida in 1973 and her J.D. from the Univ. of Miami in 1978. Active in the FJA since 1982, Ms. Green serves on and has written numerous briefs for the FJA Amicus Committee and provides the Caselaw Update for the Miami-Dade Justice Assn. She is a recipient of the S. Victor Tipton Award for superior achievement in legal writing and the Dade County Trial Lawyers Assn. Stalwarts Award for continuous contribution to the cause of justice.

Christopher V. Carlyle

is Board Certified in Appellate Practice and practices exclusively in the area of civil appellate litigation as a shareholder with The Carlyle Appellate Law Firm. Mr. Carlyle is Chair of the Appellate Practice Section of The Florida Bar, and he has served on the Bar’s Appellate Court Rules Committee since 2009. He graduated in 1993 from the Pepperdine University School of Law, cum laude, where he served as an associate editor of the Pepperdine Law Review. Mr. Carlyle, along with his wife Shannon, received the 2012 S. Victor Tipton Award for superior achievement in legal writing.

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FJAAPPELLATEPRACTICESECTION

PRACTICAL POINTERS For Making Sure Your Proposal For Settlement Is Enforceable | by Maegen Peek Luka

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he Florida Supreme Court recently issued two opinions that indicate it might be getting easier to enforce a proposal for settlement (“PFS”). In Kuhajda v. Borden Dairy Co. of Alabama, LLC., SC15-1682, 2016 WL 6137289, at *3 (Fla. Oct. 20, 2016), the court held that a procedural provision of Rule 1.442 that is not also present in section 768.79, Florida Statutes, need not be strictly enforced—the thrust being that the tail (Rule 1.442) should not wag the dog (section 768.79). Two weeks later, in Anderson v. Hilton Hotels Corp., SC15-124, 2016 WL 6538663, at *5 (Fla. Nov. 3, 2016), the court issued another opinion upholding a PFS and cautioning that the courts are “discouraged from ‘nit-picking’ proposals for settlement to search for ambiguity.” If you are currently fighting to get fees under your PFS based on a nit-picky argument by your opponent, you’ll want to familiarize yourself with these cases.

3. Get a copy of Rule 1.442 and track it. No joke. I recommend typing out each section in bold and then writing the applicable information under it as if you are completing an application.

Make it simple for your trial judge to see that you’ve dotted your i’s and crossed your t’s. If you’ve got a situation where there are no relevant conditions to settlement, I recommend you type out the heading and then write “none” underneath it. So it would look like this:

But if you are currently trying to draft a PFS, don’t let Kuhajda or Anderson get you too excited. It’s still an uphill battle to enforce a PFS. Since I am often hired to help a client avoid having to pay fees under a PFS, I can appreciate that drafting a PFS is no picnic. There are just so many ways to mess it up! This article is intended to warn you of some pretty common mistakes and serve as a checklist of sorts.

Hopefully, it will aid you in creating a PFS that makes relying on cases like Kuhajda and Anderson unnecessary. As an added bonus, it might also be useful to help you identify whether the PFS that has been served on your client has one of these errors.

A disclaimer before I begin: the law on proposals for settlement will have likely mutated again by the time this article goes to press. So, as always, be sure to stay current.

The basic PFS checklist Some of these are going to seem like no-brainers. But it would shock you how many times simple, basic errors tank a PFS. 1. Make sure your header is right. If you’ve got multiple related cases, make sure you’re using the right case number and you’ve got the right parties named. Assistants often cut and paste headers.

That’s how accidents happen. Check and then double check even this most mundane detail.

2. Make sure your introductory paragraph says that the offer is being made pursuant to Rule 1.442 and section 768.79. If you fail to name both, you are toast.

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Name of the party making the proposal

Plaintiff, Jane Doe Name of the party to whom the proposal is being made

Defendant, Bob Reckless Any relevant conditions to settlement None Amount of the proposal and all nonmonetary terms of proposal Bob Reckless will pay to Jane Doe the amount of $100. In return, Jane Doe will dismiss the above-styled action with prejudice within 30 days of receipt of the $100 check.

(I prefer to repeat party names instead of saying “Plaintiff” or “Defendant.” It is a frequent – and easily made – mistake to accidentally type “Plaintiff” when you mean “Defendant” and vice versa. Using names makes it easier to avoid that mistake.)

The amount proposed to settle a claim for punitive damages, if any $50 is allocated to settle the claim for punitive damages OR, if you have no punitive damages claim, something like: No amount is proposed to settle a claim for punitive damages because there is no claim for punitive damages.

(If you do have a claim for punitive damages, keep in mind punitive damages are taxable income. See IRS Publication 4345 (Rev. 4-2015). So it’s in your client’s best interest to allocate only a small portion of the settlement, if any, to

www.FloridaJusticeAssociation.org | November/December 2016 | 47

FJAAPPELLATEPRACTICESECTION

punitive damages. Many attorneys allocate zero to punitive damages, which is probably fine; but you do have to specify some amount—even if it’s zero—when a punitive damage claim has been pled.)

enforceable if the circumstances of the case have changed since you served your PFS. For example, in Segundo v. Reid, 20 So. 3d 933, 934-35 (Fla. 3d DCA 2009), the plaintiff served his PFS when he was only seeking damages for injuries to his back and neck. After the time to respond to the PFS expired, the plaintiff amended his complaint to add a claim for shoulder injuries. Id. at 935. The jury returned a verdict sufficient to trigger entitlement to fees. Id. On appeal, the Third District held that, while the offer was made in good faith at the time it was served, the change in circumstances made the offer unenforceable since the defendant did not know the extent of its ultimate exposure at the time it rejected the PFS. Id. at 936-38; see also Fla. Diversified Films, Inc. v. Simon Roofing & Sheet Metal Corp., 118 So. 3d 240, 244 (Fla. 3d DCA 2013) (proposal for settlement unenforceable where, at the time it was served, plaintiff was only seeking damages for business losses, but after time for responding to PFS expired, plaintiff closed the business and sought much more substantial damages for destruction of the business).

State whether the proposal includes attorneys’ fees and whether attorneys’ fees are part of the legal claim The proposed settlement amount includes attorneys’ fees, and attorneys’ fees are part of Jane Doe’s legal claim against Bob Reckless.

OR, if you have no basis for fees other than a winning PFS, I say something like The proposal does not include any attorneys’ fees, nor are attorneys’ fees a part of Jane Doe’s legal claim against Bob Reckless.

(Kuhajda recently held that you are not required to say anything if fees are not part of your legal claim. Since I don’t like to play with fire, I think it best to err on the side of caution and be clear.)

4. Make sure the proposal has a certificate of service. I recently saw an otherwise beautiful PFS declared void because it lacked a certificate of service. It is not enough to put a certificate of service on your notice of filing the proposal for settlement. Rule 1.442(c) (2)(G) requires you to have one on the proposal itself. I strongly encourage you to track the language of the certificate of service example in Fla. R. Jud. Admin. 2.516 – because tracking a rule always a good idea. Again, Kuhajda suggests that certificate of service issues might not be strictly construed (since the certificate of service requirement is not part of section 768.79), and even before Kuhajda, there was a split of authority as to whether a proposal could be invalidated just for lacking a certificate of service. Compare Milton v. Reyes, 22 So. 3d 624 (Fla. 3d DCA 2009) (lack of certificate of service invalidated PFS) with Floyd v. Smith, 160 So. 3d 567 (Fla. 1st DCA 2015) (lack of certificate of service does not void a PFS). But if you can prevent your opponents from having the argument, best practice is to take that arrow out of their quiver.

5. If you are fool enough to file a joint proposal (see discussion below), then make sure you apportion the amounts being offered or demanded as to each party.

6. Get your timing right. The earliest you can serve a PFS is 90 days after service of process (if you are serving on a defendant) or 90 days after the action is commenced (if you are serving on a plaintiff). See Fla. R. Civ. P. 1.442(b). The latest you can serve one is 45 days “before the date set for trial or the first day of the docket on which the case is set for trial, whichever is earlier.” See Fla. R. Civ. P. 1.442(b).

7. If you amend your complaint, you need to think about serving a new PFS. There is precedent for the idea that a PFS is not

8. Once you get a trial date, I strongly suggest putting another date on your calendar – a date at least 45 days out from your trial.

That is when you will double-check your PFS to make sure it is error-free. And if it’s not, you will serve a new one. Recovering only some of your fees based on a later-served PFS is better than recovering none of your fees because your early-served PFS is defective. It is a nauseating experience to realize your PFS has a problem when you are only 30 days out from trial—and it is too late to fix things.

PFSs involving multiple parties—a lot like playing golf in an electrical storm If you’ve lived in Florida for more than ten minutes, you probably know that when there’s lightning close by, it is borderline suicidal to be hanging out on a golf course. Serving a joint proposal for settlement is much the same: it’s not guaranteed that your proposal is going to be void, but the odds are dangerously stacked against you. So if you have the ability to frame your PFS so that it is from just one party, to just one party, then DO IT THAT WAY! Sometimes, there might not be a good way to draft a PFS from one party to one party—my condolences if you are there. But, even when you do serve your PFS from one party to one party, there are still plenty of ways to make mistakes if there are multiple plaintiffs or multiple defendants. Here are a few things you should know about serving a PFS in a case with multiple parties: 1. If you are the one serving the PFS on multiple parties, you cannot condition settlement on joint acceptance by all of them The Florida Supreme Court said that such a requirement made the PFS void. The court explained that “an offer must be differentiated such that each party can unilaterally settle the action.” Id. at 651. “Therefore, it is inherent that the offer of settlement cannot be conditioned on joint acceptance, which is the antithesis of a differentiated offer.” Id. Basically, each plaintiff should have “independent control over [his or her] decision to settle and conclude the litigation.” Id. Thus, “a proposal that conditions acceptance upon the mutual agreement of

48 | November/December 2016 | www.FloridaJusticeAssociation.org

both parties and prohibits either party from independently evaluating and accepting the amount offered” is void. Id. Bottom line: the PFS has to give each party upon whom it is served the independent ability to settle the case regardless of what other parties do.

2. Be mindful of your releases and stipulated dismissals!

When I’m challenging the enforceability of a PFS, the first thing I look for is whether there is a release or stipulation of dismissal attached. I can’t help but smile when I find one because 95 percent of the time, they are a gold mine of problems. One common mistake is to name different parties in the PFS and the release: the PFS is served on Party A, but the release is for Party B. A simple typo or inattention to detail when drafting a release or stipulated dismissal, and the “strict construction” python will squeeze the life out of your fee claim.

Aside from the super simple stuff—like making sure you attach the right release—it is critically important to make sure the release or stipulated dismissal only applies to the party to whom the PFS was served. That means a defendant can’t serve a PFS on Plaintiff 1 and attach a Stipulation of Dismissal that requires dismissal by both Plaintiff 1 and Plaintiff 2.

The rule comes from Audiffred v. Arnold, 161 So. 3d 1274, 1279 (Fla. 2015). There, the Supreme Court confronted a situation where there were two plaintiffs, but the proposal for settlement was made to only one of them. Although the defendant made the proposal to only one plaintiff, the proposal required that “[b]oth Plaintiffs will dismiss this lawsuit, with prejudice, as to the Defendant.” Id. at 1276. Thus, the proposal served by the defendant “had the effect of settling claims by two plaintiffs against one defendant.” Id. (emphasis in original).

The Florida Supreme Court said that “[u]nder the required strict construction of the rule and the statute, this ultimate effect of the offer requires that it be treated as a joint proposal.” Id. “Accordingly, for the proposal to be valid, it was necessary for the amount offered to be apportioned between [the two plaintiffs].” Id. at 1280. Since the PFS in Audiffred said that it was being made by one defendant to one plaintiff, it obviously did not apportion and was therefore unenforceable. Id. Bottom line: make sure the parties in your release/stipulated dismissal match the parties in your PFS. If your PFS is only served on one person, your release/stipulated dismissal should only apply to that one person.

Well, there is one caveat for that requirement. You can ask for dismissal of two defendants if one of the two is solely in the case based on vicarious liability. In Miley v. Nash, 171 So. 3d 145, 149-50 (Fla. 2d DCA 2015), review denied, 192 So. 3d 40 (Fla. 2015), the Second District held that even though Audiffred says a settlement requiring dismissal by more than one party is a joint offer, Rule 1.442(c)(4) negates the apportionment requirement where one of those two parties is solely vicariously liable. See Fla. R. Civ. P. 1.442(c)(4) (“when a party is alleged to be solely vicariously ... liable ... a joint proposal made by or served on such a party need not state the apportionment or contributions as to that party.”). The Second District said that,

while the proposal in Miley was a joint one (based on the holding in Audiffred), apportionment was not required because one of the two defendants was solely vicariously liable. Miley, 171 So. 3d at 150.

3. You CAN serve a PFS that requires a single opponent to settle with multiple people on your same side of the fence – but even that can get complicated.

Let’s say we are a family of plaintiffs and there are three of us. All three of us can serve a PFS on a single defendant and require that single defendant to settle with all three of us. The reason why this scenario is acceptable is because it is the defendant’s decision alone as to whether he wants to settle with all three of us or not. The key here is that you have a single offeree: the defendant’s ability to get out of the case is not conditioned on a co-defendant also agreeing to get out of the case. The Second, Fourth and Fifth Districts have agreed on this issue (it appears the First and Third have not weighed in). Hoang Dinh Duong v. Ziadie, 153 So. 3d 354, 359 (Fla. 4th DCA 2014), Wolfe v. Culpepper Constructors, Inc., 104 So. 3d 1132, 1134 (Fla. 2d DCA 2012); Rossmore v. Smith, 55 So. 3d 680, 681 (Fla 5th DCA 2011).

Don’t forget, though, that you will need to apportion the settlement amount in that situation. So, your PFS will have to set out how much the defendant would be paying to settle with mom, how much for dad, and how much for the child. Miss that allocation detail, and you are cooked. See Fla. R. Civ. P. 1.442(c)(3); Pratt v. Weiss, 161 So.3d 1268, 1272-73 (Fla. 2015) (“Even where no logical apportionment can be made, it is nonetheless required where more than one offeror or offeree is involved.”).

And know that if you do it this way, you will have to get 25 percent more than each apportioned offer at trial in order to have your PFS trigger fee entitlement. It is “not enough that the total amount of the verdict exceed[s] the total amount of the offer by twenty-five percent; the individual amount awarded to each claimant in the verdict must also exceed the individual amounts set forth in the proposal for settlement for that claimant by twenty-five percent.” Hoang Dinh Duong, 153 So.3d at 360. So you can lose entitlement to fees if the verdict doesn’t hit the 25 percent threshold for each plaintiff in your joint PFS. That’s a scary thought – and yet another reason to serve separate proposals, if you can.

Serving your PFS – GET IT RIGHT! So you’ve written your impregnable PFS. Congratulations! You can still screw it up, so don’t relax yet.

Some “creative” attorneys have made headway in the appellate courts arguing that failure to comply with the service requirements of Rule 2.516 of the Florida Rules of Judicial Administration make an otherwise enforceable PFS unenforceable. The argument is based on the fact that Rule 1.442(d) and §768.79(3) require a PFS to be served.

Rule 1.080 (the service rule) says you have to follow the requirements of Rule 2.516 of the Rules of Judicial Administration. See Fla. R. Civ. P. 1.080(a). The nut of the argument is that Rule 2.516 prescribes the method for serving documents, so all the requirements of Rule 2.516 must be strictly followed when serving a PFS, or else it will be

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invalid. For folks trying to defeat a PFS, if we really do have to strictly follow the requirements Rule 2.516, that rule is the land of milk and honey. It is dense and minutia-riddled. And, for now, it’s no joke.

Appeals are pending by plaintiffs all over the state trying to convince the appellate courts that a failure to serve a proposal by email, or to put “SERVICE OF COURT DOCUMENT” in all caps or failure to satisfy some other detail of Rule 2.516, does not invalidate proposals.

Kuhajda and Anderson should help with that if you are currently in that situation. But again, avoiding simple mistakes altogether is best practice.

that e-mail, and the name and telephone number of the person required to serve the document (Fla. R. Jud. Admin. 2.516(b)(1) (E)(ii)). BE CAREFUL – if you are also doing a notice of service of proposal (a one-page document which actually gets filed with the court), you need to make sure that you list in your service email the proposal for settlement and the notice of serving proposal as two separate items. If you only serve your opponent with the notice of serving proposal, then you have not actually served the proposal. And if you fail to list them as separate items in your service email, then you have failed to comply with Rule 2.516.

So that you don’t wind up having to appeal an order that invalidates your proposal based on a Rule 2.516 argument, do yourself a favor and make sure your staff is intimately familiar with the following:

Conclusion The Florida Supreme Court’s decision to accept review of two PFS cases, and then to rule in both of them that illogical, nit-picky arguments should not invalidate a PFS, is certainly good news. Perhaps trial courts will hear the message, and recovering our fees under a PFS will get a little easier. But, while hope springs eternal, right now, the whiffs outnumber the home runs. Hopefully this article will refresh you about the basics and help you avoid some obvious errors. Now, go draft that enforceable PFS!

1. Make sure to serve your PFS by email. If you want to serve it some other way in addition to email, that’s fine. But, at a minimum, you must make sure it is served by email (Fla. R. Jud. Admin.

2.516(a), (b)(2)); 2. You must attach the PFS to the service email in pdf format (Fla. R. Jud. Admin. 2.516(b)(1)(E)); 3. Make sure the subject line of your service email says (in all caps) “SERVICE OF COURT DOCUMENT” followed by the case number (Fla. R. Jud. Admin. 2.516(b)(1)(E)(i)); 4. The body of the service email must identify the court in which the proceeding is pending, the case number, the name of the initial party on each side, the title of each document served with

Maegen Peek Luka

is a partner at Brannock & Humphries in Tampa, Florida. Her practice is statewide and focuses on trial support and appeals in civil cases. Maegen received her B.A. from the University of Florida in 1998. She received her J.D. from the University of Florida College of Law in 2001, where she served on the law review and graduated second in her class. Following graduation from law school, Maegen clerked for the Honorable Emmett R. Cox at the Eleventh Circuit Court of Appeals.

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FJAYOUNGLAWYERSSECTION

honest.”5 Researchers tested this effect with lawyers not named Spence.6 Disclosure moves jurors into their corner, too. It leads jurors to trust.7 And it moves jurors to accept these hard truths, while making the next point far stronger.8

PRE-SUASION APPLIED TO TRIAL PRACTICE

So, if you have it in you, don’t treat this as a tactic. Instead, be a truth teller. Fight back against any insinuation that your words are a game.

They are not. They are essential to serve an injured person and tell their true story.

By Pat McArdle

A

So why the divided view between good trial lawyers? In my view, it is whether the lawyer sees disclosure as a tactic, or as the truth. When an opposing advocate pointed to this disclosure as a tactic, then the credibility boost vanished.9 As it should. The reason is obvious: no one trusts someone using a ‘tactic.’

ll trial lawyers seek to tell true stories, every day. Trying to sway an adjuster. Explaining the law to a red-faced judge.

Comforting a broken family. All these moments of truth make up our lives.

But as we go, are we doing everything we can to win over the people who can help restore our clients? Without a long life of trial and error, how would we know?

Young or old, we must look for what works when telling our clients’ true stories. With chances for trial rare for young lawyers, the search for knowledge to bridge the trial gap is key. Because we only have one life to live and limited time, reading research is a needed tool to find the best path. No matter how many mock trials, CLEs, or big trials you have had, social science research is the only way to reach beyond hunches and beliefs.1 Research is the only way to answer whether your trial experiences are the exception, or the rule.

The book Pre-Suasion: A Revolutionary Way to Influence and Persuade gathers the newest research.2 Its focus is on controlling attention in an ethical way. Because the book champions truthful communication, this article explores its ideas apply to practice.

I. The First Words: Revealing Hard Truths To Establish Trust If Gerry Spence could only leave one word to teach lawyers, my guess is it would be “vulnerability.” In his words, “The most powerful person in the courtroom is the vulnerable person, the lawyer who is aware of his feelings and can share them honestly with the jurors.”3

But some great lawyers think revealing weakness, especially bad facts, guts zealous advocacy. If you bring out the bad fact, these folks would say, you have “sponsored” that fact and made it worse for your case.4 Pre-Suasion touches on the on-point research. The research available suggests revealing hard truths works. Simply put, “a communicator who references a weakness early on is immediately seen as more

When can we apply this idea? It applies throughout the case. Let’s say you have a motion hearing coming up, which you might lose on the law. No matter the outcome, you can still win the credibility battle.

Disclose a bad case, and reframe it as a strength. Build your reputation for candor and full disclosure. Your chances before the court will improve on the close issues that matter down the road. Every time the bad guys fail to disclose, punish them.

After pre-trial practice concludes, voir dire and opening statement are the times to disclose hard issues. It is no mistake that Gerry Spence’s step one for voir dire is “Identifying the issues we’re afraid of.”10 I’ve heard other great lawyers, such as Sean Domnick, suggest the same starting point when approaching voir dire.11 Voir dire is the only time at trial before the defense speaks. Use this time to take the high ground, reveal the hardest issues in your case, and become the most trusted person in the room. The same goes for opening statement.

II. Owning the Counterargument Seeing flaws and telling folks about them in a raw form is the beginning of telling the truth, not the end. The research shows that framing hard truths as strengths works best.12 As Mark Lanier has said in the invaluable book Anatomy of a Personal Injury Lawsuit, 4th ed. (edited

by FJA’s own John Romano), “the magic of advocacy, and the true art of creating and staging a story, comes from presenting [negative facts] in such a fashion that you transform them into positives that you, and most importantly, the jury, would consider your [positive facts].”13 This is critical due to the power of counterargument in persuasion. “[I]n contests of persuasion, counterarguments are typically more powerful than arguments.”14 The best counterarguments work “by showing the rival communicator to be an untrustworthy source of information, generally.”15 This suggests two lessons. First, it is important to avoid becoming an untrustworthy source of information.

Second, it is useful to show your opponent and adverse witnesses are untrustworthy sources of information. Luckily, that’s the reality in most situations.

This focus on counterargument applies in all speech, from negotiation through trial. For trial lawyers, one should rely on counterargument in every story. Voir dire, opening statement, direct, and redirect can all preempt counterargument, while punching back at the other side’s case.

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III. Opening Your Case: The Defendants, Front and Center There is a strong instinct to start your case with your focus: your clients and how they are harmed. That is natural, because everything we do as trial lawyers focuses on our clients and their best interests. But focus on the client first is almost always a mistake.

Why? Because what is in focus is seen as a cause.16 If you pair your clients with the damages they endured, the listener will fill in the gaps with reasons for why this happened. Without the true story of the defendants’ harmful conduct front and center, the listener can only imagine (1) ways the client caused the injuries to themselves, or (2) ways that bad things happen to good people. After forming such an opinion, the jury will seek confirmation for that view.

Instead, trial lawyers should attack defendants and link them to the injuries first.17 Data from hundreds of mock trials confirms this fact.18 Doing so pins the defendant as the cause of the harms your client suffered, and stops attribution bias from pushing blame on the blameless.19 The defendant should not just be front and center in the way you tell the story. The defendant should be front and center visually.

For instance, there is strong evidence that when viewers see a video confession in a criminal trial with the suspected person’s face on video, the viewers will find that person likely caused the crime, even when the statement is coerced. Why? The camera angle.20 The bias disappears by changing the camera angle to put the suspect and questioner in equal focus.21 The bias reverses if the camera focused on the interrogator, making it more likely viewers see the interrogator as coercing the confession.22 This effect has implications for a civil trial. Strong admissions from the defendants on a video deposition have real power. Put the defendant up front and center admitting critical concessions as soon as possible in trial, and jurors will see that testimony as a powerful sign the defendants caused the harm.

IV. Keeping it Simple After four years of college and three years of law school, even young lawyers know a lot. At a minimum, they can make the forced march through a 19th century case on personal jurisdiction. (They might do so with some resentment, but they can do so.)

But half of American adults cannot read text written at the 8th grade level.23 So for at least half of jurors, stories with needless complexity cannot work. Even for students at Ivy League schools, research suggests writing with needless complexity makes you appear less intelligent.24 This is because people like simplicity. Simple stories raise neuronal activity in the muscles that make us smile.25 And difficult stories produce dislike in the brain.26 The temptation for young lawyers, like other young professionals, is to use big words to fill in for fears related to lack of experience.

While the temptation to say ‘loquacious’ instead of ‘wordy’ is high, this strategy will backfire.

As a result, when telling any story in any context, tell it as simply as possible. Ask simple questions. Help your witnesses give simple, true answers.

If you doubt you can simplify complex things like medical terms, take a look at Thing Explainer: Complicated Stuff in Simple Words.27 The book explains how cellular biology, rocket ships, and even the U.S. Constitution work with only the 1,000 most used words in English.

A laugh-out-loud read, it proves nothing is too complicated to break down into the basics.

Online tools exist to simplify writing everything from motions to deposition questions. The Hemingway Editor,28 The XKCD Simple Writer,29 and THSRS30 all provide free online tools to help simplify.

In short: if you tell a simpler story than your opponent does, your audience will like you more. If your audience likes you more, you are more likely to get what you want.

V. Closing: Calls to Action Be vulnerable, preempt counterarguments, counterpunch, attack the defendant first, simplify. Pre-Suasion and the research it collects support these tenets of trial persuasion.

The final principle I’d like to touch on is linking. For any action, we “should find a concept already closely associated strongly and positively with the action . . . and bring that concept to mind” just before calling our audience to action.31 We can build links through if/then statements. If/then statements preload action by creating clear links in the mind between a trigger and a response.32 This tracks David Ball’s advice about how to address the jury in closing argument. He advocates telling an audience ‘if someone in the jury room says ABC, tell them XYZ.’33 That approach fits this linking model.

In this spirit, when you put down this article, open up Amazon and buy yourself a copy of Pre-Suasion. It should spark new ways of thinking about your trial practice. ______________ For a great book on how expert intuition works and how it fails, see Daniel Kahneman, Thinking, Fast and Slow (2011).

2 Robert Cialdini, Pre-Suasion: A Revolutionary Way to Influence and Persuade (2016) (hereafter Pre-Suasion).

3 Gerry Spence, Win Your Case: How to Present, Persuade, and Prevail-Every Place, Every Time, 27 (2007) (hereafter Win Your Case).

4 See Kathryn M. Stanchi, Playing With Fire: The Science of Confronting Adverse Material in Legal Advocacy, 60 Rutgers L. Rev. 383 (Winter 2008) (collecting sources advocating sponsorship theory) (hereafter Playing with Fire).

5 Pre-Suasion at 165.

6 Pre-Suasion at 375 (citing Playing with Fire; Lara Dolnik, Trevor I. Case, and Kipling D. Williams, Stealing Thunder as a Courtroom Tactic Revisited: Processes and Boundaries, 27 Law and Human Behavior 267 (2003); and Kipling D. Williams, Martin J. Bourgeois and Robert T. Croyle, 1

52 | November/December 2016 | www.FloridaJusticeAssociation.org

n i d e r e v o c u o y t o g e v ’ e W

Greetings from your favorite referral partner in Palm Beach County, The Law Offices of Craig Goldenfarb!

You may already know that our team of litigators is ready and willing to take any referred case to trial. So don’t bother trying to handle that Palm Beach County personal injury case - leave the fight with the insurance companies to us.

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From: Craig Goldenfarb, Esq.

West Palm Beach, Florida

Yours,

Craig Goldenfarb, Esq.

www.FloridaJusticeAssociation.org | November/December 2016 | 53

FJA CLE Is Always Looking For SpeakersFor Our Seminars & Webinars.

STEP UP TO THE MIC

If you are interested in speaking and you are an EAGLE member of the FJA, please email Gena Matthews at gmatthews@florida justiceassociation.org or call the FJA CLE Department at (850) 521-1097.

The Effects of Stealing Thunder in Criminal and Civil Trials, 17 Law and Human Behavior 597 (Dec. 1993)).

7 Pre-Suasion at 165.

8 Id. at 165-166.

9 Playing with Fire at 421.

10 Win Your Case at 114.

11 I heard this at FJA’s 2016 Al J. Cone Trial Advocacy Institute, which I highly recommend for advocates who want to boost their trial skills with great company.

12 Playing with Fire at 429 (recommending disclosure only when a rebuttal is possible).

13 Mark Lanier and Tom Vesper, The Magic of Advocacy, in Anatomy of a Personal Injury Lawsuit 902 (John Romano ed. 4th ed. 2015).

14 Pre-Suasion at 92.

15 Id. 16 Id. at 15.

17 Elaine McArdle, Plaintiffs Should Always Start By Attacking the Defendant, Lawyers Weekly USA (Oct. 1999) (available at http://www.alabamatortlaw.com/files/lw_10_18_99.pdf ).

18 Id. 19 Id. 20 Pre-Suasion at 63-64.

21 Id. 22 Id. 23 Annie Holmquist, Half of Adults Can’t Read a Book at an 8th Grade Level, Better Ed. (Mar. 24 2016) (available at http://www.better-ed.org/blog/half-adults-cant-read-book8th-grade-level).

Daniel M. Oppenheimer, Consequences of Erudite Vernacular Utilized Irrespective of Necessity: Problems with Using Long Words Needlessly, 20 Appl. Cogn. Psychol. 139 (2006).

24 Pre-Suasion at 112.

25 Id. 26 Randall Munroe, Thing Explainer: Complicated Stuff in Simple Words (2015).

27 This tool is found at http://www.hemingwayapp.com.

28 This tool is found at https://xkcd.com/simplewriter.

29 This tool is found at http://www.ironicsans.com/thsrs.

30 Pre-Suasion at 136.

31 Id. at 138.

32 David Ball, David Ball on Damages (3d ed. 2013). and Persuade (p.

63-64).Simon & Schuster. Kindle Edition.

54 | November/December 2016 | www.FloridaJusticeAssociation.org

Pat McCardle

is a trial lawyer for Grossman Roth and Partridge, as part of Grossman Roth Yaffa Cohen, P.A. He received his J.D. with highest honors from Stetson University College of Law. He is a current member of the FJA’s Young Lawyer Section Board of Directors.

His experience includes advocating for people who have suffered from amputations, blindness, brain injury, misdiagnosed cancer, spinal-cord injury, and wrongful death.

THEBRIEFCASE

WHY WE SHOULD BE DOING PRE-DISCOVERY FOCUS GROUPS

By Paul Scoptur and Phillip Miller

T

heoretically, an attorney should be able to figure out the proof needed for any case. We can talk to someone with a similar case, read case law, review jury instructions, review a chapter from a treatise, and before long we know the proof needed (or think that we know). It’s called “lawyer proof.” Despite our experience or confidence, three things occur during discovery that reduce or gut the value of our cases. Whether it’s a mediator, opposing counsel, or judge, someone points out that jurors: 1. May not be as persuaded, angry, or sympathetic about our case as we expect; 2. Are likely to want proof that is not part of the evidence we have compiled and/or focused on during discovery; and 3. There are parts of the defendant’s case that are more persuasive than we could have imagined, and we don’t have rebuttals in place.

These arguments inevitably diminish the recovery of any settlement or verdict, and all of them directly or indirectly refer to the “juror proof ” needed. “Juror Proof ” is the term for the proof that ends up being important in deliberations even though its not part of the legal “dutybreach of duty-causation-damages” model commonly used by lawyers.

It’s the proof that drives the deliberations and decision making. The first adjustment you must make to whatever process you use for discovery planning is to make sure that you know what the “jury proof ” is. Easy to say, but how do you do it?

Can’t We More or Less Predict What Jurors Will Want to Know?

The short answer is “yes.” What jurors want to know or may think about a case is not always a surprise. We often know that there are certain things about the case that are or may become problems in the case, but we forge ahead making the best of what we have. By the end of the proof, or when we reach a turning point in negotiations or at mediation, these points often resurface. Unfortunately, the problem we knew about or recognized earlier is still there and may have evolved so that:

1. It has evolved and is stronger than we thought; 2. Other issues have surfaced that “only the client knows about”; 3. A pre-trial focus group (co-counsel, consultant, mediator, opposing counsel, judge) has brought up issues we never anticipated as part of the case.

The underlying problem that makes this so difficult for us is confirmation bias. We are all affected by it, regardless of education level, social standing, or world view. We all “hear what we want to hear.” We see what we want (or expect) to see. As Paul Simon sings in The Boxer, “a man hears what he wants to hear and disregards the rest.” When there is contradictory testimony or evidence in a case, our first response is to minimize it by assuming our witness, expert, or other evidence tends to have more persuasive weight. When we look at a photograph,

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THEBRIEFCASE

animation or document, we see what we want to see or need to see in it and minimize the rest. Often, we are simply blind to those other parts of the photo, animation, document, testimony, or facts. When dealing with emotionally charged issues or deeply entrenched beliefs, the effect of confirmation bias is at its strongest. In other words, the deeper you are into the case – the stronger the effect of confirmation bias, the more vested you become and the more you ignore the juror proof.

Common Mistakes Made When Conducting Focus Groups Mistake # 1 – Waiting too long. Rather than getting feedback from others early in the case, we wait until written discovery is over, the parties have been deposed, the proof is all but closed and oh, by the way, trial is in two weeks.

Mistake # 2 – Priming the group with favorable facts for the plaintiff. We prime the focus group (often unintentionally), making sure they know how worthy and honest the plaintiffs are.

We just did a focus group recently where the lawyer asked for 15 minutes at the end to come in and address the group. Um, sorry, no.

He wanted to win. The point of a focus group is not to win. It’s to gather information, find the jury proof and find the rebuttals to your landmines.

Mistake # 3 – Priming Against the Defendant. We prime the focus group with information that the defendant has been (almost) grossly negligent and/or a threat to the community. When we do this, in essence, the focus group is directed to find for the plaintiff. Instead, the information needs to be presented in a neutral manner, so that juror proof can be found and we hear a discussion that makes a difference.

Mistake # 4 – Giving the group conclusions rather than facts.

We give the focus group members conclusions (this was a negligent hire) rather than facts. We need to give them the facts and see what conclusions they come to. In a recent focus group, several construction developments failed. The developers were suing each other, claiming mismanagement, accounting irregularities and other reasons. It was 2007-2008. We could have told the focus group members that the failure was due to a severe downturn in the condo and development market, but we wanted to see if they would come to that conclusion on their own. If they do, it’s more powerful and they are more likely to continue to hold that belief, no matter what. And they did. Telling them the conclusions is meaningless. They are generally rejected as lawyer talk. But once they conclude it on their own, they develop sponsorship in the answer and have a hard time being convinced otherwise.

Mistake # 5 – Minimizing Negative/Hostile Conclusions. Bad answers need to be embraced, not run from or ignored. We learn from bad answers. It’s sort of like voir dire. Bad answers are good, as they teach us the landmines in our cases. Sometimes those “bad things” are fights we cannot win, but cannot ignore. The focus group may help us find if there is a case that can be won where the problem is irrelevant.

Mistake # 6 – Assuming that one focus group is enough to tell you

whether to settle or try a case. One focus group is a snapshot, it’s a photograph. It gives us a picture at that point of time with a limited group of people. Bring in a different group of people – the discussion might not be the same.

Second, no single focus group can address all the issues in a case. When we try to test everything at once, the discussions and takeaways are never as robust as when the group has had a more focused presentation and discussion. Multiple focus groups need to be done. Why? We need to see if what we hear on any significant issue is validated by subsequent groups. If so, great. If not, back to the drawing board.

Mistake # 7 – Asking how much - and assuming the answer means anything. And it means little. Dollars in focus groups are non-predictive.

The “awards” mean nothing. The first number suggested by someone in the group who is persuasive is likely to drive the deliberation, and in different group, it can be an entirely different discussion.

What is important is to discover is not how much a group of people think your case is worth, but what are the facts that will drive damage discussions in a deliberation. What fact or facts would cause you to give a lot of money? What fact or facts would cause you to give little money?

It’s finding out the facts that will affect damages, not the number itself.

The number a group suggests is meaningless.

Getting the most out of a discovery focus group 1. Discover the “norms” – what do potential jurors expect of the plaintiffs and defendants, before and after the event? How does that affect what you do in discovery?

2. Do potential jurors find anything in the case that might make it important? They will look for meaning, a reason to send a message or make a change. What is the case about? Is it just about some lawyer and his client getting rich? Are you looking for the information that might make the case important to jurors?

3. What suspicions do they have? Every piece of evidence (testimony, photos, or otherwise) that can be minimized by a juror’s suspicion is potentially problematic. Although you think your proof is “solid” on a point, what might jurors think about it? How can you meet their needs with your proof? Testing your key “most persuasive” exhibits early and often should be a rule you adopt.

4. What do they want to know about the defendant and the plaintiff and why? Has the defendant done this before; has the plaintiff had problems before this; has the plaintiff ever been injured or made a claim before? A frightening example: in a failure to diagnose breast cancer case, what is the juror proof that has nothing to do with our proof, but everything to do with the jury returning a verdict? Where was the husband? He’s here asking for money, where was he when his wife’s cancer was growing? Why didn’t he insist on a second opinion? All of these items of juror proof may be answered in a case, but we may underestimate their importance to the jury being able to return a just verdict.

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5. What rules do they come up with on their own or will be comfortable adopting? Having some rules we think are great isn’t enough. If it doesn’t seem fair, it often doesn’t matter what the law is or even if a “rule” has been violated. The ideas of fairness discussed often tend to favor defendants, e.g. “if it wasn’t foreseeable should we hold the defendant liable, it was just an accident.”

6. Is there a message they would like to send?. Jurors don’t naturally think about “compensation” or “making someone whole.” They do think about and believe in punishing and sending a message, and the message a group of non-lawyers comes up with may be compelling compared to our own fabricated message.

7. What are the anger and disgust factors in the case?

We need to find out what angers the jury, what disgusts the jury. Without anger or disgust, it’s just another case.

Focus groups are one of the most important tools that we can use to help prepare our cases. Not using them is a missed opportunity. One of our favorite sayings is “You don’t want to know what 12 people think about your case on the first day of trial.” Do them early and do them often.

Paul J. Scoptur has been a civil trial lawyer representing plaintiffs exclusively since his graduation from Marquette University Law School in 1978. He is on the Board of Directors of the Wisconsin Association for Justice and is a trustee and co-chair of the National College of Advocacy Board of Trustees. He has been an Adjunct Professor of Law at Marquette University Law School, where he has taught litigation and trial skills. He has been named one of the Best Lawyers In America continuously since 2002 and is one of Wisconsin’s top 50 “Super Lawyers” in the area of personal injury. He also is a Diplomate of the NCA and he was the first lawyer to complete the Advanced Studies in Trial Advocacy curriculum offered by the NCA. Phillip Miller is a trial lawyer and trial strategist who lives in Nashville. Phillip is nationally recognized for his work as a deposition/trial strategist and has been hired by firms in 28 states and the District of Columbia to help them prepare their biggest, most significant cases.

Mr. Miller has helped firms recover hundreds of millions of dollars over for their injured clients by delivering winning strategies for both depositions and trial that he frequently tests with focus groups, and now, deep metaphor elicitation. Phillip maintains an active practice in Nashville. He has been certified and re-certified as a Civil Trial Specialist, he is AV rated, and has been designated as a Super Lawyer repeatedly

Focus groups are not something to do when you realize a case won’t settle. If you really want to maximize your chances at a fair settlement, focus your case before discovery.

Paul Scoptur and Phillip Miller have written a book on focus groups, “Hitting the Bulls-Eye” published by AAJ Press.

UPDATE YOUR FJA MEMBER PROFILE ONLINE • Has your contact or practice information changed recently? Update your online profile to ensure you can be easily located when someone searches the public directory looking for an attorney.

• Updates are easy. Simply log in to your account and make changes including adding or updating your profile photo!

Questions? Need Help?

(850) 521-1093

FloridaJusticeAssociation.org

FJA@floridajusticeassociation.org

MEMBEROUTREACH

FJA CONTINUES STATEWIDE LAW SCHOOL OUTREACH INITIATIVE This fall, the FJA hosted two events as part of the law school outreach initiative. Each year, FJA members from across the state help coordinate these events to educate law students about the role personal injury attorneys play in protecting the rights of Florida citizens in the courts and in the Florida Legislature.

Students also learn the value of membership and the resources FJA offers students to help prepare them for the next steps in their legal career. More law school outreach events will take place in the spring semester. Sign up to attend or sponsor at www.floridajusticeassociation.org.

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UNIVERSITY OF MIAMI SCHOOL OF LAW This season’s first Law School Outreach event was hosted October 18th at the University of Miami School of Law, where the FJA partnered with the Miami-Dade Trial Lawyers Association (MDTLA). FJA members answered students’ questions on issues regarding civil justice and real-world scenarios that come with being a plaintiff lawyer.

1-Phil Gold (far left) and Richard Chait (far right) speaking with UM law students 2-Skip Pita (far left) with UM law students

3 1-FJA member Bill Cotterall (left) and Paul Jess (middle) network with FSU law students.

2-Sandy D’Alemberte speaks with attendees.

3-FJA member Jaeson Homola shares the value of membership as a young attorney

FLORIDA STATE UNIVERSITY COLLEGE OF LAW

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On November 15th, the FJA hosted a Law School Outreach reception at the Florida State University College of Law. The program featured a discussion moderated by FJA Executive Director Debra Henley on the Florida Constitution Revision Commission with panelists: Paul Jess, FJA General Counsel; Debbie Kearney, former General Counsel to the 1998 Constitution Revision Commision; and Sandy D’Alemberte, former president of the American Bar Association and of Florida State University College of Law. Before and after the panel discussion, students were able to network with the panelists and local FJA members.

SPECIAL THANKS TO THE BARRETT, FASIG & BROOKS FIRM

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Attorneys from the Barrett, Fasig & Brooks firm are actively engaged with FJA law school outreach and are avid supporters of the FSU College of Law. Attorneys Jaeson Homola, Kimberly Stewart and Tony Fusco from the firm were instrumental in the success of this event.

Barrett, Fasig & Brooks generously sponsored the 23 new law students who applied for membership at the reception as a demonstration of their continued support of the FJA’s law school outreach initiative.

CAPITOL WELCOMES FJA MEMBERS TO THE FLORIDA LEGISLATURE Congratulations to FJA members serving in the Florida Legislature: Sens. Gary Farmer and Darryl Rouson and Reps.

Sean Shaw and Erin Grall. These pro civil justice lawmakers will serve the people by working on measures to improve the lives of all Floridians.

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FJA members swear in to their positions with fellow legislators: 1-FJA Past President, District 34 Senator Gary Farmer 2-District 19, FJA Member, Senator Darryl Rouson 3-House District 61 Representative Sean Shaw 4-House District 54 Representative Erin Grall 2

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JACKSONVILLE-AREA FJA MEMBERS RAISE OVER $10,000 FOR JACKSONVILLE AREA LEGAL AID The FJA hosted the 10th Annual Holiday Reception to benefit Jacksonville Area Legal Aid (JALA). The event was generously sponsored by Michael Upchurch, CEO of Delta Settlement Solutions and NeuLife Neurological Services. Thanks to the efforts of co-chairs Bryan Gowdy and Tom Slater; over $10,000 in donations from the host committee will go directly to JALA,

an organization that provides high-quality legal assistance to low-income and special-needs groups.

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1-Co-chairs Bryan Gowdy and Tom Slater 2-Thank you Mike Taft from Delta Settlements for joining us 3-Curtis Pajcic and Steve Watrel 4-Michael Korn, Rebecca Creed and Kasey Wagner

www.FloridaJusticeAssociation.org | November/December 2016 | 59

CLE

CLE CALENDAR FEATURED EVENTS

2017 MONTHLY HIGHLIGHTS

OCTOBER-2016

JANUARY 1/18 Trucking Webinar ®

1/27 Thorny Litigation Issues Webinar

FEBRUARY 2/17 Slip & Fall Webinar FEBRUARY 28 - MARCH 3, 2017 WYNDHAM GRAND ORLANDO RESORT BONNET CREEK

2/28 - 3/3 Workhorse Seminar, Wyndham Grand Orlando Resort Bonnet Creek

MARCH 3/21, 28 & 30 Boot Camp Webinar Series 3/24 Case Law Insider Call

APRIL

ANNUAL CONVENTION JUNE 14-17, 2017 • LOEWS DON CESAR ST. PETE BEACH

4/4, 6, 11, 13, 18, 20, & 25 Boot Camp Webinar Series 4/8 NEW: Epic Secrets from the Masters of Medical Malpractice Seminar, Miami 4/28 Collateral Sources Webinar

MAY

MASTERS OF JUSTICE OCTOBER 5-7, 2017 • RITZ CARLTON, SARASOTA

5/18-21 Trojan Horse Method Seminar, Orlando

JUNE 6/14-17 Annual Convention, Loews Don CeSar St. Pete Beach 6/30 Closing Arguments Webinar

AUGUST 8/2-5 Al J. Cone Trial Advocacy Institute & NEW: Voir Dire Institute, Gaylord Palms, Orlando

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8/25 Trucking Webinar

SEPTEMBER 9/24 Case Law Insider Call

OCTOBER 10/5-7 Masters of Justice, Ritz Carlton Sarasota 10/19 Proposals for Settlement Webinar

NOVEMBER 11/17 Trucking Webinar

DECEMBER 12/2 NEW: Learn from the Legends Seminar DATES SUBJECT TO CHANGE: AS OF 12/5/16

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EAGLESPOTLIGHT

2016-2017 EAGLE Recruiting Champions SPONSOR - $3,000

Since May 1, 2016

Recruiter Name

Recruiting Value

# of Recruits

James W. Gustafson, Jr. $45,000 8 Fred A. Cunningham $18,000 2 Robert Mayer Rubenstein $15,000 3 Philip A. Gold $11,500 2 Jason F. Lamoureux $10,000 2 T. Michael McLeod $10,000 2 Jason D. Weisser $ 9,000 3 F. Catfish Abbott $ 8,000 2 Nathan P. Carter $ 7,500 4 Alexander Murphree Clem $ 6,500 2 Scott R. Jeeves $ 6,500 2 Debra Henley $ 6,000 2 Jeffrey M. Liggio $ 6,000 2 Tiffany M. Faddis $ 5,500 1 Todd E. Copeland $ 5,250 3 Donald M. Hinkle $ 5,000 1 Olivia D. Liggio $ 5,000 1 Ricardo M. Martinez-Cid $ 5,000 1 Troy Rafferty $ 5,000 1 Paul D. Jess $ 3,000 1

Recruiter Name

Recruiting Value

# of Recruits

Bruce R. Kaster $3,000 1 John S. Mills $3,000 2 Jason Mulholland $3,000 1 H. L. (Larry) Perry $3,000 1 Keith A. Pierro $3,000 1 Anthony Quackenbush $3,000 1 Dale M. Swope $3,000 1 Stephen Watrel $1,800 1 Vanessa Brice $1,500 1 Joseph V. Camerlengo, Jr. $1,500 1 Richard E. Chait $1,500 1 Celene Humphries $1,500 1 Nicholas C. Johnson $1,500 1 Anthony T. Martino $1,500 1 Chad Mitchell Pilon $1,500 1 Matthew Nichols Posgay $1,500 2 Daniel G. Williams $1,500 1 Michael J. Winer $1,500 1 Glenn M. Klausman $ 750 1 As of date 11/28/2016

THANK YOU EAGLEs In recognition for unwavering commitment to the EAGLE program, we recognize the following upgraded, new or returning EAGLE members.

PATRON - $5,000

RAMON OSCAR CREGO Rubenstein Law Recruited by Robert Mayer Rubenstein

JESSICA J. GONZALEZ-MONGE Rubenstein Law Recruited by Robert Mayer Rubenstein

MICHAEL MANGLARDI Martinez Manglardi Upgraded by Tiffany M. Faddis

JULIO C. MARTINEZ, JR. Martinez Manglardi Upgraded by Tiffany M. Faddis

REBECCA WHITT Rubenstein Law Recruited by Robert Mayer Rubenstein

www.FloridaJusticeAssociation.org | November/December 2016 | 61

EAGLESPOTLIGHT SPONSOR - $3,000

Luis R. Gracia Rue & Ziffra Recruited by Debra Henley

Lefferts L. Mabie, III Lefferts Mabie, P.A. Recruited by Paul D. Jess

Skip E. Lynch Kaster, Lynch, Farrar & Ball, LLP Recruited by Bruce R. Kaster

Andrew Y. Winston The Winston Law Firm Recruited by Anthony Quackenbush

Allan L. Ziffra Rue & Ziffra Recruited by Debra Henley

ASSOCIATE - $1,500 David F. Baron Baron & Herskowitz Law Firm Recruited by Nathan P. Carter

Glenn M. Klausman Recruited by Todd E. Copeland

Derrick R. Connell Morgan & Morgan, P.A. Recruited by Alexander Murphree Clem

Craig Evan Rothburd Craig E. Rothburd, P.A. Recruited by Scott R. Jeeves

SOARING YR1 - $750

Jon Michael Herskowitz Baron & Herskowitz Law Firm Recruited by Nathan P. Carter

BUSINESS BENEFACTOR - $10,000

888-811-3408 www.phippsreporting.com

Recruited by James W. Gustafson, Jr.

62 | November/December 2016 | www.FloridaJusticeAssociation.org

Joshua G. Sheridan Busciglio & Sheridan Law Group Recruited by Chad Mitchell Pilon Daniel M. Soloway Soloway Law Firm

BUSINESS SPONSOR - $3,000

Recruited by Fred A. Cunningham

Recruited by Keith A. Pierro

WEBINARS

TAKE ADVANTAGE OF FJA’S PREMIER CLE ONLINE AND ON-DEMAND

RADIOLOGY EXPERT * ORTHOPEDIC EXPERT * ACCIDENT RECONSTRUCTION EXPERT $49 each or sign up for the upcoming expert webinars 1 Hour of General CLE, 1 Hour of Civil Trial Certification (Each One); All 12 for a discounted price ANNUAL REVIEW: LEGISLATIVE & CASE LAW UPDATE WEBINAR $79; $49 for Young Lawyers 2 Hours of General CLE, 2 Hours of Civil Trial Certification UM REJECTIONS WEBINAR $39; $29 for Young Lawyers 1 Hour of General CLE, 1 Hour of Civil Trial Certification DRAFTING A CIVIL REMEDY NOTICE FOR UM & PROPERTY CASES WEBINAR $59, $49 for Young Lawyers $39 Paralegals 1.5 Hours of General CLE, 1.5 Hours of Civil Trial Certification

PROPOSALS FOR SETTLEMENT WEBINAR $199; $129 Young Lawyers; $99 Paralegals 3.5 Hours of General CLE; 0.5 Hour of Ethics; 3.5 Hours of Civil Trial Certification COLLATERAL SOURCES WEBINAR $285 Members; $485 Non-Members 5.0 Hours of General CLE; 1.0 Hour of Ethics; 5.0 Hours of Civil Trial Certification ELECTRONIC DISCOVERY AMENDED RULES IMPACT,

ORDER ANY OF THESE WEBINARS ONLINE OR CALL THE FJA CLE DEPARTMENT AT (850) 521-1097.

Index Arbitration, contractual agreements...23 Attorneys Bar Rules, mandatory CLE hours increased to 33 per cycle with three hours in approved technology courses…10 discipline, attorneys disbarred for scheme involving healthcare provider with PIP claims against Progressive Insurance…11 fees (Fed.), proposal for settlement, applicable in federal diversity actions and mandatory in absence of bad faith...40 fees, arbitration agreement, fee provision that violated public policy was severable because it did not go to the essence of the agreement…14 fees, failure to plead claim for fees in “wherefore” clause, not fatal to fee request where other party on notice...41 fees, offer of settlement, offer is not invalid for failing to address fees where fees were not sought in the pleadings…11 fees, proposal for settlement, practical tips for making sure PFS is enforceable...46 fees, proposal for settlement, Supreme Court clarifies PFS ambiguity and strict construction issues, rejects “nitpicking”...21, 36 fees, subrogation and lien resolution services in personal injury and wrongful death cases involving contingency fees’ proposed Bar Rule rejected…10Auto, bad faith and UM, plaintiff’s right to chose forum superior to defendant’s right to remove to federal court...20 Auto bad faith, UM carrier does not need to consider implied claim for noneconomic damages in its evaluation to avoid bad faith...21 damages for initial medical diagnostics, cause of accident...18 evidence, accident report privilege doe not protect person who flees the scene...34 jurors, failure to disclose involvement in past accident...20 UM, amount in controversy should definitely include implied amount for noneconomic damages...20 (2 cases) venue, home venue privilege of sheriff vs. policy forum selection clause...18 Closing Argument improper “take responsibility” and “apologize” argument, not justified by punitive damages claim…11 punitive damages, practice tips re scope and propriety of argument on whether defendant should be found liable for punitive damages...42 Continuing Education, Workhorse 2017...8 Contracts, third-party beneficiary doctrine...23 Damages medical expenses for diagnostic testing, exceptions to general rule that plaintiff is entitled to recover such expenses…14 remittitur, no medical evidence to support contention that defendant’s conduct caused medical condition to worsen or caused psychological harm…14 set-off for economic...23 Defamation, privilege arising from evaluation of worker, finding of express malice required…16 Depositions, high level business executives, 3rd DCA refuses to adopt federal “Apex Doctrine”...41

Elections, 2016, opportunities and challenges created...5 Emotional Distress, impact rule, rule applicable to torts of negligent hiring, negligent retention and negligent supervision…16 Evidence document created by party in anticipation of litigation, error to admit without evidence of what records were relied upon...34 expert witnesses, party should be permitted to cross on facts the expert said don’t affect his opinion...34 hearsay exceptions, trial tips re recorded recollections...32 hearsay, business records exception, “screenshot” to show original record was copied into business predecessor’s system...34 out-of-court statements, utterance may be “excited” even hours after event...34 premises liability, business internal policies and procedures, admissible if relevant to standard of care...34 Fault, apportionment, Fabre and “empty chair” defenses are not the same have different pleading requirements...34 FJA, recent accomplishments, future prospects...6 Journalists, called as witness, improper to call just before trial without prior notice or showing that reporter had relevant testimony…14 Jurors, misconduct, juror who posted tweets during jury selection and trial without discussing specific facts or parties involved…14 Legislature, 2016-18 members and rules, interim committee meeting dates...12 Mediators, extensive redraft of Mediator Rules adopted by Supreme Court…11 Medical Malpractice caps on non-economic damages...23 caps on noneconomic damages, Section DCA agrees with Fourth DCA that under McCall caps in personal injury medical malpractice actions are unconstitutional…14 Nursing Homes arbitration clause...23 arbitration, claim arising from stay at affiliated SNF was beyond scope of agreement executed with affiliated ALF in same retirement community…12 arbitration, Supreme Court rejects third-party beneficiary doctrine as basis for enforcing arbitration agreement against non-signatory resident…10 Department of Elder Affairs Ombudsman program, agency has sovereign immunity from liability arising from claims of improper interference with ombudsmen…12 Practice Tips effective communication to jury, recent research on influence and persuasion...51 focus groups, getting the most out of focus grouping...55 Premises Liability, slip and fall, error to treat defendant’s failure to comply with internal policies and procedures as per se breach of standard of care…14 Prisoner Suits, statute of limitations, one-year statute does not apply where allegation is that prisoner suffered physical injury as a result of negligent or wrongful acts or omissions…11

64 | November/December 2016 | www.FloridaJusticeAssociation.org

Procedure (Fed.) appeal of order granting motion to dismiss waives right to amend...40 independent jurisdictional basis required for permissive counterclaim...41 vacating clerk’s default does not require showing of excusable neglect ...40 Products Liability, automobiles, NHTSA guidance on autonomous vehicles may foreshadow coming preemption of state tort law...24 Sovereign Immunity, individual negligence, application of undertaker doctrine…16 Workers’ Compensation Attorney Fee Liens/Quantum Meruit, A prior attorney in WC is entitled to a reasonable QM fee when there is a valid contract of representation, and following discharge the contingency (obtaining benefits) occurs...31 Average Weekly Wage/Calculation of Wages, the application of §440.14(a) is not dependent on the evidence of “full‑time hours of employment, instead, the proper analysis begins with a determination of “the employment” in which the injured employee was working on the date of the accident...30

Workers’ Compensation (continued) Entitlement to Attorney Fees/Medical Benefits, where the employer accepted responsibility for the hospital bill within thirty days of receiving the PFB, no fees are owed by the E/C...30 Statute of Limitations/Elements of Estoppel, Estoppel requires (1) the E/C misrepresented a material fact, (2) Appellant relied on the misrepresentation, and (3) Appellant changed her position to her detriment because of the misrepresentation...30 TPD and 104 Week Limitation, applying Westphal, Court held that the 104 week limitation on temporary partial benefits is unconstitutional and the appropriate remedy is the revival of the pre‑1994 statute that provided for a limitation of 260 weeks of temporary total disability benefits....28 Attorney’s fees, several cases remanded to 1st DCA for reconsideration in light of Castellanos…10

AdvertisersIndex Accident Reconstruction BEC Consulting, LLC ................................................................21

Litigation Funding Fast Funds, Inc..............................................................................45

Robson Forensic ......................................................................... 31

Rehabilitation Services NeuLife Rehabilitation................................................................... 33

ADR Services Upchurch, Watson, White & Max.............................................. inside back cover

Settlement Services Garretson Resolution Group.......................................................... 27

Attorney Advertising Cohen Milstein........................................................................... 13

Millennium Settlement Consulting................................................ inside front cover

Craig Goldenfarb P.A.................................................................. 53

NFP Structured Settlements .......................................................... 43

Hickey Law Firm........................................................................ 15

Synergy Settlement Services............................................................ 39

Searcy, Denney, Scarola, Barnhart & Shipley............................... 17

Video Production Image Resources, Inc...................................................................... 29

The Liquor Law Center............................................................... 47 Attorney Banking Esquire Bank............................................................................... 37 Books Focus Groups: Hitting the Bull's Eye by Phillip H. Miller and Paul J. Scoptur............................................................................ 35 Law and Disorder by Mike Papantonio........................................ 19

www.FloridaJusticeAssociation.org | November/December 2016 | 65

GET INVOLVED

The Florida Justice Association values the diverse knowledge and experience of its membership and seeks to harness those qualities to further the mission of the organization.

Members can be a part of establishing FJA’s priorities and organizational policy direction by signing up to volunteer their expertise and time.

Here are some of the ways to get involved: • Planning of CLE Programs

• Join the Young Lawyers Section

• Join the EAGLE Program

• Make a Pledge to Support Political Candidates

• Join a Legislative Committee

• Join the Workers’ Compensation Section

• Come to Tallahassee to Lobby

• Become Active in FJ PAC’s Regional Task Forces

• Join the FJA Membership Committee

• Participate in the FJA Research & Education

• Be a Political Key Contact • Join the Technology Services Committee

Foundation Mock Trial • Join the Women’s Caucus Section

• Become Active in Our Political Program If you would like additional information about ways to engage in FJA opportunities that best suit your skills, availability, and expectations, sign up online at floridajusticeassociation.org/GetInvolved and view the total list and descriptions of multiple ways you can get involved today!

Contact FJA Member Services at (850) 521-1093 For Assistance

Craftsmanship.

Just as a watchmaker carefully assembles and adjusts the movement of a fine timepiece, our highly qualified mediators and staff attend to the details and timing of your individual resolution. When you put your dispute in our hands, you can rest assured the gears will continue to turn toward settlement.

For more information about Upchurch Watson White & Max, visit UWW-ADR.com or call (800) 863-1462.

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JOURNAL

PRSRT STD U.S. Postage PAID Tallahassee, FL Permit #111

Florida Justice Association 218 South Monroe Street Tallahassee, Florida 32301 (850) 224-9403 November/December 2016 Change Service Requested

LAWYER TO LEGACY ENDOWMENT PROGRAM In honor of Al Cone and our other Founders and to commemorate the Florida Justice Association’s 50th Anniversary, the FJA Board of Directors has launched our Lawyer to Legacy Campaign to begin the process of endowing EAGLE and the FJA REF. This is something we all can and should participate in if we believe in protecting the rights of the injured, defending the civil justice system, and training and educating lawyers in the art of advocacy.

While monetary donations are always welcome, there are other ways of contributing that require little or no out-of-pocket expense. These include; 1. Planned gifts, including bequests, gifts of retirement assets or life insurance; 2. Outright or deferred gifts of life insurance, securities or real and tangible property.

If you believe in protecting justice and the legal fabric of our society, make a difference that extends beyond your practice and survives beyond your life – become a Lawyer who leaves a Legacy! pjess@floridajusticeassociation.org

Paul Jess @ (850) 521-1026

FloridaJusticeAssociation.org