FJA Journal - March-April 2016

JOURNAL FLORIDA JUSTICE ASSOCIATION

Florida Justice Association • March/April ® 2016 • #589

FLORIDA JUSTICE ASSOCIATION

2016

ANNUAL

CONVENTION & EXPO

JUNE 22-25, 2016 THE BREAKERS - PALM BEACH

INSIDE: 2016 Legislative Session Wrap-Up

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MARCH/APRIL 2016 -March NO. 5892014 March 2014

CONTENTS HIGHLIGHTS

26, 30

On the Cover:

The 2016 FJA Annual Convention is just around the corner!

pg 8

Recent decisions by the Florida Supreme Court and the 11th Circuit have the future of bad faith in Florida looking brighter

38

Above ground pools are a major source of child drownings in Florida

46

A quick reference guide to the hearsay exception for spontaneous statements

50

You can run but you cannot hide—an overview of sanctions for frivolous filings

59

Preserve error with a timely motion for rehearing

61

Tips for recovering tort damages against HMOs and health insurers

IN THIS ISSUE Summaries of legislation that passed in the 2016 Session

Retaliatory closing arguments — how much latitude do you have?

pg 10

pg 54

4 FJA Events Calendar 5 President’s Message — Todd Copeland 6 Executive Director’s Message — Debra Henley 8 Special Focus: 2016 FJA Annual Convention 10 Special Focus: 2016 Legislative Wrap-up 22 Cases and Commentaries — Kenneth D. Kranz 24 Legislative Notes 26 Tips for Auto Practitioners — Dale Swope 30 Insurance — Gregory Yaffa 34 Medical Malpractice — Scott R. McMillen and Allison McMillen 38 Products Liability - C. Richard Newsome and P. Alexander Gillen 42 Workers’ Compensation — Michael J. Winer 46 Evidence — Matt Schultz 50 Civil Procedure — Roy D. Wasson 54 Closing Argument — Philip Burlington, Barbara Green and Chris Carlyle 59 FJA Appellate Practice Section — Rebecca Bowen Creed 61 FJA Young Lawyers Section — Jarrett DeLuca 63 EAGLE Spotlight 67 Member Outreach 69 Index

www.FloridaJusticeAssociation.org | March/April 2016 | 3

2015-2016 FJA OFFICERS, EXECUTIVE COMMITTEE AND BOARD OF DIRECTORS PRESIDENT Todd E. Copeland

EXECUTIVE DIRECTOR Debra Henley

PRESIDENT-ELECT James W. Gustafson, Jr.

EXECUTIVE COMMITTEE Laurie Briggs Tiffany M. Faddis Leslie Mitchell Kroeger Christopher N. Ligori Eric Romano

TREASURER Dale M. Swope SECRETARY Lake H. (Trey) Lytal, III

MAY - 2016 MAY 5

Collateral Sources Webinar

MAY 13

Case Law Insider

MAY 19-22

Trojan Horse Method Seminar Orlando

DIRECTORS AT LARGE P. Hutchison Brock Jarian N. Lyons James L. Magazine Brent C. Miller Joseph N. Nusbaum H. L. Larry Perry PRESIDENTIAL APPOINTMENTS Stephen G. Charpentier Scott R. McMillen AMICUS CURIAE COMMITTEE Phil Burlington

APPELLATE PRACTICE SECTION Rebecca B. Creed WORKERS’ COMPENSATION SECTION Richard E. Chait YOUNG LAWYERS SECTION Vanessa Brice Jonathan Gilbert

LOCAL TLA REPRESENTATIVES Dana Brooks Michael J. Damaso, II James W. Guarnieri Matthew N. Posgay Gloria Seidule Bernard F. Walsh AAJ OFFICER Julie Braman Kane AAJ BOARD OF GOVERNORS Sean C. Domnick Brenda Fulmer Rodney G. Gregory James R. Holland Ricardo Martinez-Cid Herman J. Russomanno Aaron Watson Andrew Weinstein Jean Marie Whalen Edward H. Zebersky AAJ STATE DELEGATES Sean Shaw Clancey Bounds Daryl D. Parks

WOMEN’S CAUCUS Elizabeth Finizio Lindsay L. Tygart

JOURNAL STAFF EDITOR-IN-CHIEF Kenneth D. Kranz JOURNAL COORDINATOR Jan Brown

MARKETING COORDINATOR Kalon Hopkins

4 | March/April 2016 | www.FloridaJusticeAssociation.org

FJA CALENDAR

DIRECTORS 2014-2016 Laurie Briggs Stephen F. Cain William M. Chanfrau, Jr. David C. Dismuke Kimberly A. Driggers Steven Jaffe Leslie Scott Jean-Bart Cameron M. Kennedy Leslie Mitchell Kroeger Christopher N. Ligori Eric Romano Steve Watrel

APRIL 29

Annual Review: Legislative & Case Law Update Webinar

IMMEDIATE PAST PRESIDENT Troy Rafferty

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

APRIL - 2016

MAY 20

Expert Webinar

JUNE - 2016 JUNE 17

Expert Webinar

JUNE 22-25

FJA Annual Convention The Breakers Palm Beach

JUNE 25

FJA Board of Directors Meeting The Breakers Palm Beach

JULY- 2016 JULY 15

Expert Webinar

AUGUST - 2016 AUGUST 6-8

Al J. Cone Trial Advocacy Institute, Gaylord Palms Orlando

AUGUST 19 Expert Webinar

SEPT. - 2016 SEPTEMBER 28-30

Masters of Justice, Loews Portofino Bay Hotel at Universal Orlando

SEPTEMBER 30

FJA Board of Directors Meeting, Loews Portofino Bay Hotel at Universal Orlando

PRESIDENT’SMESSAGE

A REVEALING 2016 LEGISLATIVE SESSION

BY FJA PRESIDENT TODD COPELAND

W

hat it revealed was the direct result of the culmination of several years of hard work, dedication, tireless effort and the resources of many at the Florida Justice Association.

Successfully opposing legislation harmful to consumers and victims in Florida is not an easy task. Every year hundreds of lobbyists — and representatives of a myriad of special interest groups — descend on Tallahassee in effort to secure their profits on the backs of injured Floridians. And every year the Florida Justice Association seemingly stands alone in giving a voice to the voiceless and power to the powerless.

This year was no different.

In 2016 we successfully defeated legislation that would have eliminated Florida’s bad faith law, allowed debt collectors to harass patients on the way home from the hospital, extended sovereign immunity at the expense of our children, and destroyed the 100-year-old Florida property right called Assignment of Benefits in Florida.

There are many more issues the Florida Justice Association successfully took on this session. Your practices were protected and your clients’ rights were defended 24/7 by a dedicated group of individuals at the Florida Justice Association and committed members who provided time, talent, and treasure.

While there is not enough space to thank everyone involved, I would like to particularly thank several people for their incredible dedication and steadfast commitment to the cause of justice this legislative session.

I would first like to thank my co-pilots on this legislative journey: Immediate Past President Troy Rafferty and past Presidents Paul Anderson and Gary Farmer, for their generous and insightful support throughout the session. My sincerest thanks to the entire executive committee — Jimmy Gustafson, Dale M. Swope, Lake H. Lytal, III, Laurie Briggs, Tiffany M. Faddis, Leslie Kroeger, Christopher N. Ligori, and Eric Romano — for coming to Tallahassee; for being there to help navigate some of the more sensitive and tricky political issues; and for keeping the fires burning on fundraising, membership, business development and a myriad of other issues with which our leaders are called upon to assist. I give a special shout out to Bill Cotterall of Tallahassee who dropped everything to testify and work on late-breaking bills that were put on agendas. The guy is good!

Thank you to the incredible legislative team guided by Executive Director Debra Henley and General Counsel Paul Jess, and led with extraordinary expertise by Legislative Director Jeff Porter.

Our entire legislative team was on their “A game” this session, and I congratulate and applaud our in-house team of Lynn McCartney, GC Murray, Fred Piccolo and newcomer Don Freeman for their excellent work this session.

We round out our team with our professional contract lobbyists: Reggie Garcia, Janet Mabry, Nick Magdaleno, Andreina Figueroa, and Brecht Heuchan—these are incredibly talented professionals, and hats are off to them for helping us work and navigate yet another extraordinary session.

I hope to see you all at Annual Convention at the Breakers in June, where I will be taking a victory lap for YOU, our members, without whom none of our victories would be possible.

Join us there to celebrate and to look forward to an exciting election season that will set up many years of legislative success.

www.FloridaJusticeAssociation.org | March/April 2016 | 5

EXECUTIVEDIRECTOR’SMESSAGE

VOLUNTEER LEADERSHIP NOW IS THE TIME

by Executive Director Debra Henley

T

he legislative session has ended and I am happy to report great success on all fronts.

We are fortunate to have a phenomenal legislative fighting machine, anchored by our inhouse staff of Jeff Porter, Paul Jess, and Lynn McCartney, as well as a battle tested roster of professional lobbyists and our FJA officers and executive committee members led by President Todd Copeland. The enemies of the civil justice system did not really stand a chance this session with this combination of fire power along with 83 of our members who made the trek to Tallahassee to join our efforts.

insurance, bad faith and medical malpractice just to name a few. We also have task forces to address issues relating to The Florida Bar, (like Daubert and reciprocity), or litigation on the constitutionality of a legislative enactment or a proposed rule of a government agency (like the Board of Medicine rule on the cost of medical records). Critical to our existence are committees such as membership, CLE, amicus, the FJA Journal, and Business/ vendor development. The work of our committees guides everything from our legislative strategy to efforts to determine what our members need and how we can help them achieve professional excellence and success.

Many of our members who come to the Capitol for the first time catch “the Bug.” Oftentimes it is whatever flu, cold or allergies are in the air up here, but sometimes it’s the spark that makes an FJA member into a future leader of this association. I have seen it happen time after time. After their trip to Tallahassee, they return to the legislative process as a chair or vice chair of one of our substantive legislative committees, and the next you know, they are running for the Board of Directors, getting on the Executive Committee and moving up the rungs to be “in the chairs” and on track to become President. (Some of them even take it to the next level and run for elective office, (shout out to Past President Gary Farmer who is currently running for the Florida Senate in Broward County—talk about getting the BUG!)

The approach of the elections in August and November present yet another way to support your chosen profession.

Over the next few months, we will keep you posted on the exciting developments in legislative races throughout the state.

Opportunities abound for FJA members to contribute their time and energy to make this election cycle a monumental victory for Justice. With your support, we will be in a position to win elections, and ultimately the day, in the legislature for years to come.

Our goal is to bring a diverse group of lawyers into these roles to make our association “future ready.” For a list of active FJA committees please go to our website and click through to “How to get involved.”

Involvement in our volunteer lobbying program is one of the ways we reel in our future board members and leaders, but there are many other avenues our members can take to step into the leadership track using their talents to add value to our association.

Finally, our annual convention is just around the corner and we are actively seeking candidates for the FJA Board of Directors.

Our nominating committee, chaired by Tiffany Faddis of Orlando, is looking for talented, energetic, and committed individuals of all ages, races, genders, backgrounds,(large, small and medium firms from all necks of the woods) to run for the Board of Directors in June. Please let Tiffany or me know if you are interested. Our leaders and our staff will make every effort to do whatever we can to put your unique qualifications to work for the FJA, and ultimately for your clients and your practice.

A great way to get started is to participate on a committee or task force. Our committees include opportunities to delve into substantive legislative issues like prejudgment interest, property

It’s a great time to take an active role in our cause. I hope to see you at Annual Convention, June 22-25, at the Breakers Palm Beach!

6 | March/April 2016 | www.FloridaJusticeAssociation.org

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SPECIALFOCUS: FJAANNUALCONVENTION

2016

ANNUAL

CONVENTION & EXPO

The BEST CLE + Networking + FJA Leaders = FJA Annual Convention. The FJA Event of the Year is wrapped up in one

great package just for YOU at none other — The Breakers Palm Beach. Whether you are an attorney or a paralegal/legal assistant, the FJA Annual Convention is the place to be June 22 – 25.

FJA attorney members can register for individual seminars or choose the Justice Pass - two seminars plus all social

events for a lower price. We also have a Social Pass available for those who want to skip the CLE and just be a “social butterfly.” Social events can be registered for individually as well.

REGISTRATION IS AVAILABLE NOW FJA CLE Department at (850) 521-1097

FloridaJusticeAssociation.org

Keynote

GENERAL HUGH SHELTON

FJA Justice Luncheon Speaker

General Hugh Shelton, keynote speaker at the FJA Justice Luncheon, will share with you values-based leadership lessons from a 38-year military career, culminating in the highest-ranking position of his profession.

General Shelton was the 14th Chairman of the Joint Chiefs of Staff for two terms (which included 9/11). During his tenure, U.S. Forces were in heavy demand and participated in numerous joint operations around the globe.

Currently, General Shelton runs the General Shelton Leadership Challenge Institute at North Carolina State University, which provides K-12 and college students the opportunity to develop values-based leadership skills.

Keynote Speaker sponsored by :

For the Full Program See FJA Website

Searcy Denney Scarola Barnhart & Shipley & Millennium Settlements

Schedule

WEDNESDAY –

June 22, 2016

8:45am–5:30pm............ Advanced Trial Skills Seminar: Perfecting Your Competitive Edge For FJA members only 9:00am–5:30pm........... Young Lawyers Seminar for FJA Members Only

2:00pm–3:30pm........... FJA Elections – Vote for 2016 FJA Board of Directors

6:30pm–10:00pm......... President’s Big Bash: Join Us as We Celebrate Todd Copeland’s Year as FJA President. Enjoy Fabulous Food and Dessert and Strut Your Stuff on the Dance Floor Sending the President Off In Style!

1:15pm–1:30pm............ General Membership Meeting

FRIDAY

5:30pm–7:00pm............ FJ PAC Campaign Kickoff Reception — Meet your “FJA” candidates for the Florida Legislature

THURSDAY

-

-

June 24, 2016

8:30am–12:15pm..........Mediation Seminar for FJA Members Only

June 23, 2016

8:45am–4:15pm............Civil Litigation for Paralegals & Legal Assistants

8:30am–Noon............... Advanced Trial Skills Seminar: Perfecting Your Competitive

Edge for FJA Members Only 9:30am–11:30am......... FJA Section Meetings & Elections Noon–1:45pm.............. FJA Justice Luncheon Featuring General Hugh Shelton

12:30pm–2:30pm..........Presidential Luncheon

SATURDAY

-

June 25, 2016

8:30 am – Noon.............FJA Board of Directors Meeting (All Members Invited)

Accommodations The Breakers - Palm Beach

FJA Room Block and Rate Contact the Hotel to make reservations deluxe king $220 • Dbl room $260 (561) 655-6611 • CLE Dept. with Block Rate deadline: May 20, 2016 questions (850) 521-1097

cle@floridajusticeassociation.org

One South County Road Palm Beach, FL 33480

SPECIALFOCUS: 2016LEGISLATIVEWRAP-UP

T

INTRODUCTION

he level of bill filing activity this year was up a bit from last year with a total of 1,814 bills filed (937 Senate bills and 877 House bills), a number that just about exactly equaled the number of bills filed in 2014. (Although there are three

times as many House members as Senators, the House Rules place a cap on the number of bills each House member can file; Senators are not similarly constrained.) Of those, 279 eventually passed both chambers for a passage rate of 15.4 percent, which is the highest percentage of filed bills passing both chambers that we have seen in the last three years. In 2014 the passage rate was 14.6 percent of filed bills, and in 2015 the passage rate was only 13.2 percent. Credit the latter to the House, whose premature departure last year left a lot of bills to die on the vine that otherwise might have passed in the typically frenetic last days of the Session. In any event, this year the FJA was once again faced with the usual array of legislative attacks on the civil justice system with assaults on every front, including serious threats in the areas of auto, medical malpractice, insurance bad faith, limitations on medical damages and property insurance. And, once again, the FJA was successful in stopping or neutralizing these attacks.

LEGISLATIVE SESSION Chief

by Kenneth D. Kranz, Editor in 10 | March/April 2016 | www.FloridaJusticeAssociation.org

CLAIM BILLS While the legislature was not as generous as it had been last year, at least some funds continued to flow to claim bills again this year.

Last year 14 of the 61 filed claim bills passed, totaling approximately $15.3 million. That broke a continuing logjam from 2013, when none of the 49 filed claim bills ended up passing, and 2014 when again not one of the 45 filed claim bills passed. This year a total 45 bills representing 26 claims were filed in both chambers (13 against the State and 13 against local governmental entities), and four of these (all local claims) totaling approximately $2.5 million eventually passed both chambers.

FOR MORE INFORMATION The bill summaries herein were excerpted from the post-Session 2016 Bill Summaries prepared by the staff of the Florida Senate.

That complete document, which contains summaries of all the bills that passed this year, can be found at http://www.flsenate.gov/ Committees/BillSummaries/2016/. Copies of all bills, amendments, legislative staff analyses, and complete legislative history including archived video or audio recordings of floor proceedings and many committee meetings can be found at www.flsenate.gov and www. myfloridahouse.gov.

The enacted bills that are most likely to be of interest to practitioners are summarized below by subject area (within categories bills appear in numerical sequence); other enacted bills and failed bills of interest are also listed. Note that at the time these materials were prepared, final action (approval or veto) by the Governor was still pending on many of the bills.

AUTO/PIP Notable auto-related issues that failed to pass include: PIP Repeal and Limitations on Fees and UM Damages (HB 997/SB 1112); Transportation Network Company (e.g., Uber) Financial Responsibility (HB 509/SB 1118); Financial Responsibility for Rental Cars (HB 1193/ SB 1380); Testimony re Motor Vehicle Crash Reports (HB 1249/SB 1374); Bicycle Safety (HB 253/SB 332).

CS/CS/HB 659 re Automobile Insurance by Regulatory Affairs Committee; Insurance and Banking Subcommittee; and Rep. Santiago. Effective July 1, 2016, if approved. The bill makes the following changes relating to automobile insurance: Use of a Single ZIP-Code as a Rating Territory: The bill allows motor vehicle insurance rates to be developed using rating territories contained within a single zip code if the justification for the rate incorporates sufficient loss and loss adjustment expense experience to be actuarially sound. The Office of Insurance Regulation (OIR) must require that a rate filing resulting from the use of a single zip code as a rating territory does not contain a rate or rate change that is excessive, inadequate, or unfairly discriminatory.

Florida Automobile Joint Underwriting Association: The bill allows the Florida Automobile Joint Underwriting Association (Auto JUA) to cancel personal lines or commercial lines policies issued by the plan

for nonpayment of premium if a check is dishonored for any reason or any other form of payment is rejected or deemed invalid. The cancellation may only occur within the first 60 days of the policy or binder. The bill prohibits an insured of the Auto JUA from cancelling a policy or binder within the first 90 days of its effective date unless the insured vehicle is totally destroyed, ownership of the vehicle is transferred, or another policy is purchased covering the vehicle.

Payment of Premium and Return of Unearned Premium: The bill allows motor vehicle insureds to apply the unearned portion of premium to unpaid balances of other policies with the same insurer or insurer group instead of receiving the premium via mail or electronic transfer. The bill specifies that motor vehicle insurance premiums may be paid in cash in the form of a draft or drafts. The bill allows an insurer to impose an insufficient funds fee of up to $15 per occurrence if, due to insufficient funds, specified methods of premium payments are declined. The bill also exempts policies paid via a recurring credit card or debit card agreement with the insurer from the requirement that, prior to issuing or binding a motor vehicle insurance policy, the insured must pay at least two months’ premium.

Personal Injury Protection (PIP): The bill exempts publicly traded corporations with $250 million or more in total annual sales in health care services from the requirement to obtain health care clinic licensure as a condition of qualifying for reimbursement under PIP coverage. The bill also clarifies and updates references to billing requirements under PIP. Ch. 2016-80, Laws of Fla., re Motor Vehicle Service Agreement Companies (CS/HB 875 by Insurance and Banking Subcommittee and Reps. Stark, Santiago, and others). Approved by Gov.; effective July 1, 2016. The bill allows motor vehicle service agreements regulated under chapter 634, F.S., to warrant the replacement of tires or wheels damaged as a result of encountering a road hazard, and the replacement of keys or key fobs. The bill defines road hazard as it relates to wheel and tire damage, and also clarifies that an “additive product” does not include a product applied to the exterior or interior surface of a motor vehicle to protect appearances.

HB 7027 re Department of Transportation by Transportation and Ports Subcommittee; and Rep. Rooney and others. Effective July 1, 2016, if approved. The bill contains the Florida Department of Transportation’s (FDOT) 2016 Legislative Package, as well as additional transportation-related provisions. Among other things, the bill makes several statutory changes specific to the operation and regulation of autonomous vehicles, including: clarifying that the authorization for a person holding a valid driver license to operate an autonomous vehicle applies on the public roads of this state; revising provisions regarding the operation of autonomous vehicles on roads for testing purposes; revising equipment requirements for autonomous vehicles, requiring a system to alert an operator of a technology failure and to take control, or to stop the vehicle under certain conditions; prohibiting operation of a motor vehicle on the highways of this state while the vehicle is in motion if the vehicle is www.FloridaJusticeAssociation.org | March/April 2016 | 11

SPECIALFOCUS: 2016LEGISLATIVEWRAP-UP

actively displaying moving television broadcast or pre-recorded video entertainment content visible from the driver’s seat, unless the vehicle is equipped with autonomous technology and is being operated in autonomous mode; providing that an electronic display used by an operator of a vehicle equipped with autonomous technology or by an operator of a vehicle equipped with driver-assistive truck platooning technology is not prohibited; defining the term “driver-assistive truck platooning technology;” requiring the FDOT to study, in consultation with the Florida Department of Highway Safety and Motor Vehicles (FDHSMV), the use and safe operation of driver-assistive truck platooning technology, and authorizing a pilot project to test vehicles equipped with such technology; and requiring manufacturers of such technology to provide insurance before the start of the pilot project and requiring the FDOT, in consultation with the FDHSMV, to report the results of the study and any findings or recommendations from the pilot project.

CS/CS/HB 7061 re Transportation by Economic Affairs Committee; Transportation and Economic Development Appropriations Subcommittee; Transportation and Port Subcommittee; and Reps.

Santiago, Cortes, B., and others. Effective July 1, 2016, if approved.

This bill includes, among other things, the same provisions relating to autonomous vehicles that are in HB 7027, above.

Other auto-related issues that passed and may be of interest include: CS/ SB 1046 re Farm Vehicles by Transportation Committee.

COURT SYSTEM, PROCEDURE, DAMAGES & EVIDENCE Notable issues that failed to pass include: Proposed Constitutional Amendment to Impose Judicial Term Limits (HJR 197/SJR 322); Limitations on Damages for Medical Payments (HB 1271/SB 1474); Prejudgment Interest (HB 1005/SB 1086); Security Requirements for Tobacco Settlement Agreements (HB 4053/SB 1694).

SB 396 re Nonresident Plaintiffs in Civil Actions by Sen. Bradley.

Effective July 1, 2016, if approved. The bill repeals a current requirement that a nonresident plaintiff in a civil action post a $100 bond to secure the payment of court costs that may be adjudged against the plaintiff. The requirement applied to plaintiffs who were not residents of the state at the time of filing a lawsuit or who became nonresidents after filing a lawsuit. The repealed bond requirement dates back to 1828, when the state was still a territory.

Ch. 2016-45, Laws of Fla., re Transfers of Structured Settlement Payment Rights (CS/SB 458 by Banking and Insurance Committee and Sen. Richter). Approved by Gov.; effective March 10, 2016.

This bill makes changes to the laws governing the transfer of the right to receive payments under a structured settlement agreement. The changes made by the bill: specify that the court having jurisdiction over an application to transfer structured settlement payment rights is the court where the payee resides or, if the payee does not reside in this state, the court that approved the structured settlement agreement or the court in which a claim was pending which led to the structured settlement agreement; require an applicant seeking 12 | March/April 2016 | www.FloridaJusticeAssociation.org

to receive the payments under a structured settlement agreement to provide additional information about the payee in its application to the court; require the payee to appear in court for the hearing on the application unless good cause exists to excuse the payee’s attendance; grant immunity to structured settlement obligors and annuity issuers that act in reliance on court orders approving the transfer of a structured settlement agreement; make structured settlement obligors and annuity issuers immune from liability for a transferee’s failure to provide required disclosures to the payee or to provide all the required information in its application to the court; and allow the transfer of structured settlement payments notwithstanding the terms of a structured settlement agreement prohibiting those transfers.

The bill may result in more favorable terms for payees who seek to sell the right to payments under their structured settlement agreements.

The bill also increases the marketability of structured settlement payment rights.

CS/SB 1042 re Judgments by Judiciary Committee and Sen. Simmons. Effective July 1, 2016, if approved. This bill revises Fla. Stat. chapter 56, Final Process, which regulates how a creditor may collect a judgment against a debtor. The bill makes organizational changes to the chapter while updating and clarifying several definitions for uniformity.

The bill amends chapter 56, F.S., by: providing a new definitions section at the beginning of the chapter to establish uniform usage throughout the chapter; moving the discovery provisions in current law into a single section and providing that the discovery provisions are in addition to the discovery provisions found in the rules of civil procedure; establishing a procedure for bringing non-parties to the original action into proceedings supplementary by a notice to appear that describes the property at issue, notifies the third-party of the right to a jury trial, and requires the third-party to serve an answer within a time set by the court; providing that a claim under the Uniform Fraudulent Transfer Act which is raised during proceedings supplementary must be initiated by a supplemental complaint and that those claims are governed by the Uniform Fraudulent Transfer Act and the rules of civil procedure; and providing that a person who asserts a claim to defense in proceedings supplementary for the purpose of delay maybe subject to penalties imposed by the court.

CS/CS/SB 1104 re Service of Process on Financial Institutions

by Rules Committee; Banking and Insurance Committee; and Sen. Flores. Effective January 1, 2017, if approved. This bill amends the procedures for service of process upon a financial institution. The bill allows a financial institution to designate a place or registered agent with the Department of State as the sole location or agent for service of process. The location or agent must be available to receive service of process between 9 a.m. and 5 p.m. on business days, excluding federal and Florida holidays.

If service upon a financial institution cannot be made at the designated central location, or the institution has not designated a registered

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SPECIALFOCUS: 2016LEGISLATIVEWRAP-UP

agent, service may be made upon the officer, director, or business agent of the financial institution at its principal place of business or any other branch, office, or place of business in the state.

Service of process required or authorized to be made by the Office of Financial Regulation (OFR) may continue to be made through certified mail to any officer, director, or business agent of the financial institution at its principal place of business or any other branch, office, or place of business.

CS/CS/SB 1432 re Service of Process by Rules Committee; Judiciary Committee; and Sen. Stargel. Effective July 1, 2016, if approved. This bill authorizes additional methods of service of process if personal service of process cannot be effected.

Under current law, a process server may personally serve process, such as a subpoena or summons, on a witness or opposing party in a lawsuit. If personal service of process is not possible, existing law authorizes substitute service of process on the intended recipient’s spouse or person in charge of the recipient’s business or private mailbox. This bill allows a process server to effect substitute service of process on a person in charge of an intended recipient’s virtual office or executive office or mini suite. The bill further provides that these intended recipients may include a registered agent for a corporation, an officer or director of a corporation, or the corporation itself in certain circumstances. A virtual office is an office that provides communications services such as telephone or fax services, and other services without dedicated office space, provided that all communications are routed through a common receptionist.

An executive office or mini suite is similar, except that it includes dedicated office space.

In addition to expanding substitute service of process, this bill revises the state’s long-arm statute which defines the limits of the jurisdiction of the courts of this state. Among other limits, the current statute limits the jurisdiction of the courts of this state to enforce a penalty or fine imposed by an agency of another state. The penalty or fine may not be enforced in this state’s courts unless the other state grants the defendant a mandatory right of review of the penalty or fine.

This bill further prohibits courts from enforcing agency actions from other states by prohibiting the enforcement of any agency order unless the other state grants a mandatory right of review.

GENERAL TORT, PRODUCTS LIABILITY & CONSUMER Notable issues that failed to pass include: Consumer Debt Collection (HB 713/SB 562); Liability for Drone Operation (HB 459/SB 642).

Ch. 2016-18, Laws of Fla., re Unattended Persons and Animals in Motor Vehicles (CS/CS/HB 131 by Judiciary Committee; Civil Justice Subcommittee; and Reps. Young, Moskowitz, and others).

Approved by Gov.; effective March 8, 2016. The bill creates immunity from civil liability for property damage that may occur when an individual attempts to rescue a minor, elderly or disabled adult, or domestic animal from a motor vehicle.

14 | March/April 2016 | www.FloridaJusticeAssociation.org

In order to qualify for such immunity, the individual must: determine that the vehicle is locked or there is no other reasonable method for the minor, elderly or disabled person, or animal to get out of the vehicle without help; have a good faith and reasonable belief, based upon the known circumstances, that it is necessary to enter the vehicle because the minor, vulnerable adult, or animal is in imminent danger of suffering harm; contact a law enforcement agency or 911 before entering the vehicle or immediately thereafter; use no more force than necessary to make entry into the vehicle and remove the person or animal; and stay with the person or animal in a safe location, in reasonable proximity to the vehicle, until a law enforcement officer or other first responder arrives.

Good Samaritans who enter a motor vehicle to rescue an endangered person or animal may be subject to criminal penalty for tampering or interfering with a motor vehicle under s. 860.17, F.S., or trespass in a conveyance under s. 810.08, F.S. The immunity provided by the bill does not appear to absolve a Good Samaritan of any potential criminal liability in such cases.

CS/SB 626 re Consumer Credit by Banking and Insurance Committee; and Sens. Gaetz and Altman. Effective October 3, 2016, if approved. The bill authorizes the Office of Financial Regulation to enforce the provisions of the federal Military Lending Act (MLA) for state-chartered financial institutions, consumer finance lenders, deferred presentment providers (payday lenders), and title loan lenders. The MLA provides greater consumer protections for service members and their dependents in connection with a broad range of consumer credit transactions, including consumer finance loans, payday loans, title loans, overdraft lines of credit, small dollar loans, and credit card accounts. The MLA caps the Military Annual Percentage Rate (MAPR) on these credit transactions at 36 percent, requires oral and written disclosures for the consumer, and prohibits certain terms and conditions on the loan, such as mandatory arbitration and prepayment penalties.

CS/HB 1305 re Emergency Allergy Treatment in Schools by Education Committee; and Rep. Eagle and others. Effective July 1, 2016, if approved. The bill modifies the definition of an authorized entity for the purposes of emergency allergy treatment and authorizes public and private schools to enter into arrangements with wholesale distributors or manufacturers to obtain epinephrine auto-injectors.

Specifically, the bill expands the definition of an authorized entity to include private schools and their employees, agents, and the physician who provides the standing protocol for school epinephrine auto-injectors; changes the purposes for which public and private schools and their employees, agents, and physician are considered an authorized entity; and extends immunity from liability to such schools and their employees, agents, and physician. It also clarifies that public and private schools may obtain a supply of epinephrine autoinjectors from a wholesale distributor or enter into an arrangement with a wholesale distributor or manufacturer for the epinephrine auto-injectors.

The bill eliminates the requirement that the supply of epinephrine auto-injectors obtained by public and private schools must be kept locked on the school premises but continues to maintain current law requiring the schools to maintain the epinephrine auto-injectors in a secure location on the school premises.

Other general tort, products and consumer issues that passed and may be of interest include: Ch. 2016-16, Laws of Fla., re Severe Injuries Caused

by Dogs (CS/CS/CS/HB 91 by Judiciary Committee); CS/CS/HB 231 re Motor Vehicle Manufacturer Licenses (Protection of Consumer Data) by Judiciary Committee; Ch. 2016-2, Laws of Fla., re Educational Options (Immunity Provision) (SB 672 by Sens. Gaetz and Hukill); CS/CS/SB 854 re Funeral, Cemetery, and Consumer Services by Regulated Industries Committee; HB 1205 re Fumigation by Rep. Magar.

INSURANCE—BAD FAITH, PROPERTY & MISC. Notable issues that failed to pass include: Bad Faith “Reform” (HB 5/SB 632); Elimination of Assignment of Property Insurance Benefits (HB 1097/ SB 596); Insurance Practices and Home Restoration Company Reform (HB 671/SB 1248); Limitations on Who Can Serve as an Insurance Appraiser or Umpire (HB 79/SB 336).

CS/CS/CS/HB 651 re Department of Financial Services

by Regulatory Affairs Committee; Governmental Operations Appropriations Subcommittee; Insurance and Banking Subcommittee; Rep. Beshears and others. Effective July 1, 2016, if approved. This bill amends various statutory provisions relating to the Department of Financial Services (DFS). Among the changes included are the following: •

•

• •

•

Current law requires plaintiffs to serve lawsuits on insurance companies by serving documents initiating the lawsuit at the DFS. These documents are sent to the DFS by mail or by process server. The bill allows the DFS to create a system for electronic service of process and create an internet-based system for distributing documents to insurance companies.

Under current law, the exemption for medical malpractice insurance premiums from emergency assessments of the Florida Hurricane Catastrophe Fund will expire May 31, 2016. The bill extends the exemption until May 31, 2019.

The bill allows the DFS to have access of digital photographs from the Department of Highway Safety and Motor Vehicles to investigate allegations of violations of the insurance code.

The bill provides that a licensed health insurance agent who assists an insured with coverage questions, medical procedure coding issues, balance billing issues, understanding the claim filing process, or filing a claim is not acting as a public adjuster.

The bill authorizes the DFS to select five persons nominated by the Florida Surplus Lines Association to serve on the Florida Surplus Lines Service Office board of governors.

Current law requires the DFS to select members from the Florida Surplus Lines Association’s regular membership but does not provide for nominations. The bill also provides that

•

•

a surplus lines agent who has not transacted business during a quarter need not file an affidavit with the Florida Surplus Lines Service Office stating that all business conducted by the agent has been submitted to the office.

The department administers the sinkhole neutral evaluation program for the resolution of disputed sinkhole insurance claims. This bill amends the qualifications of the neutral evaluator to provide that one cannot serve as a neutral evaluator on a claim if the individual was employed, within the previous five years, by the firm that did the initial sinkhole testing.

The bill exempts travel insurance from the full rate review requirements of s. 627.062(2)(a) and (f ), F.S., and the requirement to annually make a rate filing under s. 627.0645, F.S., if the insurance is issued as a master group policy, with a situs in another state, where each certificateholder pays less than $30 for each covered trip, and if the insurer has written less than $1 million in annual travel insurance premiums in this state during the most recent calendar year.

CS/CS/SB 1274 re Limited Sinkhole Coverage Insurance by Fiscal Policy Committee; Banking and Insurance Committee; and Sen. Latvala. Effective July 1, 2016, if approved. The bill creates s.

627.7151, F.S., which allows insurers to offer a new type of personal lines residential sinkhole insurance coverage. Limited sinkhole coverage provides coverage for “sinkhole loss,” which is structural damage to the covered building, including the foundation, caused by sinkhole activity. Limited sinkhole coverage would also be subject to the statutory requirements for sinkhole insurance in ss. 627.706627.7074, F.S., with the following exceptions: • • • •

•

•

Coverage may be limited to repairs to stabilize the building and repair the foundation; Coverage does not have to include contents replacement or coverage for additional living expenses; Deductibles may be in an amount agreed to by the insured and insurer; Policy limits may be in an amount agreed to by the insured and insurer, provided policy limits below $50,000 are not allowed unless that amount exceeds full replacement cost of the property; A notice signed by the applicant is required that the applicant has read and understands the coverages of limited sinkhole coverage, including when insuring for less than replacement cost or agreeing to a deductible greater than allowed in s. 627.706(1)(b), F.S.; If a loss exceeds the policy limits, the insurer must agree to pay above policy limits to complete the repair or pay a contractor policy limits after the policyholder has signed a contract to repair, and if the insured obtains a lower-cost alternative repair recommendation, the insurer must pay up to policy limits to complete the lower-cost alternative repair;

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SPECIALFOCUS: 2016LEGISLATIVEWRAP-UP

• •

Insurers are allowed to establish limited sinkhole policy forms not subject to filing with and approval by the Office of Insurance Regulation (OIR); and Until October 1, 2019, insurers may file rates for limited sinkhole coverage that are not subject to the filing and review requirements of s. 627.062(2)(a) and (f ), F.S.

insurer for the nonemergency services and would have otherwise been obligated to provide services under the contract, and the insured does not have the opportunity to choose a participating provider at the facility. Insurers or health care providers may not balance bill the insured.

The bill prohibits Citizens Property Insurance Corporation from offering limited sinkhole coverage and establishes surplus requirements of $7.5 million for new and existing insurers that solely transact limited sinkhole coverage insurance. Insurers providing limited sinkhole coverage must notify the OIR at least 30 days prior to offering the coverage in the state. Such insurers must file a plan of operation and financial projections or revisions to such plan, as applicable, with the office

The bill also provides that willful noncompliance by a provider (health care practitioners subject to regulation under ch. 456, 458, or 459, F.S.) with the balance billing provisions for covered emergency services and nonemergency services, are grounds for discipline by the Department of Health (DOH) if such noncompliance occurs with such frequency as to constitute a general business practice. Other specified providers (hospitals, ambulatory surgical centers, specialty hospitals, and urgent care centers) are required to comply with the balance billing provisions as a condition of licensure.

Other miscellaneous insurance issues that passed and may be of interest include: Ch. 2016-28, Laws of Fla., re OGSR/Office of Financial Regulation (HB 7035 by Government Operations). See the following category for health insurance issues.

Additionally, the bill provides that willfully failing to comply with the balance billing provisions with such frequency as to constitute a general business practice is defined as an unfair method of competition and an unfair or deceptive act or practice.

MEDICAL MALPRACTICE & HEALTH CARE-RELATED Notable issues that failed to pass include: Patients’ Compensation System (HB 1065/SB 1308); “Religious Freedom” Immunity for Healthcare Practitioners and Facilities (HB 401); Sovereign Immunity for Certain Practitioners (HB 1431/SB 1034 & SB 178).

In order to put the public on notice, hospitals are required under the bill to maintain information on their websites with contact information for practitioners and practice groups contracting with the hospital. The website must also provide notice that services may be provided in the hospital by practitioners who bill separately from the hospital and that such practitioners might or might not participate with the same health insurance carriers as the hospital. The bill adds compliance with these new provisions as a condition of licensure for hospitals, surgical centers, and urgent care centers.

CS/CS/CS/HB 221 re Health Care Services by Health and Human Services Committee; Appropriations Committee; Insurance and Banking Subcommittee; Rep. Trujillo and others. Effective July 1, 2016 (except where otherwise specified), if approved. The bill prohibits an out-of-network provider from balance billing members of a preferred provider organization (PPO) or an exclusive provider organization (EPO) for covered emergency services or covered nonemergency services. The bill establishes a payment process for insurers to provide reimbursement for such out-of-network services.

The bill amends the claims resolution process to add several mandatory components and voluntarily steps to resolve billing issues between providers and insurers. The parties may make offers and the other party has 15 days to accept once received. If the party does not accept the offer and the final order amount is greater than 90 percent or less than 110 percent of the offer amount, the party receiving the offer must pay the final order amount to the offering party and is deemed the non-prevailing party.

The bill requires insurers to provide coverage for emergency services without a prior authorization determination and regardless of whether the provider is a participating provider. Applicable cost sharing must be the same for participating or nonparticipating providers for the same services. An insurer is solely liable for the payment of fees to a non-participating provider for covered nonemergency services other than any applicable copays, deductibles and coinsurance when such services are provided in a facility that has a contract with the 16 | March/April 2016 | www.FloridaJusticeAssociation.org

Insurers must also provide on its website, by specialty, a current listing of all participating providers, their address, phone numbers, languages spoken, hospital affiliations, and board certifications. Such lists must be updated monthly with additions and terminations.

Effective January 1, 2017, certain insurance policies must include a specific disclosure warning insureds that limited benefits will be paid when nonparticipating providers are used.

The bill requires a health insurance plan or health maintenance contract to provide coverage for the treatment of Down syndrome through speech therapy, occupational therapy, physical therapy, and applied behavior analysis services.

The bill also provides more detailed provisions relating to the use of a uniform prior authorization form that was also enacted in HB 423 during this Session. The bill expressly provides that the provisions in this act control regardless of the order in which the bills are enacted.

In this bill, the prior authorization form, if applicable, must be used beginning January 1, 2017, or six months after rules adopting the prior authorization form take effect, and specific elements to be included in the two-page form are provided.

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SPECIALFOCUS: 2016LEGISLATIVEWRAP-UP

HB 423 re Access to Health Care Services by Reps. Pigman, Campbell, and others. Effective upon becoming a law (except where otherwise provided), if approved. The bill authorizes physician assistants (PAs) and advanced registered nurse practitioners (ARNPs) to prescribe controlled substances under current supervisory standards for PAs and protocols for ARNPs beginning January 1, 2017, and creates additional statutory parameters for their controlled substance prescribing. The bill provides that s. 464.012, F.S., relating to certification of ARNPs, shall be known as “The Barbara Lumpkin Prescribing Act.”

loss ratios since the federal act prescribes such standards and requires rebates if certain conditions are met; eliminating the requirement for insurers to issue certificates of creditable coverage; and providing technical and conforming changes.

Under the bill, an ARNP’s and PA’s prescribing privileges for controlled substances listed in Schedule II are limited to a sevenday supply and do not include the prescribing of psychotropic medications for children under 18 years of age, unless prescribed by an ARNP who is a psychiatric nurse. Prescribing privileges may also be limited by the controlled substance formularies that impose additional limitations on PA or ARNP prescribing privileges for specific medications. An ARNP or PA may not prescribe controlled substances in a pain management clinic.

CS/CS/HB 1175 re Transparency in Health Care by Health and Human Services Committee; Health Care Appropriations Subcommittee; Rep. Sprowls and others. Effective July 1 2016, if approved. The bill increases the transparency and availability of health care pricing and quality of service information to enable consumers to make informed choices regarding health care treatment. The Agency for Health Care Administration (AHCA) is required to contract with a vendor to provide a consumer-friendly, Internet-based platform that allows a consumer to research the cost of health care services and procedures. The AHCA is to select the vendor through a competitive procurement process.

The bill requires PAs and ARNPs to complete three hours of continuing education biennially on the safe and effective prescribing of controlled substances.

Beginning January 1, 2017, health insurers, health maintenance organizations, Medicaid managed care plans, and pharmacy benefits managers, which do not use an online prior authorization form, must use a standardized prior authorization form that the Financial Services Commission adopts by rule to obtain a prior authorization for a medical procedure, course of treatment, or prescription drug benefit. The bill specifies that electronic prior-authorization approvals do not preclude benefit verification or medical review by the insurer under either the medical or pharmacy benefits.

The bill authorizes a free clinic to receive a legislative appropriation or grants to support the delivery of contracted services by volunteer health care providers, including the employment of health care providers to supplement, coordinate, or support the delivery of such services, while retaining sovereign immunity protections under existing law. The bill further specifies that such appropriation or grant does not constitute compensation from the governmental contractor for services provided under the contract.

CS/CS/SB 1170 re Health Plan Regulatory Administration by Appropriations Committee; Banking and Insurance Committee; and Sen. Detert. Effective July 1 2016, if approved. The bill revises provisions in the Insurance Code and other Florida Statutes that conflict with the federal Patient Protection and Affordable Care Act (PPACA) and provides other changes. These changes include: eliminating provisions relating to the imposition of a preexisting condition exclusion since the federal act requires guaranteed issue of coverage and prohibits preexisting condition exclusions; removing the requirement that insurers provide an outline of coverage for individual or family accident and health insurance policies since the federal act requires a summary of benefits and coverage for individual and small group coverage; eliminating provisions relating to medical 18 | March/April 2016 | www.FloridaJusticeAssociation.org

The bill also provides that a not for profit corporation whose membership consists entirely of local governmental units that are authorized to enter into risk management consortiums under s.

112.08, F.S., is exempt from licensure by the Office of Insurance Regulation (OIR) as a third-party administrator for self-insurance.

Services and procedures will be grouped by a descriptive service bundle to facilitate price comparisons provided in hospitals and ambulatory surgery centers (ASC). Quality indicators for services at the facilities will also be made available to the consumer to assist with health care decision making.

Hospitals and ASCs are required to provide access to the searchable service bundles on their website. Consumers will be presented with the estimated average payment received, excluding Medicaid and Medicare, and estimated payment ranges for each service bundle, by facility, facilities within geographic boundaries, and nationally. The facility must disclose that this information is an estimate of costs and that actual costs will be based on services actually provided to the patient. Additionally, the facility must disclose the facility’s financial assistance policies and collection procedures.

The hospital and ASC must notify prospective patients that other health care providers may provide services in the facility and bill separately from the facility. Furthermore, the prospective patient must be informed that these healthcare providers may or may not participate with the same health insurers or health maintenance organizations (HMOs) as the facility. Accordingly, the patient should contact the applicable practitioners to determine the health insurers and HMOs with which the practitioner participates as a network or preferred provider. The facility must provide contact information for the practitioners.

Insurers and HMOs are required to provide on their websites a method for policy holders to estimate their cost-sharing responsibilities by service bundle based on the insured’s policy and known plan usage.

These estimates shall include both in-network and out-of-network providers. Insurers and HMOs are also required to provide hyperlinks on their website to the AHCA’s performance outcome and financial data.

Consumers may request personalized good faith estimates of charges for nonemergency medical services from hospitals, ASCs, and health care practitioners relating to medical services provided in the hospital or ASC. These good faith estimates must be provided to the consumer within 7 days after the consumer’s request. The bill provides for a daily fine for non-compliance by facilities and health care practitioners. The personalized estimate must also inform the patient about the health care provider’s financial assistance policies and collection procedures.

A patient may also request an itemized bill or statement from the hospital and ASC after discharge. The requested itemized bill or statement must be provided within 7 days and be specific, written in plain language, and identify all services provided by the facility and any facility fees, as well as rates charged, amounts due, and the payment status. The itemized bill or statement must inform the patient to contact his or her insurer regarding the patient’s share of costs. The facility must provide records to verify the bill or statement within 10 days after a request and respond to questions concerning the statement or bill.

The bill requires health insurers and HMOs that participate in the state group health insurance plan or Medicaid managed care to submit all claims data from Florida policy holders, with certain supplemental plan exceptions, to the vendor selected by the AHCA.

Each diagnostic-imaging center operated by a hospital but not located on the hospital grounds is required to post in the reception area prices charged to uninsured persons for the 50 most frequently provided services. The bill prohibits the AHCA from establishing an all-payor claims database or a comparable database without express legislative authority.

Other med mal and health care-related issues that passed and may be of interest include: CS/CS/CS/HB 307 re Medical Use of Cannabis by Health and Human Services Committee; HB 1061 re Nurse Licensure Compact

by Rep. Pigman; CS/CS/HB 7087 re Health Care (Telehealth) by Health and Human Services Committee.

NURSING HOME, ELDERLY & CHILDREN Notable issues that failed to pass include: Child Protection Team Sovereign Immunity (HB 715/B 670); Facility Cause of Action for Exploitation of Vulnerable Adults (HB 557/SB 1536).

Ch. 2016-40, Laws of Fla., re Guardianship (CS/CS/CS/SB 232 by Fiscal Policy Committee; Judiciary Committee; Children, Families, and Elder Affairs Committee; and Sens. Detert, Joyner and others.) Approved by Gov.; effective March 10, 2016. The bill expands and renames the Statewide Public Guardianship Office within the Department of Elder Affairs (DOEA) as the Office of Public and Professional Guardians. The office is given the additional

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SPECIALFOCUS: 2016LEGISLATIVEWRAP-UP

responsibility of writing the rules for the administration of the regulation of professional guardians. Professional guardians have not previously been closely regulated by the state. The newly titled office remains housed within the Department of Elder Affairs (DOEA) and the executive director, an appointee of the Secretary of the DOEA, will oversee the newly formed office.

The bill establishes additional duties and responsibilities of the executive director and the office, including disciplinary and enforcement powers. The bill requires the annual registration of professional guardians, including $100 registration and $25 credit investigation fees.

The Office of Public and Professional Guardians is directed to adopt rules to establish standards of practice for public and professional guardians, receive and investigate complaints, establish procedures for disciplinary oversight, conduct hearings, specify penalties, and take administrative action pursuant to chapter 120, F.S. The bill provides for Fiscal Year 2016-2017, 6 full-time positions and an appropriation of $698,153 in recurring funds and $123,517 in nonrecurring funds from the General Revenue Fund to DOEA for the purpose of carrying out the oversight and monitoring responsibilities of the office.

Other nursing home, elderly & children issues that passed and may be of interest include: Ch. 2016-17, Laws of Fla., re Continuing Care Facilities (CS/HB 127 by Health Innovation Subcommittee).

WORKERS’ COMPENSATION Ch. 2016-56, Laws of Fla., re Workers’ Compensation System Administration (CS/HB 613 by Regulatory Affairs Committee and Rep. Sullivan). Approved by Gov.; effective October 1, 2016.

The bill amends regulatory provisions of ch. 440, F.S., the “Workers Compensation Law,” which are administered by the Department of Financial Services (DFS).

The bill eliminates the new insurer registration fee ($100) and the Special Disability Trust Fund notice of claim fee ($250) and the proof of claim fee ($500). The bill also eliminates the Preferred Worker Program, which has been inactive for over 10 years.

The bill revises provisions related to compliance and enforcement as follows: creates a 25 percent penalty credit for employers who have not been issued a stop-work order or order of penalty assessment previously for non-compliance with coverage requirements if they maintain required business records and timely respond to the written DFS business records requests; establishes a deadline for employers to file certain documentation to receive a penalty reduction; reduces the imputed payroll multiplier related to penalty calculations from 2 times to 1.5 times the statewide average weekly wage; eliminates a 3-day response requirement applicable to employer held exemption documentation; and allows employers to notify their insurers of their employee’s coverage exemption, rather than requiring that a copy of the exemption be provided.

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The bill revises provisions related to health care services and disputes as follows: removes insurers and employers from the medical reimbursement dispute provision; and allows a Judge of Compensation Claims the discretion to designate an expert medical advisor, rather than only those that are certified by the DFS. Other workers’ compensation issues that passed and may be of interest include: SB 1402 re Ratification of Department of Financial Services Rules by Sen. Simmons.

MISCELLANEOUS ISSUES Ch. 2016-5, Laws of Fla., re Trade Secrets (CS/SB 180 by Commerce and Tourism Committee and Sen. Richter). Approved by Gov.; effective October 1, 2016. The bill expands the definition of the term “trade secret,” as provided in s. 812.081, F.S., to expressly include financial information. An individual who steals, copies without authorization, or misappropriates financial information which meets the criteria of a trade secret is guilty of a third degree felony under s. 812.081, F.S. CS/CS/SB 494 re Digital Assets by Rules Committee; Judiciary Committee; and Sens. Hukill and Joyner. Effective July 1, 2016, if approved. This bill accomplishes two purposes. First, it provides fiduciaries the legal authority to manage digital assets and electronic communications in the same manner that they manage tangible assets and accounts. The bill distinguishes between when a fiduciary may access the content of digital assets and electronic communications and when the fiduciary may only access a catalog of the digital property. Second, the bill provides custodians of digital assets and electronic communications the legal authority they need to interact with the fiduciaries of their users while honoring the user’s privacy expectations for his or her personal communications.

A custodian is granted immunity from liability for acts or omissions done in good faith compliance with the provisions of this bill. The bill gives Internet users the ability to plan for the management and disposition of their digital assets if they should die or become unable to manage their assets. This is done by vesting fiduciaries with the authority to access, control, or copy digital assets and accounts.

CS/CS/CS/SB 540 re Estates by Rules Committee; Banking and Insurance Committee; Judiciary Committee; and Sen. Hukill.

Effective July 1, 2016, if approved. This bill revises the statutes governing the use of trust assets to pay the trustee’s attorney fees incurred in defending against a breach of trust claim. These changes clarify that the statutes giving broad authority to a trustee to incur attorney fees do not apply when the trustee is defending against a breach of trust claim.

The bill also provides that Florida law determines the validity and effect of the disposition of real property located in this state. Finally, the bill provides that a surviving spouse’s claim of an elective share does not reduce what the spouse would receive if the election had not been made and that the spouse is not to be treated as having predeceased the decedent. In other words, the bill clarifies that an elective share is a floor, not a ceiling, on the amount of assets which the surviving spouse may receive from the decedent’s estate.

CS/CS/SB 668 re Family Law by Appropriations Committee; Judiciary Committee; and Sen. Stargel. Effective October 1, 2016, if approved. This bill revises laws on the amount and duration of alimony awards, grounds for alimony, and bases for modification of alimony due to a substantial change in circumstances. The bill also revises the laws governing the establishment of parenting plans and time-sharing schedules.

Regarding initial alimony awards, the bill: establishes presumptive alimony ranges based on formulas that incorporate the difference between the parties’ gross incomes and the duration of their marriage; limits the duration of an alimony award to 25 to 75 percent of the duration of the parties’ marriage; caps the combination of alimony and child support at 55 percent of the obligor’s income; and provides an exception to alimony guidelines so that the court may consider the contributions to the marriage of a long-term homemaker.

The bill identifies additional bases for modifications or terminations of alimony, which include: an increase in the recipient’s income, and, if the income has increased by 10 percent, the obligor is entitled to pursue an immediate modification of alimony; the involuntary underemployment or unemployment of the obligor; and the obligor’s retirement at a reasonable age.

The bill also clarifies that in instances in which an obligor alleges the existence of a supportive relationship between the obligee and another person, the obligor does not have to actually prove cohabitation.

Current law provides that the public policy of the state is for each minor to have frequent and continuing contact with both parents after the parents separate or divorce. The bill provides instead that the court must begin with the premise that a minor child should spend approximately equal amounts of time with each parent. In formulating a specific parenting plan or time-sharing schedule, the bill directs courts to consider the existing statutory factors, which have been slightly revised. The revisions allow a court to consider the disposition of a parent to perform new roles after the parents separate.

Finally, the bill generally requires courts to make detailed, written findings of fact when establishing parenting plans and time-sharing schedules.

of the safety equipment carriage and use requirements is occurring or has occurred.

HB 967 re Family Law by Rep. Stevenson and others. Effective July 1, 2016, if approved. This bill establishes a collaborative law process to facilitate out-of-court settlements in divorce and paternity cases.

The process brings together collaborative attorneys, mental health professionals, and financial specialists to help the parties reach a consensus. The terms of the process are contained in a collaborative law participation agreement.

The collaborative law process may resolve such matters in family law as: alimony and child support; marital property distribution; child custody and visitation; parental relocation with a child; premarital, marital, and postmarital agreements; and paternity.

Parties may enter into a collaborative law participation agreement before filing a petition with the court or while an action is pending.

The bill also allows the case to be partially resolved collaboratively, with the remainder to be resolved through the traditional adversarial process.

Communications made during and as part of the collaborative process are generally confidential and privileged from disclosure, not subject to discovery in a subsequent court proceeding, and inadmissible as evidence.

The effect of the bill is contingent upon the adoption of implementing rules by the Florida Supreme Court.

CS/CS/HB 1181 re Bad Faith Assertions of Patent Infringement

by Judiciary Committee; Civil Justice Subcommittee; and Rep. Grant and others. Effective upon becoming a law, if approved. The Patent Troll Prevention Act, enacted in 2015, was intended to deter the filing of bad-faith patent infringement claims. The act worked by allowing a defendant to pursue a private cause of action for damages, including punitive damages, against a claimant, a patent troll, making a badfaith claim. The claimant could also be required to post a bond in the amount equal to the lesser of $250,000 or a good faith estimates of the defendant’s expenses of litigation, including attorney fees.

CS/HB 703 re Vessels by Highway and Waterway Safety Subcommittee; and Rep. Workman and others. Effective July 1, 2016, if approved. The bill revises what constitutes careless operation of a vessel to only apply if a person is operating a vessel in an unreasonable or imprudent manner that endangers the life, limb, or property of another person outside of the vessel or endangers the life, limb, or property of another person due to vessel overloading or excessive speed.

The bill eases the act’s potential for deterring appropriate patent infringement lawsuits. The specific changes: require that a demand letter be objectively baseless before it may be deemed a bad-faith assertion of patent infringement; remove the act’s bond-posting requirement for a plaintiff who may have made a bad-faith assertion of patent infringement; and limit the entitlement to and amount of punitive damages awards against a person who makes a bad-faith assertion of patent infringement.

The bill requires the issuance of safety inspection decals by law enforcement officers to operators of vessels that have been found in compliance with the safety equipment carriage and use requirements.

The bill prohibits law enforcement officers from stopping a vessel solely for the purpose of inspecting the safety equipment carriage and use requirements, if the vessel has a properly displayed valid safety inspection decal, unless there is reasonable suspicion that a violation

Other miscellaneous issues that passed and may be of interest include: Ch. 2016-20, Laws of Fla., re Public Records (CS/HB 273 by Government Operations Subcommittee); CS/SB 592 re Public Records/Department of Financial Services/Emergency Medical Technicians or Paramedics by Governmental Oversight and Accountability Committee; HB 7071 re Public Corruption by Rules, Calendar and Ethics Committee. www.FloridaJusticeAssociation.org | March/April 2016 | 21

CASES&COMMENTARIES

In Brief

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

T

he Florida Supreme Court holds that an insured is entitled to a determination of liability and the full extent of his or her damages in an uninsured motorist action before filing a first-party bad faith action. Fridman v.

Safeco Ins. Co. of Illinois, So.3d , 41 FLW S62 (Fla. 2-25-2016).

“That determination of damages is then binding, as an element of damages, in a subsequent first-party bad faith action against the same insurer so long as the parties have the right to appeal any properly preserved errors in the verdict. The Court quashed the decision in Safeco Ins. Co. of Illinois v. Fridman, 117 So.3d 16 (Fla. 5th DCA 2013), which it noted conflicted with a long line of cases from the Supreme Court that hold a determination of liability and the full extent of damages is a prerequisite to a bad faith cause of action.

Circuit’s reasoning. “First, Graham overstates the effect of the past ten years of Florida tobacco case law by equating it to a ban on cigarette sales. … Additionally, Graham suggests that state and presumably local governments cannot ban a product that Congress has chosen to regulate. This blanket argument cannot withstand the test of experience and logic.” The court concluded: “In sum, because Engle progeny cases do not support a conclusion that strict product liability claims amount to a ban on the sale of cigarettes, and because federal tobacco laws expressly preserve a state’s ability to regulate tobacco in ways other than manufacturing and labeling while declining to ‘modify or otherwise affect any action or the liability of any person under the product liability law of any State,’ we find no conflict between the applicable state and federal laws.”

An order confirming an arbitration award is not an appealable final order in such a proceeding because §682.15, Fla. Stat., states that the order must be followed by a final judgment. Ross v. Prospectsplus!, Inc., So.3d , 41 FLW D86 (Fla. 2nd DCA 1-6-2016).

In a retrial on damages, the trial court erred in not interviewing a juror about whom it had received information indicating the juror had Googled the previous verdict in the case. Philip Morris USA, Inc. v. Naugle, So.3d . 41 FLW D105 (Fla. 4th DCA 1-6-2016), The court had interviewed the jury foreperson who said that after the return of the verdict in the damages retrial the foreperson received a text message from a second juror indicating that over the weekend before the verdict the juror had Googled the previous verdict. The Fourth DCA noted that receipt of this non-record information by the second juror was an overt act that might have prejudicially affected the jury in reaching its own verdict. As such, the existence of the text message from the second juror established reasonable grounds to believe that some juror misconduct occurred, which in turn constituted a legal basis for an interview of the second juror.

Question certified as one of great public importance: “Whether federal law implicitly preempts state law tort claims of strict liability and negligence by Engle progeny plaintiffs based on the sale of cigarettes.” R.J. Reynolds Tobacco Co. v. Marotta, So.3d , 41 FLW D100 (Fla. 4th DCA 1-6-2016). In appealing a wrongful death judgment for the plaintiff, the defendant argued that, because Congress has expressly sanctioned the sale of cigarettes, and because the practical effect of the Engle progeny litigation is to establish that all cigarettes are inherently dangerous and defective, strict liability and negligence claims are implicitly preempted by federal law allowing the sale of cigarettes. In affirming the judgment, the court noted while that the Eleventh Circuit had recently held in Graham v. R.J. Reynolds Tobacco Co., 782 F.3d 1261 (11th Cir. 2015), that such Engle progeny claims are implicitly preempted by federal law, it disagreed with that decision because of what it viewed as flaws in the Eleventh 22 | March/April 2016 | www.FloridaJusticeAssociation.org

A directed verdict is not appropriate in cases where there is conflicting evidence as to causation. Christakis v. Tivoli Terrace, LLC, So.3d , 41 FLW D121 (Fla. 4th DCA 1-6-2016). In this premises liability case based on a fall on stairs there was conflicting information as to causation. Although the plaintiff could not testify as to exactly

what made her fall, the evidence presented both by the expert and the photos of the steps showed they were in a damaged condition. The court noted that this was not building inference upon inference because the damage to the steps was established as a fact, and it held that the trial court erred in entering judgment notwithstanding the verdict.

Internet reviews of professional services—here those of an attorney--that contained false factual allegations were not freespeech protected statements of opinion and thus were actionable as defamation. Blake v. Ann-Marie Giustibelli, P.A., So.3d , 41 FLW D122 (Fla. 4th DCA 1-6-2016). The court also noted that the stricter standards required when a media defendant is involved were not applicable here.

Even though the end result was absurd, the trial court properly denied plaintiff’s motion for attorney’s fees based on a proposal for settlement where the proposal failed to state whether attorney’s fees and punitive damages were part of the claim even though the plaintiff had not sought fees or punitive damages in the compliant, nor could she have sought them at that point. Colvin v. Clements and Ashmore, P.A., So.3d , 41 FLW D200 (Fla. 1st DCA 1-152016). The court recognized that the plaintiff had complied with the material provisions of §768.79, Fla. Stat., and Fla.R.Civ.P. 1.442, but the application of the currently-required strict construction and bright line rule mandated this absurd result. It certified conflict with Bennett v. American Learning Systems of Boca Delray, Inc., 857 So.2d 986 (Fla. 4th DCA 2003). wherein the Fourth DCA recognized that it makes no sense to require a defendant’s offer to include attorney’s fees where the plaintiff had not and could not claim them.

A personal representative may initiate a Florida Civil Rights Act complaint alleging employment discrimination on behalf of a deceased former employee. Cimino v. American Airlines, Inc., So.3d , 41 FLW D212 (Fla. 4th DCA 1-20-2016). According to the complaint, the deceased, a non-Hispanic, had been subject to a long series of alleged discrimination by his Hispanic supervisor based on race, national origin, and ethnicity, which eventually led to the decedent’s termination, followed a few days later by his suicide. His widow, acting as personal representative of the estate and in her capacity as surviving spouse and natural guardian of their son, filed the Charge of Discrimination on behalf of her deceased husband with the Florida Commission on Human Rights alleging that the wrongful termination, and the hostility and discrimination that preceded it, led him to commit suicide. The Commission dismissed the charge, stating that it did not have the authority to investigate the complaint since the subject of the alleged discrimination had not initiated the charge before his death.

In reversing, the Fourth DCA found the controlling statute provides that “any person aggrieved” may file a complaint and that “any person” includes an “individual” as well as a “legal representative.” Here, the court found that under the statute the widow qualified under both categories.

In a trip and fall premises liability action, the trial court properly entered summary judgment for the defendant where the record contained no evidence that created a disputed issue of fact as to

the existence of a defect in the step on which the plaintiff tripped.

Perez-Rios v. The Graham Companies, So.3d , 41 FLW D237 (Fla. 3rd DCA 1-20-2016). Plaintiff admitted that on a clear day she tripped on a four-inch high step leading from the pavement to the building owned by the defendant. Evidence showed that the step was plainly visible and in a contrasting color from the pavement above and below it; photographs of the step showed no defect; and there was no evidence of a foreign object, uneven wear and tear, inadequate lighting, or wet or slippery conditions.

A suit for vicarious liability and breach of fiduciary duty based on alleged sexual abuse that occurred forty years earlier was time barred despite allegations that the delay in filing the claim was due to the traumatic nature of the abuse inflicted upon the plaintiff which caused her to suffer repressed memory syndrome and consequently she had no memory of the abuse until 2009, when it resurfaced.

Firestone v. Temple Beth Sholom, So.3 , 41 FLW D240 (Fla. 3rd DCA 1-20-2016). The plaintiff argued that her repressed memory syndrome brought her within the provisions of §95.11(7), Fla. Stat., which provides for tolling of the statute of limitations for intentional torts. The court found this inapplicable because the plaintiff’s theory was not that the defendant committed an intentional tort, but rather that it was vicariously liable for the acts of its employee or breached its fiduciary duty. The plaintiff also asserted that her claim fell within the provisions of §95.11(9), which specifically relates to sexual battery offenses on victims under age 16. Although this provision provides that such actions may be commenced at any time, the court noted that it does not apply to causes of action that accrued and would be time barred on or before July 1, 2010. As such, the plaintiff’s claim did not come within this provision either. Judgment for the defendant based on expiration of the statute of limitations was affirmed.

The incorporation in an arbitration agreement of the “Construction Industry Rules of the AAA,” which make the issue of arbitrability subject to arbitration, constituted “clear and unmistakeable” evidence of the parties’ intent to submit the issue of arbitrability to an arbitrator. Glasswall, LLC v. Monadnock Construction, Inc., So.3d , 41 FLW D277 (Fla. 3rd DCA 1-27-2016).

Section 57.105, Fla. Stat., does not provide a mechanism for recovering costs. Grand Reserve at Tampa Condo. Assoc., Inc. v. HSBC Bank USA, So.3d , 41 FLW D293 (Fla. 2nd DCA 1-29-2016).

A new trial was ordered where the defendant in a medical malpractice case engaged in tactical gamesmanship by enlarging the number Fabre defendants prior to trial and then withdrawing the multiple Fabre defendants on the final day of trial. Edwards v.

Rosen, So.3d , 41 FLW D295 (Fla. 2nd DCA 1-29-2016). “The specific sequence of events that transpired—the belated amendment of the Fabre defense, the last minute withdrawal of that defense, and the trial court’s failure to give a curative instruction to the jury—generated prejudice that [plaintiff’s] counsel could not cure. This sequence of events culminated in a situation in which the plaintiffs presented their case premised on the fact that the jury would apportion fault between [the defendant] and the Fabre defendants, only to have the jury instead www.FloridaJusticeAssociation.org | March/April 2016 | 23

CASES&COMMENTARIES

decide the case on an all-or nothing basis.” The court noted that courts have addressed a similar tactic where defendants have raised the affirmative defense of comparative negligence only to withdraw it after some evidence of plaintiff’s negligence was admitted. “We recognize that a defendant may waive any defense. … However, such a right is not carte blanche to engage in gamesmanship or abuse procedure.

From our review of the record, it is apparent that [defendant’s] trial counsel engaged in conduct designed to acquire the benefit of the Fabre defense, i.e., having evidence of the negligence of others introduced at trial, without the cost of having fault apportioned between the Fabre defendants and himself. This gamesmanship was an attempt by [defendant’s] counsel to exert control over [plaintiff’s] presentation of the case. … More importantly, raising an affirmative defense only to withdraw it in an attempt to muddle the plaintiff’s presentation of the case undermines the truth-seeking purpose of a trial.” The court noted that it was not holding that defendants may not waive or withdraw a defense, but it cautioned that engaging in the type of procedural maneuvering utilized in this case risks a new trial.

The Flagler County Sheriff did not owe a common law or statutory duty of care to a motorist who was seriously injured when she ran into a dead horse that was lying on a dark and unlit rural roadway.

Manfre v. Shinkle, So.3d , 41 FLW D337 (Fla. 5th DCA 2-5-2016).

About an hour and a half prior to the pre-dawn accident, the Sheriff’s Office received a phone call about two horses roaming on the side of the road. A deputy responded to the location and saw the horses run up a driveway towards a residence and go back into what appeared to be a pasture. The deputy then cleared the call without getting out of his car or attempting to make contact with the property owner. One of the horses apparently reemerged from the pasture and proceeded to the roadway, where it was struck and killed by a motorist. The dead horse was lying in the roadway when the plaintiff’s car later came along, struck the horse and flipped over. The plaintiff filed a negligence action against the Sheriff alleging that the deputy owed a duty of care to all those on county roads, including the plaintiff, and that the deputy breached the duty owed to plaintiff by negligently responding to the call and by failing to contact the presumed owners of the horses or otherwise ensure that the horses would not return to the roadway.

The trial court denied the Sheriff’s motions for summary judgment and for directed verdict based on an argument that he owned no duty pursuant to the public-duty doctrine. Plaintiff argued that even if the public-duty doctrine applied, the defendant owned a special tort duty of care or a duty of care under the undertaker’s doctrine. The defendant

countered that even if he owed a duty, the acts were discretionary. The issue went to trial, and the jury returned a verdict for the plaintiff, which was then enhanced by an additur that was included in the resulting judgment. On appeal, the Fifth DCA reversed, finding that under the facts of the case the Sheriff owed no duty of care to the plaintiff under any of the theories asserted. The opinion includes a useful analysis of the law relating to: 1) general principles of duty of care and sovereign immunity; 2) the public-duty doctrine relating to common law and statutory duties of care; 3) the special tort duty exception; and 4) the undertaker’s doctrine.

The trial court erred in dismissing plaintiff’s complaint as a sanction for counsel’s failure to attend a case management conference without making findings that the failure was flagrant, willful, persistent, or aggravated. Jenkins v. Allstate Property and Casualty Co., So.3d , 41 FLW D381 (Fla. 2nd DCA 2-10-2016). The dismissal was without prejudice, but it was effectively with prejudice as the statute of limitations had run. The court noted that on remand the trial court was free to conduct sanction proceedings as it saw fit, but it cautioned that: “absent evidence of client consent to or participation in the attorney’s misconduct, it is typically more appropriate to sanction an attorney for his failings than to require his clients to suffer the pains of the attorney’s errors or omissions.”

When the amount of a judgment is modified on appeal, posttrial interest runs from the date of the original judgment, not the verdict. Shoemaker v. Sliger, So.3d , 41 FLW D391 (Fla. 5th DCA 2-12-2016).

A timely filed, but defective, pleading that is ineffective in affirmatively moving the case forward is nevertheless sufficient to avoid dismissal for failure to prosecute. Zuppardo v. Dunlap and Moran, P.A., So.3d , 41 FLW D395 (Fla. 2nd DCA 2-12-2016). “[T]he rule does not require an analysis of a filing’s substance. Once a pleading is timely filed, the inquiry ends.”

In a case of first impression, the Third DCA holds that the federal Medicaid Act’s anti-lien provision does not pre-empt Florida’s Medicaid Third-Party Liability Act where a Medicaid lien is imposed on a wrongful death settlement. Estate of Hernandez v.

Agency for Health Care Administration, So.3d , 41 FLW D424 (Fla. 3rd DCA 2-17-2016). The court found that the Medicaid lien resolution decisions in Arkansas Dept. of Health & Human Services v.

LEGISLATIVE NOTES It’s over!! The 2016 Regular Session ended on time on Friday, March 11. Barring an as yet unforseen Special Session or two, the legislature will not be back in Tallahassee until they convene for the post-election 2016-18 Organizational Session on Tuesday, November 22. Next Spring the Regular Session moves back to the usual timeframe and will run from March 7 to May 5, 2017.

For a comprehensive post-Session wrap-up of the 2016 legislation that could impact your practice see the Special Focus section of this issue.

24 | March/April 2016 | www.FloridaJusticeAssociation.org

Ahlborn, 547 U.S. 268 (2006); Wos v. E.M.A., 133 S.Ct. 1391 (2013) and Garcon v. Fla. Agency for Health Care Administration, 150 So.3d 1101 (Fla. 2014) apply only to living Medicaid recipients. In cases where a lien was imposed against a wrongful death settlement, Ross v.

Agency for Health Care Administration, 947 So.2d 457 (Fla. 3rd DCA 2006) controls, and AHCA must be repaid in accordance with the Medicaid Third-Party Liability Act prior to apportioning the settlement between the decedent’s estate and survivors.

The First DCA, in a case of first impression, holds that in a qui tam proceeding filed under the Florida False Claims Act, the Attorney General possesses the requisite legal authority to dismiss the pending qui tam action notwithstanding her previous decision to decline to intervene in the action. Barati v. State of Fla., So.3d , 41 FLW D456 (Fla. 1st DCA 2-23-2016). The plaintiff brought the qui tam action in 2009 pursuant to the False Claims Act, §68.081, Fla. Stat. As required by the statute, the State was served a copy of the qui tam complaint. After an investigation, the State declined to join the action, and the private plaintiff continued to prosecute the action for approximately three and a half years. Then in 2013 the Attorney General, despite having never intervened in the action, filed on behalf of the State a notice of voluntary dismissal asserting that it had the unilateral right to dismiss the action on the authority of §68.084(2), notwithstanding any objections the plaintiff might have. The First DCA found that the voluntary dismissal by the Attorney General was not subject to challenge by the original private plaintiff as the Attorney General does in fact have that authority “under the relevant and plain language of the Florida FCA, constitutional authority of the executive branch vested in the Attorney General of the State of Florida to act as the State’s chief legal officer, and the very nature of the qui tam suit.”

In an action alleging property damage and personal injury caused by defective drywall, the facts pleaded in the complaint established that the property damage claims were barred by the statute of limitations, but they did not conclusively establish that the personal injury claims were similarly barred. Hummer v. Adams Homes of Northwest Fla., Inc., So.3d , 41 FLW D512 (Fla. 2nd DCA 2-26-2016). The plaintiff in his pro se complaint filed in 2014 acknowledged that he had actual knowledge of the defective drywall more than four years before the filing of the lawsuit, and the court agreed that this barred his claims for property damage. The plaintiff also alleged that he received medical treatment in 2009. The court noted the treatment may ultimately be determined to be related to the drywall, but it was not convinced that the date of the accrual of his personal injury causes of action could be established beyond dispute from the pleading. “A trial court’s authority to dismiss a complaint on an affirmative defense of statute of limitations is limited to situations in which ‘the complaint affirmatively and clearly shows the conclusive applicability of such defense as a bar to the action.’” Here, since the claims for property damage and personal injury were intertwined throughout the complaint, the court remanded with directions that the trial court dismiss the complaint with leave to file an amended complaint limited to the personal injury theories.

Where the parties reached a confidential settlement agreement and filed a joint stipulation of voluntary dismissal with prejudice, the trial court was without jurisdiction to entertain a motion filed five years later to enforce the settlement agreement. Dandar v. Church of Scientology Flag Service Organization, Inc., So.3d , 41 FLW D534 (Fla. 2nd DCA 3-2-2016).

In a case arising from a trip and fall over a raised brick paver in a city sidewalk, a photograph of the raised brick introduced by plaintiff in an attempt to show that the city had constructive notice of the raised brick was insufficient to raise an inference as to the length of time the raised brick paver had existed. City of Miami v.

Navarro, So.3d , 41 FLW D554 (Fla. 3rd DCA 3-2-2016). The court noted that under Hannewacker v. City of Jacksonville Beach, 419 So.2d 308 (Fla. 1982), for a photograph to raise an inference as to the length of time the defect was present, it must clearly demonstrate that a significant length of time has passed. Here, the court found, there was nothing in the photograph to demonstrate, much less clearly demonstrate, the passage of any time relative to the raising of the brick.

Thus, in order to reach any decision about the passage of time, the jury would have had to speculate about the duration of the condition, which is not permitted under Hannewacker. The court held that the trial court should have directed a verdict in favor of the defendant city.

Where surveillance video of a grocery store customer slipping and falling on spilled laundry detergent showed that a total of only thirteen seconds elapsed from the time an assistant manager heard the bottle fall and began running from the opposite end of the aisle to the spot of the spill and the time of the customer’s slip and fall, the defendant grocery store should have been granted a directed verdict as it was not negligent and could not be held liable. Dominguez v. Publix Super Markets, Inc., So.3d , 41 FLW D558 (Fla. 3rd DCA 3-2-2016). The court noted that the issue was not whether the grocery had failed to warn of the substance on the floor as it was an open and obvious condition. Rather, the issue was whether the store used ordinary care to maintain its premises in a reasonably safe condition. The court was not persuaded by the fact that the grocery’s internal operating procedures called for the assistant manager to immediately block off the aisle where the spill occurred.

It found that, while evidence of that was admissible and relevant to the jury’s consideration of the assistant manager’s conduct, “internal safety policies do not themselves establish the standard of care owed to the plaintiff. … If what [the assistant manager] did, under the circumstances and within the five seconds he was allotted by fate, was reasonable and demonstrated ordinary care, then the fact he allegedly did not abide by [the defendant’s] internal operating procedure of blocking off the aisle does not create a heightened duty of care in favor of [the plaintiff].”

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.

www.FloridaJusticeAssociation.org | March/April 2016 | 25

TIPSFORAUTOPRACTITIONERS

UNSURE

ABOUT UNINSURED MOTORISTS?

BY DALE SWOPE

U

ninsured motorist (UM) insurance claims are receiving a good deal of attention from the courts. They are unique claims, for certain.

On the one hand, they have some of the same features as tort claims against negligent drivers. Elements the jury decides include who was at fault in causing the accident and the measure of damages suffered by the plaintiff. But the fact is, they are not tort claims, and instead are, at their heart, claims for breach of contract. Specifically, UM claims deal with the covenant to pay damages caused by the negligent driver. And that makes them different.

In a breach of contract claim – any breach claim – the essence of the case argued to the jury is that the defendant either did or did not breach a promise. The core ethic of these cases is that a contract has meaning, and should be enforceable. When a person or company makes a promise and takes consideration in exchange for that promise, they should be forced to honor it, and pay damages if they don’t.

That is true even where there is no dispute about the terms of the contract, and instead the question of breach will be determined by some specific, discreet fact. It gives context to the case and provides motive, which is how we analyze all disputes in real life.

26 | March/April 2016 | www.FloridaJusticeAssociation.org

Say for example, a seller of a house argues that the buyers are only saying the termite damage was extensive because they found a great buy on some other house, that it is wrong of them to make up a pretext like that. It makes perfect sense to bring up that argument. But for some reason, the courts have gotten themselves off into the idea that in UM breach of contract cases, any argument pointing out that the carrier is trying to break a promise that they were paid to keep, is off limits, and grounds for new trial.

In State Farm v. Gold, the only real issue seems to have been the amount of damages. State Farm Mut. Auto. Ins. Co. v. Gold, So.3d , 41 FLW D257 (Fla. 4th DCA 1-27-2016). The trial was a clean one. But in closing argument, the context of the breach was brought home: “State Farm to this day, to this minute has never taken responsibility for the damages in the crash and for the injuries that are covered under this policy, and they’re not going to do it until you force them to do it with your verdict.”

Seriously, why is that wrong? For openers, it was the truth, and the jury’s verdict, bore that out. State Farm had paid only a fraction of what its actual contractual obligation was and refused to pay more. If you apply a substitution, and imagine say, a closing argument by a purchaser of an admittedly defective generator, suing for damages higher than the

COhen Milstein COngratulates

leslie M. Kroeger 2015 Champion of Consumer safety award reCipient In recognition of strong leadership, determined advocacy and steadfast commitment to the Protection of Children and Consumers on Florida’s Roadways.

The firm is proud to congratulate Partner and Award Recipient Leslie M. Kroeger, a tireless champion for Child Safety and Consumer Protection.

aCCess tO JustiCe 877.515.7955 | cohenmilstein.com Palm Beach Gardens, FL | Washington, DC | New York, NY | Philadelphia, PA | Chicago, IL | Denver, CO Antitrust | Civil Rights and Employment | Consumer Class Action and Product Liability | Human Rights Whistleblower/False Claims Act | Securities Fraud/Investor Protection | Commercial Litigation | Managed Care Abuse Catastrophic Injury | Employee Benefits | Ethics and Fiduciary Counseling | Public Client

www.FloridaJusticeAssociation.org | March/April 2016 | 27

TIPSFORAUTOPRACTITIONERS

seller was willing to pay, you would expect to hear – John Deere has never really taken full responsibility for their defective generator. They say they have, but they haven’t. If they had, they would have paid all that we have proven, and we wouldn’t be here.

that the plaintiff is truly seeking a judgment for money damages against both defendants.

In order to skillfully and successfully carry out the objectives of the Mary Carter agreement, the lawyer for the settling parties must necessarily make misrepresentations to the court and to the jury in order to maintain the charade of an adversarial relationship. These actions fly in the face of an attorney’s promise to employ “means only as are consistent with truth and honor and [to] never mislead the Judge or Jury by any artifice or false statement of fact or law.”

But for reasons that have never been fully explained under Gold and similar new DCA cases, saying that is not permitted in a breach of UM contract case.

A big insight into the court’s reasoning is that it cited Carvajal v.

Penland as authority for the principle that “comments about an insurance company refusing to own up to the responsibility that they have” rises to the level of reversible error. Carvajal v. Penland, 120 So.3d 6, 10 (Fla. 2d DCA 2013).

Well, in Carvajal, the plaintiff violated a motion in limine ruling prohibiting any argument pertaining to any failure of State Farm to comply with its contractual obligations, because “this is not a breach of contract case.”

Except, of course, that it actually IS a breach of contract case! How really, could anyone say otherwise? And how are other DCAs buying into this idea that somehow UM claims are based on torts, and not a breach of a sacred covenant to pay full damages?

This calls to mind the same kind of double-speaking nonsense that was going on 25 years ago when UM carriers convinced the DCAs around the state that the jury should never hear that the UM carrier was a party, and should instead be told that the UM carrier’s attorney was co-counsel for the tortfeasor.

The Florida Supreme Court took a huge step in “court reform” by declaring an end to “charades” in the courtroom. In Government Employees Insurance Company vs. Krawzak, GEICO’s lawyer had, true to the pattern, wanted to lie to the jury and say that he was co-counsel for the tortfeasor, and never even mention that GEICO was a party, added as a co-defendant. Government Employees Insurance Company vs. Krawzak, 675 So.2d at 117 (Fla. 1996).

It’s time for the Florida Supreme Court to return us to these fundamental principles espoused by Justice Wells. We should stop the “charade” of suggesting that if there is no dispute about the terms of the policy, then a first party UM case should be treated as some kind of “hybrid” or “quasi-tort,” or any other exotic sounding category.

They are breach of contract claims, where the fact issue that determines whether there has been a breach is whether the carrier has, in fact, paid all damages caused by the tortfeasor.

The permissible arguments should include the same type you would expect to see in any other breach of contract claim, with no special “VIP” treatment given to the jury in an effort to further mislead them into thinking the insurer is not in breach until the verdict has been rendered.

Unravelling the Uninsured Quandary This past month the Florida Supreme Court conclusively extinguished the Bottini issue that has been troubling the DCAs and federal district courts since that opinion (and especially the concurrence) was rendered.

GEICO Gen. Ins. Co. v. Bottini, 93 So.3d 476 (Fla. 2d DCA 2012).

After a couple of years of inconsistent decisions, the Florida Supreme Court has established two principles that will control henceforth how UM cases and bad faith claims that derive from them will be handled.

Those principles are: 1.

Even if the plaintiff has not incorporated a claim for bad faith into his complaint, the carrier cannot simply confess judgment for all relief sought in the complaint and demand that the case be concluded without trial. Instead, even after a confession of judgment for all relief sought in the complaint, the case will continue on to trial and appeal of the entire verdict; and

2.

The verdict rendered in the underlying UM case will stand as the measure of damages for any subsequent bad faith case.

Ironically, it was Justice Wells, now a lobbyist for the insurance industry, who wrote the powerful rhetoric to plant the flag of honesty, and clear the air of part of the stench created by the non-joinder statute.

And that opinion was not an outlier. It was actually part of a trend of that began with Dosdourian v. Carsten, the opinion that killed Mary Carter agreements. Dosdourian v. Carsten, 624 So.2d 241 (Fla. 1993).

If by good fortunate you are young enough to not know what a “Mary Carter” is, there probably is no reason to clutter your mind learning that fun feature of ancient history. It is sufficient to know that the court found that: In addition, Mary Carter Agreements, by their very nature, promote unethical practices by Florida attorneys. If a case goes to trial, the judge and jury are clearly presuming that the plaintiff and the settling defendant are adversaries and 28 | March/April 2016 | www.FloridaJusticeAssociation.org

Fridman v. Safeco Ins. Co. of Illinois, So.3d , 41 FLW S62 (Fla. 2-252016). This result, as plaintiff’s attorneys have often argued, avoids an immense waste of resources, the risk of inconsistent verdicts, and judicial inefficiency.

Decisions Decided Before Fridman Many decisions in the appellate channel, previously relied upon in other

cases, are affected by this Supreme Court decision. For example, the Supreme Court released an order to show cause in GEICO v. Paton, on why Fridman is not controlling and why the Supreme Court should therefore not decline to accept jurisdiction. GEICO Gen. Ins. Co. v.

Paton, CASE NO.: SC15-63, (Fla. March 14, 2016).

Here are some other cases that were released prior to Fridman where the orders and opinions may have looked different if decided only a few weeks later.

First up, in an order denying Plaintiff’s motion for remand in a UM bad faith case, the Middle District made it clear that it thought the Florida courts’ practice of allowing the premature claims to be stayed or abated conflicted with the removal statute. Johnson v. State Farm Mut. Auto. Ins. Co., 2016 WL 277768 (M.D. Fla. 1-22-2016). The court held that a statutory bad faith claim is a separate and independent action. Regardless of whether the bad faith claim was asserted in a subsequent lawsuit, or was simply tacked on to the UM case, the amended complaint is considered an initial pleading.

Fridman now expressly allows the UM trial court to retain jurisdiction over the bad faith claim and employ tools of abatement. The federal district courts are going to have to put their discontent for the abatement orders aside and reconcile Fridman with the removal statute because these cases may become more frequent now.

In another Middle District order, the court denied the insurer’s motion to dismiss and instead abated the bad faith and unfair claims settlement counts after plaintiff amended its complaint. Tamara Ley & James Ley v.

State Farm Mut. Auto. Ins. Co., 2016 WL 473275 (M.D. Fla. 2-8-2016).

The court acknowledged the split in authority (prior to the Fridman decision) on whether the court should dismiss or abate the unripe counts. For the same logical economy arguments enumerated in the Fridman decision, the court explained it was in the interest of judicial economy for the claims to be heard by the court already familiar with the dispute, and the best option was to abate the claims rather than dismiss them and stay all discovery until the UM claim is resolved.

The Fourth DCA denied an insurer’s appeal of an order granting the insured’s motion to amend the complaint to add the first-party bad faith count. First Liberty Ins. Corp. v. O’Neill, So.3d , 2016 WL 145824 (Fla. 4th DCA 1-13-16). Recognizing the split amongst the courts on whether the court should allow the plaintiff to amend their complaint to add a bad faith count, the Fourth DCA held that allowing the amended complaint was not an error. Now with Fridman, these decisions will be much easier to argue.

Claims Files Production Cases have begun to build on the work done by several FJA members that uncovered GEICO’s practices of profit sharing with their claims adjusters by evaluating them based on their average loss payouts. See, The Truth is Out About GEICO, 587 FJA Journal 20 (November/ December 2015.)

In a Middle District decision, the court denied GEICO’s motions in limine to exclude evidence of the incentives it provides adjusters to undervalue claims through the use of average loss payment metrics and personnel files of its employees. Hines v. GEICO Indem. Co., 2016 WL 688050 (M.D. Fla. 2-19-2016). The court explained that such evidence was highly relevant to GEICO’s motivation in valuing claims.

PIP and Emergency Treatment The Fifth DCA quashed a circuit court’s order and remanded the case by reaffirming that when an emergency service provider submits its claims within the 30-day window under section 627.736(4)(c), Florida Statutes, those claims will be prioritized for payment and are still subject to any deductibles in the insurance policy. USAA Gen. Indem.

Co. v. Emerg. Physicians Cent., So.3d , 2016 WL 671997 (Fla. 5th DCA 2-19-2016).

Because It’s So Easy Being a Trial Lawyer It’s your worst nightmare. You are in an important depo with an important but difficult witness, but your cell phone will not stop vibrating in your pocket disrupting your desperately needed focus. You finally finish, and the reporter’s receptionist hands you two messages from your office as you walk to the elevator. Then, in the elevator with the yappy defense lawyer, you open the texts that have been buzz bombing your leg.

Smiths JA called. Ur Msg PT right now. Pls call!!!!

Your first reaction, of course, is confused denial. Your massage in physical therapy? Who is Smiths JA??? But by the ground floor, you have it figured out. You have missed the mandatory pre-trial conference hearing for your trial set in two weeks!

In Jenkins v. Allstate Prop. & Cas. Ins. Co., the court exercised the power given under Rule 1.200(c) to straight up dismiss an action where a party failed to attend a case management conference. Jenkins v. Allstate Prop. & Cas. Ins. Co., So.3d , 2016 WL 519618 (Fla. 2d DCA 2-10-2016). Thankfully, in order to dismiss, the order must contain findings that the party’s actions were flagrant, willful, persistent, or otherwise aggravated. Considering there was no evidence that the client consented to or participated in the attorney’s misconduct, the court held that a more appropriate punishment was to sanction the attorney and not have the client suffer the pains of their counsel’s mistakes.

In a Fourth DCA case, the trial court dismissed the case after the attorney failed to attach certain exhibits to its second amended complaint. Townhouses at Jacaranda Condo. Ass’n, Inc. v. Crain Atlantis Engr., Inc., So.3d , 2016 WL 231493 (Fla. 4th DCA 1-20-2016).

The court held that such a severe sanction was not warranted for a procedural defect.

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.

www.FloridaJusticeAssociation.org | March/April 2016 | 29

INSURANCE

INSURANCE DECISIONS

From Around the State

by Gregory Yaffa

T

he future of bad faith in Florida is looking bright thanks to Moore v.

GEICO General Ins. Co., Fed.Appx. , 2016 WL 123831 (11th Cir. 2016) and Fridman v. Safeco Ins. Co., 41 FLW S62 (Fla. 2016).

Despite black letter law providing that “whether an insurer has acted in bad faith is a fact issue to be resolved by the jury” (Berges v. Infinity Ins. Co., 896 So.2d 665 (Fla. 2004)), over the past few years especially, our federal courts seem to have been going out of their way to rule in favor of insurers and against injured claimants and insureds. With Moore, the Eleventh Circuit has made it crystal clear that Florida law, except in rare circumstances, mandates that the question of bad faith is for a jury to decide.

In Moore, the Eleventh Circuit Court of Appeals reversed a summary judgment entered by Judge Bucklew in the Middle District of Florida. See Moore v. GEICO General Insurance Company, 2014 WL 2938430 (M.D. Fla. 2014). In reviewing Judge Bucklew’s 2014 opinion, one does not have to look far to uncover her apparent disdain of bad faith actions.

In this action, GEICO (after having already tendered its insured’s full policy limits within 13 days of the crash – which was rejected by plaintiff’s counsel) received a 21-day demand for the tender of the $20,000 BI limits; the $10,000 PD limits; a general release; and affidavits of no additional insurance. While GEICO tendered all of the available coverage, plaintiff’s counsel argued that the releases and affidavits provided by GEICO constituted a counter-offer. The case was tried and resulted in a $4,000,000 excess verdict. Plaintiff’s counsel alleged that GEICO acted in bad faith by 1) failing to advise the insureds of the demand and conditions of settlement; 2) submitting a release that included more than simply the named tortfeasors; 3) submitting a release that stated the check would be sent within 20 days of GEICO’s receipt of the executed release (even though GEICO had already sent the check); 4) submitting affidavits that were not tailored to the facts of the case; and 5) refusing to enter into a Cunningham Agreement.

Judge Bucklew found that GEICO’s actions, while “sloppy” and “bordering on negligent,” did not amount to bad faith. The Court described the actions of plaintiff’s counsel as an attempt to create a bad faith action. Additionally, the Court stated, “This is a tragic case for the underlying claimants. While money cannot remedy the situation, it adds insult to injury that the underlying tortfeasors did not have sufficient bodily injury insurance coverage. However, the underlying tortfeasors are to blame for the inadequate insurance, not GEICO, and the Court refuses to turn GEICO’s limited insurance policy into an available deep pocket to pay the bodily injury claims.”

In reversing the summary judgment, the Eleventh Circuit appropriately focused on the Florida Supreme Court decision in Berges v. Infinity Insurance Co., 896 30 | March/April 2016 | www.FloridaJusticeAssociation.org

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!

FJA @ (850) 224-9403

FloridaJusticeAssociation.org

INSURANCE So.2d 665 (Fla. 2004). Specifically, the Court observed that Berges mandates a totality of the circumstances standard. Additionally, citing Berges, the Court pointed out that the “focus in a bad faith case is not on the actions of the claimant but rather on those of the insurer in fulfilling its obligations to the insured.” 865 So.2d at 677.

After reviewing the evidence in the case, the Court concluded that Judge Bucklew committed two errors in granting summary judgment.

First, Judge Bucklew improperly made credibility determinations and improperly weighed the evidence. Second, Judge Bucklew improperly focused on the conduct of the claimant’s attorney, rather than on the conduct of GEICO. Hopefully the Moore decision will curtail the frequency with which the federal courts have been entering summary judgment in bad faith actions.

Following the Eleventh Circuit’s lead, with Fridman v. Safeco Ins. Co., So.3d , 41 FLW S62 (Fla. 2016), the Florida Supreme Court appears to have finally cleaned up the mess caused by King and Bottini relating to first party bad faith actions.

In King v. Government Employees Insurance Company, 2012 WL 4052271 (M.D. Fla. 2012), the Middle District (Judge Moody) entered partial summary judgment in favor of GEICO, ruling that the underlying excess verdict in a UM bad faith claim was not the measure of damages in the subsequent bad faith case.

When GEICO failed to tender its insured’s full UM policy limits of $25,000 (in response to both the insured’s demand and the Civil Remedy Notice) GEICO’s insured filed suit against the carrier and ultimately received a verdict in the amount of $1,638,171. As in every UM claim, the final judgment was limited to the amount of the policy limits.

The insured subsequently amended the UM complaint to add a count for bad faith. In granting partial summary judgment, the court focused on the conditions precedent to bringing a bad faith action, (“insureds must allege in their complaints that there has been a final determination of both liability and the extent of damages”). In light of the fact that the amount of the verdict was not reviewed on appeal, the court ruled that “GEICO is not bound by that amount in the subsequent bad faith action.”

In GEICO General Insurance Company v. Bottini, 93 So.3d 476 (Fla. 2d DCA 2012), the Second District Court of Appeal affirmed a jury verdict of $30,872,266 on a $50,000 GEICO UIM policy. However, Judge Altenbernd wrote a concurring opinion in which he observed that §627.727(10), Florida Statutes, “does not explain how the finder of fact in the next lawsuit determines the ‘total amount’ of the claimant’s damages.” Thus, Judge Altenbernd opened the door to the argument that the excess verdict in a UM case is not the measure of damages, since the excess verdict in a UM case must be reduced to the policy limits specified in the contract. Judge Altenbernd stated: In this case, given that we decided to affirm on the issues relating to liability, GEICO essentially wants this court to write an opinion that affirms the judgment, but ‘reverses’ 32 | March/April 2016 | www.FloridaJusticeAssociation.org

the verdict as to elements of damage not included within the judgment [the amount of the verdict in excess of the policy limits]. I simply conclude that this court does not have the power to issue such an opinion.

Finally, Judge Altenbernd stated: Accordingly, this concurrence permits both sides to know that at least one judge on this panel has not decided that the verdict is correct or incorrect as to damages awarded in excess of $1,050,000 [the amount GEICO conceded was reasonable] because that issue is not within our permissible scope of review. If I am refusing to do that which the law requires me to do, I would assume that by writ of mandamus the supreme court could order me to conduct such a review. If so ordered, I would perform that review.

Following King and Bottini, the Fifth District Court of Appeal issued its ruling in Safeco Insurance Company of Illinois v. Fridman, 117 So.3d 16 (Fla. 5th DCA 2013), in which the court held that it was error for trial court to allow UM case to proceed to excess verdict where the carrier, (on the eve of trial and after the expiration of a properly filed civil remedy notice) agreed to the entry of a judgment against it in the amount of the policy limits. Citing to Bottini and King, the Fifth DCA held that by confessing to a judgment in the amount of the policy limits, the UM case was rendered moot and that the full measure of damages (excess) can be determined in the subsequent bad faith action.

The dissent correctly pointed out that the majority completely misread 624.155 and 627.727, Florida Statutes and “failed to apply the numerous decisions rendered by the Florida Supreme Court that hold that the jury in a UM case is to determine the full extent of the injured victim’s damages prior to the filing of any bad faith action.”

On February 23, 2016, the Florida Supreme Court reversed the Fifth DCA’s Fridman ruling, holding that an insured is entitled to a determination of liability and the full extent of damages in a UM action before filing a first party bad faith action.

Clearing the confusion created by the King and Bottini opinions, the Supreme Court held that the determination of damages awarded in the UM case is binding in the bad faith action.

Finally, the court concluded that the trial court did not err in retaining jurisdiction of the bad faith action. As such, this opinion should be used to support the notion that the proper remedy is to abate (not dismiss) a bad faith count included in the underlying UM action.

Gregory M. Yaffa

joined Domnick, Cunningham & Whalen, LLC in 2004 and currently practices in the areas of insurance company bad faith, personal injury and wrongful death. Greg is admitted to practice law not only in the State Courts of Florida, but also in the Florida Federal Courts, including the United States District Court, Middle District Court of Florida, the United States District Court, Southern District of Florida and the United States District Court.

MIAMI & JACKSONVILLE » Slip-and-Fall Accidents » Inadequate Security » Medical Malpractice » Shore Excursion Accidents

» Sexual Assault/Rape » Assault and Battery » Tender Boat Accidents » Ignoring Known Food Allergies » Over-service of Alcohol » Swimming Pool Accidents

CRUISE SHIP AND OTHER MARITIME CASES

MARITIME DISASTERS » Costa Concordia Sinking » El Faro Sinking » Carnival Triumph Fire and Stranding

» Double Board Certified in Civil Trial and Admiralty and Maritime Law » Represented cruise lines for 17 years

4 trial lawyers. Over 50 years combined experience. Lead trial lawyer John H. (Jack) Hickey: Represented cruise lines for 17 years. Has represented plaintiff’s against cruise lines for 18 years. Double Board Certified by The Florida Bar- Civil Trial & Admiralty and Maritime Law. Past Chair Florida Bar Admiralty Law Committee. Past Chair American Association for Justice Admiralty Section. Past President Dade County Bar Association. Current Florida Bar Board of Governors. Author of numerous admiralty & maritime law articles; Frequent speaker at AAJ & elsewhere on cruise ship litigation & trial technique.

Toll Free: (800) 215-7117

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E-Mail: hickey@hickeylawfirm.com

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Web: www.hickeylawfirm.com

MEDICALMALPRACTICE

M

EDICAL

ALPRACTICE

S

econd District remands for entry of directed verdict against plaintiff for failure to prove breach, causation in informed consent case. Santa Lucia v. LeVine, So.3d , 2016 WL 886384 (Fla. 2d DCA 3-9-2016). A patient with a rare neuromuscular disorder underwent surgery under general anesthesia for diverticulitis.

Before the procedure, the surgeon, who was unfamiliar with the patient’s particular disorder, discussed with the patient the general risks of surgery, but none that were specific to the patient’s disorder. The anesthesiologist discussed with the patient that his disorder put him at higher risk of needing intubation and ventilation after the procedure.

After the surgery, the patient failed extubation, was put on a ventilator, and coded several times. He later brought a medical malpractice suit alleging the complications caused him permanent injuries. The patient alleged that the surgeon was negligent for failing to obtain informed consent and for failing to conduct a pre-operative consultation with a doctor who was familiar with the plaintiff’s disorder. There was no allegation that the surgery itself was inappropriate or performed badly. The plaintiff’s surgical expert testified that the standard of care 34 | March/April 2016 | www.FloridaJusticeAssociation.org

by Scott R. McMillen & Allison McMillen

required any surgeon unfamiliar with the patient’s disorder to consult with a doctor who knew about it before doing surgery, so that the surgeon could advise the patient of risks specific to the disorder, and get adequate informed consent. The expert did not testify as to what the surgeon would have learned had he done such a consultation, nor what surgical risks were specific to the plaintiff’s disorder. The plaintiff’s expert neurologist testified that patients with neuromuscular conditions are at increased risk of breathing complications from general anesthesia and intubation. The plaintiff himself testified that if he had been advised of the risks, he would not have undergone the surgery. The trial court denied the surgeon’s motion for directed verdict, and the jury found the surgeon 90 percent at fault and awarded $1,200,000 in damages.

The plaintiff appealed the trial court’s application of §766.118 caps to the verdict, and the surgeon cross-appealed. The Second District Court of Appeal found that the trial court had erred in refusing to direct a verdict for the defendant, because the plaintiff had failed to prove the surgeon breached the standard of care for informed consent, and failed to prove causation. In regard to the issue of informed consent,

the Court found there had been no evidence of any specific risks the plaintiff should have been told of other than those of anesthesia, and no testimony that the surgeon, rather than the anesthesiologist, had a duty to disclose those risks. In addition, the plaintiff did not present any evidence that the surgeon’s failure to advise him of the increased risk of pulmonary complications affected either his consent to the procedure, or his subsequent injuries – particularly where the anesthesiologist advised him of the risks and he underwent the surgery anyway. Likewise, the plaintiff failed to establish any causal connection between the surgeon’s failure to consult with another doctor and the anesthesia-related injuries. The Second District declined to rule on the constitutional question of the damage caps, because its ruling on the cross-appeal was dispositive.

Fifth District reverses dismissal of general negligence counts against residential treatment facility school for failure to comply with medical malpractice presuit procedures; also holds lateradded counts for “Baker Act” violations relate back to original complaint. Townes v. The National Deaf Academy, LLC, So.3d , 41 FLW D437 (Fla. 5th DCA 2-19-2016.) This case involves a minor student at a school and residential treatment facility for deaf and autistic individuals with psychological or behavioral disorders. When the student was admitted, a school psychiatrist made a care plan for her that included physical restraint methods known as “Therapeutic Aggression Control Techniques,” or “TACT.” The care plan required the senior employee present who was trained in TACT to decide if it was appropriate to use at any given time. TACT-trained employees at the school included non-healthcare providers such as sign-language interpreters. One day when school employees used TACT methods on her, the student suffered a leg injury that eventually led to an above-knee amputation. The student’s aunt sued the school on her behalf. The amended complaint alleged six different counts. Counts I and II alleged general negligence by the school and its employees, and Counts III and IV alleged alternative counts of medical malpractice.

Counts V and VI added new allegations the school had violated the Florida Mental Health Act (Chapter 394, commonly called the “Baker Act”), including the failure to provide the least restrictive appropriate care and appropriate mental health services. The trial court granted the defendant’s motion for summary judgment, finding that the first four counts sounded in medical malpractice, and the Baker Act counts relied on new factual allegations and did not relate back to the original complaint. The Fifth District Court of Appeal reversed the dismissal of all but the medical malpractice counts. The Court found that, since non-medical personnel undergo TACT training and there was no requirement that the senior person deciding to use TACT methods be medically trained, there was a question of fact as to whether the injury was the result of a decision involving medical skill or judgment.

Therefore, summary judgment was improper as to the first two counts.

The 5th DCA affirmed summary judgment on the medical malpractice counts, rejecting the plaintiff’s argument that the statute of limitations had not yet expired. In regard to the Baker Act allegations, the Court noted that the original complaint had included broad allegations like the “failure to properly care for the minor,” and not just allegations relating to the single TACT incident. The Court held that the new Baker Act allegations related back to the original complaint because they arose out of the same “common core of operative facts,” and the

original complaint had given the defendant fair notice of the general factual situation.

Third District holds trial court erred in denying plaintiff’s motion for relief from judgment where plaintiff successfully reformed settlement agreement which had inadvertently released claims against non-settling defendant. Francois v. University of Miami, So.3d , 41 FLW D427 (Fla. 3d DCA 2-17-2016). The plaintiff in a medical malpractice wrongful death case settled with all but one defendant. The settlement agreement was drafted in such a way that the non-settling defendant argued that it was released from liability as well. The Third District Court of Appeal agreed in a prior written opinion, University of Miami v. Francois, 76 So.3d 360 (Fla. 3d DCA 2011). In that opinion, the Third DCA explicitly stated that it did not consider whether the plaintiff could have used reformation to reach a different result, because the plaintiff had not sought reformation below and did not argue on appeal that the trial court’s order below amounted to a reformation. After the appeal, the plaintiff successfully brought a separate action for reformation of the release to preserve its claims against the non-settling defendant, and then filed a motion for relief from judgment in the original case. The trial court denied the motion on the grounds that the Third District had determined the original release extinguished the plaintiff’s claim, and that holding constituted the law of the case. On appeal, the Third District held that the trial court had erred because the law of the case doctrine is “limited to questions of law actually presented and considered on a former appeal.” The Court explained that since its prior ruling had expressly not considered the issue of reformation, the plaintiff had been free to pursue that remedy, and had done so properly. (The Court did note that some case law suggests the plaintiff could have moved the trial court for reformation in the original case instead of having to file an independent action.) Once the release was reformed, the Court held, the reformation related back to the original release date.

The Third DCA also held the trial court had erred by concluding that the plaintiff did not show sufficient “mistake” to obtain relief under Florida Rule of Civil Procedure 1.540.

Third District holds Ahlborn, Wos, federal anti-lien provision do not apply where Medicaid beneficiary is deceased. Estate of Hernandez v. Agency for Health Care Administration, So.3d , 41 FLW D424 (Fla. 3d DCA 2-17-2016). A deceased patient’s estate settled a medical malpractice case before filing suit for $700,000 in unallocated damages. The estate filed a petition in probate court to determine the amount of Medicaid’s lien, requesting that the court allocate $500,000 to the survivors and $200,000 to the estate for the Medicaid lien, attorney’s fees, and “other economic damages.” The Agency for Health Care Administration (“AHCA”) argued that it was entitled to $262,500 prior to any apportionment of the proceeds, citing Florida’s Medicaid Third-Party Liability Act at §409.910(11)(f ), Florida Statutes. The estate argued that Arkansas Department of Health and Human Services v. Ahlborn, 547 U.S. 268 (2006) and the federal anti-lien provision in 42 U.S.C. §1396p(a)(1) preempted Florida’s Medicaid Third-Party Liability Act. While the case was pending, the decision in Wos v. E.M.A., 133 S.Ct. 1391 (2013) was issued, and the estate moved for an evidentiary hearing based on the rationale in that case. AHCA argued that no evidentiary hearing was needed, www.FloridaJusticeAssociation.org | March/April 2016 | 35

MEDICALMALPRACTICE

because Ahlborn and Wos do not apply when the Medicaid beneficiary is deceased. The probate court agreed with AHCA, and awarded its entire asserted lien of $292,500. The Third District Court of Appeal affirmed. The Third District noted that the issue of whether Ahlborn and Wos apply in the context of a deceased beneficiary appeared to be one of first impression in Florida. However, the Court concluded, the federal anti-lien provision by its plain language only applies when the Medicaid beneficiary is still alive, and the same is therefore true of Ahlborn, Wos, and the more recent Florida case Garcon v. Florida Agency for Health Care Administration, 150 So.3d 1101 (Fla. 2014), which are all based on the anti-lien provision. Therefore, federal law did not preempt the Medicaid Third-Party Liability Act as the estate argued. (The Court noted that the Florida Statutes were amended in 2013, after the instant case had settled, to require a hearing, but neither party argued that the amended statute applied.) The Third DCA also rejected the estate’s alternative argument that the Medicaid Third-Party Liability Act, when read together with the Wrongful Death Act (§§768.16-768.26, Florida Statutes), prohibited AHCA from asserting a lien on any portion of the settlement allocated to the survivors. The Third DCA acknowledged that under the Wrongful Death Act survivors’ damages are generally considered separate from those of the estate, and certain statutory liens do not attach to the survivors’ share of wrongful death settlement proceeds. However, the Court pointed to a line of cases allowing Medicaid liens specifically to attach to proceeds which “may be” attributable to survivors’ claims, on the grounds that the Medicaid Third-Party Liability Act requires Medicaid liens to be satisfied before apportionment of the settlement between the estate and survivors.

Fifth District holds plaintiff only entitled to interest on amended judgment from date of original judgment, rather than date of verdict. Shoemaker v. Sliger, So.3d , 41 FLW D391 (Fla. 5th DCA 2-12-2016). The jury in a medical malpractice wrongful death case awarded the plaintiff damages of over $7,000,000. The trial court reduced the verdict according to the defendant’s percentage of fault and applied the cap on damages in §766.118, Florida Statutes, entering judgment for about $1,300,000. The trial court’s reduction based on §766.118 caps was eventually reversed by the Fifth District Court of Appeal in an unpublished table decision, Shoemaker v. Sliger, 127 So.3d 525 (Fla. 5th DCA 2013). On remand, the trial court entered judgment for the plaintiff with interest from the date of the verdict, and the defendant appealed. The Fifth District agreed with the defendant’s argument that the plaintiff was only entitled to interest from the date the original judgment was entered. In its analysis, the Court considered but rejected the plaintiff’s argument that Florida Rule of Appellate Procedure 9.340(c) required a different conclusion, finding that the rule by its plain language only applies where there is no judgment entered before appeal. The Fifth DCA noted its disagreement with the Fourth District case Hyundai v. Ferayorni, 876 So.2d 680 (Fla. 4th DCA 2004), which held otherwise.

Second District holds new trial required where defendant added Fabre defendants shortly before trial, then withdrew Fabre defense after plaintiff presented evidence of their negligence; trial court did not give curative instruction. Edwards v. Rosen, So.3d , 41 FLW D295 (Fla. 2d DCA 1-29-2016). The estate of a deceased patient sued three doctors involved in her care, along with the hospital employer 36 | March/April 2016 | www.FloridaJusticeAssociation.org

of two other doctors. After one doctor was released from the case on summary judgment, the plaintiff settled with the other parties except one doctor. The remaining defendant initially asserted a Fabre defense regarding the settling parties, but the trial court struck the hospital as a Fabre defendant based on the rule that a non-party whose only liability is vicarious may not be named as a Fabre defendant. Twelve days before trial, the trial court allowed the defendant to amend his Fabre defense to name the two doctors who were hospital employees, despite the plaintiff’s argument that he would be prejudiced by the late notice. At trial, after the plaintiff presented evidence of negligence by the three Fabre defendants during his case in chief, the defendant withdrew the Fabre defense entirely. The plaintiff objected and moved for a mistrial, which the court denied. The plaintiff then moved for a curative instruction, but the court postponed ruling on the motion and never gave one. The jury found for the defendant, and the plaintiff moved for a new trial. The defendant argued that the plaintiff should have moved to amend his pleadings and add the Fabre defendants back to the verdict form, and the trial court agreed. The trial court noted that it was troubled and even “shocked” by the last minute withdrawal of the Fabre defense, but did not think it had grounds to set aside the jury verdict. The Second District Court of Appeal held that the trial court abused its discretion in denying the plaintiff’s motion for a new trial, based on the combination of the late amendment to the Fabre defense, its last-minute withdrawal, and the lack of any curative instruction. According to the Court, a new trial should be granted where the trial court, in its broad discretion, feels that “substantial justice was not accomplished by the jury’s verdict,” even if it is not “clear, obvious, and indisputable that the jury was wrong.” The Second DCA analogized the situation to cases where a contributory negligence defense is withdrawn at the last minute; in those situations courts have held that plaintiffs must be allowed to amend the pleadings to add themselves back to the verdict form. The difference here, the Court explained, is that the plaintiff could not have amended the complaint to add the Fabre defendants back in once they had been dismissed from the case. The fact that the trial court was mistaken about this added to the grounds for reversal. The Second DCA noted that the rule permitting defendants to waive any defense “is not carte blanche to engage in gamesmanship or abuse procedure,” and warned that “engaging in the procedural maneuvering utilized by [the defendant’s] trial counsel risks a new trial.” Judge Wallace dissented, arguing that the trial judge could have concluded based on the facts of the trial that the defendant had not gained any unfair advantage.

Third District holds trial court abused discretion by striking plaintiff’s pleadings over single piece of late-disclosed evidence.

Prater v. Comprehensive Health Care Center, LLC, So.3d , 41 FLW D238 (Fla. 3d DCA 1-20-2016). The evening after the first day of jury selection in a medical malpractice case, the plaintiff’s attorneys discovered a piece of overlooked evidence that had been misfiled early in the case and never disclosed. They immediately notified defense counsel, and brought it up in court first thing the next morning.

Initially, the court ruled that the late-disclosed evidence would be excluded for violating the pretrial order. After more thought, the court gave the plaintiff two options: to go to trial with the evidence excluded, or to agree to a mistrial and potentially bear the defendant’s fees and costs associated with that. The plaintiff chose the latter option, and the court reserved ruling on whether to award fees and costs. At a

later hearing on the sanctions issue, the trial court struck the plaintiff’s pleadings sua sponte. The Third District Court of Appeal reversed, holding the trial court had abused its discretion. Without going into much detail, the Third DCA held that there was no competent evidence that all seven factors in Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1993) had been met, particularly the “willful, deliberate and contumacious” factor and the finding of previous sanctions. Furthermore, the Court held, striking the plaintiff’s pleadings was not commensurate with the violation; the trial court could have remedied the problem by keeping out the evidence or awarding fees and costs.

First District holds plaintiff’s proposal for settlement invalid for failure to comply strictly with Florida Rule of Civil Procedure 1.442. Colvin v. Clements and Ashmore, P.A., 182 So.3d 924 (Fla. 1st DCA 1-15-2016). A married couple sued the wife’s OB/GYN clinic for allegedly failing to remove surgical clamps during a procedure. They served the defendant with a proposal for settlement for $20,000, which the defendant rejected. The proposal stated that it was to resolve all claims, “including, but not limited to, any claims for punitive damages,” and that it was “inclusive of costs and attorney’s fees.” After a jury awarded the plaintiffs at least 25 percvent more than the amount of the settlement proposal, the plaintiffs moved for attorney’s fees under §768.79, Florida Statutes and Florida Rule of Civil Procedure 1.442.

The defendant argued that the proposal was invalid because it failed to state whether attorney fees and punitive damages were part of the legal claim. The trial court recognized such a requirement was not logical where the plaintiff had not sought attorney fees or punitive damages in her complaint and could not have done so, but felt compelled to

deny the plaintiff’s motion based on the rule of strict compliance elucidated in Diamond Aircraft Industries, Inc., v. Horowitch, 107 So.3d 362 (Fla. 2013). The First District Court of Appeal affirmed, and certified conflict with Bennett v. American Learning Systems of Boca Delray, Inc., 857 So.2d 986 (Fla. 4th DCA 2003), in which the Fourth District held that it made no sense to require the plaintiff to state the proposal for settlement did not include attorney fees when the plaintiff had not claimed entitlement to them nor pled them in the complaint. Judge Kelsey concurred with an opinion explaining why strict compliance is necessary, in her view.

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 | March/April 2016 | 37

PRODUCTSLIABILITY

ABOVE GROUND POOLS DEATH ON A SHELF

by C. Richard Newsome and P. Alexander Gillen

F

lorida has more children under five die due to drowning than any other state. Annually, three to four preschool classrooms’ worth of kids drown. A closer look at these statistics reveals that a significant number of child drownings occur in above ground pools.

Above ground pools appeal to a wide array of potential consumers as they can be installed on a seasonal or temporary basis, and are significantly less expensive than in-ground pools. Compared to the tens of thousands of dollars the typical in-ground pool will cost, above ground pools can be purchased for just a few hundred dollars from many mass retailers and big-box stores. The simplicity of installation of an above-ground pool is another attraction as no special equipment, tools, or skills are typically needed, and the pools can be erected in around 90 minutes. A drawback of these pools, however, is that safety considerations which would be addressed by zoning or code enforcement in the installation of an in-ground pool can go overlooked in erecting an above ground pool, creating a drowning hazard for children. This article will discuss the unique hazards posed by above-ground pools, the pertinent laws and regulations, and the types of defect theories which may be pursued in an above-ground pool drowning case.

Florida Law on Residential Pool Barriers Drowning is the leading cause of death for children in Florida under the age of five. Recognizing this fact, the Legislature passed the Preston de Ibern/McKenzie Merriam Residential Swimming Pool Safety Act, Florida Statute §515.21. Significantly, this Act applies to residential pools with a depth greater than 24 inches whether aboveground or in ground. See Fla. Stat. §§515.25, 515.37.

Among other requirements, the Act mandates that residential swimming pools be equipped with a pool barrier. The pool barrier requirement is met by the use of: (1) an approved safety cover; (2) exit alarms on all doors and windows providing access to the pool; or (3) self-closing and self-latching doors with a release no lower than 54 inches from the floor. See Fla. Stat. §515.29.

In addition, Section 515.29(1)(a) provides that a barrier must be at least 48 inches high on the outside without any way for a young child to climb over or crawl under it. Section 515.29(2) provides that the structure of an aboveground swimming pool may be used as its barrier, but that structure must meet all barrier requirements of the section. Section 515.29(2) further provides that any ladders must be removable or capable of being secured to prevent access by children or surrounded by a barrier. Section 515.29(5) provides that a barrier may 38 | March/April 2016 | www.FloridaJusticeAssociation.org

not be located in a way that allows any permanent structure, equipment, or similar object to be used for climbing the barrier.

These provisions are significant in aboveground pool litigation as defendants often argue that the walls of the above ground pool satisfy the barrier requirements such that no additional structure is needed.

The fact remains though that many above ground pools are sold with heights ranging from 24 inches to less than 48 inches such that the Act would apply, but the height of the structure is insufficient to meet the height requirement of Section 515.29(1).

Defeating Compliance by Design Significantly, a large portion of the aboveground pools on the market are composed of plastic floor and walls with metal tubing serving as a top ring supported by vertical legs. In this construction of above ground pools, some manufacturers use a band of plastic material around mid-height of the pool wall to keep the plastic snug against the metal support leg. This manner of construction prevents the aboveground pool structure itself from serving as the barrier because Section 515.29(1)(b) requires that the barrier not have any gaps, indentions, protrusions or structural components that a small child could crawl over or through. Real world accounts have shown that small children can put their feet on the top edge of the plastic band, thereby gaining a toe hold at the gap between the plastic and support leg, and then use that toe hold to climb up and over the top of the pool wall. As such, the use of a plastic band as opposed to a full length sleeve disqualifies this design of an aboveground pool as one where the structure of the pool meets the barrier requirement.

Further, aboveground pools are often sold with ladders and equipment as kits, including a pump to circulate the water. These pumps are attached to the side of the pool with hosing and are in close proximity to the sides of the pools. The inclusion of the pump (equipment) in close proximity to the side of the structure runs afoul of Section 515.29(5) as these pumps have been used as points of entry by small children who are capable of climbing. The inclusion of the pump equipment will disqualify the structure of the aboveground pool from satisfying the barrier requirements and necessitate additional safety features to satisfy Section 515.27. Accordingly, any aboveground pool with a wall height of 24 to 47 inches, or an aboveground pool with a height of 48 inches or higher that has an attached pump in close proximity must have a barrier fence, or one of the alternative pool safety features.

Pool Safety Regulations in Practice Florida courts have yet to rule on whether the violation of the Preston

de Ibern/McKenzie Merriam Residential Swimming Pool Safety Act constitutes strict liability, negligence per se, or evidence of negligence.

Strong arguments exist that the Act should qualify as either strict liability, or at the very least, negligence per se. The Act contains a penalty provision indicating that failure to comply with the Act is a second degree misdemeanor. Moreover, the Act specifically identifies a protected class, children under six years of age, and is designed to protect that class of persons from their inability to protect themselves.

In addition to the Preston de Ibern/McKenzie Merriam Residential Swimming Pool Safety Act, local city and county ordinances as well as zoning codes may also contain safety requirements applicable to above-ground pools. The Second District Court of Appeal held that the violation of such an ordinance constituted negligence per se in Eckelbarger v. Frank, 732 So.2d 433 (Fla. 2d DCA 1999).

Aboveground pools rarely include sufficient instructions for the purchaser regarding the need for additional pool safety equipment that is not included in the package. Rather, these products are marketed and sold as being all that is needed for safe and enjoyable pool fun. The instructions regarding compliance with statutes and local ordinances regarding residential pools are given in only vague terms buried in small print. The pool industry knows that including explicit language to ensure that the purchaser is aware of the need to evaluate and purchase additional safety devices to comply with statutes would threaten sales, and it is cheaper for the company to simply blame the parent in any litigation.

The failure of the pool manufacturer to include sufficient safety devices has been brought as a basis for negligence in products liability cases.

In the case of Wagatsuma v. Patch, 879 P.2d 572, 10 Haw. App. 547 (Haw. Ct. App. 1994), the Hawaiian appellate court reversed entry of summary judgment in favor of the defendants, concluding that the manufacturer should not be allowed to put a product on the market which it admits is dangerous to young children without taking some reasonable measures to protect against foreseeable injury to them. Id. at 573. The Wagatsuma court acknowledged that the danger from swimming pools was obvious, such that warning of that danger was unnecessary. Id. at 570. However, the court noted, even the most attentive parents can have lapses of attention such that the obviousness of the danger does not entirely relieve the manufacturer of a duty to reasonably protect against injury. Id. at 571. The Wagatsuma court further noted there was no evidence that at the time of sale additional safety devices were offered, or that the purchaser was even aware of the existence of additional safety devices at that time. Id. at 575.

aluminum A-frame ladder included with the pool. Patent literature indicates that the industry has known that A-frame ladders can serve as potential points of unintended entry into aboveground pools since at least 1966. Thereafter, there have been several alternative designs to address the issue of unintended access to the pool by children under five. Most of these designs incorporate passive safety features of good pool safety practices, such as being self-closing, self-latching, and having releases more than 48 inches above the ground. Scientific testing we have conducted comparing the “standard-issue” A-frame ladder to these alternative designs show that the latter designs eliminate the hazard of unintended access to the pools by children.

An interesting wrinkle with regard to alternative designs of A-frame ladders for above ground pools is that France, Canada, and Australia all have heightened requirements regarding ladders beyond those in the U.S. The two largest manufacturers of aboveground pools, both of whom do all of their manufacturing in China for all markets, account for approximately 90 percent of all aboveground pools sold in the world. Both of these manufacturers supply U.S. customers with aboveground pools with the A-frame ladder design but sell an alternative ladder with removable or swing-up steps in other markets.

In the U.S. pool kits provided with the A-frame ladder often come with an instruction that the ladder should be removed when not in use. Moving past the feasibility of lifting a waterlogged ladder over a 48 inch high wall for someone of small stature, the fact remains that ladders are left in pools for various reasons. France has a rule requiring that all aboveground pools be equipped with steps that are capable of being removed so that the entire ladder need not be removed. The large aboveground pool manufacturers met this requirement by equipping pools sold in Europe with stair treads that are completely removable or that swing up around a pivot point greater than 48 inches in the air. The two largest aboveground pool manufacturers have failed to make these safer alternative design pool ladders available for sale in the U.S. Even knowing that these existing designs would save countless children’s lives in the U.S., as they do abroad, manufacturers do not even give consumers the option to purchase the safer designs simply because no one said they have to. Certainly the incremental increase in production cost, which would be absorbed throughout the volume of sales, would be worth the lives of American children.

The recognized product safety hierarchy taught in most design and engineering courses is that of “design-guard-warn.” That is, once the hazard is identified, the hazard should be designed out of the product if that can be done without impairing the utility of the product. If the hazard is one that cannot be designed out, then attempts must be made to guard against the hazard. If the hazard is such that it cannot be guarded against, then sufficient warnings must be included to convey the nature of the hazard and the potential consequences of coming in contact with that hazard.

Other Design Considerations Another common design issue in aboveground pool litigation is the

A-Frame Ladder

Alternative Design, Flip Up Ladder

www.FloridaJusticeAssociation.org | March/April 2016 | 39

PRODUCTSLIABILITY

Human factors studies have long shown that warnings are only partially effective, which is why warnings of a hazard are the last resort with regard to protecting consumers from that hazard. However, with aboveground pools for the U.S. market, manufacturers have taken the position that warnings are the only protection needed, ignoring sound engineering practices and statutory requirements. This needlessly exposes children to a hazard with potentially devastating consequences.

Conclusion In a perfect world, a child would never be unattended near a body of water. In reality, however, children can slip away unnoticed. Drowning is silent and fast and even a near-drowning or submersion incident can cause a catastrophic brain injury. While the dangers of in-ground pools are well known, these can be overlooked or underappreciated for above-ground pools. That above ground pools are readily available for purchase and same-day installation makes the need for safety by design to be the standard in the U.S., not the exception.

C. Richard Newsome

is the managing partner of the Newsome Law Firm, representing consumers who have been catastrophically injured by defective products. Mr. Newsome has published dozens of articles about the law and practice of product liability litigation that have received national recognition. Mr. Newsome was the 2010 – 2011 FJA President.

P. Alexander Gillen

is an attorney at Newsome Melton in Orlando. He concentrates his practice almost exclusively on products liability cases in state and federal courts throughout the U.S. He currently serves on the Board of Directors for the Central Florida Trial Lawyers Association and is a past recipient of the FJA Young Lawyers Mickey Smiley Award. Alex obtained his law degree with honors from the University of Florida, where he also double-majored and obtained bachelor’s degrees in Public Relations and Business Administration.

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WORKERS’COMPENSATION

RECENT CASES

by Michael J. Winer

W

hile the workers’ compensation community continues to patiently await the Florida Supreme Court’s decisions in Castellanos (and related attorney fee challenge cases) and in Westphal, here are your latest case law summaries: Prevailing Party Costs and Sanctions Soca v. Advanced Auto Parts & Sedgwick Claims Servs (Fla. 1st DCA 2-23-16)

Last month, in Jennings v. Habana Health Care Center/Gallagher Bassett, the court reminded that prevailing party costs awarded under F.S. §440.34(3) are available to the party that prevails “in any proceedings” and that an agreement to provide benefits after a PFB is filed would make the claimant the prevailing party for the purpose of costs. In Soca, the claimant filed petitions for benefits (PFB) and the E/C provided the benefits after the filing of the PFBs. Thereafter, the PFBs were withdrawn. The E/C then had the temerity to file a motion for costs, asserting that it was the “prevailing party” despite the fact that it provided the benefits after the PFB was filed. The claimant argued that none of the costs sought were due to the defense of the claims and eventually sent a 21-day sanctions letter. After the 21-day safe harbor period passed, the claimant filed a motion for sanctions with the JCC. Sensing something sticky and smelly on the bottom of its shoe, the E/C sought to clean the mess by simply withdrawing the motion to tax costs after the sanctions motion was filed. The JCC ruled he was without jurisdiction because the costs motion on which it was based was withdrawn before he had a chance to hear the sanctions motion.

The DCA reversed the jurisdictional finding and directed the JCC to make a determination as to the merits of the claim for costs. The DCA reasoned that under the JCC’s logic, the sanctions motion can 42 | March/April 2016 | www.FloridaJusticeAssociation.org

OF NOTE

never be heard unless the costs motion is refiled, and that “to conclude otherwise would render the safe-harbor provision meaningless and section 440.32 toothless.” The DCA held that the sanctions motion became “mature” once the E/C failed to withdraw the costs motion within the 21-day safe harbor period provided by Rule 60Q6.125(4)(a), and upon the filing of the sanctions motion, the JCC had jurisdiction to make findings about the merits of the costs motion (although not, given the withdrawal of the costs motion, to award or deny costs).

The lesson here is clear.... simply withdrawing a frivolous motion after the 21-day safe harbor period does not insulate a party from sanctions.

The E/C did all of this-- spent all of the legal time, costs and attorney’s fees all over $479 in costs (to which they were not even entitled). Why did the carrier practice such sloppy claims economics? Was it worth all the time and money it paid its attorney over $479 in costs? The point of this is that when the issue of “legislative reform” for attorney’s fees under §440.34 payable to claimants is brought up, the drum that gets beaten by the Chamber of Commerce is that fees to claimants are a significant cost driver to the system. I would submit that the more real and present cost driver to the system is the payment of defense attorney’s fees, especially in those cases where a proper cost/benefit analysis is not taken by the E/C. Evaluations/Burden of proving MCC MBM Corp./Sedgwick v. Wilson (Fla. 1st DCA 2-10-16) Claimant was injured on October 16, 2010, when he fell backwards out of the truck he was unloading, landing on asphalt and striking his head and right shoulder. Only a right shoulder injury was diagnosed, and treatment was authorized by the E/C for that injury. Four years later, claimant filed a petition for benefits requesting a referral to a physician

6. MCC must be demonstrated by medical evidence only. See section 440.09(1).

for evaluation of his head and neck pain. The E/C denied the request on grounds that any head or neck condition had not been accepted as compensable and that the compensable accident was not the major contributing cause of any head or neck condition. In support of his claim, claimant relied on the testimony of Dr. Macksoud, who testified it would be reasonable for claimant to have an evaluation to obtain a diagnosis for his neck condition, but he was not questioned as to whether there was any possible causal relationship. The JCC concluded it was reasonable, necessary, and appropriate, to refer claimant to a physician for an evaluation of his cervical spine. The DCA reversed and provided a primer on establishing compensability:

The DCA ruled that the claimant failed to meet the requirements of subsection 440.09(1) that he prove his injury and its occupational cause within a reasonable degree of medical certainty based on objective relevant medical findings. The DCA noted that the JCC used the incorrect standard in awarding the evaluation, conflating “the burden to prove entitlement to an investigation of the causal connection between voiced complaints and a previously accepted compensable condition with the burden to prove the causal relationship between a condition and the workplace accident in the first instance.” Here, the claimant never established compensability of his cervical condition in the first instance and the shoulder injury was the only compensable condition.

This case serves as an important checklist/reminder of what needs to be established in order to obtain compensability.

1. A claimant bears the burden of proof to establish entitlement to benefits.

2. A claimant has the burden to present expert medical evidence establishing a causal connection between the requested benefits and the compensable accident.

3. The injury, its occupational cause, and any resulting manifestations or disability must be established to a reasonable degree of medical certainty, based on objective relevant medical findings. See section 440.09(1).

4. Pain or other subjective complaints alone, in the absence of objective relevant medical findings, are not compensable. See section 440.09(1).

5. Establishment of the causal relationship between a compensable accident and injuries for conditions that are not readily observable must5:15 be by FJAJournal-7.5x4.75-4C.qxp 6/16/15 PMmedical Page 1 evidence only, as demonstrated by physical examination findings or diagnostic testing.

Misrepresentation/Scope of Defense and Pleading with Specificity. THG Rental and Sales of Clearwater/Summit Holdings Claims Center v. Arnold (Fla. 1st DCA 3-17-16) The claimant alleged injury to his back and right knee. After the third of five PFBs, the E/C responses denied benefits based on “misrepresentation.” In the Pretrial Stipulation, the E/C clarified only that: “misrepresentation per 440.09(4) and 440.105 –physical abilities and post-accident earnings.” At trial the claimant sought benefits only for his right knee and had abandoned his low back claim. Also, just two days before the trial, the claimant first raised an objection to the

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WORKERS’COMPENSATION

E/C’s defense, stating that it lacked the specificity required under Rule 60Q6.113(2)(h). The E/C presented video and medical testimony related to alleged misrepresentations regarding the back condition. The JCC denied the specificity objection and denied the misrepresentation defense, finding the misrepresentations concerned the back, which was not an issue.

The DCA found two things wrong with what occurred below, one benefitting each party in this case. First, the JCC too narrowly analyzed the E/C’s defense by considering only whether the alleged misrepresentation related to claimant’s knee. The JCC apparently believed that to prove misrepresentation, the E/C had to link the allegedly false statements directly to the particular injury and benefits being sought, to claimant’s knee. But such a requirement is not found in the law. If the claimant made any misrepresentation for the purpose of obtaining benefits, then he is barred from entitlement to benefits, even if the misrepresentation is unrelated to his knee injury or benefits based on that injury.

The second error related to the requirement for pleading a misrepresentation defense under Rule 60Q6.113(2)(h), which provides: “Any defense raised pursuant to Sections 440.09(4)(a) and 440.105, F.S., and any affirmative defense, must be raised with specificity, detailing the conduct giving rise to the defense, with leave to amend within 10 days.” The DCA agreed that the E/C’s defense did not specifically “detail the conduct” forming the basis of the misrepresentation. However, the rule allows the party to amend within 10 days of such objection. As the objection came two days prior to trial, the E/C did not have sufficient time to amend the defense. The case was reversed and remanded to allow the E/C to amend and the claimant to respond, and thereafter the JCC will consider the defense without limitation as to the specific right knee injury.

Two important reminders emerge from this decisions. First, the “misrepresentation” defense is all encompassing and applies to “any” false statements, “even if the misrepresentation is unrelated to his knee injury or benefits based on that injury.” As the DCA has recognized, “it is not necessary that a false, fraudulent, or misleading statement be material to the claim; it only must be made for the purpose of obtaining benefits.” Second, a claimant cannot just idly stand by if a non-specific misrepresentation defense is raised in the Pretrial Stipulation. The rule also requires that, “[a]ny objections/responses to the affirmative defenses must be pled with specificity” and that upon notification of the objection on the basis of lack of specificity, the E/C must be given “leave to amend within 10 days.” Counsel who are confronted with these defenses would be wise to articulate the response in the Pretrial so the E/C is on notice that their defense is not specific.

F.S. §440.205 Retaliation Claim/Legal Cause of Damages Caterpillar Logistics Services v. Amaya (Fla. 3d DCA 3-2-16) A jury awarded the plaintiff back pay and future pay on his claim that Caterpillar unlawfully retaliated against him for filing a workers’ compensation claim in violation of F.S. §440.205, Florida Statutes (2008). After a post-trial reduction for TTD benefits paid, the amount was $571,883.64. At trial, plaintiff’s psychologist testified that the

44 | March/April 2016 | www.FloridaJusticeAssociation.org

plaintiff suffered from depression related to the retaliation, and this condition did not allow him to work. The jury rejected his claims that the retaliation caused these conditions or resulted in any psychological condition or need for psychological treatment. The DCA found that because Amaya was not physically able to work prior to and after Caterpillar’s alleged retaliation (including through the date of trial), Caterpillar’s retaliation could not be the legal cause of any of Amaya’s economic damages. The court reasoned that to be entitled to an award of lost wages, the employee must be ready, willing, and able to accept employment. Thus, when a plaintiff is unable to return to work for an independent reason not caused by the employer, lost past and future wages and benefits may not be awarded. The DCA reversed the final judgment and remanded with directions to enter judgment in favor of Caterpillar as the plaintiff was not entitled to an award of back pay or front pay as a matter of law.

Admissibility and presumption of correctness of EMA opinions outside scope of JCC assignment. Lowe’s Home Centers/Sedgwick CMS v. Beekman, (Fla. 1st DCA 3-4-16) The JCC appointed an EMA regarding on the issue shoulder surgery and posed two questions: (1) medical necessity and (2) causal relationship of the proposed shoulder surgery. The parties then completed a Pretrial Stipulation in which the E/C, for the first time, asserted a defense of apportionment. Several months later, the EMA testified the shoulder injury was an aggravation of a preexisting condition. The JCC subsequently granted the claimant’s motion to strike these opinions, noting that no party had requested that issue be addressed, nor did the EMA’s report address that issue. The DCA reversed, noting that it was faced with the issue of what happens if the EMA, after examining the claimant, rejects all of the previous assessments and raises questions and renders opinions that neither party considered and whether those opinions are admissible. Given that the evidence code in sections 90.401 and 90.402, Florida Statutes (2013), generally provides that all relevant evidence, that is, evidence tending to prove or disprove material facts, is admissible, it follows that all of the opinions of an EMA are indeed admissible. However, those opinions voiced by an EMA which “exceed the scope” of the perceived disagreement would not be presumptively correct and these “other” medical opinions expressed by the EMA would instead carry the same weight as that of an independent medical examiner or an authorized treating physician. Only those opinions that address already identified disagreements would carry the presumption of correctness.

The opinion also allowed the parties to reopen the evidence on the issue of apportionment.

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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www.FloridaJusticeAssociation.org | March/April 2016 | 45

EVIDENCE

EVIDENCE TRIAL NOTEBOOK A QUICK REFERENCE FOR TRIAL: Hearsay exceptions – Spontaneous Statement (§803(1))

by Matt Schultz

T

he 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:

A statement made one to two hours after event during course of police investigation does not qualify as a spontaneous statement. Preston v.

State, 470 So.2d 836, 837 (Fla. 2d DCA 1985).

(1) SPONTANEOUS STATEMENT.—A spontaneous statement

A statement that otherwise qualifies may be excluded if it is “self-serving and made under circumstances that indicate its lack of trustworthiness.”

Overton v. State, 429 So.2d 722, 723 (Fla. 1st DCA 1983) (excluding defendant’s statement upon arrest that the police had the wrong guy and the right guy was getting away).

• “There must be a substantial contemporaneity between the event and the out-of-court statement.” Ehrhardt, Fla. Evidence §803.1 (2015).

• “There is not a requirement for an exciting or startling event or condition for statements to be admitted under section 90.803(1).”

Id. • “The statement must describe or explain the event or condition that the declarant was perceiving. Statements describing past events are excluded under section 90.803(1) because of the lack of necessary contemporaneity.” Id. • The federal counterpart is Fed. R. Evid. 803(1) (“Present Sense Impression”).

Statements by unidentified bystanders are inherently untrustworthy.

Wal-Mart Stores, Inc. v. Jenkins, 739 So.2d 171, 172 (Fla. 5th DCA 1999) (excluding plaintiff’s testimony that after a fall a bystander said “this should have been mopped up 15 minutes ago” where “[t]here was no evidence to establish that the phantom declarant was even in the store 15 minutes before the fall in order to ‘perceive the event,’ nor was there evidence that the declarant actually observed the substance on the floor at any time prior to the fall…. [T]his type of nebulous evidence, which cannot be effectively challenged, is an open invitation to fraud.”)

Caselaw “A spontaneous statement must be made at the time of, or immediately following, the declarant’s observation of the event or condition described…. [T]he statement must be made without the declarant first engaging in reflective thought. The statements admitted under section 90.803(1) are limited to statements which ‘describe or explain’ an event.” Ibar v. State, 938 So.2d 451, 467 (Fla. 2006) (internal quotations and citations omitted).

Daubert does not include weighing persuasiveness of opinion.

Plaintiff’s decedent was found shot to death in a tree stand with a rifle dangling from a rope attached to the stand. Plaintiff sued Remington alleging a defect in the rifle. Plaintiff’s causation expert opined the trigger mechanism was defective causing a “precipitous sear engagement” due to the presence of interferences such as dirt or other particles. The expert admitted that he had never in previous cases actually seen a precipitous sear engagement due to interferences, but explained this was because the rifle’s condition would change before he inspected it. The trial court excluded his opinion as speculative and granted summary judgment for defendant. The district court found the expert had not adequately accounted for alternative causes and based his opinions on facts not in the record. Analyzing Daubert’s “reliability” prong, the Eleventh Circuit found the testimony admissible based on the specific facts of the case and reversed: “Once an expert opinion has satisfied Daubert, a court may not exclude the opinion simply because it believes that the opinion is not—in its view—particularly strong or persuasive.” Seamon v. Remington Arms Co., Case. No. 14-15662 (11th Cir. 2-17-16).

describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter, except when such statement is made under circumstances that indicate its lack of trustworthiness.

The “view requiring a startling event in order for the spontaneous exception to apply is contrary to the underlying principles embodied in section 90.803(1) [and] we now reject this view.” Deparvine v. State, 995 So.2d 351, 369 (Fla. 2008).

“Florida courts have made clear in both pre- and post-evidence code cases that a narrative of past events cannot qualify as spontaneous statements or excited utterances.” Deparvine v. State, 995 So.2d 351, 370 (Fla. 2008).

46 | March/April 2016 | www.FloridaJusticeAssociation.org

Recent Cases of Interest NOTE: Recent cases may not be released for publication.

Plaintiff’s receipt of Medicare/Medicaid inadmissible. Defendant sought to introduce testimony that a brain-injured child’s future medical expenses would be significantly lowered based on free or lowcost medical care provided by the state (Medicare and Medicaid). The trial court excluded the testimony. The Fourth DCA affirmed, citing the recent Joerg opinion. Go. v. Normil, So.3d , 41 FLW D91 (Fla. 4th DCA 1-6-16).

An out-of-court statement offered for a purpose other than proving the truth of its contents is admissible only when the purpose for which it is offered is a material issue in the case. A professor was fired for sexual harassment based on an investigative report that contained hearsay accusations by unnamed persons. The professor brought suit for breach of his employment contract. The trial court admitted the report because it was offered not for its truth but to show the reasonableness of the employer’s investigation. The Fifth DCA disagreed, finding that the reasonableness of the employer’s investigation was not a defense in a breach of contract action and therefore the report was, in effect, offered only for its truth. When an out-of-court statement is being “offered for a purpose other than proving the truth of its contents[, it] is admissible only when the purpose for which the statement is being offered is a material issue in the case.” The court also found error in the admission of expert testimony by an attorney that the employer had cause to terminate the plaintiff and was not legally required to permit plaintiff to confront his accusers. Mootry v. Bethune-Cookman Univ., So.3d , 41 FLW D146 (Fla. 5th DCA 1-8-16).

Sign on restaurant was a “verbal act” and therefore a photo of it was not hearsay. Defendant was arrested for trespass at a McDonald’s bearing a sign that authorized all city police officers to order people from the property and stated they would be arrested if they failed to heed police warnings. Defendant objected to a photo of the sign on hearsay grounds. The Fourth DCA affirmed its admission finding the sign constituted a “verbal act” authorizing the arrest (where there was an issue whether the police officer was “authorized” to order defendant’s departure under the trespass statute): “The words on the sign amounted to a verbal act and not hearsay, because they had ‘independent legal significance—the law attaches duties and liabilities to their utterance.’”

A.J.M. v. State, So.3d , 41 FLW D157 (Fla. 4th DCA 1-13-16).

Witness who gave birth eight days before trial is medically “unavailable” as a witness. The trial court deemed the witness medically unavailable and permitted the state to read her prior testimony from a recent trial involving the same parties and charges.

The First DCA affirmed, finding it was reasonable for the judge to rely on his own family experiences with childbirth in reaching his decision.

Richardson v. State, So.3d , 41 FLW D195 (Fla. 1st DCA 1-15-16).

Partial read-back of witness testimony is error. Recognizing that trial courts have broad discretion concerning the read-back or playback of testimony, it found error where the court permitted the jury to end the read-back at any time: “We conclude that the trial court erred by permitting the jury to cease the read-back at any time, thereby allowing the jury to hear a partial read-back of Detective Johnson’s testimony that placed undue emphasis on and served to bolster the State’s version of events. While the trial court has broad discretion in granting or denying a request for a read-back, the trial court here deprived itself

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EVIDENCE of the ability to exercise that discretion by allowing the jury to modify the scope of the read-back request while the read-back was ongoing.”

Gormady v. State, So.3d , 41 FLW D218 (Fla. 2d DCA 1-20-16).

expert “couldn’t have taken a contradictory position in his affidavit because he didn’t have one in his deposition.” Lesnik v. Duval Ford, LLC, So.3d , 41 FLW D281 (Fla. 1st DCA 1-28-16).

Trial court properly struck summary judgment affidavit containing new opinions by expert. The expert confirmed at deposition he had no opinions on whether an auto dealer did anything to cause a single-vehicle truck accident and he had no opinions on whether the truck at issue was defective. On summary judgment plaintiff submitted an affidavit by the expert opining the dealer should have known the truck was dangerous and should have warned plaintiff. The First DCA upheld the trial court’s decision to strike the affidavit as “irreconcilably inconsistent” with his earlier testimony. Judge Makar dissented, reasoning that the

Defendant’s statement that “shit happens” following accident was improperly admitted. A defendant’s mental state following an accident is not relevant to whether he operated his vehicle in a reckless manner.

Even if relevant, it would be barred by 403: “The probative value of the statement, if any, was minimal. On the other side of the balancing test, evidence that appellant said ‘shit happens’ at the scene of an accident that killed an 11–year–old girl was undoubtedly inflammatory. Such evidence was unfairly prejudicial because it was designed to appeal to the jury’s emotions by portraying appellant as callous and uncaring.”

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This involved a prosecution for the vehicular homicide, but would be persuasive in a civil MVA case. Opsincs v. State, So.3d , 41 FLW D367 (Fla. 4th DCA 2-10-16).

Green Tree’s witness testified regarding the contents of a business record not in evidence, the trial court should have sustained Appellants’ hearsay objection.”)

Daubert objection untimely when raised for the first time after trial (despite “beyond his expertise” objection during trial). In a motor vehicle case, defendant objected at trial to a neurosurgeon’s testimony that a herniated disc was consistent with plaintiff’s testimony that she twisted and the car spun during the accident. Defense counsel didn’t mention Daubert but objected and moved for mistrial on grounds this was “outside the scope of his expertise” because he was “not an accident reconstructionist or a biomechanical expert.” Defendant renewed its motion properly but never mentioned Daubert. When invited by the court to brief the matter post-trial, defendant raised Daubert for the first time. The court granted the motion, citing Daubert. The Third DCA reversed: “[I]t is undisputed that the defendant failed to raise a Daubert objection or request a Daubert hearing prior to the conclusion of trial. This failure is fatal to the defendant’s case, particularly in light of the fact that the defendant was on notice that the neurosurgeon would be an expert witness … over ten months before the October 27, 2014, start of trial. Despite this disclosure, the defendant took no steps to discover the basis of the neurosurgeon’s opinion. Moreover, it was incumbent upon the defendant, as the challenging party, to timely raise a Daubert objection and request a hearing before the trial court.”

Rojas v. Rodriguez, So.3d , 41 FLW D423 (Fla. 3d DCA 2-17-16).

Excited utterances summarized. “There are three requirements for a statement to qualify as an excited utterance: (1) there must have been an event startling enough to cause nervous excitement; (2) the statement must have been made before there was time to contrive or misrepresent; and (3) the statement must have been made while the person was under the stress of excitement caused by the startling event.” Smith v. State, 2016 WL 64341, 41 FLW D106 (Fla. 4th DCA 1-6-16) (internal quotations omitted).

Even a weak inference can demonstrate relevance. “The availability of alternative theories regarding the evidence does not, alone, make evidence irrelevant. Relevant evidence need not concretely prove a material fact, it merely must tend to prove a material fact.” Ragin v.

State, So.3d , 41 FLW D482 (Fla. 4th DCA 2-24-16) (emphasis in original).

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.

The business records exception does not allow testimony regarding business records not in evidence. Helton v. Bank of Am., N.A., So.3d , 41 FLW D250 (Fla. 5th DCA 1-22-16) (“Here, because

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www.FloridaJusticeAssociation.org | March/April 2016 | 49

CIVILPROCEDURE

SANCTIONS FOR FRIVOLOUS FILINGS: You Can Run But You Cannot Hide

By Roy D. Wasson

A

favorite tactic of attorneys representing defendants is to create a conflict between plaintiffs and their counsel by filing motions for sanctions under §57.105, Fla. Stat.

Although such motions are rarely granted, and some motions for sanctions are themselves frivolous, trial lawyers must use care to protect themselves and their clients from having to pay fees to the other side for raising claims unsuccessfully. This article cautions counsel that sanctions may be awarded against plaintiffs who have voluntarily dismissed their lawsuits and against their former attorneys who have withdrawn. Further, such sanctions proceedings spell the risk of exposing you and your client file to discovery on possible weaknesses of your case that support awards of sanctions.

In Tedrow v. Cannon, No. 2D15-3405; 2016 Fla. App. LEXIS 2391; 41 FLW D446 (Fla. 2d DCA 2-19-16), the court held that a notice of voluntary dismissal does not divest a trial court of jurisdiction to award sanctions under §57.105, Fla. Stat. (2011), even after a voluntary dismissal is taken. If the plaintiff does not file a notice of voluntary dismissal or withdraw the offending pleading within 21 days1 of a defendant’s request for sanctions under §57.105, the defendant may file the sanctions motion with the trial court, whereupon the trial court will have continuing jurisdiction to resolve the pending motion and to award attorney’s fees under that provision if appropriate, regardless of the plaintiff’s subsequent dismissal. The court also held that the party seeking sanctions is entitled to discovery from her opposing counsel and his client of non-privileged information gathered after the lawsuit was filed and contained in the attorney’s file, whereas prior law limited such discovery to information gathered before the lawsuit was filed.

To begin with, the longstanding standard under which sanctions were recoverable under §57.105 has been modified to make sanctions more available than previously. The 1997 version of §57.105(1) provided for fees when “there was a complete absence of a justiciable issue of either law or fact raised by the complaint or defense of the losing party.” The 50 | March/April 2016 | www.FloridaJusticeAssociation.org

courts interpreted this language to require the moving party to “establish that the cause of action was so clearly untenable, or that its insufficiency was so manifest, that its frivolous character can be determined on a bare inspection of the record without argument or research.” Jackson v. York Hanover Nursing Centers, Inc., 853 So.2d 600 at 601-02 (Fla. 5th DCA 2003)(citing Whitten v. Progressive Cas. Ins. Co., 410 So.2d 501 (Fla. 1982)).

Thus, discovery of post-filing activities and information was not necessary under the prior version of §57.105, because courts would “not require additional discovery to determine whether a cause of action at its inception was completely untenable and frivolous” and such discovery was “unnecessary because a determination should be based on the face of the prejudgment record.” Id. at 602. (Emphasis added).

Under the current version of §57.105(1), on the other hand, sanctions are available when “the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial . . . [w]as not supported by the material facts necessary to establish the claim or defense; or . . . [w]ould not be supported by the application of then-existing law to those material facts.” This language “broaden[s] the remedies that were previously available” under the statute. Wendy’s of N.E. Fla. v. Vandergriff, 865 So.2d 520, 523 (Fla. 1st DCA 2003). The newer statute “no longer requires a party to show a complete absence of a justiciable issue of fact or law; but instead allows recovery of fees for any claims or defenses that are unsupported.” Id. Case law discussing the amended version of §57.105 allows the trial court to look to more than just the complaint in determining entitlement to fees. The trial court may look to the record and should hold a full evidentiary hearing if necessary. See Mason v.

Highlands Cty. Bd. of Cty. Comm’rs, 817 So.2d 922, 923 (Fla. 2d DCA 2002) (“A finding that a party is entitled to recover attorney’s fees under section 57.105 must be based upon substantial, competent evidence presented at the hearing on attorney’s fees or otherwise before the court and in the record. … [N]o substantial, competent evidence in support of the motion for fees was presented to the trial court or is contained in the record ....” (citation omitted)); Blue Infiniti, LLC v. Wilson, 170 So.3d 136, 140 (Fla. 4th DCA 2015) (holding that because the record did not support claim for §57.105 fees, “a full evidentiary hearing was necessary”)(emphasis added); Ferdie v. Isaacson, 8 So.3d 1246, 1250 (Fla. 4th DCA 2009) (“A trial court’s decision under section 57.105(1) must be supported by competent substantial evidence; therefore, it follows that a full evidentiary hearing on the good faith issue is necessary.”); Hustad, P.E. v. Architectural Studio, Inc., 958 So.2d 569, 571 (Fla. 4th DCA 2007) (“Even when the lawsuit is dismissed in its early stages, the movant under section 57.105 is entitled to present evidence and establish a record for purposes of demonstrating entitlement to attorney’s fees.”).

The court in Tedrow denied the plaintiff’s petition for certiorari seeking review of the trial court’s order compelling depositions of the plaintiff’s attorney and other discovery. However, the court made it clear that “[e]ven though an evidentiary hearing is appropriate and Cannon may present evidence to support his claim for fees, he is not entitled to privileged information from Tedrow or her counsel in order to prove his claim for fees. Section 90.502, Florida Statutes (2011), protects communications between Tedrow and her counsel. “A client has a privilege to refuse to disclose, and to prevent any other person from disclosing, the contents of confidential communications when such other person learned of the communications because they were made in the rendition of legal services to the client.” §90.502(2). Id. at ** 9-10.

The litigation of the defendant’s motion for sanctions is the only thing left of the Tedrow case, because the plaintiff’s counsel withdrew and the case was voluntarily dismissed. The court cited Pino v. Bank of New York, 121 So.3d 23 (Fla. 2013) which held that “[a] notice of voluntary dismissal does not divest a trial court of jurisdiction to award sanctions under section 57.105 . . . even after a voluntary dismissal is taken.”

Id. at 41. The Pino court went on to consider the 21-day safe harbor provision of section 57.105(4) and stated that [i]f the plaintiff does not file a notice of voluntary dismissal or withdraw the offending pleading within twenty-one days of a defendant’s request for sanctions under section 57.105, the defendant may file the sanctions motion with the trial court, whereupon the trial court will have continuing jurisdiction to resolve the pending motion and to award attorney’s fees under that provision if appropriate, regardless of the plaintiff’s subsequent dismissal.

121 So.3d at 42-43.

Thus, you can run from a sanctions motion by withdrawing from the lawsuit as counsel, and your client can run by filing a voluntary dismissal; but neither of you can hide from the reality of sanctions by such actions taken after the safe harbor period has expired. Nor can you run from providing your deposition and other discovery on the

good faith issue. However, at least you will not have to disclose work product or attorney-client privileged materials. The court foreclosed such discovery by holding as follows: None of the exceptions to the privilege in section 90.502 apply in this case. See §90.502(4) (listing five exceptions). “[T]he attorney-client privilege . . . is not concerned with the litigation needs of the opposing party.” Genovese v.

Provident Life & Accident Ins. Co., 74 So.3d 1064, 1068 (Fla. 2011) (holding that “when an insured party brings a bad faith claim against its insurer, the insured may not discover those privileged communications that occurred between the insurer and its counsel during the underlying action” even though the “underlying claim materials are the evidence needed to determine whether an insurer acted in bad faith”). Tedrow and her counsel’s communications may be relevant to Cannon’s claim for fees, but “there is no exception provided under section 90.502 that allows the discovery of attorney-client privileged communications where the requesting party has demonstrated need and undue hardship.” Genovese, 74 So.3d at 1068; see also Tumelaire v. Naples Estates Homeowners Ass’n, Inc., 137 So.3d 596, 598-99 (Fla. 2d DCA 2014) (granting certiorari and quashing order requiring plaintiff to disclose privileged information regarding her fee arrangement with her attorney even though defendant sought documents to prove an essential fact in its defense against plaintiff’s claim); Quarles & Brady, LLP v. Birdsall, 802 So.2d 1205, 1206 (Fla. 2d DCA 2002) (“[U]ndue hardship is not an exception, nor is disclosure permitted because the opposing party claims that the privileged information is necessary to prove their case.” (citations omitted)); Fla. Power & Light Co. v. Hicks, 162 So.3d 1074, 1075-76 (Fla. 4th DCA 2015) (granting certiorari and quashing order requiring defendant to disclose privileged documents that were relevant to plaintiff’s cause of action against defendant because “attorney-client privilege is not defeated by an opponent’s showing of relevance and necessity” (citing Genovese, 74 So.3d at 1068)). In addition, opinion work product--which includes the attorney’s mental impressions, conclusions, opinions, or theories concerning his client’s case--is “absolutely, or nearly absolutely, privileged.” Butler v. Harter, 152 So.3d 705, 712-13 (Fla. 1st DCA 2014) (quoting State v. Rabin, 495 So.2d 257, 262 (Fla. 3d DCA 1986)). Accordingly, Cannon is not entitled to discover any information from Tedrow, Amber, and her counsel that is protected by the attorney-client privilege or the opinion work-product privilege.

Id. at ** 10-11 (footnote deleted).

In closing let me assure our readers that there is nothing frivolous about the plaintiff’s position in the Tedrow case because there existed conflicts in the material facts upon which the lawsuit was based. FJA member Joseph Bryant is defending his former client from the motion for sanctions on a pro bono basis and should ultimately prevail on the 57.105 issue. However, if you find yourself in a position where fees www.FloridaJusticeAssociation.org | March/April 2016 | 51

CIVILPROCEDURE might be awarded, the lesson is to act within the safe harbor period, for running away from the case later will not allow you to hide from the sanctions being sought against you.

CIVIL PROCEDURECASE SUMMARIES Privilege Log Can Await Preliminary Finding of Discoverability: In the lead case featured in this month’s article, the Second District held that a privilege log was not required to preserve work product and attorney client privileges where discovery was being sought including the plaintiff attorney’s deposition and file materials. In Tedrow v.

Cannon, No. 2D15-3405; 2016 Fla. App. LEXIS 2391; 41 FLW D 446 (Fla. 2d DCA Feb. 19, 2016), the court agreed that “[a] party is required to file a privilege log when the party claims that information sought in discovery is protected by privilege.” Id. at *12 (citing Morton Plant Hosp. Ass’n v. Shahbas ex rel. Shahbas, 960 So.2d 820, 826 (Fla. 2d DCA 2007). “Although waiver of the attorney-client privilege and work-product privileges is not favored in Florida, the rule is mandatory and a waiver can be found by failure to file a privilege log.”

Id. (quoting Gosman v. Luzinski, 937 So.2d 293, 295 (Fla. 4th DCA 2006)). But the party claiming privilege is only required to file such a log after the trial court has made the preliminary determination that the information sought is otherwise discoverable. See State Farm Fla. Ins. Co. v. Coburn, 136 So.3d 711, 711 (Fla. 2d DCA 2014) (citing Morton Plant Hosp. Ass’n, 960 So.2d at 826). Where there is a dispute about the discoverability of matter that is based upon grounds other than privilege, once the trial court enters an order determining that the information is “otherwise discoverable,” the objecting “party could later file a privilege log asserting the privileges before producing the discovery.” Id. at ** 14-15.

Sanctions Awarded for Discovery Violation: In Griffith v. Ramzey’s A Plus, Inc., No. 5D15-486; 2016 Fla. App. LEXIS 3360 (Fla. 5th DCA March 4, 2016), the court affirmed an award of attorney’s fees as a sanction against a litigant and her attorney. That sanction was imposed pursuant to Fla. R. Civ. P. 1.380(a)(4). The client, on her attorney’s advice, “refused to answer a deposition question, asserting that the question was irrelevant and an improper hypothetical.” Id. at *1. The Fifth District rejected the appellants’ argument that the trial court “improperly sanctioned them without making the findings required by Kozel v. Ostendorf, 629 So.2d 872 (Fla. 1993).” Id. at *1.

The court distinguished the Kozel case by holding that “Kozel applies when the trial court dismisses a case or claim, enters a default, or strikes pleadings as a sanction. It does not apply when expenses are assessed, as here, under Rule 1.380(a)(4).” Id at *1.

Preservation of Error in Entering Default: The Fourth District Court of Appeal affirmed the trial court’s idle judgments following an improperly-entered default. In Ramgel v. MidFirst Bank, No.4D15-548; 2016 Fla. App. LEXIS 3107 (Fla. 4th DCA 3-2-16), the trial court had improperly entered a default following filing of a responsive pleading, without giving the defendant notice. However, because there was no transcript of the hearing in which the defendant’s motion to vacate the default was argued, and because the defendant failed to attend the trial on damages, at which time he could have objected to the improper entry of the default, the issue is not preserved for appellate review.

52 | March/April 2016 | www.FloridaJusticeAssociation.org

Trial Court Lost Jurisdiction to Enforce Settlement: Although trial courts retain jurisdiction to enforce settlement agreements where the court enters an order of dismissal pursuant to the settlement, in a case before the Second District the court held that trial courts lack jurisdiction to enforce settlement agreements where the parties merely file a stipulation for voluntary dismissal as opposed to obtaining an order dismissing the case. In Dandar v. Church of Scientology Flag Service Organization, Inc., No. 2D14-1511; 2016 Fla. App. LEXIS 3031 (Fla. 2d DCA 3-2-16), the court distinguished the line of cases permitting trial courts to enforce settlement agreements where the case is dismissed by court order pursuant to settlement, holding: “There is a difference between presenting a settlement agreement to the trial court for approval prior to dismissal of an action and cases where the parties voluntarily dismiss the action without an order pursuant to Florida Rule of Civil Procedure 1.420. A voluntary dismissal under rule 1.420(a) divests the trial court of continuing jurisdiction over the case.” Id. at **5 and 6 (quoting from Albert v. Albert, 36 So.3d 143, 147 (Fla. 3d DCA 2010)).

Premature Involuntary Dismissal reversed: The Fourth District Court of Appeal reversed the trial court’s grant of the defendant’s motion for involuntary dismissal in a non-jury matter. In Wells Fargo Bank, N.A. v. Gonzalez, 4D14-145; 2016 Fla. App. LEXIS 3131 (Fla. 4th DCA 3-2-16), the court held that the trial court improperly granted a defendant’s motion for involuntary dismissal. The motion was improperly granted prior to the completion of the plaintiff’s casein-chief. Further, the dismissal was based upon evidence concerning an affirmative defense (release) that had not been properly pleaded by the defendant. The court rejected the defendant’s argument that the pleadings should have been conformed to the evidence of the release, because “after Wells Fargo objected on the grounds that the release was not presented in the pleadings, the Gonzalez’s never moved to amend the pleadings.” Id. at *11.

Bond Required for Temporary Injunction: The trial court has no discretion to waive the requirement of posting a bond before issuing a temporary injunction. In CJ & Partners, LLC v. Di Giacomo, No. 3D15-2119; 2016 Fla. App. LEXIS 2688 (Fla. 3d DCA 2-24-16), the court reversed the trial court’s grant of a temporary injunction ordered without requiring posting of a bond. The court cited Fla. R. Civ. P. 1.610(b), which provides: “No temporary injunction shall be entered unless a bond is given by the movant in an amount the court deems proper, conditioned for the payment of costs and damages sustained by the adverse party if the adverse party is wrongfully enjoined.” The court rejected the argument that an administrative order entered by the Eleventh Judicial Circuit could support the issuance of a temporary injunction without a bond, noting that “this administrative order cannot take precedence over Rule 1.610 and, to the extent they are in conflict, the statewide rule of procedure prevails.” Id. at *3 No Need to Appeal Fee Award When Underlying Merits Judgment Reversed: In Travelers Commer. Ins. Co. v. Harrington, No. 1D15-1121; 2016 Fla. App. LEXIS 2949 (Fla. 1st DCA 2-26-16), the First District held that the trial court erred in denying a motion to vacate an attorney’s fee award filed under Fla. R. Civ. P. 1.540(b)(5), when the underlying merits judgment had been reversed in a related appeal. The court held that there is no need to separately appeal a fee award when the losing party had successfully appealed the underlying judgment.

No Rehearing of Order Entered on Rule 1.540(b) Motion: In Security Nat’l. Mortg. Co. v. Reid, So.3d , 41 FLW D473 (Fla. 4th DCA 2-24-16), the plaintiff failed to appear at a pretrial conference, resulting in the trial court dismissing the case. The plaintiff thereafter moved to vacate the dismissal pursuant to Fla. R. Civ. P. 1.540 (b).

Following denial of that motion, the plaintiff filed a motion for rehearing. In reversing the trial court’s order on that motion for rehearing, the court held that “[t]he Florida Rules of Civil Procedure do not authorize the rehearing of an order entered on a Rule 1.540(b) motion . … The lower court was therefore without jurisdiction to rehear Security’s motion after it had already denied it.” Id. at *1.

Non-Party Attorney General Can Voluntarily Dismiss Qui Tam Case: In Barati v. State of Florida, So.3d , 41 FLW D456 (Fla. 1st DCA 2-23-16), the court held that the Florida Attorney General could voluntarily dismiss a qui tam case brought under the Florida False Claims Act, Section 68.081, Fla. Stat., et seq., even though the Attorney General had refused to intervene in the action. The court held that the subject statute broadly permitted the State to voluntarily dismiss a qui tam action in which it was not a party, holding that any conflict between that statute and the Florida Rules of Civil Procedure had to be resolved in favor of the statute, because the rights set forth in were substantive rather than procedural.

wholly new lawsuit against the same defendant if the right to do so has not been exercised before.” Randall-Eastern Ambulance Serv., Inc. v. Vasta, 360 So.2d 68, 68 (Fla. 1978). In Nolan v. Mia Real Holdings, LLC, So.3d , 41 FLW D487 (Fla. 4th DCA 2-24-16), the court held that the “two dismissal rule” precluded an assignee of the claim from taking a voluntary dismissal without prejudice in its lawsuit, when the assignor had previously sued upon the subject claim and taken a voluntary dismissal. Even though the second lawsuit was filed by a completely different party, because that party stood in the shoes of the original plaintiff, the original plaintiff’s dismissal counted against the assignee. ___________ The 21-day deadline expands to 26 days if the motion for sanctions is served only by email; if it is also served by facsimile or hand-delivery, the recipient must act within 21 days. See Roy 41 Fla. L. Weekly D456 D. Wasson, Motions for Attorney’s Fees Under Section 57.105, 583 Fla. J. Ass’n Journal 43 (Mar./Apr. 2015).

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.

“Two Dismissal Rule” Bars Assignee of Claim: Under Fla. R. Civ. P. 1.420(a)(1), “A notice of dismissal operates as an adjudication on the merits when served by a plaintiff who has once dismissed in any court an action based on or including the same claim.” Under this rule, “A plaintiff may voluntarily dismiss his or her lawsuit at practically any time . . . without prejudice however to plaintiff’s commencing a

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www.FloridaJusticeAssociation.org | March/April 2016 | 53

CLOSINGARGUMENT

RETALIATORY ARGUMENTS

M

ore than forty years ago, two giants of the legal profession faced off in a Miami courtroom over the heartbreaking death of a six-year-old child, who was run over by a garbage truck while walking to school.

Metropolitan Dade County v. Dillon, 305 So.2d 36, 40 (Fla. 3d DCA 1974). Understandably, the trial was emotional, and closing arguments were impassioned.

In his rebuttal closing argument, the plaintiff’s attorney called the defense attorney “the insurance company’s lawyer,” who was trying to “soft-soap” the jury, to be a “hero” for the insurance company, by “getting out as cheap as he can.” The jury returned a $900,000 verdict for the plaintiff.

Dillon was decided before the 1976 enactment of the nonjoinder statute. Ch. 766-266, §12, Laws of Fla. (1976). It is not authority for mentioning insurance when an insurance company is not a party.

However, Dillon is one of the very rare cases where a Florida appellate court has held that an improper argument of matters outside the evidence by one party was justified, at least in part, by improper arguments made by the opposing party.

On appeal, the defendants contended that the plaintiff’s rebuttal argument was “inflammatory,” causing the verdict to be based on 54 | March/April 2016 | www.FloridaJusticeAssociation.org

by Philip M. Burlington, Barbara Green and Chris Carlyle

“passion and prejudice.” In rejecting that argument and affirming the judgment, the Third District noted: [T]he record also reveals that appellants’ counsel was not timid or inhibited during his closing remarks to the jury.

He referred to [plaintiff’s attorney] as “a great salesman” attempting to turn tragedy into a “commercial enterprise.”

Counsel further implied that the reason the case had turned into a “commercial venture” was that “somebody wants the Cadillacs and somebody wants the big houses.”

305 So.2d at 40. The court found that, in light of this, and of the “horrible human tragedy” and “immeasurable loss,” the plaintiff’s argument was “not so inflammatory as to mandate a new trial.”

A similar result was reached in Walker v. City of Miami, 337 So.2d 1002 (Fla. 3d DCA 1976). In Walker, a wrongful death case, the plaintiff, in closing argument, went outside the record to make improper arguments about the value of a human life and referred to the earning capacity of professional athletes. The defense retaliated by talking about amounts paid under the worker’s compensation law and an average insurance contract. The jury returned a low verdict for the plaintiff. Both the trial court and the Third District refused to grant a new trial. The appellate court, citing Dillon, said:

Both arguments were outside the scope of the evidence. But, in view of the latitude allowed in argument and the court’s instruction that such arguments were not evidence, we do not think reversible error is shown.

337 So.2d at 1004-1005.

Although, as in Dillon and Walker, arguments in retaliation for opposing counsel’s improper argument sometimes have been accepted by the appellate courts, the courts usually apply to retaliatory arguments the same rules applicable to closing arguments in general.

Most of these cases turn on whether the objection to the retaliatory argument was properly preserved, and how inflammatory the argument was. Arguments are judged on appeal by a different standard, depending on whether the issue was properly preserved at trial by objection, request for curative instruction, and motion for mistrial, or whether it was only raised in a motion for new trial. If not properly preserved, it will be judged by a fundamental error standard. Murphy v. Int’l Robotics Sys., Inc., 766 So.2d 1010 (Fla. 2000). Appellate courts will rarely find a closing argument to be fundamental error.

However, appellate courts have expressed disapproval of some retaliatory arguments, even when they have declined to reverse because the objection was not properly preserved.

Retaliatory arguments, like other arguments, should be limited to the evidence and reasonable inferences from it. Tito v. Potashnick, 488

So.2d 100 (Fla. 4th DCA 1986) (discussed infra.); Wilder v. State, 355 So.2d 188 (Fla. 1st DCA 1978) (new trial required where prosecutor, in response to defendant’s argument that prosecutor failed to call deputy as a witness, recited testimony deputy allegedly would have given); see generally DeJesus v. State, 115 So.3d 1029,1030 (Fla. 4th DCA 2013) (argument in response to defense closing argument was “a logical inference from the evidence” and not so inflammatory as to require a new trial, where no specific objection made), citing Knoizen v. Bruegger, 713 So.2d 1071 (Fla. 5th DCA 1998).

Retaliatory arguments also have been subjected to other established rules pertaining to closing arguments, such as the rule against expressions of personal opinion and vouching for witnesses.

For example, in Fryer v. State, 693 So.2d 1046 (Fla. 3d DCA 1997), the court reversed a conviction because the prosecutor repeatedly stated his personal belief that a police officer was telling the truth, and argued that defense counsel “knew” his client was guilty. On appeal, the State contended that the argument was justified by defense counsel’s expressions of personal opinion about his “nightmare” that the jury would think the officer was honest. The court held that the prosecutor’s argument was not “fair reply” or “invited response” to defense counsel’s argument, but was an improper statement of personal opinion by the prosecutor.

And, in Hazelwood v. State, 658 So.2d 1241 (Fla. 4th DCA 1995), the court held that a prosecutor’s argument that two uncalled witnesses would have corroborated the state’s case was not a “fair reply” to the defendant’s argument about absence of their testimony. It was

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Applications available online or by phone: 305-740-0603 • Toll Free: 866-738-3817 • Email: money@fastfunds4you.com • www.fastfundsforyou.com www.FloridaJusticeAssociation.org | March/April 2016 | 55

CLOSINGARGUMENT improper for the prosecutor to comment on evidence outside the record, regardless of what defense counsel argued.

The Supreme Court has held that the “invited response” or “fair reply” exception to the prohibition against commenting on a defendant’s failure to testify should be narrowly construed. Rodriguez v. State, 753 So.2d 29, 39 (Fla. 2000). This warning has not been found in civil cases where the constitutional right not to testify is not implicated.

While some of the earlier cases, and some criminal cases, discuss the “wide latitude” that should be given to closing argument, especially when the argument is an “invited response”, e.g., Dillon, supra.; DeJesus, supra.; Wilder, supra., numerous subsequent cases show that retaliatory arguments should be carefully limited to truly rebutting an improper argument by opposing counsel, and must not be unnecessarily inflammatory Ten years after Dillon and Walker, the Third District decided that it would no longer tolerate improper closing arguments by one side in response to improper arguments by the other side. Borden, Inc. v.

Young, 479 So.2d 850 (Fla. 3d DCA 1985).

In Borden, the court reversed a judgment in favor of the plaintiff where “the lawyers for both sides ... engaged in a disgraceful display of unprofessional conduct which was much more appropriate to a prize fight or, more accurately to a gladiatorial contest than to a search for truth in the halls of justice.” 479 So.2d at 850.

Unfortunately, the court did not describe the defendant’s improper argument, other than that it apparently was less egregious than the plaintiff’s. The plaintiff’s retaliatory argument “asserted his personal knowledge of nefarious activities supposedly engaged in by the large corporate defendant,” which, the court said, were not in evidence and did not exist.

The court gave only one example of the plaintiff’s argument, stating that it was “but a sample.” Referring to the defendant corporation’s mascot, Elsie the Cow, it included: You are going to say, Borden, you know with all your resources and all of your assets and everything that you got—you have tried to destroy this family, you have put resources behind him in cases that are slightly unreal. They have done things that you can’t possibly imagine and Eddie is supposed to be able to go in and counteract this type of resources. It’s absolutely and totally impossible. They say, but don’t hold it against us. Don’t hold it against Elsie.Well, I got to tell you something. Elsie isn’t the sweet little cow you see on the milk can. Obviously, Elsie is a great big corporation and they are there to do one thing, lay it off on somebody else to take care of this man and this lady for the rest of their lives, lay it off on anybody you can lay it off to. Well, fair—lay it off anyplace but don’t lay it off on us because we just don’t want to hear about it and that is not right and that is not proper.... [e.s.]

479 So.2d at 851 n.4 The court held that this attack on the defendant “cannot be deemed to have been in fair response to the tactics or statements of the defense, which, while certainly impermissible, did 56 | March/April 2016 | www.FloridaJusticeAssociation.org

not go nearly so far ....” The court found the argument so egregious that it constituted fundamental error, requiring reversal despite the defendant’s failure to object. 479 So.2d at 851.

Borden’s finding that the argument constituted fundamental error may not survive the preservation requirements later imposed by the Florida Supreme Court in Murphy v. Int’l Robotics Sys., Inc., 766 So.2d 1010 (Fla. 2000). But its admonition to confine arguments to what is supported by the evidence, even when responding to an improper argument, must be heeded. Borden indicates that an improper argument by one side will not estop that party from raising properly preserved objections to improper responsive arguments by the other side. At least in civil cases, most courts agree with the admonition in Borden that the trial judge’s role requires more than just providing an arena in which the lawyers fight it out on their own terms.

[I]t is no longer—if it ever was—acceptable for the judiciary to act simply as a fight promoter, who supplies an arena in which parties may fight it out on unseemly terms of their own choosing, and then, on the ground that the loser has asked for what he received, obediently raise the hand of the one who emerges victorious.

479 So.2d at 851.

However, in Aarmada Protection Systems 2000, Inc. v. Yandell, 73 So.3d 893 (Fla. 4th DCA 2011), the court declined to reverse because of some retaliatory arguments, where no motion for mistrial was made. The court did not describe the arguments, except to say that plaintiff’s counsel “made some personal attacks, which may have been improper, although some were in reply to defense counsel’s equally inflammatory argument about the veracity of Yandell’s treating health care professionals.” The court characterized these arguments as “fair reply.”

In the absence of a more detailed description of the arguments in Yandell, the case should not be relied on as justification for personal attacks on an opponent who has made inflammatory arguments about the veracity of plaintiff’s witnesses.

While retaliatory arguments sometimes are permitted, they certainly are not required. In Goff v. 392208 Ontario, Ltd., 539 So.2d 1158 (Fla. 3d DCA 1989), the trial court erroneousely overruled the plaintiff’s objection to defense counsel’s improper argument that the military veteran plaintiff’s VA hospital room “doesn’t cost him anything.” The defendant contended that the plaintiff failed to preserve the issue for review, because he declined the trial court’s invitation to present evidence and argument refuting the defendant’s assertion. The Third District rejected that argument, holding that the plaintiff was under no obligation to cure the trial court’s error. 539 So.2d at 1159.

Indeed, the appellate courts have reminded trial judges quite emphatically that the judge’s role is important, and that counsel should not just be left to fight it out among themselves.

For example, in Bellsouth Hum. Res. Admin. v. Colatarci, 641 So.2d 427 (Fla. 4th DCA 1994), defense counsel attacked trial lawyers in general,

and argued that frivolous lawsuits were “one of the major ills of our society.” When plaintiff’s counsel objected, the trial court’s response was, “Go ahead. You can rebut.” So, in rebuttal, plaintiff’s counsel attacked “corporate America ... the folks that brought you the gas tank that explodes, and agent orange, and silicone breast implants.” When the defense objected, the trial court only commented, “It’s already in.

Belay it. Go on to something else.” After a substantial plaintiff’s verdict, the Fourth District reversed.

Although the reversal was based on a Fabre error, the court spent several additional pages pointing out that, if the trial court had sustained the plaintiff’s objections to the defense argument, “the other unfortunate remarks, on both sides, might well have not occurred.” 641 So.2d at 428-431. The court’s emphasis on the trial court’s role is a clear message that retaliation for an opponent’s remark will not be accepted as an excuse for a clearly improper argument, at least when the issue has been preserved. Compare, Jeep Corp. v. Walker, 528 So.2d 1203, 1204 (Fla. 4th DCA 1988) (affirming denial of new trial where unspecified “misconduct was engaged in by both sides,” and trial court did not find it impaired jury’s consideration of the merits).

In Moore v. Taylor Concrete & Supply Co., Inc., 553 So.2d 787 (Fla. 1st DCA 1989), defense counsel made repeated statements of personal opinion in his closing argument that the appellate court deemed improper. The trial court overruled plaintiff’s objections to defense counsel’s argument. Plaintiff’s counsel tried to respond by arguing: What he believes is not what’s important in this case. It’s improper, in my opinion, for him to lay his credibility on

the line and for him to come and say, “I don’t agree with what you believe.” I’m not up here saying what I believe, put my credibility on the line. I’m an officer of the court.

I present evidence as strongly and as forcefully as I can for my client. That’s what he’s supposed to do.

553 So.2d at 789-90.The trial court sustained the defendant’s objection that this was an attack on defense counsel’s integrity.

Although it reversed on a different ground, the First District pointed out that the defense arguments were improper, that “timely objections to these comments were overruled, and the efforts of Moore’s counsel to point out the impropriety during rebuttal argument was met with a sustained objection.” While this can be read as at least a suggestion that the plaintiff should have been allowed to directly rebut the improper argument, it cannot be relied on as strong authority for that proposition.

Somewhat stronger support comes from Owens-Corning Fiberglass Corp. v. McKenna, 726 So.2d 361, 362-63 (Fla. 3d DCA 1999). There, during opening statement, defense counsel repeatedly disparaged asbestos litigation and plaintiffs’ attorneys in general, and argued that, in this case, “litigation generated the disease.” In the course of objecting, plaintiff’s counsel stated, in the jury’s presence, “I think this is the most unethical opening statement I have ever heard.” On appeal, the Third District rejected the defendant’s argument that this assertion by plaintiff’s counsel required a new trial. Acknowledging that it is improper to impugn the integrity of opposing counsel, the court nevertheless held:

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However, in this case, it was OwensCorning’s counsel who repeatedly denigrated asbestos litigation and lawyers who tried asbestos cases. By calling the defendant’s argument “unethical,” plaintiff ’s lawyer was simply defending himself and his client’s case against a barrage of blatant improprieties by his opponent. His comment was an accurate description of defense counsel’s tirade. In fact, had the jury found for OwensCorning instead of reaching a verdict for the plaintiff, OwensCorning’s comments would have laid the foundation for a reversal based upon the very cases that it relies upon in its brief.

726 So.2d at 363.

At least one court has held that “a retaliatory response is not justifiable where no improper statements were made in the first place.” Skislak v.

Wilson, 472 So.2d 776, 778 (Fla. 3d DCA 1985). There, the tortfeasor’s insurer was a defendant, and defense counsel asked the jurors during voir dire if their verdict would be affected by the insurance coverage. In closing argument, defense counsel argued that the defendant tortfeasor should not have to pay because the accident was not his fault. The court held that this did not justify plaintiff’s rebuttal argument that the insurer, not the tortfeasor, would have to pay, because the defense had not argued anything improper.

Similarly, in Tito v. Potashnick, 488 So.2d 100 (Fla. 4th DCA 1986), the court held that the defendant’s retaliatory closing argument, which went outside the evidence, was not justified by the plaintiff’s closing argument, which was entirely proper. In Tito, a wrongful death action, the plaintiff’s closing argument emphasized harm to the surviving child because of the loss of his father and “all the father-son activities that had been snuffed out by the accident.” In response, the defense argued that the widow is “an attractive young lady, that this boy is going to have a father.” 488 So.2d at 101. After a “shockingly low” verdict, the plaintiff appealed.

The defendant argued that the plaintiff “opened the door by repeatedly lamenting the loss of his father.” The court rejected that argument, noting that “there was not one scintilla of evidence to support” speculation that the mother would remarry. The court stated, “we do not believe the quoted comment was permissibly responsive.” 488 So.2d at 101. See generally, Cardona v. Gutierrez, 562 So.2d 766 (Fla. 4th DCA 1990) (by presenting evidence of love and support provided to surviving child by aunt and uncle, plaintiff did not open the door to argument that surviving child was lucky to have aunt and uncle to provide a home for her and possibly adopt her).

The court allowed a retaliatory argument that did not go outside the evidence in Safeway Ins. Co. v. Saxon, 452 So.2d 60 (Fla. 3d DCA 1984), where there did not appear to be anything improper in the defendant’s closing argument. In Saxon, the plaintiff did not argue damages in closing argument. Ordinarily, a plaintiff is not allowed to argue damages for the first time in rebuttal. E.g., Smith v. Hill, 409 So.2d 141 (Fla. 4th DCA 1982). However, here, in the defendant’s closing argument, defense counsel argued that the jury should return a “zero verdict” and “not [give the plaintiff] a cent.” In rebuttal, over 58 | March/April 2016 | www.FloridaJusticeAssociation.org

defense objection, the plaintiff went into specific items of damages.

The court held there was nothing improper in the plaintiff’s rebuttal because the defense closing argument opened the door to it.

Unfortunately, the cases usually fail to set out the content of the retaliatory argument, or of the argument to which it was replying. The cases do not provide much guidance about what kind of retaliatory argument may be acceptable to the appellate courts, especially when there is a proper objection.

Consequently, the wisest thing to do is to object to any improper argument, request a curative instruction and move for mistrial. Keep any retaliatory argument within the proper bounds of closing argument: reasonable inferences from the evidence presented at trial.

In an ideal world, of course, the trial court would sustain an objection to the original, improper argument, and give an appropriate instruction to cure it. In the real world, that does not always happen.

When an appropriate objection was made but the trial court did not sustain it, the appellate courts sometimes have permitted a party to resort to self-help by making a responsive argument that otherwise would be deemed improper.

But these cases are unusual. While some leeway may be given, appellate courts will not permit closing arguments to devolve into a game of the dozens or an episode of Beavis and Butthead.

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.

FJAAPPELLATEPRACTICESECTION

TIPS ON PRESERVING ERROR WITH A TIMELY MOTION FOR REHEARING

by Rebecca Bowen Creed

M

otions for rehearing can be a valuable tool to preserve arguments for appeal, and to toll the time for filing a notice of appeal. A few of the more important points to remember are outlined below.

Under Rule 9.020(i) of the Florida Rules of Appellate Procedure, the motion must be: • written; • authorized; and • timely.

Written, “authorized and timely” motions for rehearing (and other enumerated motions) extend rendition of the final order “as to any existing party until the filing of a signed, written order disposing of the last of such motions.” Fla. R. App. P. 9.020(i)(1). An authorized and timely motion for rehearing postpones rendition for all parties.

Written. An ore tenus motion does not satisfy the requirement that a motion be “filed” in order to extend rendition. See Fla. R. App. P. 9.020(i); Weinberg v. Stein, 555 So.2d 379, 380 (Fla. 3d DCA 1989).

Authorized. To extend rendition, a motion must be permitted by the rules governing the underlying proceeding. Fla. R. App. P. 9.020(i); see also Potucek v. Smeja, 419 So.2d 1192, 1193 (Fla. 2d DCA 1982).

For instance, because rehearing is not authorized in administrative proceedings, a motion for rehearing does not suspend rendition of an administrative order. See City of Palm Bay v. Palm Bay Greens, LLC, 969 So.2d 1187, 1190 (Fla. 5th DCA 2007).

Timely. Rendition is only extended if the motion is timely served. Fla. R. App. P. 9.020(i); Fla. R. Civ. P. 1.530(b); see, e.g., Fire & Cas. Ins. Co. of Connecticut v. Sealey, 810 So.2d 988, 991 (Fla. 1st DCA 2002).

“A motion for new trial or for rehearing shall be served not later than 15 days after the return of the verdict in a jury action or the date of filing of the judgment in a non-jury action.” Fla. R. Civ. P. 1.530(b). “[I]t is the date on which the motion for rehearing was served, and not its filing date, that determines whether it is timely, thus delaying rendition and tolling the time for filing an appeal.” Scott v. State Dep’t of Children & Families, 804 So.2d 486 (Fla. 1st DCA 2001).

Enumerated. Exceptions to the general rule that rendition occurs “when a signed, written order is filed” apply only if one of the following

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types of motions is filed: • for new trial; • for rehearing; • for certification; • to alter or amend; • for judgment in accordance with prior motion for directed verdict; • for arrest of judgment; • to challenge the verdict; • to correct a sentence or order of probation or to withdraw a plea after sentencing under the Florida Rules of Criminal Procedure; or • to vacate an order based upon recommendations of a hearing office under Florida Family Law Rule of Procedure 12.491.

A motion for rehearing may be required in certain instances. When a defect appears for the first time on the face of the final judgment, the aggrieved party must file a motion for rehearing, motion to vacate, or motion for relief from judgment to preserve that issue for appeal. See Pensacola Beach Pier, Inc. v. King, 66 So.3d 321, 324 (Fla. 1st DCA 2011); accord N.H. Indem. Co. v. Gray, 177 So.3d 56, 59 (Fla. 1st DCA 2015). For instance, if a trial court fails to make any findings that would otherwise be required to support its order, the inadequacy of the trial court’s order must be properly challenged in a motion for rehearing. A motion for rehearing allows the trial court an opportunity to rectify the error. See Gray, 177 So.3d at 59.

Fla. R. App. P. 9.020(i); see also Fire & Cas. Ins. Co. of Connecticut v.

Sealey, 810 So.2d 988, 990 (Fla. 1st DCA 2002).

At a minimum, a motion for new trial is required:

Be careful in titling the motion. For example, if the motion seeks rehearing of a final order, avoid filing a “motion for reconsideration” or a “motion to set aside final judgment.” See Olson v. Olson, 704 So.2d 208, 210 (Fla. 5th DCA 1998) (considering nature of relief sought in motion).

Final order. Rule 9.020(i) of the Florida Rules of Appellate Procedure generally extends rendition only of final orders. Motions for rehearing usually do not suspend rendition of non-final orders unless those orders are dispositive of a portion of a post-judgment matter. Clearwater Federal Sav. & Loan Ass’n v. Sampson, 336 So.2d 78, 79-80 (Fla. 1976); Miller v. Miller, 959 So.2d 421, 423 (Fla. 2d DCA 2007).

By the motion. “A motion can suspend rendition only if it is directed to the order that is the subject of the appeal.” 2 Fla. Prac. Appellate Practice §2:4 (2015 ed.) (citing Prudential-Bache Securities, Inc. v.

Bandes, 510 So.2d 315 (Fla. 2d DCA 1987)). A party who files a notice of appeal while a motion extending rendition is pending no longer abandons all pending motions. Instead, the appeal “shall be held in abeyance until the filing of a signed, written order disposing of the last such motion.” Fla. R. App. P. 9.020(i)(3).

Be careful with an order that grants a new trial. An order granting a new trial is rendered upon filing, “notwithstanding that other [motions extending rendition] may remain pending at the time.” Fla. R. App. P. 9.020(i)(2). This rule makes sense when you consider that an order granting a new trial is not a final order, even though the order is reviewed (like a final order) under Rule 9.110. See Fla. R. App. P. 9.130(a)(4) (“orders granting motions for new trial in jury and nonjury cases are reviewable by the method prescribed in rule 9.110”).

And, be careful with Rule 1.540 motions. Motions for relief from judgment pursuant to Rule 1.540, together with motions for rehearing directed to orders on such motions, do not suspend rendition or toll the time for filing a notice of appeal. See Fla. R. Civ. P. 1.540(b); Fla. R. App. P. 9.020(i)(2); Fla. R. App. P. 9.130(a)(5).

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Motions for rehearing may also be useful in making and preserving legal arguments that may not have been addressed in detail (or, for that matter, at all) at the original hearing before the trial court.

1. to challenge a verdict that is contrary to the manifest weight of the evidence, Winnemore v. Morton, 214 So.2d 509 (Fla. 4th DCA 1968); 2. to challenge a verdict as inadequate or excessive, Vega v.

Cosmopolitan Mut. Ins. Co., 336 So.2d 660, 661(Fla. 3d DCA 1976); and 3. to challenge, as fundamental error, opposing counsel’s improper argument, which was not the subject of a timely, contemporaneous objection at trial. Murphy v. Internat’l Robotics Sys., Inc., 766 So.2d 1010, 1027 (Fla. 2000).

Be sure to specify, in detail, counsel’s allegedly improper argument or comments in the motion or memorandum of law. See, e.g., Bradley v.

So. Baptist Hosp. of Fla., Inc., 943 So.2d 202, 207 (Fla. 1st DCA 2006).

State all grounds with specificity, and rely on the same legal arguments that you wish to argue on appeal. Consistent with the general rules governing preservation of error, be sure that the motion for rehearing includes the same, specific legal arguments that you intend to pursue on appeal. See, generally, Aills v. Boemi, 29 So.3d 1105, 1108-09 (Fla. 2010).

Rebecca Bowen Creed

Rebecca Bowen Creed of Jacksonville, Florida, is a Florida Bar Board Certified Appellate Specialist. Her practice with Creed & Gowdy, P.A. is limited to appeals and trial support and encompasses a wide variety of substantive areas, including plaintiff’s personal injury and medical malpractice. She practices in all of Florida’s district courts of appeal, the Florida Supreme Court, and the Eleventh Circuit Court of Appeals. She received her J.D. with honors from the University of North Carolina at Chapel Hill in 1991. She is a Master in the First District Appellate American Inn of Court and is the current chair of the Appellate Section of the Florida Justice Association.

FJAYOUNGLAWYERSSECTION

Recovering Tort Damages Against HMOs and Health Insurers

by Jarrett DeLuca

R

ecovering adequate compensatory damages when HMOs and insurance companies refuse to cover medically necessary treatment is perhaps no easier today than it was when Rudy Baylor (played

by Matt Damon in The Rainmaker) took on insurance giant, Great Benefit, nearly 20 years ago. “[D]eliberate delaying of and refusal to pay valid claims, and other interference in the payment process of valid claims, is an increasing problem in the managed care industry.”

The Florida Physicians Union, Inc. v. United Healthcare of Florida, Inc., 837 So.2d 1133, 1136 n.1 (Fla. 5th DCA 2003). Policyholders (or, “subscribers” in the context of HMOs) still face heightened burdens of proof, varying bad faith rules, and onerous contractual language buried within insurance policies (often requiring time-consuming and pointless appeals). There is also an overlapping maze of state and federal statutes that, as a whole, offer little relief to policyholders. And, with the ever-growing reach of ERISA, more and more valid claims for benefit denials may be subject to federal preemption.

The context of these claims is usually the same: a medical doctor prescribes medically necessary treatment, an insurer refuses to pay for it (citing internal rules or a constrained interpretation of policy language), and the policyholder suffers. Of course, policyholders may sue for breach of contract to recover treatment costs, specific performance, or injunctive relief, as well as attorneys’ fees and costs

under §641.28, Fla. Stat. and §627.428, Fla. Stat., but these actions are usually inadequate. For policyholders forced to forego medically necessary treatment for any length of time, breach of contract actions hardly account for the physical and emotional harm inflicted while an illness remains untreated.

Fortunately, policyholders may proceed against HMOs and health insurers under most common law torts. Villazon v. Prudential Health Care Plan, Inc., 843 So.2d 842, 852 (Fla. 2003). In Greene v. Well Care HMO, Inc., 778 So.2d 1037 (Fla. 4th DCA 2001), for example, the court held that a plaintiff should be permitted to plead common law tort claims against an HMO where it was the HMO, rather than the physician, who decided and authorized “what medical services are medically necessary for a patient” and the HMO was “in charge of treatment decisions for its members, rather than simply authorizing the payment of the claims . . .” While an insurer’s denial of medically necessary treatment may implicate a host of common law torts, there is no one-size-fits-all remedy.

Claims for intentional infliction of emotional distress (IIED) may offer one avenue to relief, though IIED claims must allege facts beyond “mere short delays in payment and simple bad faith” in administering benefits.

Aguilera v. Inservices, Inc., 905 So.2d 84, 93-94 (Fla. 2005). A simple www.FloridaJusticeAssociation.org | March/April 2016 | 61

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benefit dispute is insufficient. To state a cause of action for the IIED, “a complaint must allege facts which, if proven, would also support an award of punitive damages.” Donigan v. Nevins, 785 So.2d 573, 575 (Fla. 4th DCA 2001). The Florida Supreme Court first recognized the tort of IIED in Metropolitan Life Insurance Co. v. McCarson, 467 So.2d 277 (Fla. 1985), adopting the Restatement (Second) of Torts §46. Under the Restatement: The extreme and outrageous character of the conduct may arise from an abuse by the actor of a position, or a relation with the other, which gives him actual or apparent authority over the other, or power to affect his interests. . . .The extreme and outrageous character of the conduct may arise from the actor’s knowledge that the other is peculiarly susceptible to emotional distress, by reason of some physical or mental condition or peculiarity.

To state a cause of action for IIED, a plaintiff must allege: (1) a deliberate or reckless infliction of mental suffering; (2) outrageous conduct; (3) that the conduct caused emotional distress; and (4) that the distress was severe. Liberty Mutual Insurance Co. v. Steadman, 968 So.2d 592, 594 (Fla. 2d DCA 2007). The extreme and outrageous conduct must go “beyond all possible bounds of decency” and be “regarded as shocking, atrocious, and utterly intolerable in a civilized community.” Emotional distress is severe only when it is of such intensity or duration that no ordinary person should be expected to endure it. Neither the economic loss rule nor the impact rule bar actions for IIED, and such claims may stand alone absent other actionable torts. Dominguez v. Equitable Life Assurance Society of U.S., 438 So.2d 58, 59 (Fla. 3d DCA 1983); Green, 778 So.2d at 1041-42.

Because HMOs and health insurers wield enormous decision-making power over policyholders and are uniquely aware of the emotional damage substantially certain to occur when medically necessary treatment is withheld, IIED claims are especially suitable for injuries caused by denial of healthcare benefits. Allegations supporting IIED claims “may arise not so much from what is done as from abuse by the defendant of some relation or position which gives the defendant actual or apparent power to damage the plaintiff’s interests.” Dependable Life Insurance Co. v. Harris, 510 So.2d 985, 988 (Fla. 3d DCA 1987).

Additionally, a “defendant’s knowledge that the plaintiff is especially sensitive, susceptible, or vulnerable to injury caused by mental distress” would tend to support a claim of IIED. Id. As an example, the court in Dominguez found that the plaintiff properly stated a cause of action for IIED against a disability insurer where the complaint alleged that the insurer was in a position to affect the plaintiff’s interests, asserted their power by unjustifiably cutting off disability payments, and was aware of the plaintiff’s disabilities and susceptibility to emotional distress. The court concluded, “This combination of the unjustified assertion of power by one party, and impotence of the other, would, we think, be viewed by a civilized community as outrageous and not as an indignity, annoyance or petty oppression for which the law affords no relief.” Dominguez, 438 So.2d at 62.

An insured may also recover against a health insurer for bad faith under Fla. Stat. 624.155, although these actions are not available against 62 | March/April 2016 | www.FloridaJusticeAssociation.org

HMOs. See Time Insurance Co. v. Burger, 712 So.2d 389 (Fla. 1998); c.f. Green, 778 So.2d at 1041-42 (holding that statutory first-party bad faith claims under Fla. Stat. §624.155 are not available against HMOs because Chapter 641, Health Maintenance Organization Act, exempts HMOs from the Florida Insurance Code). Although the Florida Supreme Court in Burger held that emotional damages may be recovered in bad faith actions against insurers, the court imposed certain proof and evidentiary requirements specific to these bad faith cases. Time Insurance Co., 712 So.2d at 393 (“if there is proof of bad-faith conduct in denying or untimely paying a claim and that conduct results in an insured not receiving either necessary or timely health care, we believe that the insured ought to have an opportunity to claim damages for emotional distress”). Specifically, the court held that an insured must not only prove that an insurer’s bad faith delay or denial of medical treatment caused or aggravated the insured’s medical or psychiatric condition, but also that any claimed emotional distress damages are “substantiated by testimony of a qualified health care provider.” Time Insurance Co., 712 So.2d at 393.

Although bad faith actions may not be available against HMOs, actions for breach of fiduciary duty may exist. While these actions are typically unavailable in the context of first party claims because the relationship between insurer and insured is that of “debtor and creditor,” the special relationship between policyholders and health insurance companies suggest these claims should be permitted. For instance, individuals must necessarily trust insurance companies and HMOs to protect their healthcare interest, there is a gross imbalance in decision-making power, and insurers are acutely aware of the harm likely to result from denying healthcare benefits. Therefore, the relationship between insurer and insured is unlike other first-party insurance relationships. See. e.g.

Greene, 778 So.2d at 1042 (noting that because the HMO, and not the physician, decided whether services were medically necessary, “the relationship is certainly more than one of debtor and creditor”). Unlike most breaches of contracts, failures by HMOs and health insurers to meet contractual obligations almost invariably cause extra-contractual damages in the form of physical injury, pain, and suffering.

The causes of action discussed above are not an exhaustive list of legal theories available to injured policyholders. Other common law actions, such as actions for intentional or negligent misrepresentation, fraud, or negligence, may also be available. Regardless of how egregious the liability may be, however, there is no uniform remedy for insureds who have been wrongfully denied medically necessary treatment. There should be, given the increasing role played by insurers and HMOs in our healthcare system. State and federal statutes seem to recognize the potential for abuse. Yet, despite numerous obligations imposed on insurers by state and federal statutes, aggrieved policyholders are left to combat insurer misconduct with the same legal tools available decades ago.

Jarrett DeLuca Mr. DeLuca is a personal injury and wrongful death attorney with Viñas & DeLuca in Miami, Florida. His practice focuses on medical malpractice, product defects, motor vehicle negligence, and other forms of general tort litigation. He was also the 2013-14 Young Lawyer Section Chair.

EAGLESPOTLIGHT

2015-2016 EAGLE Recruiting Champions SPONSOR - $3,000

Since May 1, 2015

Recruiter Name

Recruiting Value

Robert Mayer Rubenstein

# of Recruits

Recruiter Name

Recruiting Value

# of Recruits

$216,501

30

Stephen Watrel

$4,500

2

Eric Romano

$53,000

5

Laurie J. Briggs

$3,000

1

Dan Newlin

$50,000

1

W. M. Chanfrau, Sr.

$3,000

1

Jason F. Lamoureux

$42,000

4

William Thomas Cotterall

$3,000

1

Lake H. Lytal, III

$35,500

5

Beth Walker Finizio

$3,000

1

Dale M. Swope

$34,500

4

Debra Henley

$3,000

1

Troy Rafferty

$30,000

2

Leslie Mitchell Kroeger

$3,000

1

Richard E. Chait

$26,500

2

Melissa M. Polo

$3,000

1

Fred A. Cunningham

$25,000

1

Matthew Nichols Posgay

$3,000

2

James W. Gustafson, Jr.

$22,500

5

John F. Romano

$3,000

2

Tiffany M. Faddis

$21,800

6

Kimberly J. Syfrett

$3,000

1

Damian B. Mallard

$19,500

14

Gregory M. Yaffa

$3,000

1

Waylon Thompson

$19,000

4

Brenda S. Fulmer

$2,000

1

Stephen F. Cain

$18,000

4

David J. Zappitell

$2,000

1

Anthony Quackenbush

$18,000

3

Todd E. Copeland

$1,500

1

Jason Mulholland

$17,300

3

Jack J. Fine

$1,500

1

H. L. (Larry) Perry

$13,000

3

Scott Lyon Henratty

$1,500

1

Todd Jordan Michaels

$12,000

1

Scott R. Jeeves

$1,500

1

Bernard F. Walsh

$12,000

5

Marcus J. Michles, II

$1,500

1

Joseph V. Camerlengo, Jr.

$10,000

1

GC Murray, Jr.

$1,500

1

James Lawrence Magazine $10,000

2

Joseph N. Nusbaum

$1,500

1

Steven R. Jaffe

$8,000

2

Skip Pita

$1,500

1

Julie Braman Kane

$8,000

1

Kellye A. Shoemaker

$1,500

1

Harvey V. Cohen

$4,500

3

John J. Uustal

$1,500

1

David Corey Dismuke

$4,500

2

John C. Murrow

$500

1

Lee Jacobson

$4,500

3 As of 4/11/2016

www.FloridaJusticeAssociation.org | March/April 2016 | 63

EAGLESPOTLIGHT

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

LEGACY - $50,000

FOUNDER - $25,000

William F. Merlin, Jr. Merlin Law Group, P.A. Upgraded

Joseph A. Osborne

Osborne & Associates Recruited by Lake H. Lytal, III

Troy Rafferty

Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor, P.A.

PATRON - $5,000

Matthew A. Dolman

Dolman Law Group Recruited by James Lawrence Magazine

64 | March/April 2016 | www.FloridaJusticeAssociation.org

Diana Santa Maria

Law Offices of Diana Santa Maria, P.A.

SPONSOR - $3,000 Jeffrey D. De Carlo

Jon Lambe

Jeffrey D. De Carlo, P.A.

P. Alexander Gillen

Newsome Melton Upgraded by Tiffany M. Faddis

Zachary B. Taylor

Ferderigos & Lambe Recruited by Tiffany M. Faddis

Manuel & Thompson, P.A. Recruited by Waylon Thompson

Jason Anthony McIntosh

William D. Umansky

Lytal, Reiter, Smith, Ivey & Fronrath, LLP Recruited by Lake H. Lytal, III

Kevin Humphries

The Umansky Law Firm Upgraded by Tiffany M. Faddis

Dixie Dan Powell

Lopez & Humphries, P.A. Recruited by David Corey Dismuke

Powell Injujry Law, P.A.

ASSOCIATE - $1,500 Patrick J. Brandt

Scot D. Goldberg

Cohen Grossman, Attorneys At Law Recruited by Harvey V. Cohen

Goldberg & Noone, LLC Recruited by Dale M. Swope

James E. Fasig

Richard Oliver Hale, IV

Barrett, Fasig & Brooks

Kenneth A. Paquette

Cohen Grossman, Attorneys at Law Recruited by Harvey V. Cohen

Alan L. Perez

Hale, Hale & Jacobson, P.A. Recruited by Lee Jacobson

Michael Ferderigos

The Mallard Law Firm Recruited by Damian B. Mallard

Christopher J. Martin

Ferderigos & Lambe Recruited by Tiffany M. Faddis

Gary W. Roberts

Cohen Grossman, Attorneys At Law Recruited by Harvey V. Cohen

Gary Roberts & Associates, P. A. Recruited by John F. Romano

SOARING - $750

David Anderson

Michael A. Hersh

Law Offices of Burnetti, P.A. Recruited by David Corey Dismuke

Kelley Uustal, PLC Recruited by John J. Uustal

BUSINESS BENEFACTOR - $10,000

Recruited by H. L. (Larry) Perry

www.FloridaJusticeAssociation.org | March/April 2016 | 65

EAGLESPOTLIGHT

BUSINESS SPONSOR - $3,000

Recruited by Gregory M. Yaffa Recruited by Tiffany M. Faddis and Stephen Watrel

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MEMBEROUTREACH

1

2

3

8

9

6 7

5

4

11

WORKHORSE

The 30th Anniversary of the FJA Workhorse Seminar was a winning goal! More than 250 FJA members scored 55 hours of CLE in a four day period - and still had time to applaud some distinguished members for their leadership and even kick it with FIFA Women’s World Cup Champion Abby Wambach! It was a memorable anniversary and we look forward to another great Workhorse in 2017.

1,2,3,4 Photos taken from around the 2016 Workhorse Seminar; 5 - Sean Domnick receives the 2015 BJ Masterson Award for Professionalism, presented by Karen Terry; 6 - Debra Henley, Ana Lopez and Mallory Widgren pose with their signed photos of Abby Wambach; 7 - Fred Cunningham receives the 2015 Perry Nichols Award, presented by Stuart Grossman; 8 - Reginald Wilcox receives the Michael K. Bailey Outstanding Contribution Award; 9 - Howard Coker and Diana Santa Maria are recipients of the 2016 Gladiator and Gladiatrix Awards (L-R Chris Searcy, Howard Coker, Diana Santa Maria and Eric Romano); 10 - Keynote speaker, U.S. Women’s Soccer World Cup Champion Abby Wambach; 11 - Young lawyer members of the FJA in the “My First Trial” Session

FIU LAW SCHOOL OUTREACH

In February, FJA Board Member Skip Pita organized an FJA outreach event at Florida International University College of Law. The presentation brought the FJA’s mission to life as students watched a screening of the Hot Coffee documentary. The students also learned valuable career advice and more about the role plaintiff attorneys play in their communities from a panel of FJA leaders: Fred Cunningham, Gary Farmer, Skip Pita, Shannon Del Prado, T. Omar Malone and Todd Michaels.

Thank you to the FJA members who are leading this effort to engage the next generation of attorneys with the importance of upholding Florida’s civil justice system.

10

MEMBEROUTREACH

MEMBERSHIP APPRECIATION EVENTS All members are invited to join the FJA for complimentary luncheon and reception briefings hosted throughout the state. In these briefings, we will discuss the important issues of the recently completed 2016 Legislative Session, Florida Bar updates including Daubert, and upcoming election issues.

These events are great opportunities to network with your local colleagues while getting the latest updates on issues that impact your practice. To register for any of the following events or for questions, contact Lynn McCartney at lmccartney@floridajusticeassociation.org Broward 5/24 @ 5:30 pm Kelley Uustal Firm Panama City Date & Location TBD Gainesville Date & Location TBD Thank you to FJA members and sponsors for joining us for the Tallahassee briefing

Advertise With Us The FJA Journal is now offering the opportunity for Attorney Advertising. Reach your colleagues and

JOUR N Florid a

Justic

e Asso

ciatio

n • O ctober

the entire Journal readership through our flagship publication in print and in our online edition.

FOR MORE INFORMATION on advertising opportunities available through the FJA or to get details on specifications, ad dimensions, policies and insertion orders, please email John Brazzell jbrazzell@floridajusticeassociation or call (850)224-9403

AL

/Nove mber

Divers

ity

FJA Into D Members O ivers ity W ffer Pers o ithin the P nal Insig ht ractic e of L aw

2014

• #58 0

INDEX

Index

Appeals arbitration, order confirming award is not a final appealable order…22 attorney’s fees awards, no need to appeal fee award where underlying merits judgment reversed...53 preservation of error, no transcript of hearing below...52 preserving error with a timely motion for rehearing, discussion and practice tips...60 Arbitration, arbitrability, inclusion of rules that make the issue of arbitrability subject to arbitration…23 Attorneys, fees, offer of judgment, absurd result from requirement that offer address attorney’s fees and punitive damages, even though not claimed, conflict certified…23 Auto PIP, prioritization of emergency service provider claims...29 UM and bad faith, pending cases that may be affected by Fridman decision...28 Auto, UM bad faith, Supreme Court resolves Bottini issue as to how damages are handled for first party claims...28 UM, as a breach of contract claim...26 Closing Argument, retaliatory arguments, discussion and practice tips...54 Costs, §57.105, costs not recoverable…23 Defamation, internet review of attorney services, false factual allegations were not protected statement of opinion…23 Defenses, tactical maneuvering involving belated addition and last minute withdrawal of Fabre defendants, new trial…23 Discovery, privilege log, filing of log not required until after court has made a preliminary determination as to discoverability...52 Discrimination, Fla. Civil Rights Act, personal representative has authority to initiate a complaint on behalf of deceased former employee…23 Dismissal, failure to prosecute, defective pleading counts as record activity…24 Evidence business records, exception does not allow testimony regarding business records not in evidence...49 defendant’s post-accident statement that “shit happens” was prejudicial and improperly admitted...49 excited utterances, requirements summarized...49 expert, Daubert objection improper when raised for first time after trial...49 experts, Daubert does not include weighing persuasiveness of opinion...46 hearsay exception for spontaneous statements, quick reference for trial...46 late disclosure, sanctions...36 Medicare/Medicaid, evidence of receipt of same inadmissible...47 out-of-court statements, admissible only when purpose is a material issue...47 trip and fall, for photograph to raise inference about duration of defect, it must clearly demonstrate that significant length of time has passed…25 weak inference can demonstrate relevance...49 FJA member participation, volunteer leadership opportunities...8 2016 Annual Convention ...8 Florida Mental Health Act, violation of...35

Health Care, recovering tort damages against HMOs and health insurers, discussion and practice tips...62 Injunctions, bond for temporary injunction, court without discretion to waive bond...52 Insurance bad faith, Supreme Court holds insured entitled to determination of liability and full extent of damages in UM action before filing first-party bad faith action…22 bad faith, totality of circumstances is test for summary judgments in federal courts...30 evidence, claims files as evidence of insurer’s motivation in valuing claims...29 UM bad faith, insured entitled to determination of liability and damages in UM action before filing first party bad faith action...30 Judgments interest on...36 interest, post-trial interest on judgment modified on appeal runs from date of original judgment…24 Jurisdiction, no jurisdiction to enforce settlement agreement where parties filed stipulation for voluntary dismissal...52 Jurors, misconduct during retrial on damages, Googling previous verdict in the case…22 Legislature 2016 Regular Session over, future dates...24 2016 Session, summaries of legislation that passed...10 Medicaid lien reduction, applicability of Ahlborn...35 lien reduction, deceased beneficiary...35 lien resolution, Ahlborn line of cases apply only to living Medicaid recipients, wrongful death settlements are controlled by Fla. Medicaid Third-Party Liability Act…24 Medical Malpractice Fabre defense...36 informed consent, elements...34 presuit requirements, applicability...35 settlement release reformation...35 Pleadings Fabre defense, late amendment of...36 relation back...35 striking as sanction...36 Premises Liability damage to steps established by photo, jury entitled to find fall occasioned by damaged step even where plaintiff could not testify as to exactly what made her fall…22 slip and fall on spilled laundry detergent in grocery store, defendant not negligent as a matter of law where only 13 seconds elapsed between spill and fall…25 trip and fall, summary judgment proper where no evidence of defect in premises…23 Procedure motion for involuntary dismissal improperly granted, improperly pleaded affirmative defense...52 rehearing on order entered on motion to vacate dismissal not authorized...53 “two dismissal rule”, assignee of claim barred from taking voluntary www.FloridaJusticeAssociation.org | March/April 2016 | 69

INDEX dismissal where assignor of claim had previously taken a voluntary dismissal...53 Products liability above-ground pools, discussion of laws relating to pool safety and pool design flaws...38 tobacco, question certified re whether federal regulation of tobacco preempts state tort claims for strict liability and negligence...22 Proposal for Settlement, attorney fees...37 Qui tam actions, dismissal, AG has the authority to unilaterally voluntarily dismiss a qui tam False Claims Act action even if it never intervened in the case…25, 53 Sanctions attorney misconduct, error to dismiss complaint without legally required findings…24 discovery violations, Kozel findings not required for award of attorney’s fees...52 dismissal too severe for procedural defects or failure to attend case management conference...29 frivolous filings, summary of law and practice tips...50 Settlement Agreement, enforcement, court without jurisdiction where parties had filed a voluntary dismissal with prejudice…25 Settlement, reformation of release...35 Sovereign Immunity, Sheriff, motorist’s collision with dead horse lying in roadway, analysis of various issues relating government liability…24 Statute of Limitations action based on sexual abuse, long delay in filing due to repressed memory syndrome…23 defective drywall, property damage vs. personal injury…25 Testimony, partial read-back of witness testimony was error where jury allowed to end the read-back at any time...48 Witnesses expert, no error in striking summary judgment affidavit where it contained new opinions not expressed at depo...47

medical unavailability, woman who gave birth eight days before trial deemed unavailable, prior testimony from recent similar trial used...48 Workers’ Compensation admissibility and presumption of correctness of EMA opinions outside scope of JCC assignment, when the opinions of an EMA”exceed the scope” of the disagreement, these opinions carry the same weight as that of an independent medical examiner or an authorized treating physician and do not carry the presumption of correctness...44 Evaluations/Burden of proving MCC, to meet the requirements of subsection 440.09(1), a claimant must he prove his injury and its occupational cause within a reasonable degree of medical certainty based on objective relevant medical findings...42 F.S. s. 440.205 Retaliation Claim/Legal Cause of Damages, to be entitled to an award of lost wages, the employee must be ready, willing, and able to accept employment...44 Misrepresentation/Scope of Defense and Pleading with Specificity, If the Claimant made any misrepresentation for the purpose of obtaining benefits, then he is barred from entitlement to benefits, even if the misrepresentation is unrelated to his knee injury or benefits based on that injury. Also, a misrepresentation defense must be raised with specificity, detailing the conduct giving rise to the defense, with leave to amend within 10 days...43 prevailing party costs and sanctions, prevailing party costs under F.S.§440.34(3) are available to the party that prevails “in any proceedings” which here were initiated with a PFB, and upon the filing of a sanctions motion, the JCC had jurisdiction to make findings about the merits of the costs motion...42

Accident Reconstruction BEC Consulting, LLC.................................................................. 57 Robson Forensic .......................................................................... 53 ADR Services Upchurch, Watson, White & Max............................................... inside back cover Attorney Advertising Cohen Milstein............................................................................ 27 Hickey Law Firm......................................................................... 33 Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor............ 19 Searcy, Denney, Scarola, Barnhart & Shipley................................ 17 Steve Watrel, P.A.......................................................................... 47

Expert Witness & Wealth Management Charles W. Ranson Consulting, LLC............................................ 43

AdvertisersIndex

Attorney Banking Esquire Bank................................................................................ 49 Books Trial Guides..................................................................................31

Litigation Funding Fast Funds, Inc..............................................................................55 Rehabilitation Services NeuLife Rehabilitation................................................................... 7 Settlement Services Garretson Resolution Group......................................................... 41 NFP Structured Settlements .......................................................... inside front cover Synergy Settlement Services........................................................... 13 Video Production Image Resources, Inc..................................................................... 45 Visual Communications Trial Consultant Images of Justice............................................................................ 37

70 | March/April 2016 | www.FloridaJusticeAssociation.org

Craftsmanship.

Just as a fisherman assembles everything he needs to pursue a deceptive catch, Larry Watson approaches a dispute with all the equipment needed to achieve even the most elusive resolution.

His tackle box has all the necessary tools to resolve conflict without resorting to litigation, or to streamline any litigation that must occur.

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 March/April 2016 Change Service Requested

ERISA ETHICS

MEDICAID

YOUR CLIENT PRIVATE INSURANCE

MEDICARE

COLLATERAL SOURCES HOSPITAL LIENS

CLE WEBINAR • MAY 5 • 8:30am - 1pm [AGENDA]

[SEMINAR

The Webinar explores the latest information on ERISA and Medicare Liens. Get the information you need without leaving your desk — saving you time and money! This webinar is great for all FJA members (including our paralegal/legal assistant members!)

Co-Chairs: Rebecca Creed, Jacksonville, and Jason D. Lazarus, Orlando

TOPICS]

>> Hospital Lien Resolution Hot Topics >> LOPs >> ERISA Lien Resolution Hot Topics >> Medicare Waiver/Compromise Part C/D Lien Resolution >> Preservation of Public Benefits & ACA >> ACA & Joerg–Fighting Collateral Sources Defenses >> Question & Answer Session

[REGISTER TODAY!] CLE Department @ 850-521-1097

Register @ floridajusticeassociation.org

cle@floridajusticeassociation.org