FJA Journal - JAN/FEB 2017 by Florida Justice Association

JOURNAL FLORIDA JUSTICE ASSOCIATION

Florida Justice Association • January/February 2017 • #594 ®

FLORIDA JUSTICE ASSOCIATION

CIVIL JUSTICE Pushing a Proactive Agenda This Session, FJA Continues to Protect You and Your Clients Against Anti-Consumer Bills

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JANUARY/FEBRUARY 2017 - NO. 594 March 2014 March 2014

CONTENTS HIGHLIGHTS

18,22

On the Cover:

Caption: Looking ahead to the upcoming 2017 Regular Legislative Session

A recent insurance bad faith decision by the Fourth DCA attempts to graft federal standards into state court opinions

Florida is the first state to authorize fully self-driving cars

A primer on subsequent remedial measures and practice tips regarding the business records hearsay exception

Practice tips for drafting valid proposals for settlement in cases involving claims for loss of consortium

Stay alert for “empty chair” defense arguments that cross the line prohibiting references to settlements

Establishing vicarious liability for the negligence of an independent contractor

Federal court decisions requiring “more than negligence” to support a claim of insurance bad faith are not consistent with Florida law

IN THIS ISSUE In a huge victory for homeowners, the Supreme Court adopts the concurrent cause doctrine for multi-peril losses

The Florida Supreme Court throws out a medical practitioner’s one-sided arbitration agreement as against public policy

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5 President’s Message — Jimmy Gustafson 6 Executive Director’s Message — Paul Jess 8 Special Focus: Session Preview — Jeff Porter 12 Cases and Commentaries — Kenneth D. Kranz 14 Legislative Notes 18 Tips for Auto Practitioners — Dale Swope 22 Insurance — Richard Benrubi 26 Medical Malpractice — Scott R. McMillen and Allison McMillen 28 Products Liability — Adam J. Langino, Leslie M. Kroeger, Theodore J. Leopold 32 Evidence — Matt Schultz 40 Civil Procedure — Roy D. Wasson 44 Closing Argument — Philip Burlington, Barbara Green and Chris Carlyle 48 FJA Young Lawyers Section – Matthew A. Crist 52 The Briefcase – Robert G. Kerrigan and E. Hoyt Walston 60 Member Outreach 62 FJA CLE Calendar 64 EAGLE 67 Index

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2016-2017 FJA OFFICERS, EXECUTIVE COMMITTEE AND BOARD OF DIRECTORS PRESIDENT James W. Gustafson, Jr. PRESIDENT-ELECT Dale M. Swope TREASURER Lake H. (Trey) Lytal, III SECRETARY Leslie Mitchell Kroeger

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

IMMEDIATE PAST PRESIDENT Todd E. Copeland

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

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

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

DIRECTORS AT LARGE P. Hutchison Brock Stephen F. Cain Cameron M. Kennedy Christopher N. Ligori Kenneth J. McKenna Curry Pajcic Eric Romano PRESIDENTIAL APPOINTMENTS Mike Morgan AMICUS CURIAE COMMITTEE Phil Burlington APPELLATE PRACTICE SECTION Adam Richardson WORKERS’ COMPENSATION SECTION Richard E. Chait YOUNG LAWYERS SECTION Jonathan Gilbert Heather Freeman WOMEN’S CAUCUS Fay O. Pappas Mallory R. Widgren

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

JOURNAL STAFF

Paralegal List Server, contact the FJA

EDITOR-IN-CHIEF Kenneth D. Kranz

Membership Department at (850) 521-1093.

JOURNAL COORDINATOR Jan Brown

4 | January/February 2017 | www.FloridaJusticeAssociation.org

MARKETING COORDINATOR Kalon Hopkins

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

PRESIDENT’SMESSAGE

THE BATTLE AHEAD

by FJA President Jimmy Gustafson

t is an exciting time for the Florida Justice Association and our members. With your involvement, this year’s Legislative Session is the time to have an impact on policies that will make Florida a better and safer place to live for years to come.

We have great challenges ahead of us. The well-heeled interests from the insurance industry, big tobacco and corporate Florida are going to fight hard to prop up the rigged system that has helped make and keep them rich. In insurance, our opponents’ bellyaching about attorney fees is a broken record, a diversion from the real cause of insurance claims. On issue after issue, our opponents are the cause of their own claimed problems. Their greed is their worst enemy. This time, thanks to the advocacy of talented attorneys across Florida standing up for Floridians, lawmakers have taken notice and the bad actors are being called to the carpet. For example, in workers’ compensation, Florida is one of two states in which open competition in ratemaking was abolished; critical ratemaking decisions are made in secret by a private company, without competition, in violation of Florida’s Sunshine Law. Injured workers aren’t allowed to choose their own doctors, don’t have a right to contract with their own lawyer, and face charges of insurance fraud if they seek medical care from their own physician. It’s a system in which a claimant’s attorneys’ fees are capped at levels where $1.53 per hour is deemed to be reasonable. Apparently having no problem with the insurance industry holding secret meetings to set rates for the insurance companies to charge businesses, Tallahassee’s corporate lobbyists dusted off their “blamethe-lawyers” talking points and have run back to the Legislature for protection.

The insurers went too far and now the Legislature is revisiting the workers’ compensation issue. We’re going to be there fighting for fairness for injured workers so they can receive the benefits they deserve. We’ve seen the same story play out in property insurance where homeowners, tired of being given the runaround, decide to hold an insurer accountable when they fail to pay a meritorious claim. It’s apparent in automobile insurance, where PIP coverage reforms have not generated promised savings for consumers. Big tobacco will be out in force to defend their sweetheart deal that allows them to post partial supersedeas bonds and receive a stay of execution through all appellate review when they appeal. This is an incentive to delay paying Floridians in every case. This preferential treatment for cigarette makers is wrong and we’re supporting good legislation to bring it to an end. On issue after issue, principled lawmakers understand it is wrong for the Legislature to pick winners and losers, to hold its thumb on the scale for the wealthy at the expense of the common man. The abuses of the past that put the screws to consumers have opened up many eyes at Florida’s Capitol. Today, we have an opportunity to level the playing field with lawmakers who understand why it is right to protect access to the courts for every day Floridians. Thanks to your good work during the 2016 election cycle and over the last decade, things have changed in Tallahassee. Your membership in the Florida Justice Association has meaning. We’re going to be in a tough battle against well-funded corporations. They are anxious to hold on to power. Their hired guns at the Capitol will hustle to distort every fact. We need your active involvement in this effort. We need every hand on deck, every oar in the water. Join our cause. Visit FloridaJusticeAssociation.org to learn more about how you can help. Floridians will win.

www.FloridaJusticeAssociation.org | January/February 2017 | 5

EXECUTIVEDIRECTOR’SMESSAGE

FJA IS ENERGIZED AND REFOCUSED

or the past 28 years, as both Deputy Executive Director and General Counsel, I’ve had a front-row seat to witness the evolution of the Florida Justice Association. This organization faced tough political winds for over a decade and a half, beginning in the late 1990s. We had tremendous forces working against us to rig the civil justice system against everyday Floridians and close the courthouse doors to people with legitimate grievances against powerful corporations. Hot on the heels of the attacks from policy makers, the Great Recession hit. This presented a whole new set of challenges for FJA members. Like many law firms, the FJA also has adapted to the new economic realities created by the economic downturn. Because we remained focused on our strong guiding values like justice, fairness, and equity, we boldly navigated our way through these heavy storms and have emerged in a stronger position to defend people’s access to civil justice in our state. I am proud to be at the helm as interim Executive Director of the FJA. Thanks to the hard work and contributions of a strong core of committed members, I believe the FJA is on the cusp of a new golden era. We won significant victories during the 2016 election cycle that have returned us to our rightful position as a major player at the Capitol. We are promoting a proactive agenda for justice during this legislative session, and we’re receiving positive reaction among lawmakers to our proposals. Still, to truly break through to the next level, the FJA has significant challenges that I am committed to addressing. It’s the blocking and tackling of association work: growing membership, improving our technological capabilities, increasing the number of EAGLE-level leadership members, and growing our current endowment funds. Membership: In the last decade and a half we have seen an erosion in our membership numbers. In the year 2000, the FJA had 4,000 active members. In a steady decline over the last decade and a half, that number has slipped to 2,800. While we have seen promising numbers of younger attorneys join the ranks, the number of veteran attorneys has fallen off. With your help, we will turn this around. We need new members to get involved and veteran members to stay involved for the sake of their clients and their own practices. 6 | January/February 2017 | www.FloridaJusticeAssociation.org

by Paul Jess FJA Interim Executive Director

All trial lawyers need the services and benefits the FJA provides, and all trial lawyers have a stake in the survival of civil justice in our state. Technology: The FJA is rebooting our technological capabilities to better serve our members. We are investing in new hardware and software to better interact with our members. Our new website has been retooled and now will be a real benefit to all trial lawyers. If you haven’t been on it lately, please check it out at www.FloridaJusticeAssociation.org. We also are putting some exciting features in place to improve our communications and provide information to members, including a new social media outreach campaign. Please “like” our Facebook page and follow us on Twitter at @FloridaJustice. Our new Communications Director, Ryan Banfill, is also preparing a strategic communications plan. EAGLE: The FJA’s EAGLE members serve as leaders and advocates for public service in our profession. They set an example and leave their mark to protect access to Florida’s courts. The FJA is stronger when more members are involved at the leadership level. I’m committed to increasing the number of EAGLE members that we can count on to be leaders going well into the future. Endowments: I’m also committed to improving other fund development projects, including further development of our endowment funds. We have two endowments, one for EAGLE (for future political battles, like constitutional amendment campaigns), and one for our charitable foundation, the Florida Justice Association Research and Education Foundation (literally for research and education to benefit the civil justice system). I will be visiting the stalwart members of the FJA and the Fellows of the Academy of Florida Trial Lawyers to promote endowment contributions through estate planning, life insurance, cy pres awards, etc. This will be part of our “Lawyer to Legacy” program. With these steps, the Florida Justice Association will be a leader not only in Tallahassee among policy-makers, but also among organizations serving trial lawyers and other associations nationwide – because that’s what YOU deserve! Again, I am honored and privileged to have the opportunity to serve as your interim Executive Director. After 28 years as the back-up quarterback, I am thrilled to be put on the field of play. I believe that the best days of the Florida Justice Association are ahead of us, and I hope to play a role leading us to those better days. I’m always available if you have any questions, comments or concerns. Please e-mail me at pjess@FloridaJusticeAssociation.org if I can be of any help to you.

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SPECIALFOCUS:2017LEGISLATIVESESSION PREVIEW

FJA PUSHING

CIVIL JUSTICE ACTION AGENDA

by Jeff Porter, FJA Legislative & Political Director

he Florida Legislature has been hard at work since the election preparing for the 2017 Regular Legislative Session. While some are digging in to play defense this year, on behalf of our membership, the Florida Justice Association lobby team and elected leaders are hard at work pushing a proactive civil justice action agenda and protecting against anti-consumer bills that continue to be filed. It is a duty we are taking very seriously to promote legislation that would bring about meaningful, positive change for FJA’s members and the clients they serve. We are in this position thanks to the hard work of our members in the 2016 election to elect many strong civil justice champions to office. On issue after issue, we are supporting reasonable reforms that protect the free market, limit government, empower citizens, promote responsibility and preserve constitutionality. These are important principles lawmakers hold dear as they consider legislation. Major 2017 reform proposals supported by the Florida Justice Association include: Promoting Responsible Roadways Automobile Insurance Reform: The Florida Justice Association supports legislation to bring Florida into line with 48 other states by achieving mandatory bodily injury liability insurance coverage plus medical payment provisions. Florida’s auto insurance laws – with coverage set at 1970s rates – have inadequate financial responsibility requirements. As a result, residents and businesses needlessly pay millions of dollars a year in higher taxes and higher insurance premiums. Drivers and taxpayers are forced to pick up the tab for the treatment and care of victims of negligent drivers who are either uninsured or, more commonly, underinsured. The Florida Justice Association proposes setting requirements for mandatory bodily injury liability coverage in the minimum amount of $30,000 per person / $60,000 per incident and require that insurers automatically enroll their insured for $5,000 of med pay coverage. Rental Car Financial Responsibility: The Florida Justice Association believes the Florida Legislature should require rental car companies — companies that make money from foreign tourists — to be responsible for bodily injury of $100,000 per person and $300,000 per incident, with at least $50,000 in property damage liability coverage if they don’t make sure those to whom they rent have appropriate insurance. Under current Florida law, drivers — including rental car drivers — are not required to carry the kind of bodily injury liability insurance that could realistically pay the medical bills generated by even a mild, let alone serious, car crash with injuries. This solution offers a free-market approach to these responsibilities. 8 | January/February 2017 | www.FloridaJusticeAssociation.org

This is good policy for Florida drivers and good for the bottom lines of the rental car companies who can sell insurance. Spurring Judicial Efficiency Prejudgment Interest: The Florida Justice Association supports prejudgment interest legislation to discourage delay tactics and encourage fair settlements for victims. We believe if the prejudgment interest is compounded with post-judgment interest, it would also curb the abuse of the appellate process. Some negligent defendants and insurance companies play games with the lives and recovery of Floridians during personal injury and wrongful death cases. This is because the judicial process provides latitude for defendants who choose to cause frivolous delays in losing cases as a way to exacerbate the desperation of victims in hopes of procuring settlements far below the true amount needed to make a victim whole. The Florida Justice Association supports holding wrongdoers accountable when they take advantage of this process by dragging out meritorious cases for years. This practice is often known as attempting to “out-live” a meritorious claimant or their family by means of multiple delay-and-stall tactics. Thirty-three other states have responded to this behavior by allowing prejudgment interest in cases involving personal injury and wrongful death. The result is a “hammer of accountability” over negligent actors to be responsive after a meritorious case has been filed against them. Florida currently allows for prejudgment interest in many other cases like business torts and contractual disputes but does not do so in cases involving personal injury and wrongful death. Tobacco Bond Repeal: Florida law shields Big Tobacco from having to post a full bond to get a stay of execution on a judgment, and gives Big Tobacco a stay of execution for as long as they seek to appeal. Big Tobacco is the only special interest that is allowed this benefit under law. The Florida Justice Association supports legislation by Sen. Greg Steube and Rep. Daniel Burgess to repeal this special protection for Big Tobacco and treat them like other businesses in Florida. This legislation would end the cigarette companies’ frivolous appeals that are needlessly wasting taxpayer money for appellate courts. Big Tobacco has exploited families by abusing this unique law to “outlive” their victims and their victims’ families, many of whom are dying from smoking-related diseases. Protecting the Value of Insurance Homeowners Emergency Mitigation Reform: The Florida Justice Association believes efforts to restrict homeowners’ ability to assign their insurance benefits would directly harm Florida consumers and make what is already a difficult, time consuming and often frustrating claim experience exponentially more challenging. The ability of Florida insureds and homeowners to freely assign post-loss property insurance policy benefits following a property loss is of critical importance and (as Florida courts have repeatedly recognized) is a long-standing right that should not be restricted or limited.

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SPECIALFOCUS:2017LEGISLATIVESESSION PREVIEW

This year, insurers are attempting to erode the consumer protections found in s. 627.428, the statute that allows prevailing insurance consumers to get their attorney’s fees paid. The insurance industry proposal would make consumers and the businesses that serve them pay an insurance company’s attorney’s fees in certain situations. To the extent that there are believed to be abuses involving benefit assignments, or more accurately stated, particular “bad actors” who are thought to be pursuing inflated or improper insurance claims by virtue of having taken an assignment, the Florida Justice Association believes that any proposed legislation should be specifically targeted to address the actual root problems and “bad actors” based on transparent and empirical data demonstrating those specific concerns, not by a blanket effort to restrict a homeowner’s right to utilize a benefit assignment itself. Workers’ Compensation Reform: The Florida Legislature is comprehensively reviewing the workers’ compensation system. With significant Florida Supreme Court rulings exposing the need for real worker-focused reforms, this issue has received a lion’s share of attention in the run up to the 2017 Legislative Session. The Florida Justice Association is endorsing responsible legislation to provide statutory and rate reforms that return workers’ compensation back to its stated purpose: To help injured workers get healthy and back on the job. The Florida Justice Association believes the state’s workers’ compensation system has been skewed in favor of insurance companies with employers and injured workers paying the cost. Insurers have not been held accountable for wrongly denied care to injured workers. Many workers harmed by these irresponsible decisions brought the insurers to justice. The Florida Justice Association supports efforts to fix the misguided insurance-favored reforms by establishing a more equitable framework for the state’s workers’ compensation system and a competitive and transparent rate-making system. Insurer Liability for Policies Impacting Standard of Care: Under Florida law, physicians are the ones at risk of a lawsuit when a health insurance company makes a bad decision to deny care for a patient who gets sicker as a result. The Florida Justice Association is working with health care professionals to fix this bad law. We support Sen. Greg Steube’s proposal to shift accountability back to where it belongs – to the insurer who caused harm by making a bad profit-driven decision. This will allow this issue to be addressed on a caseby-case basis. Empowering Consumers Medical Records Costs: We believe charging an unreasonable fee to have access to your own medical property unconstitutionally deprives people of their property and access to healthcare. This is especially true with efficiencies gained through increased digitization of records.

10 | January/February 2017 | www.FloridaJusticeAssociation.org

This proposal would bring Florida Statutes on the cost of reproducing medical records in alignment with language from Health Insurance Portability and Accountability Act of 1996 (HIPAA) and U.S. Department of Health and Human Services (HHS) clarifications. The bill ends a loophole which purports to authorize health care practitioners and businesses operating on their behalf to charge patients excessive fees for medical records, at prices which exceed the maximum charge authorized by controlling federal law. Consistent with the prevailing federal law, this bill provides that a health care practitioner or a business operating on their behalf may charge no more than either the actual cost of copying which includes reasonable staff time and postage OR a flat fee of up to $6.50 per electronic record which is the highest amount allowed under HHS for a flat fee for electronic records. Human Trafficking Civil Enforcement: Throughout Florida, too many otherwise legitimate businesses and website owners are profiting from human trafficking by deliberately turning a blind eye to the criminal practice. These businesses take a deliberate “no ask, no tell” approach to obvious child exploitation happening “under their noses,” meaning on their premises or property or on the websites they host and support. Legislation the Florida Justice Association supports is by far among the toughest human trafficking proposals in the country, and would make businesses that turn a blind eye to human trafficking and sex abuse liable for damages to either the victims themselves or a trust fund set up to assist law enforcement in combating the crime or to future victims of this heinous crime. Legislation allowing a civil cause of action against these profiteers from child and sex trafficking will have a positive fiscal impact on the state and its law enforcement agencies, help repair victims’ shattered lives, encourage private enforcement of Florida’s laws against these atrocious practices, and uphold Florida’s global image as a welcoming destination for children and families. We need your active involvement in passing these critically important bills. If you have compelling client stories to illustrate the need for these reforms, please contact me at jporter@FloridaJusticeAssociation.org. Lawmakers need to hear why they need to take action.

Jeff Porter began working with the Florida Justice Association in the Summer of 2006 and has been Legislative Director since January, 2012. He lives in Tallahassee with his wife Jennefer and their new son Hudson.

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www.FloridaJusticeAssociation.org | January/February 2017 | 11

CASES&COMMENTARIES

In Brief

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

n a case involving the interpretation of an all-risk homeowners insurance policy, the Supreme Court holds that where two or more perils converge to cause a loss and no single cause can be considered to be the sole or proximate cause, and at least one of the perils is excluded from the insurance policy, it is appropriate to apply the concurring cause doctrine. Sebo v. American Home Assurance Co., Inc., So.3d , 41 FLW S582 (Fla. 12-1-2016). “The [concurring cause doctrine] provides that coverage may exist where an insured risk constitutes a concurrent cause of the loss even when it is not the prime or efficient cause.”

Malpractice Act contravene the legislature’s intent and are therefore void as against public policy. Hernandez v. Crespo, So.3d , 41 FLW S625 (Fla. 12-22-2016). The Court affirmed a Fifth DCA decision striking down an arbitration agreement between a physician and patient, finding that it was void and violated public policy because it included statutory terms that were only favorable to the medical practitioner. It found the agreement at issue diverged from the statutory scheme in six major ways. The Court approved the decision of the Fifth DCA and disapproved the conflicting decision in Santiago v. Baker, 135 So.3d 569 (Fla. 2nd DCA 2014).

Supreme Court certifies to the legislature the need for additional judges in fiscal year 2017/2018. In Re: Certification of Need for Additional Judges, So.3d , 41 FLW S605 (12-15-2016). As a result of an extensive judicial workload study, the Court certified the need for twelve additional trial court judges (four circuit court and eight country court) and none in the district courts of appeal. It also recommended the decertification of six county court judgeships. Additional circuit court judges were recommended for the 5th (1) and 9th (3) circuits. Additional county court judges were certified for Citrus (1), Flagler (1), Hillsborough (3), Palm Beach (1), Broward (1) and Lee (1) counties. Decertification of county court judgeships was recommended for Pasco (1), Putnam (1), Monroe (1), Brevard (1), Charlotte (1), and Collier (1) counties.

The trial court did not err in granting summary judgment in favor of the defendant parents in a wrongful death action based on a claim of negligent supervision brought on behalf of a 16-year-old boy who was killed when he fell off the back of an ATV that was being driven by defendants’ 16-year-old son. Perez v. Rodriguez, So.3d , 41 FLW D2540 (Fla. 4th DCA 11-9-2016). The ATV had been purchased by the driver’s parents as a gift for the boy, but he was not allowed to ride the ATV unless one of this parents was home. On the day of the accident, the boy’s mother was present when the friend arrived but later had to leave the house to run errands. She directed the friend to call his parents to pick him up as she did not want to leave the boys alone together (she had never before left her son at home alone with a friend). Assured that the friend’s father would be coming to pick him up, she left. The friend purportedly talked the son into going for what turned out to be a fatal ride on the ATV. In the ensuing suit, the trial court granted summary judgment for the defendants and the Fourth DCA affirmed.

The Supreme Court holds that arbitration agreements that change the cost, award, and fairness incentives of Florida’s Medical 12 | January/February 2017 | www.FloridaJusticeAssociation.org

Noting that it is “basic and established law that a parent is not liable for the tort of a minor child because of the mere fact of paternity,” the court found that none of the four broadly recognized exceptions under which a parent may incur liability applied. The exceptions are: “(1) [W]here the parent entrusts the child with an instrumentality which, because of the child’s lack of age, judgment, or experience, may become a source of danger to others; (2) where the child committing the tort is acting as the servant or agent of its parents; (3) where the parent consents, directs or sanctions the wrongdoing; and (4) where the parent fails to exercise control over the minor child although the parent knows or with due care should know that injury to another is possible.” Furthermore, for the fourth exception to apply, the child must be in “the habit of doing the particular type of wrongful act which resulted in the injury complained of.” The court found that here, because the son had never taken a friend on the ATV, nor had he ever ridden it while his parents were not at home or without their permission, he did not have a “habit of doing the particular type of wrongful act that resulted in the injury.” Thus, his mother had no duty to control him with respect to the act that resulted in the death. Where the trial court found that an employer was not estopped from asserting workers’ compensation immunity after the employer had previously denied benefits in a prior worker’s compensation proceeding, there remained a question of fact whether the employer had taken inconsistent positions such that estoppel would apply, thus the trial court erred in granting summary judgment. Gil v. Tenet Healthsystem North Shore, Inc., So.3d , 41 FLW D2567 (Fla. 4th DCA 11-16-2016). The employee died of cancer, which, it was alleged, was due to exposure to hazardous materials in the course of his employment. His widow filed for workers’ compensation benefits but withdrew her petition in confusion after the benefits were denied by the employer, and she subsequently filed the present wrongful death action. The court explained: “If an employer takes the position in a workers’ compensation proceeding that the employee is not owed workers’ compensation because ‘the injury did not occur in the course and scope of employment, or that there was no employment relationship,’ the employer may be subsequently estopped from claiming immunity on the ground that ‘the worker’s exclusive remedy was workers’ compensation….’ … However, if an employer merely states a defense within the worker’s compensation proceeding, an employer will not be estopped from later asserting immunity.” Here, the employer contended that it did not take inconsistent positions because in its denial of worker’s compensation benefits it did not deny that the injury occurred in the scope of employment but rather asserted the “medical causation” defense that the compensable injury was not the major contributing cause for the employee’s need for treatment. The court found that the actual notice of denial of workers’ compensation benefits was ambiguous and thus created a question of fact. “[T]he difficulty of the case alone cannot overcome the presumption against a [contingency fee risk] multiplier.” Garrison Property and Casualty Ins. Co. v. Rohrbacher, So.3d , 41 FLW D2609 (Fla. 5th DCA 11-18-2016). The court noted that the plaintiff retained approximately ten lawyers before hiring the lawyer who actually won the case, and that lawyer attained an unlikely success in a difficult case where others had failed. But, there was no finding that a multiplier was

needed to secure competent counsel or that the successful attorney even considered the possibility of a multiplier before taking the case. Under Florida’s dog bite statute, §767.04, Fla. Stat., a dog owner is strictly liable for damages, subject only to a plaintiff’s comparative negligence, thus the trial court erred in granting summary judgment for the defendant upon determining that the plaintiff’s actions had constituted a superseding, intervening cause. Arellano v. Broward K-9/Miami K-9 Services, Inc., So.3d , 41 FLW D2659 (Fla. 3rd DCA 11-30-2016). Two guard dogs supplied to a business by the defendant escaped through a hole cut by burglars in the business’ fence. The plaintiff found the dogs and, believing they belonged to one of her neighbors, fed and sheltered them for a few days while she attempted to find their owner. In the course of this stay, there was an altercation between one of the guard dogs and one of the plaintiff’s own dogs. When she intervened the guard dog bit and injured her big toe. The trial court found that the plaintiff’s actions in tending for the dogs, while well-intentioned, constituted an “intervening, superseding proximate cause” thereby relieving the defendant of any liability to plaintiff. The Third DCA reversed, pointing out that while this might be appropriate in a common law negligence action, it was not so in an action founded upon the statute, which provides for strict liability with only a limited exception for plaintiff’s comparative negligence. The action was reversed and remanded for determination as to whether and to what extent the defendant’s liability should be reduced for comparative negligence. Defendant retirement living facility was entitled to directed verdict in an action alleging damages were sustained by former resident as a result of negligent supervision of employees who took financial advantage of plaintiff. ACTS Retirement-Life Communities, Inc. v. Estate of Zimmer, So.3d , 41 FLW D2668 (Fla. 4th DCA 11-302016). The facility was an “independent living” and a “continuing care” facility. While residing at the facility, the now-deceased former resident befriended a number of employees of the facility and made gifts to them of at least $30,000 in cash and a $42,000 Mercedes to one employee. When the facility learned of these gifts, they immediately terminated every employee who had accepted gifts from the resident for violating the facility’s internal policy against employees accepting gratuities. The resident remained friends with the employee to whom he had given the car, and he continued to see her after she was fired and on occasion asked facility employees to drive him to meet her at various locations. The employees complied with these requests because driving facility residents around was part of their job duties. The court found that there was insufficient evidence to conclude that the facility knew or should have known there was a propensity for the employees to take advantage of the resident before it was notified of this by the resident’s son, that the facility took appropriate action by promptly firing the employees once it was made aware of the situation, and that the employees who were retained were not acting inappropriately by driving the resident to meet the former employee as they were acting within the scope of their duties. The facility was also not responsible under a theory of negligent supervision of employees for any postfiring interactions between the resident and the former employee as that theory is inapplicable to non-employees. www.FloridaJusticeAssociation.org | January/February 2017 | 13

CASES&COMMENTARIES

The trial court erred in denying defendant’s motion for remittitur of a large compensatory damages award in a tobacco case where the plaintiff was an adult child of the decedent and lived independent of the parent during the parent’s smoking related illness and death. R.J. Reynolds Tobacco Co. v Odom, So.3d , 41 FLW D2671 (Fla. 4th DCA 11-30-2016). “[N]o matter how strong the emotional bond between an adult child and a decedent parent may be, an adult child who lives independent of the parent during the parent’s smoking related illness and death is not entitled to multi-million dollar compensatory damages award, even if the child was involved in the facilitation of the parent’s treatments and suffered tremendous grief over the loss of the parent. … Although Plaintiff took her mother to many of her appointments and was devastated by her decline and subsequent death, the relationship between and adult child living independent of their parent is simply not the type of relationship which can justify the magnitude of the Plaintiff’s compensatory damage award.” Where a judge engaged in ex parte communications with the opposing party on several occasions before entering a final judgment that was nearly identical to opposing party’s proposed final judgment, including an award of attorney’s fees, this was sufficient on its face to demonstrate that a reasonably prudent person would be in fear of not receiving a fair and impartial hearing. Isan v. Isan, So.3d , 41 FLW D2705 (Fla. 5th DCA 126-2016). The court found the trial court erred in denying a motion to disqualify, and it issued a writ of prohibition disqualifying the judge from further participation in the case. The trial court erred in denying a remittitur of future medical damages where there was testimony that the plaintiff would incur up to $2,000 per year in future medical expenses due to the injury, but there was no testimony as to the plaintiff’s life expectancy,

and in any event the jury award far exceeded what the evidence supported. GEICO v. Isaacs, So.3d , 41 FLW D2715 (Fla. 4th DCA 12-7-2016). The court remanded for a new trial solely on the issue of the plaintiff’s life expectancy, with the award of future medical damages to be determined by applying the findings in that regard to the expert’s $2,000 per year estimate. In a challenge to a Medicaid lien on a third-party settlement, the First DCA held that §409.910(10(b), Fla. Stat., means exactly what it says—that “[i]n order to successfully challenge the amount payable to the [Agency for Health Care Administration], the [Medicaid] recipient must prove, by clear and convincing evidence, that a lesser portion of the total [settlement] recovery should be allocated as reimbursement for past and future medical expenses than the amount calculated by the agency pursuant to the formula set forth in paragraph (11)(f )….” Giraldo v. Agency for Health Care Administration, So.3d , 41 FLW D2743 (Fla. 1st DCA 12-12-2016). Among other things, the plaintiff had challenged the consideration of damages allocated to future medical expenses under the statutory formula. The court acknowledged that while a few decisions had determined that a state Medicaid agency may be paid only from a recipient’s past medical cost award, it chose to align itself with what it believed to be the better-reasoned decisions of those courts that have held a state agency may secure payment from recoveries for both past and future medical expenses. The Second DCA, while recognizing that the physical characteristics of a Bobcat loader, which weighs over 8,000 pounds and can lift a one-ton load nine feet in the air, make it a “serious piece of machinery with the capacity to do great harm” nevertheless holds that it is not a dangerous instrumentality. Newton v. Caterpillar Financial Services Corp., So.3d , 41 FLW D2755 (Fla. 2nd DCA 12-14-2016). The plaintiff was hired as an independent contractor to

LEGISLATIVE NOTES With the November elections and Organizational Session behind us, the 2016-2018 legislature is up and running, and the pace of activity is accelerating as the 2017 Session rapidly approaches. Interim committee meetings have been underway since December, and, by the time the Session starts on March 7, legislators will have been in Tallahassee for six sets of committee meetings, ending with three straight weeks in February. Bills are being filed and are already being heard in committee. Legislators can continue to file bills up until Opening Day of Session, but Opening Day also starts the 60-day sprint to sine die—Session’s end--during which most bills that have been filed fall by the wayside as the clock runs down. Those bills that have already begun working their way through the system before Opening Day have a head start on the long road to the governor’s desk and becoming law, while many of those that are filed at the last minute start out with a serious handicap in the competition with other bills to even get a hearing in committee. 14 | January/February 2017 | www.FloridaJusticeAssociation.org

See the Special Focus section in this issue for a preview of issues that we expect to be in play this year. Then, keep on top of fast-breaking legislative matters that will affect your practice through the FJA website and regular updates from FJA. For even more information, including detailed information on bills and amendments, complete legislative history, calendars, and access to real time coverage of legislative proceedings, visit the legislative websites at www.flsenate.gov and www. myfloridahouse.com. Calendar: March 7-May 5

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CASES&COMMENTARIES

assist a company in clearing debris from a residential lot. The company had leased a Bobcat model 257B3 bucket loader from the defendant. The loader was delivered to the lot in a box trailer, unloaded, and driven briefly on the street before moving onto the lot. The plaintiff and the operator of the loader were using the loader to move debris they had cleared into a box trailer. At one point during the work, while the plaintiff was inside the trailer attempting to pack down debris, the operator dropped a tree stump into the box, injuring the plaintiff. The plaintiff sued the defendant owner alleging that it was liable for the injuries because the loader was a dangerous instrumentality. The trial court found it was not a dangerous instrumentality and entered final summary judgment for the defendant. After examining several factors, the Second DCA affirmed. In reaching that decision, it concluded that the loader is not an automobile, that it is not a device that is “substantially regulated,” and that the “relative danger posed by the instrumentality is low.” It recognized that “[i]t is true that an instrumentality such as a crane that lifts heavy objects can be considered a dangerous instrumentality,” but went on to state that “simply that an instrumentality may have the potential to cause severe harm by dropping a load it has lifted is insufficient to find it is a dangerous instrumentality.” Here, it also found that despite these physical characteristics, there was no evidence that this type of loader is routinely operated in close proximity to the public or that it was so operated in the present case, thus there was “no evidence that the public is sufficiently exposed to loaders of this type as to justify application of vicarious liability.” A trial court was without jurisdiction to hear a motion for sanctions under §57.105, Fla. Stat., where the plaintiff had voluntarily dismissed the case before the defendant served or filed either her safe harbor notice or motion for fees; prohibition granted. Buckingham Estates Homeowners Assoc., Inc., v. Metcalf, So.3d , 41 FLW D2794 (Fla. 5th DCA 12-19-2016). “[T]he trial court has continuing jurisdiction to consider a section 57.105 motion for sanctions only when the motion … was filed with the court before a voluntary dismissal.” While a judge’s gratuitous comment about “right-hand” men in the Italian community during a pre-trial hearing was “unnecessary and improper,” the motion to disqualify based on the comment was legally insufficient because it did not allege how the judge’s comment would “manifest itself to prevent the party from receiving the benefit of that judge’s impartiality or a fair and impartial trial.” Pugliese v. Deluca, So.3d , 42 FLW D5 (Fla. 4th DCA 12-21-2016). “[W]e do not mean to suggest that a judge’s comment on ethnic or other stereotypes may never rise to the level of requiring disqualification, simply because the affected party cannot articulate how the judge’s comment would manifest itself to prevent the party from receiving the benefit of the judge’s impartiality or a fair and impartial trial. We can foresee situations in which a judge’s comment is so egregious that the judge’s lack of impartiality may be presumed. Here, however, we do not view the judge’s comment as rising to that level.”

16 | January/February 2017 | www.FloridaJusticeAssociation.org

The fact that Miami-Dade County is a large metropolitan city with a large airport and various accommodations that would make it a more convenient forum than Indian River County for traveling witnesses and parties was an insufficient reason to keep the case in Miami-Dade County where there was absolutely no connection to the subject lawsuit. Theobald v. Piper Aircraft, Inc., So.3d , 42 FLW D52 (Fla. 3rd DCA 12-21-2016). The case arose from a plane crash in New York. The court found: the plane was manufactured in Vero Beach (Indian River County), where the defendant manufacturer is and always has been located, and the other defendants were located in Texas; the plane was not purchased and had never been serviced or even ever on the ground in Miami-Dade County; and none of the parties, decedents or witnesses were located in Miami-Dade County. Taking into account the factors identified in §47.122, Fla. Stat.--the convenience of the parties, the convenience of the witnesses and the interests of justice—the court not only found that the trial court properly transferred jurisdiction from Miami-Dade to Indian River County, it suggested it may have been an abuse of discretion for it not to do so. It is departure from the essential requirements of law and a denial of due process to grant a motion to amend a complaint to add a claim for punitive damages against an assisted living facility pursuant to §429.297, Fla. Stat., without holding a hearing pursuant to Fla.R.Civ.P. 1.190(f ). WG Evergreen Woods SH, LLC v. Fares, So.3d , 42 FLW D66 (Fla. 5th DCA 12-30-2016). “Certiorari review is available to determine whether the trial court complied with all applicable procedural requirements before granting a motion to amend pleadings to assert punitive damages.” The trial court erred in barring plaintiff from taking the deposition of the defendant because he had been briefly deposed previously as a fact witness by the plaintiff’s counsel in a prior lawsuit against different defendants concerning the same underlying incident. Shindorf v. Bell, So.3d , 42 FLW D70 (Fla. 2nd DCA 12-28-2016). The brief exploratory deposition as a fact witness taken before the full extent of his involvement in the incident was known, before the lawsuit against him had been commenced, and before he had filed an answer and affirmative defenses to the plaintiff’s claims “would hardly serve as a substitute for the kind of deposition that would be taken were he a named defendant.” The court held that absent a showing of good cause, which was not present in this case, the plaintiffs had the right to take the defendant’s deposition. An “engineer intern” as defined in §471.005(6), Fla. Stat., cannot be held liable for a claim of professional negligence. Sunset Beach Investments, LLC v. Kimley-Horn and Assoc., Inc., So.3d , 42 FLW D130 (Fla. 4th DCA 1-4-2017). The suit was brought against an engineering firm and three of its employees who had worked on the plaintiff’s project—two licensed engineers and the project manager, who was an engineer intern. The sole count against the intern was a professional negligence claim that had been asserted against all four defendants. The court noted that “where the negligent party is a professional, the law imposes a duty to perform the requested services

in accordance with the standard of care used by similar professionals in the community under similar circumstances.” However, under the statutory definition, an engineer intern is a person who has only graduated from an engineering curriculum and has passed the fundamentals of engineering examination. An engineer intern is neither licensed nor regulated, cannot sign or seal plans and is required to work under the supervision of a licensed engineer. The court found that the separate classification created by the statutory provisions make it clear that being an intern does not make a person an engineer; in fact, being and intern and working under the supervision of a licensed engineer is a requirement for ultimately becoming licensed as an engineer. In the present case, although the intern was given the title “project manager,” he was not in charge of, but rather coordinated the team of two licensed engineers on the project who actually supervised him. Thus, the court concluded that, since engineering is a profession which requires special education, training and skill, the licensed engineers could be held liable for professional negligence but the intern could not. Summary judgment for the intern was affirmed. In a separate decision, the court determined that the defendant engineer intern in the foregoing case was entitled to an award of attorney’s fees based on his proposal for settlement, because the

trial court erred in holding that a superficial ambiguity created by two paragraphs in the middle of the release attached to the proposal rendered it unenforceable. Kiefer v. Sunset Beach Investments, LLC, So.3d , 42 FLW D132 (Fla. 4th DCA 1-4-2017). The two problematic paragraphs, unlike all the other paragraphs of the proposal and release, did not explicitly identify the defendant to which they applied. The Fourth DCA took to heart the Supreme Court’s recent statement discouraging courts from “nitpicking” proposals for settlement in search of ambiguities. (See Anderson v. Hilton Hotels Corp., 202 So.3d 846 (Fla. 2016).) It found that when the proposal and the settlement were read as a whole the two paragraphs in question did not create an ambiguity, and thus the offer was enforceable.

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 | January/February 2017 | 17

TIPSFORAUTOPRACTITIONERS

BAD, BAD FAITH CASE BY DALE SWOPE

or those of us who follow bad faith cases, it is not news that federal courts have attempted to create a new standard for common law bad faith that is different and inconsistent with the holdings of the Florida Supreme Court.

Since 1938, the standard of bad faith has not changed. See Auto Mut. Indem. Co. v. Shaw, 184 So. 852 (Fla. 1938). This is not a matter of “liberal courts” vs. “conservative courts.” Over forty different justices have sat on the Florida Supreme Court since that standard was established, and to this very day not one single word of that standard has ever changed. In fact, that standard has been re-affirmed repeatedly. See, e.g. State Farm Mutual Auto. Ins. Co. v. Laforet, 658 So. 2d 55 (Fla. 1995); Berges v. Infinity Ins. Co., 896 So. 2d 665 (Fla. 2004). Yet, the federal courts seem intent on changing the focus to the actions of the claimant or the insured, not the insurer, and on heightening the standard needed to prove bad faith. One case that they frequently quote suggests an insurer is liable only if it elevated its interest above the insured’s. Novoa v. GEICO Indem. Co., 542 Fed.Appx. 794 (11th Cir. 2013). See Attempts Rewrite of Florida’s Standard for Insurance Bad Faith, FJA Journal, July/August 2012. Fortunately the only time these cases seeped into actual Florida case law was in a decision called Goheagan v. American Vehicle Ins. Co., 126 So.3d 1136 (Fla. 4th DCA 2012) opinion withdrawn and superseded on reh'g, 107 So. 3d 433 (Fla. 4th DCA 2012). That case drew a rash of amicus briefs and a rehearing was granted, and the original opinion was withdrawn and replaced by a new opinion that did not include a whisper of those federal cases, nor the faux standard they attempted to inject into Florida law. See Fourth DCA Diffusing the Ticking Time Bomb: Going Back to Bad Faith Basics in Goheagan, FJA Journal, January/February 2013. After Goheagan, it seemed that even the federal cases were ready to defer on state substantive law to the Florida Supreme Court. See e.g. Moore v. GEICO Gen. Ins. Co., 633 Fed. Appx. 924 (11th Cir. 2016). But now, in a recent Fourth DCA opinion, GEICO General Insurance Company v. Harvey, So.3d , 42 FLW D110, 2017 WL 33659 (Fla. 4th DCA 1-4-17), the same judge that wrote the withdrawn and

18 | January/February 2017 | www.FloridaJusticeAssociation.org

original Goheagan opinion and subsequently penned the dissent in the later opinion, has again written an opinion that attempts to graft these federal standards into a state court opinion. Six days after his client was killed by a GEICO insured, the estate’s attorney contacted GEICO and requested a statement from the insured about assets, employment, and other insurance. Three days later, GEICO sent a check for policy limits to the estate but blew off the requested disclosures. Seven days later the estate’s attorney reiterated the request, and a week after that GEICO finally faxed a letter to the insured with a blank affidavit to fill out. The insured told the GEICO adjuster that his attorney would not be available for four days and asked the adjuster to inform the estate’s attorney that the affidavit was in the works. The adjuster dropped the ball and did not do that, even though her boss specifically told her to. Since the estate’s attorney never heard anything back about the affidavit, he filed suit a few days later and any opportunity to settle was lost and ultimately a large judgment was entered against the insured. In the bad faith case, GEICO moved for directed verdict, and the Fourth DCA reversed the trial court’s denial of that motion. To be sure, this outcome could have been supported using the traditional rubric for state court bad faith cases. Under that rubric, carriers are required to notify the insureds of settlement opportunities and overtures, but no reported decision has ever extended that obligation to include a duty to obtain non-statutory disclosures in response to a request that was not a condition to an express settlement offer. That said, the important part of the case is not the outcome (other than for the litigants involved, of course) but the fact that, as in Goheagan, the opinion heavily cited and quoted the federal opinions that weave the fabric of the parallel bad faith law created in the federal Weltschmerz. Mind you, not only are these federal opinions not binding on state courts but, since most of them are unpublished, they also have no precedential value even in the federal system. This is roughly the equivalent of citing to a holding in a transcript of a small claims court hearing. Or maybe even a step below that. Yet, they find themselves cited and quoted in defense memos at every level and in trial courts’ orders as if they carried the weight of the law.

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But this court has again gone out of its way not just to reverse the verdict, but to attempt to metastasize these federal holdings into state opinions. It is probably time to mobilize again, hopefully to get this fixed without having to make a trip to the Florida Supreme Court. Didn’t the Supreme Court Just ‘Fix’ Proposals for Settlement? The Fourth DCA read the recent Florida Supreme Court decisions, Kuhajda v. Borden Dairy Company of Alabama, LLC, 202 So.3d 391 (Fla. 2016) and in one case withdrew its earlier opinion. In a UM case, a PFS’s use of the word “claims” instead of the word “damages” did not render a PFS ambiguous because the plaintiff’s claim and damages were one in the same; and it was unnecessary to state “whether the attorney’s fees were part of the legal claim” when the complaint did not request attorney’s fees. American Home Assurance Co. v. D'Agostino, So.3d , 42 FLW D113, 2017 WL 34565 (Fla. 4th DCA 1-4-17). The Fourth DCA also relied on Anderson v. Hilton Hotels Corp., 202 So.3d 846 (Fla. 2016) to hold that even though a PFS specifically limited the claims that would be resolved and the release attached to the PFS used “any and all” form language, the proposal read as a whole did not create an ambiguity and was valid. Kiefer v. Sunset Beach Investments, LLC, So.3d , 42 FLW D132, 2017 WL 33642 (Fla. 4th DCA 1-4-17). But – lest you think Anderson v Hilton means you can throw careful drafting to the winds, take a look at Florida Pool and Spa Corp. v. Sharpe Inv. Land Trust No. J, So.3d , 41 FLW D2582, 2016 WL 6778649 (Fla. 3d DCA 11-16-16). In that case the PFS amount excluded the claim for attorney’s fees that the offeree had accrued, but then the attached release was broader, releasing “all claims.” Maybe that was done on purpose or maybe it was simply a result of careless drafting. But, whether you read them separately or as a whole, it is impossible to reconcile the legal effect of the release from the terms of the offer, so that PFS was useless for any purpose, except perhaps issues that might now arise between the offeror and her attorney. Dangerous? Yes. Dangerous Instrumentality? No. The dangerous instrumentality doctrine imposes vicarious liability on the owner just for being the owner of an extremely dangerous “instrument,” and is most frequently used in the context of cars. However, cars are not the only “instrument” in which this common law theory can be used. See Harding v. Allen–Laux, Inc., 559 So. 2d 107, 108 (Fla. 2d DCA 1990) (finding that a forklift is a dangerous instrumentality though not a “motor vehicle”); Meister v. Fisher, 462 So. 2d 1071 (Fla.1984) (finding that a golf cart operated on a golf course is a dangerous instrumentality); Rippy v. Shepard, 80 So. 3d 305 (Fla. 2012) (finding a farm tractor is a dangerous instrumentality); Weber ex rel. Est. of Weber v. Marino Parking Sys., Inc., 100 So. 3d 729 (Fla. 2d DCA 2012) (“…cars, like guns, are dangerous instrumentalities.”). Although precedent indicates that all of these “tools” are dangerous instrumentalities, the Second DCA recently found that a Bobcat Loader was not a dangerous instrumentality. Newton v. Caterpillar 20 | January/February 2017 | www.FloridaJusticeAssociation.org

Fin. Services Corp., So.3d (Fla. 2d DCA 12-14-16).

, 41 FLW D2755, 2016 WL 7229967

Have you seen a loader? They are massive. They weigh over 8000 pounds and can lift a one-ton load nine feet into the air. Just for comparison, a golf cart weighs about 500 to 600 pounds with a load capacity of about 800 pounds for a two seater. One of the biggest distinguishing facts was that the accident occurred on a private lot and the injured party was not a member of the “unsuspecting public.” Ultimately the court found that there was no evidence that the public was sufficiently exposed to loaders of this type to justify application of vicarious liability. The loader may not be the vehicle that people drive to work in the morning, but they are occasionally seen on public roads (like golf carts, tractors, and forklifts). Even if this particular accident didn’t take place in a public place, it is undoubtedly a dangerous “instrument.” Certainty Required to Compensate Loss of Future Diving Dream Admissibility and the standard of proof for future damages are two different beasts. To be admissible is one thing, but to meet the standard of proof for future damages, you must prove the future surgery or lost wages by reasonable certainty. Recently, two cases were reversed and remanded for a new trial on the issue of future damages. The first for the failure to prove future medical expenses after the plaintiff’s doctor testified that “obviously his [plaintiff’s] imaging represents a mess … but despite the mess, not everybody needs surgery.” Auto Club Ins. Co. of Florida v. Babin, So.3d , 41 FLW D2603, 2016 WL 7046285 (Fla. 5th DCA 11-1816). The court also reversed on the lost wages and future earning capacity because, although the plaintiff testified that he was planning on starting a scuba diving business, there was no evidence indicating he was completely disabled from further gainful employment (not just from being a scuba diver). The second case was reversed for failure to prove that the plaintiff would require medication for five years and failure to prove concrete evidence surrounding the retired plaintiff’s plan of becoming a diver during his retirement years. GEICO Gen. Ins. Co. v. Dixon, So.3d , 42 FLW D101, 2017 WL 52635 (Fla. 3d DCA 1-4-17). These cases could have easily avoided a new trial if the plaintiffs would have testified to the certainty of these future damages. Unfortunately, that standard was not met here and these folks will not be compensated for their sunken dream of becoming a diver during retirement. To Stay or Not to Stay, That is the Federal Question In diversity cases, Federal Courts are required to apply Florida substantive law and Florida has explicitly expressed preference for abatement of an unripe bad faith count over dismissal. Fridman v. Safeco Ins. Co. of Illinois, 185 So 3d. 1214 (Fla. 2016).

One recent decision followed Florida’s precedent by holding that abatement of a bad faith count while awaiting a determination of coverage not only increases judicial efficiency, but it also offers the secondary benefit of greater public confidence in the judiciary. Beaubrun v. Geico Gen. Ins. Co., 2016 WL 6804626 (S.D. Fla. 1117-16).

An 80 year old visiting judge from Minnesota held that the carrier never had to tell the insured about the offer because there was not a specific amount expressed in the letter and the plaintiff merely said she would accept whatever the policy limit actually was.

On the same day, a middle district court also issued an opinion finding that abatement is the preferred remedy to dismissal. Starlight Tower, Inc. v. Lexington Ins. Co., 2016 WL 6821139 (M.D. Fla. 11-17-16).

Presumption Against Multipliers When trying to obtain a multiplier, the Fifth DCA recently made clear that the difficulty of the case is never enough, standing alone, to overcome the presumption against a multiplier. Garrison Prop. and Cas. Ins. Co. v. Rohrbacher, So.3d , 41 FLW D2609, 2016 WL 7079004 (Fla. 5th DCA 11-18-16).

However, as if to make it loud and clear that state court is not the boss of federal court, a middle district court issued an opinion just eight days before, holding that procedural decisions were governed under federal law not Florida law. Finding that the plaintiff had no standing to bring the bad faith count because the success on the coverage claim and receipt of an excess verdict were too uncertain, the court dismissed the bad faith count. Ralston v. LM Gen. Ins. Co., 2016 WL 6623728 (M.D. Fla. 11-9-16). The Move for Judicial Term Limits A badly injured plaintiff, offered to settle her claim within the policy limit, so long as a coverage affidavit was supplied in accordance with Florida’s disclosure statute. There was no other condition, and no other impediment to settlement. Kwiatkowski v. Allstate Ins. Co., No. 2:14-cv-575-FtM-PAM-CM (M.D Fla. Jan. 11, 2017).

Maybe there does come a time.

Who knew there was such a “presumption” to begin with? In PIP cases, where the amount in controversy can never exceed $15,000 per claim, we have the rule prohibiting multipliers. But for every other kind of court awarded fees, is it not true that a “…multiplier is still a useful tool which can assist trial courts in determining a reasonable fee in this category of cases when a risk of nonpayment is established”? Standard Guar. Ins. Co. v. Quanstrom, 555 So. 2d 828 (Fla.1990).

Allstate did not provide the affidavit, the opportunity to settle was lost, and ultimately an excess judgment was rendered against the insured and plaintiff in this case.

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.

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INSURANCE INSURANCE

DECISIONS Insurance

In a Huge Victory for Insureds, The Florida Supreme Court Adopts the Concurrent Cause Doctrine Sebo v. American Home Insurance Co., So.3d , 41 FLW S582, 2016 WL 7013859 (Fla. 12-1-16).

he question frequently arises as to whether coverage exists where two perils, one excluded and one included, combine to cause a loss. This long running debate was recently revived by the Second District Court of Appeal in American Home Assurance Co. v. Sebo, 141 So.3d 195 (Fla. 2nd DCA 2013). The Second District concluded that the damage is covered only where the covered peril/ cause is the efficient proximate cause of the damage. This is known as the “Efficient Proximate Cause Doctrine.” The Second District Court of Appeal, however, went a step further by declaring that there should never have been a Concurrent Cause Doctrine in Florida, and the other district courts of appeal have mistakenly applied that doctrine for years. The question in Sebo, which has been debated by Florida courts for decades, is whether there is coverage when a combination of excluded and covered perils cause damage. The parties did not dispute that there were two independent causes of substantial water damage to Sebo’s multimillion dollar mansion: faulty construction; and Hurricane Wilma. According to Sebo’s policy, faulty construction was excluded; however, hurricane damages were covered. Sebo argued that, so long as the covered cause of damage was at least a cause of the damage, then the claim is covered. This argument is known as the “concurrent cause doctrine.” Using the efficient proximate cause doctrine, American argued that Sebo had to prove that Hurricane Wilma was the efficient proximate cause of damage. The trial court agreed with Sebo, and the jury issued a verdict in the amount of $7,680,000. American appealed the decision, and Florida’s Second District Court of Appeal held that American was correct — Sebo could only obtain coverage for the damage if Hurricane Wilma was the efficient proximate cause of the damage. The Second District explained the Efficient Proximate Cause Doctrine requires the jury to determine which cause was the “most substantial or responsible factor in the loss.” The Second District examined the history of the two doctrines, including the two Florida cases that courts cite most often: the First District’s 1974 decision in Hartford Accident & Indemnity Co. v. Phelps, and the Third District’s 22 | January/February 2017 | www.FloridaJusticeAssociation.org

FROM AROUND THE STATE By Richard Benrubi

1988 decision In Wallach v. Rosenberg. Although the Phelps decision relied on the efficient proximate cause doctrine, the Third District in Wallach rejected the Phelps decision and determined that the concurrent cause doctrine should apply. Since 1988, no appellate court has genuinely reexamined the issue, and the concurrent cause doctrine appeared to be the prevailing law in Florida. In response to Wallach, many insurers amended their policies to contain an anti-concurrent cause clause for certain perils, thereby requiring the courts to use the efficient proximate cause doctrine in certain circumstances. In what could only be described as a huge victory for Florida insureds, the Florida Supreme Court adopted the Concurrent Cause Doctrine. Specifically, the Court determined that when independent perils combine and no single cause can be considered the sole or proximate cause, it is appropriate to apply the concurrent cause doctrine, and not the efficient proximate cause doctrine. When applied to the facts in Sebo, because the court found that there was no practical way to determine the proximate cause of the loss because the rain and storms combined with the defective construction to cause property damage, it would not – or in effect could not – apply an efficient proximate cause analysis. Thus the court held that “where weather perils combine with human negligence to cause a loss, it seems reasonable and logical to find the loss covered by an all-risk policy even if one of the causes is excluded from coverage.” Another Powell Case Bites The Dust Geico General Insurance Company v. Harvey, So.3d , 42 FLW D110, 2017 WL 33659 (Fla. 4th DCA 1-4-17) The issue on appeal was whether the trial court erred in denying the insurer’s motion for directed verdict on the insured’s bad faith claim. The Fourth DCA found that the evidence was insufficient as a matter of law to show the insurer acted in bad faith in failing to settle the claim of the decedent’s estate against the insured. The evidence, taken in a light most favorable to the insured as the nonmoving party, showed that the insurer unconditionally tendered the estate the policy limits nine days after the accident, the insurer notified the insured that the estate wanted a statement seventeen days after the request, and the insured subsequently failed to provide a statement to the estate despite having

the opportunity to do so before suit was filed. The court reasoned that even if the insurer’s conduct were deficient, the insurer’s actions did not cause the excess judgment rendered against the insured. As such, the court held that the trial court erred in denying the insurer’s motion for directed verdict and reversed. The facts of Harvey are that the insured, James Harvey, got into a car accident with John Potts, which resulted in Potts’ death. The insured’s vehicle was registered in both the insured’s name and his business’s name. The accident was reported to the insured’s insurer, GEICO, with which the insured had a $100,000 liability policy. The claim was then assigned to Fran Korkus, a claims adjuster. Three days later, on August 11, GEICO advised its insured in writing that the claim by the decedent’s estate could exceed the insured’s policy limits and that the insured had the right to hire his own attorney. The insured subsequently retained his own attorney to protect his uninsured excess exposure. On August 14, an employee of the attorney retained by the decedent’s estate contacted Korkus and advised of their representation of the estate. According to the employee, she asked Korkus to arrange for a statement from the insured regarding the insured’s personal and business assets, whether the insured was acting within the course and scope of his business at the time of the accident, and other potential insurance coverage for the claim. While the employee claimed that Korkus refused to make the insured available for a statement, Korkus said that if the attorney for the estate had asked for a statement she would not have refused the request. At no time did the estate’s attorney provide a deadline for obtaining this statement, nor was Korkus told that the insured’s statement was a prerequisite to settling the insured’s claim. Nine days after the accident, on August 17, GEICO sent the estate a release along with a check for the $100,000 policy limits even though the estate never demanded the policy limits. On August 23, the insured met with his personal counsel. The insured brought documentation to the meeting showing that the insured’s business, the only asset that would be available to the estate, had only $85,000 in its accounts. On August 24, the estate’s attorney sent a letter to Korkus in response to the $100,000 check and release. The letter indicated that Korkus had declined the estate’s request to make the insured available for a statement and renewed its request for the insured’s financial information. Korkus received this letter on August 31, faxed it to the insured, and verbally discussed its contents with him the same day. According to this insured, this was the first time he learned the estate wanted a statement. Also, on August 31, pursuant to her supervisor’s instructions, Korkus contacted the estate’s attorney to find out what kind of statement he wanted. The attorney responded that he wanted to determine what other assets or coverage the insured had available to him. The estate’s attorney sent a letter to Korkus memorializing the conversation, and Korkus immediately forwarded that letter to the insured advising him of the estate’s request. Additionally, Korkus sent the insured a sample affidavit that had blanks where the insured could input his available assets and coverage to provide this information to the estate. Notably, in renewing its request for a statement from the insured, the estate never provided any deadline or other timeframe within which this statement was to be provided. The next day, the

insured contacted Korkus and informed her that his attorney was not available until September 5, and asked Korkus to let the estate’s attorney know that the insured was working on preparing the financial statement. Although Korkus’s supervisor instructed Korkus to relay the insured’s message to the estate, Korkus did not do so. However, despite the insured’s attorney’s return to availability on September 5, and despite the insured knowing the estate wanted a statement, neither the insured nor his attorney took any further action to provide the estate with a statement. On September 13, the estate filed a wrongful death lawsuit against the insured and returned GEICO’s $100,000 check. Ultimately, the estate received an $8.47 million judgment against the insured following a jury trial in the wrongful death action. The insured then brought a bad faith claim against GEICO. During the course of the bad faith trial, the insured admitted he had known about the estate’s request for a statement at least thirteen days before the estate filed suit. The insured also admitted that, despite GEICO informing him of the estate’s request for a statement and having collected the financial documentation necessary to provide a statement, he failed to provide this statement to the estate before the lawsuit was filed on September 13. However, he claimed that had he known about the estate’s request before August 31, he would have provided the statement. Nothing in the record shows why the insured could not have given his statement between the time his personal attorney became available and the date the suit was filed. The estate’s attorney testified at trial that had he known the insured planned on giving a statement, he would have recommended delaying the filing of the wrongful death suit even though he never advised either the insured, the insured’s attorney, or GEICO that without the statement the filing of the lawsuit was imminent. The estate’s attorney also testified that he would have recommended not pursuing the wrongful death lawsuit if he had known that only $85,000 in assets were available. Further, the estate’s personal representative stated she would have followed her attorney’s advice and would have declined to file the lawsuit. Finally, the insured introduced evidence in support of its claim of bad faith by GEICO that Korkus had received some deficient performance reviews, and at times had difficulty managing her workload. At the close of the insured’s case, GEICO moved for a directed verdict, and the trial court denied the motion. After the jury entered a verdict in the insured’s favor, GEICO moved for a judgment notwithstanding the verdict. The trial court denied the motion, and GEICO appealed. The Fourth District compared an insurer’s duties to its insured as outlined by the Florida Supreme Court in Boston Old Colony v. Gutierrez, 386 So.2d 783, 785 (Fla. 1980), to the facts of the case. The court determined that GEICO fulfilled all of its duties as a matter of law and ordered that judgment in Harvey’s favor be reversed and judgment be entered in favor of GEICO. Though not dispositive, the Court also noted that there was no record evidence that GEICO was “acting upon what it considered to be for its own interest alone.” The court reasoned that the 11th Circuit’s opinion in Novoa v. GEICO Indem. Co., 542 F. Appx 794 (11th Cir. 2013) supported its conclusion in that an insurer does not have to act perfectly, prudently or even reasonably to fulfill its good faith duties. www.FloridaJusticeAssociation.org | January/February 2017 | 23

INSURANCE

Perhaps Defense Attorneys Will Someday Learn That Sandbagging The Opposition Is Not In Its Client’s Best Interests Gelsomino v. Ace American Ins. Co. and Brown and Brown, Inc., So.3d , 2016 WL 6612645 (Fla. 4th DCA 11-9-16) Litigation over a broker’s failure to procure the insurance coverage resulted in a verdict for the plaintiff. The trial court however granted the broker’s motion for judgment in accordance with the motion for directed verdict and entered a judgment for the broker. The plaintiff appealed and argued the trial court erred in granting the broker’s motion. The Fourth DCA agreed and reversed. The facts of this case are the plaintiff’s brother owned a business completing interior construction of hotels, named T & T Contracting. When the plaintiff and his brother began work in the Bahamas, their company was required to be incorporated in the Bahamas. They formed T & T Services and served as the officers and directors of the Bahamian company. T & T Services needed an insurance policy. The plaintiff was referred to the broker. The plaintiff’s brother testified he told the broker that T & T Contracting was a Florida company located in Jacksonville, and acted as the agent for T & T Services, a Bahamian company. T & T Contracting paid for the policy. The Certificate of Insurance identified the insured as T & T Services, with a Florida address, but the policy listed T & T Contracting as the insured. The plaintiff was involved in a car accident in the Bahamas on his way to the airport. He immediately went to a clinic, but ultimately traveled home where he learned he had “broken every bone in [his] foot.” The injury required surgery. The plaintiff called the broker a few days later to report the accident, but the insurer denied the claim because the plaintiff worked for T & T Services, a Bahamian company, and the policy’s named insured was T & T Contracting, a Florida corporation. The plaintiff sued the broker for negligent procurement. The broker raised several affirmative defenses, including comparative negligence, failure to mitigate damages, set-off, and asserted that the damages were limited to coverage under the policy. Three days before trial, the plaintiff filed a proposed joint pretrial stipulation with attachments, which indicated that the disputed law or fact issue was whether the broker’s negligence caused the plaintiff’s loss, injury, or damages. On the morning of trial, the broker filed a unilateral pre-trial stipulation with attachments. That stipulation indicated the disputed issues were whether: (1) the broker was negligent; (2) the negligence was the cause of injury; (3) the plaintiff failed to mitigate his damages; and (4) the broker was entitled to a set-off. Nothing in the broker’s pretrial stipulation raised coverage for the plaintiff’s damages as an issue. Following the close of the plaintiff’s case, the broker moved for a directed verdict on liability, proximate cause, and damages. The motion was deferred until after the close of all the evidence. The broker argued the plaintiff failed to prove the proper measure of damages, and that damages were limited to the amount of coverage that would have been available had the insurance policy been properly procured. It argued that while the plaintiff presented evidence of

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medical expenses and lost earnings, there was no evidence about what would have been covered under the policy.1 It also argued the plaintiff failed to prove he was entitled to workers’ compensation benefits. The jury found the plaintiff proved that the broker was negligent and was a legal cause of the plaintiff’s loss, injury, or damage. It found the plaintiff proved “that an International Package Insurance Policy was available to cover T & T Services for its employees working in the Bahamas, that T & T Services would have secured an International Package policy for its employees working in the Bahamas, and that [the plaintiff] would have been successful in recovering under that policy.” It found T & T Services, T & T Contracting, the plaintiff’s brother, and the plaintiff were also negligent. The jury found the plaintiff suffered lost earnings of $73,250; past medical expenses of $10,000; and future medical expenses of $151,370. And, the jury found the broker was 35 percent at fault. The broker moved to set aside the verdict and enter judgment in accordance with its motions for directed verdict, or alternatively for a new trial. It argued no view of the evidence supported a verdict for the plaintiff because he failed to prove the proper measure of damages, which is “what would have been covered had the insurance been properly obtained.” It argued the plaintiff did not introduce evidence establishing which state’s workers’ compensation law applied. Even if Florida’s law applied, the plaintiff failed to prove the proper measure of damages. The plaintiff responded that the policy designated Florida as the governing damages state and the broker waived its argument on measure of damages by not objecting to the proof of damages in his argument on the directed verdict motion. The court granted the motion to set aside the verdict and entered final judgment in favor of the broker. The court cited Capell v. Gamble, 733 So.2d 534 (Fla. 1st DCA 1998) and found the plaintiff “failed to set forth any admitted evidence of ‘what [damages] would have been covered had the insurance been properly obtained.’” From this order, the plaintiff appealed. The plaintiff first argued the broker’s coverage argument is an affirmative defense that it failed to prove. He asserted that because the policy states, “[w]e will adjust the claim with the ‘employee’ by applying the ‘workers’ compensation law’ of the ‘state’ you choose when making the claim,” the policy controls and the burden is on the broker to prove the plaintiff was not covered or the damages were too high. The broker responds that the burden to prove damages belongs to the plaintiff. The Fourth District found Capell to be distinguishable from Mondesir v. Delva, 851 So.2d 187 (Fla. 3rd DCA 2003), wherein the 3rd DCA had held the plaintiff properly proved damages: “At trial, [the Plaintiff] submitted a copy of a certificate of insurance issued by [the insurer] which indicates that the fire damage incurred was included in the $300,000 general liability policy. [The Plaintiff] introduced an inventory list that he prepared after the fire which reflected the loss of fixtures, as well as merchandise. The value of these damages was also uncontradicted. [The Plaintiff] further testified

that [the Defendant] assured him that he had received the desired coverage. There is thus evidence from which a jury could determine [the plaintiff’s] damages.

Significantly, in Capell, the plaintiffs did not introduce the policy or expert testimony on what the policy covered, rather they presented evidence of only “the amount of damages sustained which were not covered by their policy.” Unlike Capell, the plaintiff here proved he sustained an injury in a work-related automobile accident. He proved lost wages and past and future medical expenses through expert testimony. He introduced the policy that the broker negligently procured for the wrong entity. The court found the facts of the instant case similar to Mondesir and unlike Capell, where no policy was admitted into evidence. Thus, the court reversed and remanded for reinstatement of the jury verdict. Sometimes Trial Judges Get It All Wrong Prepared Insurance Company v. David Gal, So.3d , 41 FLW D2322, 2016 WL 5939749 (Fla. 4th DCA 10-13-16). In this case the insurer, Prepared Insurance Company (“Prepared”), appealed a jury verdict in the insured’s favor under a homeowner’s insurance policy following a water loss. The insured, David Gal, discovered water had leaked from his kitchen sink into his custom-made kitchen cabinets. Prepared had its adjuster inspect the damage. The adjuster estimated the loss to be $8,653.47. The adjuster’s estimate did not include a general contractor’s “overhead and profit.” The insurer also had a cabinetry expert inspect the cabinets. The insurer’s expert claimed he could restore the cabinets for $2,585. Alternatively, he could replace the cabinets for $19,065. However, the expert’s calculation did not include the cost to hire a plumber or electrician who would be necessary to complete the project. The insurer’s expert also did not include a general contractor’s overhead and profit in his estimate as he admitted he did not know if hiring a general contractor would be necessary. The insurer issued a payment to the insured for $6,153.47 (the adjuster’s original $8,653.47 estimate less the policy’s $2,500 deductible). The insured then sued the insurer, claiming that the insurer had undervalued his loss because the insurer failed to pay the full replacement cost of the cabinets and failed to issue payment for a general contractor’s overhead and profit. The insured’s expert claimed repairing the cabinets would be impossible due to their unique nature and that they had to be replaced entirely. Additionally, because the cabinets had been integrated into the kitchen, he needed to replace much of the kitchen as well. In all, the insured’s expert opined that replacing the cabinets would cost $107,902.50. The trial court made several pretrial rulings which impacted the outcome of the case. On appeal, Prepared claimed error as to four of those rulings: (1) whether a replacement cost homeowners’ policy

requires an insurer to replace damaged property, as a matter of law, or whether the insurer may limit its liability and repair the property; (2) whether the trial court correctly determined the insured was entitled to judgment as a matter of law on the issue of liability because the insurer failed to pay a general contractor’s overhead and profit; (3) whether the trial court abused its discretion in striking all of the insurer’s witnesses because they were not general contractors; and finally, (4) whether the trial court abused its discretion when the court prohibited the insurer from cross-examining the insured’s expert as to matters that may have affected the witness’s opinion. The Fourth District concluded that the trial court erred on all four rulings, any one of which would have required reversal for a new trial. First, the court found that the trial judge erred by finding that the “replacement cost” policy provision required the insurer to replace rather than repair damaged property. Rather, it found that both the policy and F.S. §627.7011(6)(b) requires an insurer to pay a loss without deduction for depreciation. Thus, an insurer is permitted to initially pay the actual cash value (“ACV”) and, upon the damaged property being replaced, pay the difference between replacement cost and ACV. Second, the court found that an insured is entitled to overhead and profit (O&P) only where the insured is “reasonably likely to require a general contractor.” As there remained disputed issues of fact, the court determined that the insured was not entitled to a judgment as a matter of law. Next, the court found that the trial court abused its discretion when it struck all of the insured’s witnesses as they were not general contractors, as striking these witnesses prevented the insured from litigating relevant issues such as whether the cabinets could be repaired and whether a general contractor was required. Finally, the court found that prohibiting inquiry into the second leak was an abuse of discretion. While the insured’s expert claimed the second leak was of no impact, the court found that insurer should’ve been permitted to introduce evidence discrediting the expert witness. _____________ The plaintiff’s expert, Dr. Lichtblau, testified to the plaintiff’s injuries. He assigned a seven percent whole body impairment rating. He also testified to the types and costs of future medical care. Defense counsel cross-examined Dr. Lichtblau, but did not ask any questions on the measure of damages or Florida’s workers’ compensation coverage. 1

Richard M. Benrubi is the founding partner of The Law Office of Richard M. Benrubi, P.A. and of counsel to Rosenthal, Levy, Simon & Ryles in West Palm Beach, and has over 25 years experience representing and counseling individual and corporate clients in the areas of insurance coverage, insurance bad faith, personal injury and wrongful death. He has been a Board Certified Civil Trial Lawyer since 1995 and has been named a top Florida Lawyer annually since 2005.

www.FloridaJusticeAssociation.org | January/February 2017 | 25

MEDICALMALPRACTICE

EDICAL

ALPRACTICE

Florida Supreme Court holds arbitration agreement incorporating only some aspects of Medical Malpractice Act void as against public policy. Hernandez v. Crespo, So.3d , 41 FLW S625 2016 WL 7406537 (Fla. 12-22-16). A pregnant patient who was having contractions showed up to her obstetrical appointment a few minutes late and was turned away. Her appointment was rescheduled, but she delivered a stillborn son before the new appointment. After conducting presuit in accordance with Chapter 766 procedures, the patient and her husband filed suit against the obstetrician and obstetrical group for medical malpractice. The defendants moved to stay the proceedings and to compel arbitration pursuant to a written agreement the patient had signed. The trial court granted the defendants’ motion, but the Fifth District Court of Appeal reversed, finding the arbitration agreement void as against public policy. The Fifth District certified direct conflict with the Second District’s decision in Santiago v. Baker, 135 So. 3d 569 (2d DCA 2014), and the Florida Supreme Court accepted jurisdiction. The Florida Supreme Court agreed that the arbitration agreement in question was against public policy because, although it incorporated some elements of the arbitration provisions in §766.207, Florida Statutes, it left out other elements in a way that was “clearly favorable” to the defendants. Since the agreement took away many of the incentives in the statute for parties to submit to arbitration, the Court held, it was contrary to the goals of the Medical Malpractice Act and the public policy expressed in it. The Court pointed to six key places the agreement diverged from the statutory arbitration provisions: (1) it did not concede defendants’ liability; (2) it did not guarantee independent arbitrators, or that one arbitrator be an administrative law judge; (3) it provided for costs to be shared equally between the parties; (4) it did not provide for the defendants’ payment of interest on damages; (5) it did not require joint and several liability of multi26 | January/February 2017 | www.FloridaJusticeAssociation.org

by Scott R. McMillen & Allison McMillen

ple defendants; and (6) it dispensed with the right to appeal the arbitration decision. Justice Canady dissented, arguing that the majority holding actually contravenes the objectives of the Medical Malpractice Act and the Florida Arbitration Code, by invalidating a voluntary agreement “designed to limit the expense of medical malpractice litigation” and the amount of paid claims. Justice Canady also claimed the majority was being self-contradictory, because the “foundation of the legislative public policy” on which the Court based its ruling was the existence of a medical malpractice crisis, and the majority questions the existence of such a crisis. Justice First District awards attorney fees and costs to NICA claimants even though claimants did not clearly prevail in dispute over custodial care payments. Lampert v. Florida Birth-Related Neurological Injury Compensation Association, 2016 WL 7480366 (Fla. 1st DCA 12-30-16). Claimants’ son had suffered a birth-related neurological injury and was admitted into the NICA program in 1997. In 2012, the claimants took part in a class action settlement with NICA over the payment of custodial care benefits. The settlement agreement provided that any class member who disagreed with NICA’s determination of what it owed in custodial care benefits could file a claim with the Florida Division of Administrative Hearings pursuant to §§766.301-766.316, Florida Statutes. In 2013, claimants filed a petition with DOAH asking the Administrative Law Judge to award them payment for sixteen hours per day of future custodial care. Although NICA had already agreed to pay, and had been paying, for twelve hours of care per day, NICA took the position before the hearing that it had been overpaying, that the claimants were not entitled to any further custodial care payments, and that NICA was entitled to a credit for some of what it had already paid. After a hearing, the ALJ awarded the claimants twelve hours of benefits per day

from 2012 forward. The ALJ denied the claimants’ motion for attorney fees and costs, and the claimants appealed that denial. The First District Court of Appeal held that the ALJ erred in failing to award fees and costs to the claimants under the terms of the NICA statutes. In a substituted opinion, written for clarification when it denied the defendants’ motion for rehearing, the Court acknowledged NICA’s argument that the claimants had not clearly been the prevailing party, but found that, under § 766.31(1)(c), Florida Statutes, the prevailing party is irrelevant. That statute provides that, “Should there be a final determination of compensability, and the claimants accept an award under this section, the claimants shall not be liable for any expenses, including attorney’s fees….” Since there had been a determination of compensability, and the claimants ultimately received an award of twelve hours per day of custodial care benefits, the Court concluded that they were entitled to have their fees and costs paid. Fourth District finds complaint does not clearly state claim for medical malpractice as opposed to simple negligence; denies defendants’ petition for certiorari. Mark E. Pomper, M.D., P.A. v. Ferraro, 2016 WL 7404565 (Fla. 4th DCA 12-21-16). A 99-yearold patient was being treated for skin cancer by a mobile radiation van that would come to her residence periodically. On all but one occasion, an employee of the van’s corporate owner would bring a wheelchair to the lobby of the patient’s residence and wheel her to the van about one hundred yards away. On the last occasion, a different employee went to the lobby and told the patient to follow her to the van. On the way, the employee led the patient over a parking bumper without any warning or assistance. The patient tripped and fell, suffering serious injuries. The patient sued the van’s owner for negligence, and the defendant filed a motion to dismiss for failure to comply with medical malpractice presuit procedures required by Chapter 766, Florida Statutes. The trial court denied the motion, and the defendant petitioned for a writ of certiorari, which the Fourth District Court of Appeal denied. According to the Court, the key question in determining whether a claim is one for medical malpractice is “whether the plaintiff must rely on the medical negligence standard of care as defined by the statute to prevail.” In this case, the Court found that the allegations in the complaint appeared to allege simple negligence. The Court did express some concern that the allegations regarding the first employee’s use of a wheelchair on other occasions was suggestive of a medical determination that a wheelchair was required. But the Court concluded that the defendants had not established that there is a professional standard of care applicable “to assisting a patient with transportation to a mobile radiation van.” At such an early stage in the proceedings, the doubt must be resolved in favor of the claimant, so the Court could not grant the petition. First District holds NICA distinction between minimum weights for single and multiple gestations does not violate federal equal protection on its face. Putnam County Medical Center v. Florida Birth-Related Neurological Injury Compensation Association, 2016 WL 7046153 (Fla. 1st DCA 12-5-16). A baby suffered neurological in-

juries at birth that might have qualified for NICA compensation, except that the baby’s birth weight, at 2,440 grams, was slightly under the NICA cut-off of 2,500 grams minimum for singleton births. Out of caution before filing a medical malpractice case, the mother filed a NICA “petition under protest,” seeking a ruling that the injuries were not NICA-compensable. In accordance with common practice, the ALJ allowed the hospital where the baby was born to intervene. NICA filed a motion for summary final order of noncompensability based on the baby’s weight, but the hospital opposed the motion. The hospital argued that the weight restriction was intended to screen out premature babies and those with intrauterine growth restriction, not full-term babies like the one here, who the hospital argued was naturally small because her mother was. The ALJ granted NICA’s motion for summary final order, finding that it did not have discretion to ignore a clear statutory requirement. On appeal, the hospital argued for the first time that the NICA statutes’ distinction between minimum weight requirements for singleton babies (2,500 grams) and those born of a multiple gestation (2,000 grams) violates state and federal equal protection requirements. The First District Court of Appeal found that the hospital had standing because of its substantial interest in avoiding medical malpractice litigation over injuries for which it should not be liable under NICA laws. However, the Court held, because the hospital had not raised any constitutional issue below, it was limited to raising a facial constitutional challenge on appeal. The hospital was also limited to a federal equal protection challenge, since the Florida constitution only protects “natural persons,” not corporations. Applying a rational basis review, the Court concluded that the weight distinction does not violate equal protection principles for two reasons. First, the Court found, the hospital failed to show that single and multiple gestations involved similar situations for purposes of equal protection review. Second, even if equal protection analysis applied, the Court found that the weight distinction is rationally related to preserving NICA’s actuarial soundness, which the Court had expressly recognized as a legitimate state interest in Samples v. Florida Birth-Related Neurological Injury Compensation Association, 114 So.3d 912, 914 (Fla. 2013). 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 | January/February 2017 | 27

PRODUCTSLIABILITY

FLORIDA’S AUTONOMOUS VEHICLE LAW - 2016: First State to Legalize Fully Self-Driving Cars by Adam J. Langino, Leslie M. Kroeger and Theodore J. Leopold

n March 11, 2016, Florida legislators voted unanimously to approve House Bill 7027. When that bill was signed on April 4, 2016, and went into effect on July 1, 2016, Florida became the nation’s first state to legalize fully autonomous vehicles on public roads without a driver behind the wheel. If the vehicle can drive itself without input from a driver, then Florida statute 316.003(2) considers it to be an autonomous vehicle: Any vehicle equipped with autonomous technology [is an autonomous vehicle]. The term “autonomous technology” means technology installed on a motor vehicle that has the capability to drive the vehicle on which the technology is installed without the active control or monitoring by a human operator. The term excludes a motor vehicle enabled with active safety systems or driver assistance systems, including, 28 | January/February 2017 | www.FloridaJusticeAssociation.org

without limitation, a system to provide electronic blind spot assistance, crash avoidance, emergency braking, parking assistance, adaptive cruise control, lane keep assistance, lane departure warning, or traffic jam and queuing assistant, unless any such system alone or in combination with other systems enables the vehicle on which the technology is installed to drive without the active control or monitoring by a human operator. Florida law also allows any person that possesses a valid driver’s license to operate an autonomous vehicle in autonomous mode.1 No specialized safety education is required before a person is legally permitted to operate an autonomous vehicle on Florida’s roadways. Furthermore, the person operating the autonomous vehicle does not even have to be in the vehicle when it is driving in Florida autonomously.2

Prior to House Bill 7027, Florida Statute 316.86 required an entity, such as Google, if testing autonomous vehicles in Florida, to have at least $5 million in insurance coverage.6 The 2016 amendments deleted that provision. In addition, Florida Statute 316.86 now provides the manufacturer of a vehicle the following exemption from liability: “The original manufacturer of a vehicle converted by a third party into an autonomous vehicle is not liable in, and shall have a defense to and be dismissed from, any legal action brought against the original manufacturer by any person injured due to an alleged vehicle defect caused by the conversion of the vehicle, or by equipment installed by the converter, unless the alleged defect was present in the vehicle as originally manufactured.”7 It is of no surprise, then, that when California stopped Uber from operating its self-driving cars in San Francisco, Florida was eager to court its business. State Senator Jeff Brandes, R-St. Petersburg, who has been an advocate for self-driving cars in Florida, went so far as to tweet at the company:

Under the law, it appears to follow that an operator and/or owner of an autonomous vehicle could be liable for a crash despite not being in or near his or her vehicle at the time it occurred. Florida statute 319.145 requires autonomous vehicles registered in the state of Florida to meet federal standards and regulations for a motor vehicle.3 However, it does not require vehicle inspections to ensure that operators of autonomous vehicles keep their automobiles updated with the latest, best, self-driving software, nor with federal standards that are still in flux.

Florida has been ahead of the self-driving curve for some time now. In 2014, the Tampa Hillsborough Expressway Authority (“THEA”) announced that the Lee Roy Selmon Expressway was approved by the U.S. Department of Transportation to become a connected vehicle test bed. According to the THEA, the test bed allows researchers to “test the safety, mobility, environmental, and efficiency advantages, services, standards and components of autonomous vehicle technologies in partnership with the Tampa Hillsborough Expressway Authority and the University of South Florida’s Center for Urban Transportation Research Automated Vehicle Institute.”8

The statute does require the following: 4 • • • •

autonomous vehicles must have a means to engage and disengage the autonomous technology, and the means must be easily accessible to the operator; they must have a means, inside the vehicle, to visually indicate when it is operating in autonomous mode; they must have a means of alerting the operator of a technology failure; and they must be capable of being operated in compliance with the applicable traffic and motor vehicle laws of this state.

Florida Statute 316.303 was also amended as part of House Bill 7027. While prior versions of the law made it illegal for Floridians to operate motor vehicles with entertainment displays that were visible from the driver’s seat, self-driving vehicles are now exempt from this provision while being operated in an autonomous mode.5

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PRODUCTSLIABILITY

To put it another way, you could have been driving next to self-driving cars for years without even knowing it. From an industry safety perspective, the enthusiasm for automated vehicles may be warranted. In September 2016, the United States Department of Transportation published its Federal Automated Vehicles Policy.9 In its report, the U.S. D.O.T. noted that 35,092 people died on U.S. roadways in 2015, and that 94 percent of crashes can be tied to human choice or error. The DOT wrote that its “excitement around highly automated vehicles starts with safety,” particularly with the possibility that self-driving cars could “dramatically decrease the number of crashes tied to human choices and behavior.”10 The Insurance Institute of Highway Safety found that “vehicles equipped with front crash prevention are much less likely to rear-end other vehicles” and that vehicles with “automatic braking reduce rear-end crashed by about 40 percent on average, while forward collision warning alone cuts them by 23 percent.”11 After evaluating crash data involving Volvo’s City Safety standard low-speed auto brake system, the IIHS noted that “autobrake reduces injuries.”12 The IIHS also found that the “rate of rear-end crashes with injuries decreases by 42 percent with forward collision warning with autobrake and 47 percent with City Safety,” and that “forward collision warning alone is associated with a 6 percent decrease in rear-end injury crashes.”13 Autonomous vehicles are coming sooner than you think. Ford’s CEO announced that the company plans to offer fully self-driving vehicles by 2021. Volkswagen expects its first self-driving cars to go to market by 2019. General Motors’ head of foresight and trends thinks that self-driving cars will be on the road by 2020. BMW intends to launch a self-driving vehicle in 2021. Toyota plans to bring its first autonomous vehicles to the market by 2020. Audi intends to sell a fully autonomous A8 in 2017 and Nissan intends to provide fully autonomous vehicles by 2020.14 Our jobs as Florida practitioners is not only to understand new laws and how they affect the citizens of our state, but to stay mindful of the legislative process, maintaining our vigilance to insure accountability and access to justice. With this in mind, as consumer advocates following the new “fully self-driving car” technology, it is critical that we understand Florida’s automated vehicle statutes, follow the trends in self-driving vehicles, and grasp the speed at which this technology is evolving to help shape developing laws. We must be vigilant that the push for technological innovation is not at the expense of the safety of our communities. _______________ Fla. Stat. 316.85(1) Fla. Stat. 316.85(2) 3 Fla. Stat. 319.145(1) 4 Fla. Stat. 319.145(1)(a) - (d) 5 Fla. Stat. 316.303 6 Fla. Stat. 316.86(1) (2012) (repealed) 7 Fla. Stat. 316.86 Exemption from liability for manufacturer when third party converts vehicle. 1 2

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“Driving Innovation and Opportunity - Tampa Bay is ready to connect to Autonomous Vehicle Technology” Tampa Hillsborough Expressway Authority, http://www.tampa-xway.com/wp-content/ uploads/2016/06/THEA-automomous-vechcle-bro-and-facilitiesmap-final.pdf 9 “Federal Automated Vehicles Policy - Accelerating the Next Revolution in Roadway Safety” by U.S. Department of Transportation, September 2016, https://www.transportation.gov/sites/dot.gov/files/ docs/AV%20policy%20guidance%20PDF.pdf 10 Id. 11 “Crashes Avoided - Front crash prevention slashes police-reported rear-end crashes”, Insurance Institute for Highway Safety, Status Report, Vol. 51, No. 1, January 28, 2016, http://www.iihs.org/iihs/ news/desktopnews/crashes-avoided-front-crash-prevention-slashespolice-reported-rear-end-crashes 12 Id. 13 Id. 14 Information compiled from “Driverless car market watch” http:// www.driverless-future.com/?page_id=384 8

Adam J. Langino

is an Associate at Cohen Milstein Sellers & Toll PLLC, and a member of their Catastrophic Injury & Wrongful Death, Managed Care Abuse, and Unsafe & Defective Products practice groups. Prior to joining Cohen Milstein, Mr. Langino was an Associate at Leopold Law and served as an Assistant Public Defender in West Palm Beach for three years. Mr. Langino attended the University of Maryland, graduating magna cum laude with Honors in Government and Politics, and earned a J.D., cum laude, from the University of Minnesota School of Law. He is an active member in the Palm Beach County Bar Association, the Board of the Florida Justice Association Young Lawyer Section, and the AAJ Membership Oversight Committee.

Leslie M. Kroeger

is a Partner at Cohen Milstein Sellers & Toll PLLC, and a member of the firm’s Catastrophic Injury & Wrongful Death, Managed Care Abuse, and Unsafe & Defective Products practice groups. Ms. Kroeger currently serves as the Secretary of the Florida Justice Association. She serves on the Florida Bar Professional Ethics Committee and is past President and Founder of the Martin Co. Chapter of the Florida Association for Women Lawyers. Ms. Kroeger has achieved an AV rating from Martindale-Hubbell, and has been recognized by The Best Lawyers in America; Florida Super Lawyers; and Florida Legal Elite. She serves on Law360’s Product Liability Editorial Advisory Board and speaks frequently on strategies and tactics for litigation.

Theodore J. Leopold

is a Partner at Cohen Milstein Sellers & Toll PLLC, and a member of the firm’s Executive Committee. Mr. Leopold’s practice is devoted to trial work, with a focus on complex product liability, managed care abuse, consumer class actions and catastrophic injury and wrongful death litigation. He has tried cases throughout the country and has recovered multi-million dollar verdicts. For many consecutive years, Mr. Leopold has been recognized by leading publications such as Super Lawyers and The Best Lawyers in America. In addition, he has been nominated for “Trial Lawyer of the Year” by the Public Justice Foundation for his ground breaking litigation involving the managed care industry, and his work has been featured in the National Law Journal’s “Top Verdicts of the Year.” In 2016 Mr. Leopold was honored with the EAGLE Centurion Award for his lifetime commitment to leadership and public justice.

Manufacturers should provide safety.

We fight to make sure they do.

Crashworthiness

www.FloridaJusticeAssociation.org | January/February 2017 | 31

EVIDENCE

SUBSEQUENT REMEDIAL MEASURES: A PRIMER

by Matt Schultz

he Rule. “Evidence of measures taken after an injury or harm caused by an event, which measures if taken before the event would have made injury or harm less likely to occur, is not admissible to prove negligence, the existence of a product defect, or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent remedial measures when offered for another purpose, such as proving ownership, control, or the feasibility of precautionary measures, if controverted, or impeachment.” §90.407, Fla. Stat. The Policy Behind the Rule. “The effect of declaring such evidence competent is to inform a defendant that if he makes changes or repairs he does it under penalty; for, if the evidence is competent, it operates as a confession that he was guilty of a prior wrong... True policy and sound reason require that men should be required to improve, or repair, and not to be deterred from it by the fear that if they do so their acts will be construed into an admission that they had been wrongdoers. A rule which so operates as to deter men from profiting by experience, and availing themselves of new information has nothing to commend it, for it is neither expedient nor just.” Seaboard Air Line Ry. Co. v. Parks, 89 Fla. 405, 104 So. 587 (1925). What is Excluded? Keep in mind, the rule prohibits SRM evidence only when offered to prove negligence, product defect, or culpable conduct. Examples of post-accident SRMs include: •

•

Repairing a hazardous condition. Harris v. Florida Power & Light Co., 700 So.2d 1240 (Fla. 3d DCA 1997) (“postaccident tree trimming in order to establish that FP & L was negligent by failing to trim the trees”); Redesigning a product. Blythe v. Bumbo Intern. Trust, 634 Fed. Appx. 944, 951 (5th Cir. 2015) (“Although evidence of a post-incident-design change can be admissible to rebut testimony claiming the change is not feasible, this exception applies only if feasibility is contested.”); but see Keller Indus. v. Volk, 657 So.2d 1200, 1204 (Fla. 4th DCA 1995) (distinguishing and admitting “pre-accident, postmanufacture design change”). However, “[e]vidence of a subsequent remedial measure may be introduced to rebut a manufacturer’s defense that its product was state of the art.” Ehrhardt, Florida Evidence §407.1 at 371 n.14 (2016 ed.) (citing Johns-Manville Sales Corp. v. Janssens, 463 So. 2d 242 (Fla. 1st DCA 1984)). Repairing or improving a premises. Am. Motors Corp. v. Ellis, 403 So.2d 459, 464 (Fla. 5th DCA 1981) (“evidence

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•

of repairs or improvements to premises made after injury is not admissible); Discharging an employee. Del Monte Banana Co. v. Chacon, 466 So.2d 1167, 1173 (Fla. 3d DCA 1985) (noting but not holding that firing an employee soon after an accident may constitute a subsequent remedial measure); Placing post-accident warning on a premises or label. Reddin v. Robinson Prop. Group Ltd. Partnership, 239 F.3d 756, 760 (5th Cir. 2001) (warning signs and tape around site of slipand-fall); Hughes v. Stryker Corp., 423 F. Appx. 878, 880 (11th Cir. 2011) (recall letter on medical device); but see Webster v. Body Dynamics, 27 So. 3d 805, 807–08 (Fla. 1st DCA 2010) (“evidence of a post-accident recall may be admissible in strict products liability cases to prove that the product was defective when it left the possession of the manufacturer”); Providing different instructions to employees following an accident. Robles v. Shoreside Petroleum, 29 P.3d 838, 845 (Alaska 2001).

Exceptions to the Rule. The rule does not require exclusion of “evidence of subsequent remedial measures” when offered for a purpose other than proving negligence, defect, or culpability. At a minimum, evidence of SRMs is not excluded when offered for the following purposes: •

•

Proving ownership or control. Lee v. E.I. Dupont de Nemours & Co., 249 F.3d 362, 365 (5th Cir. 2001) (remanding summary judgment with instructions for court to consider defendant’s post-accident changes as evidence of control); Ehrhardt, Florida Evidence §407.1 at 371 (2016 ed.) (“For example, if evidence of a subsequent repair was offered to prove ownership of the premises, it would not be barred by this section. If a defendant denied that she was the owner or that she hand any control over the premises, evidence would be admissible to prove that she made repairs to the premises after the accident. If she were not the owner or did not have control of the premises, she would probably not have made the repairs. The term ‘if controverted’ insures that the evidence must be offered to prove a material issue in the trial. For example, evidence of a subsequent measure would not be admissible to show control if the defendant does not controvert that it controlled the premises.”) Feasibility of precautionary measures. Am. Motors Corp. v. Ellis, 403 So. 2d 459, 466 (Fla. 5th DCA 1981) (“The

•

evidence is admissible if the design alternative or design alteration was available at the time the defendant’s product was manufactured and sold.”) (quoting and adopting Mahoney v. Roper-Wright Mfg. Co., 490 F. 2d 229 (7th Cir. 1973)); Dep’t of Transp. v. Juliano, 744 So. 2d 477, 479 (Fla. 3d DCA 1999) (evidence of repairs admissible given “DOT’s evidence and argument throughout this litigation that it was not feasible to repair the floor of the weigh station….”); Murray v. Almaden Vineyards, 429 So. 2d 24, 25-26 (Fla. 2d DCA 1983) (reversing exclusion of post-accident product warning that champagne cork might self-eject where defendants denied the existence of a defect and claimed the cork could not have selfejected as plaintiff claimed). Impeachment. Johns-Manville Sales Corp. v. Janssens, 463 So. 2d 242, 256 (Fla. 1st DCA 1984) (evidence of SRMs “is admissible to impeach a witness’s testimony or to disprove the defendant’s claimed lack of knowledge”); Morowitz v. Vistaview Apartments, 613 So. 2d 493, 495 (Fla. 3d DCA 1993) (post-accident newsletter warning tenants that floors are slippery when wet is admissible to impeach testimony from defendant’s manager that the floors were not slippery when wet); see also Daharan Well Texaco Oil Co. v. McFadden, 717 So. 2d 162, 163 (Fla. 3d DCA 1998) (“[T]he disputed photograph was properly admitted under the impeachment exception to the subsequent remedial measures rule.”). But see also Complaint of Consolidation Coal Co., 123 F.3d 126, 136 (3d Cir. 1997) (“[A] court must interpret the impeachment exception to Rule 407 circumspectly because any evidence of subsequent remedial measures might be thought to contradict and so in a sense impeach [a party’s] testimony.... Accordingly, the evidence offered for impeachment must contradict the witness’s testimony directly.”) (internal citation and quotation omitted). Post-accident changes required by the government. Pineda v. Ford Motor Co., 520 F.3d 237, 246 (3d Cir. 2008) (“We note that there is a possible exception to Rule 407 for remedial action mandated by superior governmental authority, such as a regulatory agency, because the policy goal of encouraging voluntary improvements for greater public safety would not necessarily be furthered by the exclusion of such evidence.”) (collecting cases) Continuing duty to warn. Johns-Manville Sales Corp. v. Janssens, 463 So. 2d 242, 256 (Fla. 1st DCA 1984) (SRM evidence supporting plaintiff’s claim of a continuing duty to warn is properly admissible as being offered for “another purpose” aside from negligence, defect, or culpability). See also id. (noting admissibility where the evidence is “offered to show the continuation of an intentional course of conduct decided upon prior to the relevant period of plaintiff’s exposure to asbestos products and was not offered as proof of remedial or corrective steps taken subsequent to the plaintiff’s exposure and resulting disease.”)

What is Not Excluded Under the Rule? The above “exceptions” permit evidence of SRMs when offered for an excepted purpose.

The following types of evidence are admissible because they do not constitute SRMs, ordinarily because they would not make “injury or harm less likely to occur:” •

•

Post-accident testing and reporting. Williams v. Asplundh Tree Expert Co., 71 Fed. R. Evid. Serv. 509, 2006 WL 2868923 (M.D. Fla. 2006) (“Reports prepared for a purpose other than remedying a problem may not be excluded by Rule 407.”); Rocky Mountain Helicopters, v. Bell Helicopters Textron, 805 F.2d 907, 918 (10th Cir. 1986) (“It would strain the spirit of the remedial measure prohibition in Rule 407 to extend its shield to evidence contained in post-event tests or reports.”) Industry standards. Alderman v. Wysong & Miles Co., 486 So. 2d 673, 675 (Fla. 1st DCA 1986) (introduction of “evidence of certain alleged industry-wide standards concerning safety and products design” does not violate the rule against SRMs.)

SRMs by Nonparties. Where a defendant seeks to introduce postaccident design changes by a non-party in order to show the nonparty was at fault, the SRM rule does not bar the evidence because the underlying policy against deterring repairs is not affected. Hartman v. Opelika Machine & Welding Co., 414 So.2d 1105, 1110 (Fla. 1st DCA 1982). However, where a plaintiff seeks to admit postaccident design changes by a non-party in order to “show ‘negligence or culpable conduct’” on the part of defendant, there is no error in excluding the evidence, at least where there is no issue of feasibility. Thursby v. Reynolds Metals Co., 466 So. 2d 245, 248-49 (Fla. 1st DCA 1985). See also Ehrhardt, Florida Evidence §407.1 at 372 (2016 ed.) (“Under current Florida tort law, juries frequently must apportion the fault of both parties and non-parties in the action. Although the Florida decisions have apparently not considered this issue, it appears that the better view is to treat both parties and non-parties similarly with respect to the application of section 90.407. Evidence of a subsequent remedial measure taken by the defendant is excluded if offered by the plaintiff. Similarly, evidence of a similar measure taken by a non-party should be excluded if offered by the defendant to show the fault of the non-party.”) Harmless Error. Improper admission of SRM evidence may be deemed harmless error where “[t]here was enough independent evidence of defendants’ negligence admitted that made this [SRM] testimony merely cumulative.” White Const. Co. v. Dupont, 455 So. 2d 1026, 1029 (Fla. 1984), receded from on other grounds, Murphy v. Int’l Robotic Sys., 766 So. 2d 1010 (Fla. 2000). TRIAL NOTEBOOK: Hearsay Exceptions – Business Records (§ 803(6)) The provisions of §90.802 to the contrary notwithstanding, the following are not inadmissible as evidence, even though the declarant is available as a witness: (6) RECORDS OF REGULARLY CONDUCTED BUSINESS ACTIVITY.— (a) A memorandum, report, record, or data compilation, www.FloridaJusticeAssociation.org | January/February 2017 | 33

EVIDENCE

in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or as shown by a certification or declaration that complies with paragraph (c) and §90.902(11), unless the sources of information or other circumstances show lack of trustworthiness. The term “business” as used in this paragraph includes a business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. (b) Evidence in the form of an opinion or diagnosis is inadmissible under paragraph (a) unless such opinion or diagnosis would be admissible under §§90.701-90.705 if the person whose opinion is recorded were to testify to the opinion directly. (c) A party intending to offer evidence under paragraph (a) by means of a certification or declaration shall serve reasonable written notice of that intention upon every other party and shall make the evidence available for inspection sufficiently in advance of its offer in evidence to provide to any other party a fair opportunity to challenge the admissibility of the evidence. If the evidence is maintained in a foreign country, the party intending to offer the evidence must provide written notice of that intention at the arraignment or as soon after the arraignment as is practicable or, in a civil case, 60 days before the trial. A motion opposing the admissibility of such evidence must be made by the opposing party and determined by the court before trial. A party’s failure to file such a motion before trial constitutes a waiver of objection to the evidence, but the court for good cause shown may grant relief from the waiver. •

•

The business records exception allows a party “to introduce relevant evidence without the inconvenience of producing all persons who had a part in preparing the documents during the trial.” Such evidence is deemed reliable because “it is of a type that is relied upon by a business in the conduct of its daily affairs ....” Ehrhardt, Florida Evidence §803.6 at 1053-54 (2016 ed.). The proponent must show “[1] the record was made at or near the time of the event recorded, [2] was made by or from information transmitted by a person with knowledge, [3] was kept in the ordinary course of a regularly conducted business activity, and [4] that it was the regular practice of the business keeping the record to make such a record.” Ehrhardt, Florida Evidence §803.6 at 1056 (2016 ed.). Satisfying the requirements of the rule does not render a document per se admissible; it merely provides an exception to the hearsay objection that otherwise would apply. The record must still be relevant to be admissible, for example. Jimenez v. State, 764 So.2d 933 (Fla. 3d DCA 2000).

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•

“Testimony describing the contents of a business record is not admissible unless the record has previously been introduced under section 90.803(6).” Ehrhardt, Florida Evidence §803.6 at 1056 (2016 ed.). See also Helton v. Bank of Am., N.A., 187 So.3d 245, 247 (Fla. 5th DCA 2016) (witness may not testify regarding the contents of a business record not in evidence). Under the plain language of the rule, opinions and diagnoses are not admissible merely because they appear in a business record that satisfies the hearsay exception; they must be admissible independently. Even then, “[i]f an expert opinion is offered without the expert testifying and being subject to crossexamination §90.403 may require the exclusion of the opinion.” Ehrhardt, Florida Evidence §803.6 at 1063 (2016 ed.).

Caselaw There are three ways to lay the foundation: (1) testimony by a records custodian to the predicate requirements, (2) stipulation “to the admissibility of the document as a business record,” or (3) certification or declaration that complies with §§90.803(6)(c) and 90.902(11). Yisrael v. State, 993 So. 2d 952, 957 (Fla. 2008). If the source of the predicate information or “other circumstances” show lack of trustworthiness, the record may be excluded. Documents prepared for the purpose of litigation generally “lack the trustworthiness of a record generated exclusively for business purposes.” McElroy v. Perry, 753 So.2d 121, 126 (Fla. 2d DCA 2000) (upholding exclusion of IME report). See also Shorter v. State, 98 So. 3d 685 (Fla. 4th DCA 2012) (distinguishing DNA forensic report prepared for litigation from an IME/CME report, but noting that “very significant” 403 concerns would remain regarding DNA reports given that “prejudice or confusion” may arise where the expert does not testify and is not subject to cross). The authenticating witness “need not be the person who actually prepared the business records ... [t]he records custodian or any qualified witness who has the necessary knowledge to testify as to how the record was made can lay the necessary foundation” but the witness “must be well enough acquainted with the activity to give the testimony.” Morrill v. State, 184 So.3d 541, 544-45 (Fla. 1st DCA 2015). A successor business can lay the foundation for its predecessor’s records where the successor’s witness testifies that she has some knowledge of the predecessor’s record-keeping procedures, that they complied with the business records exception requirements, and that the records were checked for accuracy. Deutsche Bank Trust Co. Americas v. Frias, 178 So. 3d 505, 507-08 (Fla. 4th DCA 2015). Computer printouts of electronic records may be admissible under the business records exception. Jackson v. State, 877 So.2d 816, 817-18 (Fla. 4th DCA 2004) (admitting printout of computer phone records where witness testified to the manner of preparation, reliability, and trustworthiness of the printouts even though the printouts themselves were not kept in the regular course of business).

Accident reports prepared in anticipation of litigation do not satisfy the business records exception. Stambor v. One Hundred Seventy-Second Collins Corp., 465 So.2d 1296, 1297-98 (Fla. 3d DCA 1985) (“Although clearly the report was a business record kept in the regular course of the defendant restaurant’s business, the report was nonetheless inadmissible under the business records exception because ‘the sources of information or other circumstances show lack of trustworthiness.’ This report was made solely for litigation purposes …. The report therefore lacks the reliability which business records are ordinarily assumed to have; the manager here had a business motive to fabricate and no business motive to be truthful in preparing this report. Accident reports made under these circumstances have generally been held inadmissible in evidence under the business records exception to the hearsay rule for lack of trustworthiness.”) Hospital and medical records are admissible under 803(6). Love v. Garcia, 634 So. 2d 158 (Fla. 1994) (overruling exclusion of results of blood alcohol test). Opinions and diagnoses contained within the records are not admissible per the plain language of the rule. However, “[e]ntries in the records indicating the patient’s vital signs, symptoms, behavior, laboratory test results, and physical examination findings are admissible if the necessary foundation is laid.” Ehrhardt, Florida Evidence §803.6 at 1074 (2016 ed.). The necessary foundation may not exist if an entry is not based on personal knowledge: “For example, a statement in a medical record that the patient was injured while involved in a ‘shoving or wrestling match’ would not be admissible under section 90.803(6) if it could not be shown that a member of the hospital or medical staff had personal knowledge of those facts.” Id. at 1078. A certification of business records is timely where written notice is given six weeks before trial and it is filed three weeks before trial. By failing to conduct a deposition of the certifying records custodian or otherwise objecting before trial, the opponent’s objections were waived and the records were admissible under §§90.803(6) and 90.902(11). Wilmington Sav. Fund Soc., FSB v. Aldape, 192 So. 3d 635 (Fla. 5th DCA 2016). Note: Foreign business records are treated under §92.60. RECENT EVIDENCE CASES OF INTEREST NOTE: Recent cases may not be released for publication. Award of future medical care expenses may be reversed for failure to include evidence of life expectancy. Plaintiff in a UM case elicited testimony that she would incur up to $2,000 in future medical expenses per year as well as a surgery costing $40,000-

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www.FloridaJusticeAssociation.org | January/February 2017 | 35

EVIDENCE

$50,000, but “no testimony about life expectancy was presented to the jury.” The jury awarded $360,000 in future medical expenses. The Fourth District reversed the award: “Due to the lack of evidence relating to Isaacs’ life expectancy, in addition to the fact that the amount awarded for future medical expenses far exceeded what the evidence supported, we remand this case to the trial court for a new trial solely on the issue of Isaacs’ life expectancy….” The opinion includes a short explanation of future care awards: “Only medical expenses that are reasonably certain to be incurred in the future are recoverable. Further, there must also be an evidentiary basis upon which the jury can, with reasonable certainty, determine the amount of those expenses. Testimony or evidence that certain treatments might possibly be obtained in the future cannot merit an award of future medical expenses.” Gen. Employees Ins. Co. v. Isaacs, 2016 WL 7118845 at *1 (Fla. 4th DCA 12-7-16) (internal quotations, citations and alterations omitted). “A mere break in the chain of custody is not in and of itself a basis for exclusion of physical evidence. Rather, the court should consider the probability that the evidence has been tampered with during the interim for which it is unaccounted.” In this case, the decedent underwent a bone harvest procedure and defendant claimed a break in the chain of custody during transport to and from the bone-harvesting location. Defendant failed to sustain his burden of proving probable tampering as he “presented no evidence, expert or otherwise, which demonstrated that [decedent’s] torso received additional blunt trauma during the bone harvesting procedure or while in transit to and from that procedure.” Martin v. State, 41 FLW D2615, 2016 WL 7046362 at *6 (Fla. 5th DCA 11-18-16). Autopsy photographs are admissible if they assist the medical examiner in explaining to the jury the nature and manner in which wounds were inflicted on a body. Additionally, the photos reinforced testimony from witnesses that decedent (a hazing victim) was beaten and they went directly to the disputed jury issue of whether decedent was the victim of “any brutality of a physical nature….” The court reiterated the Florida Supreme Court’s earlier admonition that “the initial test for determining the admissibility of photographic evidence is relevance, not necessity…. On the other hand, trial courts must be cautious in not permitting unduly prejudicial or particularly inflammatory photographs before the jury.” Martin v. State, 41 FLW D2615, 2016 WL 7046362 at *7 (Fla. 5th DCA 11-18-16) (quoting Mansfield v. State, 758 So. 2d 636 (Fla. 2000)). A client’s personal notes, discussed but not shared with his attorney, are not protected by the attorney-client privilege. The client testified that his notes concerning the case were made for “personal use” and “to help him remember things.” The notes were sought over work product and attorney-client objections. The client testified at hearing that the notes were made in anticipation of trial and to discuss strategy with his attorneys, but on cross he again admitted they were for “personal use.” The trial court reviewed the notes, concluded they reflected no attorney-client communications, and ordered them produced. There was no evidence the attorney requested the notes be made or that the client intended to deliver them to his attorney. The Third District upheld the trial court and denied 36 | January/February 2017 | www.FloridaJusticeAssociation.org

certiorari, giving deference to the credibility determination it made regarding the client’s equivocal testimony at the hearing: “[B]ecause the Notes are not a ‘communication’ pursuant to section 90.502(1) (c), they are not protected from disclosure….” Lee v. Condell, 2016 WL 7232266 at *3 (Fla. 3d DCA 12-14-16) (distinguishing Merlin v. Boca Raton Cmty. Hosp., 479 So.2d 236 (Fla. 4th DCA 1085 (protecting client notes as attorney-client privileged where they were prepared for and transmitted to an attorney either in contemplation of or during the litigation)). A trial court’s post-trial reversal of a mid-trial ruling excluding expert testimony caused prejudice requiring reversal. The court excluded an accountant’s expert testimony for failure to disclose certain opinions before trial. Months after the trial ended, the court reversed itself, admitted the proffered testimony regarding lost profits, and awarded damages based upon it. Citing Binger, the Fourth DCA found that “[b]y excluding the testimony at trial, the court lulled the defense into a position where it did not present evidence on damages for the slander of title count,” requiring a new trial on damages for that count. Willson v. Big Lake Partners, LLC, 2016 WL 6901617 at *3 (Fla. 4th DCA Nov. 23, 2016). A trial court erred by including findings in a final judgment exceeding the agreed-upon issues to be tried as set forth in the pretrial stipulation. The parties stipulated that the only issue for trial in this declaratory judgment action was whether plaintiff suffered the loss of a tractor truck “from any cause under the comprehensive coverage, or by theft, pursuant to the Physical Damage provisions of the insurance policy between the Plaintiff … and the Defendant.” A jury found that there was a loss under the physical damage provision for the theft of the truck. The trial court reflected this in its final judgment, but added that “there has been no proof of a loss … that would be payable under the insurance policy.” The Fifth DCA reversed: “We find that the trial court erred when it included additional findings in the final judgment that exceeded the agreed upon issues to be tried by the parties in the pretrial stipulation. The parties’ pretrial stipulation limited the issues of fact and law to be presented at trial and decided by the jury…. Although the parties could have also agreed to have the jury determine damages, they did not do so, and by their pretrial stipulation, they limited the only issue for the jury to determine….” S&M Transp. v. Northland Ins. Co., 2016 WL 7176756 at *2 (Fla. 5th DCA 12-2-16). If a party seeks to submit “business records” as summary judgment evidence, the affidavit must include all predicate requirements for the hearsay exception. “We acknowledge that the documents offered by Northland to prove cancellation were also attached to the timely filed, sworn deposition of Northland’s representative, Drew Johnson. Although the documents themselves are hearsay, under certain circumstances, ‘business records’ can be admissible in evidence as an exception to the hearsay rule under §90.803(6)(a), Florida Statutes (2015), and thus can be competent evidence in support of a motion for summary judgment. However, for these records to be admissible under this statute, the proponent must show that (1) the record was made at or near the time of the event; (2) was made by or from information transmitted by a person with knowledge; (3) was kept

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www.FloridaJusticeAssociation.org | January/February 2017 | 37

EVIDENCE

in the ordinary course of a regularly conducted business activity; and (4) that it was a regular practice of that business to make such a record. Accordingly, for Northland to have been able to utilize the cancellation notices attached to Mr. Johnson’s deposition as proper summary judgment evidence under the business records exception to the hearsay rule, Mr. Johnson should have testified under oath as to the predicate requirements for the admissibility of these documents.” S&M Transp. v. Northland Ins. Co., 2016 WL 7176756, at *3 (Fla. 5th DCA 12-2-16) (internal citation omitted). Any harm from witness repeating a dying declaration in a way that implied defendant had shot the victim before was harmless in light of curative instruction. Defendant and the deceased victim had shot one another previously. On the night of the murder, decedent arrived at his parents’ house having been shot and said: “He got me. He got me, Mom. He got me this time.” He told his family he knew he was dying, that he loved them, and repeated that Appellant shot him. At trial, his father testified that decedent said “Roo Roo [Defendant’s nickname] shot me again.” Defendant sought a mistrial because the father’s testimony “repeated his son’s dying declaration in a way that implied that Appellant shot the victim on a previous occasion.” The trial court denied the motion for mistrial and instructed the jury to disregard the answer. It was re-asked and the father repeated the statement without the word “again.” The Fifth DCA affirmed: “Florida law is clear that an appropriate, timely curative instruction can sufficiently eliminate the harmful nature of the improper comment so that a mistrial is not required.” Kenner v. State, 2016 WL 7324200 at *2 (Fla. 5th DCA 12-16-16). Note: This is a strong case for the presumed effectiveness of curative instructions in other contexts. A dying declarant’s credibility is at issue and may be attacked with previous convictions. Once a dying declaration has been admitted, “credibility of the declarant may be attacked and, if attacked, may be supported by any evidence that would be admissible for those purposes if the declarant had testified as a witness.” §80.806(1): “One method of attacking a witness’s credibility is through evidence of prior felony convictions. When there has been a prior conviction, only the fact of conviction can be brought out, unless the witness denies the conviction. If the witness denies ever having been convicted, or misstates the number of previous convictions, counsel may impeach the witness by producing a record of past convictions.” The court did not abuse its discretion in limiting the inquiry to the fact and number of convictions without introducing the underlying judgments, “Indeed it would have been an abuse of discretion … to have allowed the introduction of the related felony judgments and sentences.” Kenner v. State, 2016 WL 7324200 at *2 (Fla. 5th DCA 12-16-16) (internal quotation and citation omitted). “Tender and accept” process does not constitute error. Disagreeing with the Fourth DCA’s conclusion on this issue, the Fifth DCA did agree “that it is the better practice for the court to avoid declaring the witness an expert in the presence of the jury” but the Fifth DCA “do[es] not believe that this ‘tender and accept’ process necessarily

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equates to commenting on the witness’s testimony or placing the court’s imprimatur on the witness in violation of section 90.106. The standard jury instructions address expert witnesses and provide sufficient protections….” Mitchell v. State, 2016 WL 7405627 at *2 (Fla. 5th DCA 12-22-16) (noting disagreement with Osorio v. State, 186 So. 3d 601 (Fla. 4th DCA 2016)). A factfinder need not agree with either of the parties’ experts. In a deficiency judgment proceeding the parties offered competing expert opinions with significantly different fair market valuations of the subject property. The court expressed frustration as it felt constrained to choose one expert or the other. It chose the one who “came closer to getting it right.” The Fifth DCA observed that the court’s final determination had to be supported by competent, substantial evidence, and that it was “precluded from simply ‘splitting the difference’ between the two evaluations of the experts.” Nevertheless, the court “has the discretion to find a different value than that provided by either expert, if the trial court provides an articulable, factual bases for doing so….” Ramphal v. TD Bank Nat’l Ass’n, 2016 WL 7405629 at *2 (Fla. 5th DCA 12-22-16). But cf. 743 Mahoney, LLC v. MDC 5, LLC, 41 FLW D2557 (Fla. 2d DCA 11-16-16) (“A trial court may not reject expert testimony unless it is so ‘incredible, illogical, and unreasonable as to be unworthy of belief.’”) (quoting DOT v. Myers, 237 So.2d 257 (Fla. 1st DCA 1970)). Note: The reasoning might be applied to jurors as factfinders and is consistent with FSJI 601.2b. “[W]itnesses, even witnesses qualified as experts, generally are precluded from providing testimony in the form of legal conclusions.” Citibank, N.A. v. Olsak, 2016 WL 6992272 at *2 (Fla. 3d DCA Nov. 30, 2016). Disability (Down syndrome) does not render a witness “unavailable” for hearsay purposes. Defendant convicted of sexual battery on a disabled person challenged testimony by mother as to what daughter with Down syndrome told the mother had happened to her. The hearsay exception for statements by disabled adults describing acts of abuse applies only if the victim is “unavailable as a witness.” The State argued that although the victim testified, she was “unavailable” due to her disabilities. The First DCA rejected this “tortured interpretation of ‘unavailable.’” It also noted in assessing the preservation argument that “[w]hen a party makes a hearsay objection, a trial court must consider all possible hearsay violations, exceptions, and exclusions.” Sprouse v. State, 2016 WL 7324176 at *1 (Fla. 1st DCA 12-16-16). Matt Schultz

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

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www.FloridaJusticeAssociation.org | January/February 2017 | 39

CIVILPROCEDURE

DRAFTING VALID PROPOSALS For Settlement In Cases Involving Loss Of Consortium Claims by Roy D. Wasson

ettling cases is hard work. Many of the challenges involve crafting proposals for settlement (PFSs) that will provide a fair recovery to the plaintiffs if accepted, while being enforceable as a ground for court-awarded attorney’s fees if rejected. Those challenges become more complex in cases involving multiple plaintiffs or multiple defendants, or both. Many appellate decisions hold that the PFS by or to multiple parties, or by or to single parties in multi-party cases, are invalid. This article seeks to give direction to trial lawyers handling cases involving two plaintiffs: one with bodily injury claims and the other a spouse with a loss of consortium claim. To start with, the first decision the plaintiffs must make is whether both spouses will submit a single, joint PFS, or each spouse will serve a separate one. In certain cases the plaintiffs may make a tactical decision to settle the claims of only spouse, and to take the other to trial. In other cases a better strategy may be to make a valid offer that requires both the main injury claim and the consortium claim to be settled simultaneously. Either strategy can be accommodated through a carefully-crafted PFS. The rule of civil procedure addressing multi-plaintiff cases is deceptively simple: Fla. R. Civ. P. 1.442(c)(3) states: “A proposal may be made by or to any party or parties and by or to any combination of parties properly identified in the proposal. A joint proposal shall state the amount and terms attributable to each party.” Case law applying that rule makes it clear that either of the plaintiffs in a case involving a consortium claim may serve a PFS that permits settlement of that one plaintiff’s claims—either the injured plaintiff or the spouse—while allowing his or her spouse’s claims to proceed to trial. Likewise, a defendant may serve a PFS upon only one of the plaintiffs, which if accepted would require dismissal of that claim while leaving the other plaintiff’s claim pending. One strategy we trial lawyers should address with our clients is whether to make a single proposal to the defendant on behalf of the

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injured plaintiff, without mentioning the consortium claim. Where you have agreeable spouses whose family finances are shared, such a proposal by one client can support a fee award without the need for both spouses to achieve a judgment more than 25 percent above the offer. Such a PFS was held to be enforceable in Anderson v. Hilton Hotels Corp., 202 So. 3d 846 (Fla. 2016). There the Court determined that the injured plaintiff Troy Anderson was entitled to recover his attorney’s fees for beating a PFS which mentioned only his injury claims, and did not reference his wife Paula Anderson’s then-pending consortium claim. (Paula’s consortium claim was eventually dropped before trial.) Even assuming the plaintiffs intended to resolve both of their claims and drop Paula’s consortium claim if and when Troy’s PFS was accepted, the Florida Supreme Court held that the language of the PFS—which identified the plaintiff as only “Troy Anderson” and said it was “inclusive of all damages claimed by plaintiff” without mentioning Paula’s claim— did not make it a joint proposal that had to be apportioned. While the Anderson case is clear authority for your ability to serve separate PFSs on behalf of each of your clients, use caution in preparing a PFS on behalf of one of the plaintiffs, where you intend to drop the entire case if that offer is accepted. If that intent is stated in the PFS, as opposed to a silent understanding that you and your clients share, the PFS will be unenforceable unless it apportions an amount for the consortium claim. Just that situation was distinguished by the Anderson court in upholding the single-plaintiff PFS that would have let the consortium claim to remain pending: We reject the suggestion by the Respondents that Troy Anderson’s offer was actually a joint offer intended to settle the claims of both Troy and Paula Anderson, as occurred in Audiffred v. Arnold, 161 So. 3d 1274 (Fla. 2015). Not only would such a reading be contrary to the plain language of Troy Anderson’s proposal, but the proposal in Audiffred was factually distinguishable from the offer in this case. Although the proposal in Audiffred indicated that only one

party (Valerie Audiffred) made the offer, the proposal also indicated that it was attempting to resolve “[a]ny and all claims Plaintiffs have brought against the Defendant,” and it expressly indicated that both Audiffred and her husband, the other plaintiff in the matter, would dismiss their respective claims against the defendant upon his acceptance of the offer. We explained that this proposal was a joint offer that was ultimately unenforceable because it lacked apportionment among the plaintiffs. By contrast, Troy Anderson’s proposals were not joint proposals and made no reference to Paula’s claim for loss of consortium. Apportionment simply was not an issue below. Id. (emphasis added and internal citations omitted). The reverse of the Anderson situation was addressed by the Second District in Miley v. Nash, 171 So. 3d 145 (Fla. 2d DCA 145). In Miley, “Martha Nash sued for bodily injury damages in count one, while her husband, Garfield Nash, sued for loss of consortium in count two. During the pretrial phase of the case Kyle Miley made a proposal for settlement to Martha Nash, offering to pay the sum of $58,590 in ‘an attempt to resolve all claims and causes of action

resulting from the incident or accident giving rise to this lawsuit brought by Plaintiff Martha Nash against Defendant Kyle Miley.’ The proposal required that Martha Nash dismiss both Glenn and Kyle Miley from the lawsuit in exchange for the payment from Kyle Miley . . . . The proposal did not mention Garfield Nash or his thenpending loss of consortium claim.” Id. at 147. After Martha Nash recovered a judgment on her injury claim of less than the defendant’s PFS, the defendant sought fees against her. The appellate court noted that the injured plaintiff could have accepted the PFS, leaving the consortium claim of her husband pending, and held that the defendant was entitled to fees against Martha Nash, stating as follows: The proposal sufficiently identified the claims to be resolved. Florida Rule of Civil Procedure 1.442(c)(2)(B) requires that a proposal must “identify the claim or claims the proposal is attempting to resolve.” The language of the proposal clearly announced that it was targeted to address “all claims and causes of action resulting from the incident or accident giving rise to th[e] lawsuit brought by Plaintiff Martha Nash against Defendant Kyle Miley.” Thus, the

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CIVILPROCEDURE

proposal was only meant to resolve the bodily injury claims brought by Martha Nash in count one and not the loss of consortium claim brought by Garfield Nash in count two. Id. at 147-48 (emphasis added). Thus, there should be no problem in sending out a PFS meant to settle either the injury claim or the consortium claim, but not both, so long as it clearly identifies the single plaintiff making the offer and states that the other plaintiff’s claim will remain pending if accepted. Where plaintiffs serve separate PFSs upon a single defendant: one for the main injury claim and one for the other spouse’s loss of consortium, and the judgment that follows exceeds one of the offers by more than 25 percent, but not the other one, the spouse that beat that threshold amount is entitled to a fee award. However, that fee award will be limited to the time attributable to the claim that exceeded the offer amount, unless the plaintiff at the fee hearing establishes that allocation of the fees to the two claims is “not feasible.” That was the case in Blanton v. Godwin, 98 So. 3d 609 (Fla. 2d DCA 2012). In Blanton, Martha Godwin was injured in an automobile accident when Linwood Blanton rear-ended her vehicle. She brought a personal injury claim and her husband brought a loss of consortium claim against Mr. Blanton. Mr. Godwin served Mr. Blanton with a proposal for settlement in the amount of $10,000, and after a trial, final judgment was entered in favor of Mr. Godwin on his lost consortium claim in the amount of $15,000. Although Mrs. Godwin served Mr. Blanton with a proposal for settlement, the amount of the final judgment entered in her favor, $135,000, did not exceed the proposal for settlement. The consortium plaintiff in Blanton sought an award of his attorney’s fees for the entire case, arguing that “they could not itemize the amount of time which was spent on the consortium claim because it was necessary to prove the allegations in the personal injury claim in order to prevail on the consortium claim.” Id. at 611. The trial court awarded 25 percent of the total time spent in the case to the consortium claim and both sides appealed. The Second District reversed with instructions to award the prevailing consortium claimant only 3.3 hours’ worth of attorney time, because that was the only time that could be specifically identified as having been spent on the consortium issues: As the party moving for fees, Mr. Godwin had the burden to allocate them to his consortium claim or to show that the issues were so intertwined that allocation is not feasible. See Lubkey, 857 So. 2d at 968. . . . Further, Mr. Godwin urges this court to adopt a blanket rule that consortium claims are always so intertwined with the spouse’s claim that allocation is never possible. We decline to do so and would note that if such a rule were adopted, in every case containing a consortium claim, where a defendant or one of the plaintiffs are entitled to fees for one claim, that party

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would automatically be able to obtain fees for work done on both cases. Accordingly, we conclude that the trial court properly found that Mr. Godwin did not satisfy his burden of allocating his attorney’s fees to his consortium claim or of showing that the issues were so intertwined that allocation is not feasible. However, we must nevertheless reverse the award of attorney’s fees because there was no evidence presented supporting the trial court’s finding that twenty-five percent of the attorney’s time was reasonably expended on the consortium claim. We remand with directions that the trial court award Mr. Godwin attorney’s fees for 3.3 hours expended on the consortium claim. 98 So. 3d at 612-13. In many if not most cases, the plaintiffs want to settle the entire case and not leave part of their claims pending. The question arises whether the plaintiffs may structure a PFS that apportions the amounts to be received by each spouse, but makes acceptance conditions upon the defendant accepting as to both the injured plaintiff and the spouse with the consortium claim. A case that is useful by analogy is Duong v. Ziadie, 153 So. 3d 354 (Fla. 4th DCA 2014). In that case there were injury claims brought on behalf of an incapacitated medical malpractice victim as well as loss of parental consortium claims brought by his two minor children. The plaintiff/guardian made a PFS in the amount of $1 million, apportioned with $900,000 designated for the bodily injury claim and $50,000 each for the two parental consortium claims. After recovering a judgment in which each claimant’s recovery greatly exceeded the amounts of the PFS attributable to that claim, the plaintiff sought an award of fees, which the defendant opposed on the ground that the offer was unenforceable due to its “all or nothing” provision that required acceptance as to all three of the claims. The Fourth District rejected that argument, holding that the law permits plaintiffs to make a joint proposal conditioned upon the defendant’s acceptance as to all of their claims; distinguishing the situation in cases like Attorneys’ Title Ins. Fund, Inc. v. Gorka, 989 So.2d 1210 (Fla. 2d DCA 2008), which found a proposal from one plaintiff offeror to multiple defendant offerees invalid, where the offer was conditioned upon it being accepted by all defendants: Unlike Gorka, which involved an offer to multiple offerees conditioned on acceptance of all the offerees, this case involves an offer to a single offeree, conditioned on that single offeree accepting the offer as to all of the multiple offerors. Since Gorka was issued in 2010, this court and other district courts have upheld this type of offer. See Wolfe v. Culpepper Constructors, Inc., 104 So. 3d 1132, 1134 (Fla. 2d DCA 2012); Rossmore v. Smith, 55 So. 3d 680, 681 (Fla. 5th DCA 2011); Andrews v. Frey, 66 So. 3d 376, 379 (Fla. 5th DCA 2011); Donovan Marine, Inc. v. Delmonico, 40 So. 3d 69, 7172 (Fla. 4th DCA 2010). These decisions distinguish Gorka on the grounds that where there is only one offeree, it is the

offeree’s decision alone to accept or reject the proposal, without the decision being dependent on any other party. Thus, Gorka’s concern that the offer there “divest[ed] each party [i.e., offeree] of independent control of the decision to settle” was not implicated. 36 So. 3d at 649. 153 So. 3d at 359. Using the Duong court’s reasoning, a joint PFS that apportions one amount for the injured plaintiff’s claims and a different amount for the consortium claim should be enforceable by plaintiffs where the PFS is an “all or nothing” offer, and where the eventual judgment in each plaintiff’s favor exceeds by more than 25 percent the amount attributed to that claim in the PFS. It also seems clear that the courts will enforce a single PFS made by either the injured plaintiff or the spouse asserting a consortium claim, where that plaintiff’s eventual recovery exceeds the offer amount by more than 25 percent. However, trial lawyers should be prepared for the situation in which they serve a joint PFS for a total dollar figure, with specific amounts attributable to the main injury claim and the consortium claim, but the eventual judgment as to one of those claims does not exceed 125 percent of the amount demanded as to that individual plaintiff’s claim. For example, assume that you serve a joint PFS for $110,000. Of that total $90,000 was attributed to the injury claim in the proposal and $20,000 was attributed to the consortium claim. If the judgment in favor of the injured client was $120,000 (133.33 percent of the PFS amount attributable to that claim), but the consortium judgment was only $5,000, the $125,000 total judgment for both plaintiffs would not be 25 percent above the PFS amount. If the PFS was an “all or nothing” proposition, the Blanton rule allowing recovery of fees by the plaintiff who beat the PFS by more than 25 percent might be inapplicable because the overall PFS did not exceed that threshold. My best advice is to do one of three things in loss of consortium cases. First, if the goal is to settle the entire case, make a joint proposal that apportions separate amounts to both the injured client and his or her spouse’s consortium claims, as was done in the Duong case. If you would rather settle the consortium claim alone, a second approach would be to draft a small PFS on that claim and submit a much larger one on your main claim, allowing the smaller of the claims to be settled. Third, your client may authorize you to serve only a single PFS directed only to the larger claim without mentioning the other plaintiff or claim. In either of the latter two cases, if your PFS is accepted you can take that settling defendant’s money and then ask your clients to decide whether they want to proceed to trial on the remaining claim, or just drop it and divide up the settlement that is paid to one of the spouses. The law in the PFS area is constantly evolving. We may never have all the answers to the myriad of questions that arise in this area; all we can do it: Keep tryin’!

Civil Procedure Case Summaries: Failure to Prosecute The filing of any document by any party during the sixty-day period following notice of ten months of record inactivity precludes dismissal for failure to prosecute “without regard to a finding that the filing is intended to affirmatively move the case toward resolution on the merits.” Dyck-O’Neal, Inc. v. Martin, No. 4D15-4331; 2017 Fla. App. LEXIS 43 (Fla. 4th DCA 1-4-17 @*2). Jury Selection Plaintiff was entitled to exercise cause challenges to jurors during defendant’s exercise of peremptory strikes; exercise of cause challenges following peremptory strikes does not entitle defendant to re-start exercise of peremptories. “[T]here is nothing in the Rule of Civil Procedure [1.431(c)-(e)] governing the use of challenges during jury selection which mandates” that cause challenges must be exercised before peremptories begin. R.J. Reynolds Tobacco Co. v. Grossman, No. 4D13-3949; 2017 Fla. App. LEXIS (Fla. 4th DCA 1-4-17). Electronic Testimony Objections to witness testifying by Skype electronic transmission including appellant’s “alleged lack of consent to the [witness] testifying via electronic means; the lack of a notary to administer the oath to the [witness] prior to her electronic testimony as required by Florida Rule of Judicial Administration 2.530(d) and Florida Rule of Civil Procedure 1.451,” are waived by not having been made prior to trial. S.D. v. Dep’t. of Children & Families, No. 3D16-1306 & 3D161304; 2017 Fla. App. LEXIS 37 at *3 (Fla. 3d DCA 1-4-17). Punitive Damages It is reversible error to rule on a motion for leave to amend to plead punitive damages in the absence of a hearing. Although such a hearing is not an evidentiary hearing where the court will make any factual determination, it will involve a proffer of evidence which, if presented at trial would be sufficient to support a punitive damage claim. The Fifth District in W.G. Evergreen Woods SH, LLC v. Fares, No. 5D161204; 2016 Fla. App. LEXIS 19239 (Fla. 5th DCA December 30, 2016) relied upon the language of Fla. R. Civ. P. 1.190(f ) to hold that a hearing on such a motion to amend is always required.

Roy D. Wasson is board certified in Appellate Practice with

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

www.FloridaJusticeAssociation.org | January/February 2017 | 43

CLOSINGARGUMENT

SETTLEMENTS

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

t is a clear principle of Florida law that defense counsel may not refer in closing argument (or at any point during a trial) to a settlement that the plaintiff reached with a former defendant. Florida Statutes section 768.041(3) provides that, in negligence cases, “[t]he fact of such a release or covenant not to sue, or that any defendant has been dismissed by order of the court shall not be made known to the jury.” § 768.041(3), Fla. Stat. Similarly, Florida Statutes section 46.015(3), entitled “Release of Parties,” states “[t]he fact that a written release or covenant not to sue exists or the fact that any person has been dismissed because of such release or covenant not to sue shall not be made known to the jury.” § 46.015(3), Fla. Stat. Many of the cases discussed here involve statements made during the introduction of evidence about settlement, though the prohibition against reference to settlements “should apply with equal or greater force where, as here, no evidence of a settlement ... came out during trial and the jury first learned of the settlement from counsel during closing argument.” Henry v. Beacon Ambulance Serv., Inc., 424 So.2d 914, 916 (Fla. 4th DCA 1983). The Supreme Court of Florida has recognized that the purpose of section 768.041(3) is to “promote Florida’s public policy favoring settlement by excluding such prejudicial evidence at trial.” Saleeby v. Rocky Elson Constr., 3 So.3d 1078, 1083 (Fla. 2009); JFK Medical Center, Inc. v. Price, 647 So.2d 833, 834 (Fla. 1994) (stating that the statute was designed to encourage the “settlement of actions”). Once such references to settlement are made, “[i]t is a practical impossibility to eradicate them from the jury’s minds the considerations that where there has been a payment there must have been liability.” Id. at 1085 (quoting City of Coral Gables v. Jordan, 186 So. 2d 60, 63 (Fla. 3d DCA 1996)). Other courts have noted that “[b]y virtue of the statutes the parties are free to settle claims on their own terms without jeopardizing claims remaining against others.” Baudo v. Bon Secours Hosp./Villa Maria Nursing Ctr., 684 So. 2d 211, 213 (Fla. 3d DCA 1996) (quoting Price v. Beker, 684 So. 2d 911, 912 (Fla. 4th DCA 1993)). The Supreme Court of Florida has addressed the prohibition against references to settling defendants on several occasions. In Ed Ricke & Sons, Inc. v. Green, 468 So. 2d 908 (Fla. 1985), the plaintiff sued two tortfeasors, and settled with one of them, Dade County, prior to trial. The trial court granted a motion in limine which ordered the parties to not make known to the jury that the plaintiff had settled with the County. During closing, defense counsel stated:

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Now, there’s going to be some other person responsible. I would like for you to ask them some questions. I would like for you to ask him why Dade County is not a defendant in this litigation.

Id. at 909. The Supreme Court deemed this argument “highly prejudicial and improper,” and rejected the defense contention (and the trial court’s ruling) that this was a proper “empty chair” argument. The Court noted that “defense counsel did more than simply argue that Dade County was responsible for the accident. Rather, defense counsel emphasized that there had been a prior suit against that empty chair.” Id. at 909. Florida law does allow defense counsel to make empty chair arguments, though there is a fine line between a traditional empty chair argument and arguments that violate the statute. “It is not per se impermissible to point to an empty chair, i.e., argue that a non-party is responsible for the plaintiff’s injuries.” Black v. Montgomery Elevator Co., 581 So. 2d 624, 625 (Fla. 5th DCA 1991). Courts have explained that a proper empty chair argument suggests that “some non-party is the sole legal cause of the harm alleged, but unlike a Fabre defendant, this non-party is not placed on the verdict form and there is no apportionment of fault.” Philips v. Guarneri, M.D. 785 So. 2d 705, n.4 (Fla. 4th DCA 2001). Yet, the defense is prohibited by statute from disclosing that the plaintiff has settled with the empty chair (non-party responsible for the plaintiff’s injuries), that the empty chair was once a party to the case, or that there was a prior action against the empty chair. Black, 581 So. 2d at 625. In Ricks v. Loyola, 822 So. 2d 502 (Fla. 2002), the plaintiff sued two doctors but settled with one of them before trial. Defense counsel argued to the jury (during opening): Now, as Mr. Vieth pointed out, Dr. Loyola is not the only health care provider that you will be hearing about. That is, I gather you’ve gleaned from what I’ve said up to this point, there is going to be testimony that the nurses should have done things differently, that Dr. Wengler should have done things differently, before it ever reached the point of … of being contracted with permanent nerve damage. It just never should have happened. It will not be something that you need to consider as to why they aren’t in this courtroom, although you might want to ask yourself that question. I assure you, though, that Ms. Ricks and her attorney aren’t going to tell you why they aren’t here. Id. at 504 (emphasis in original). The Supreme Court disagreed with the district court’s conclusion that the comments did not violate the statute because it “did not

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800.626.3876 | NeuLifeRehab.com www.FloridaJusticeAssociation.org | January/February 2017 | 45

CLOSINGARGUMENT

reference any of the prohibited categories,” and was “isolated and never mentioned again by the defense,” and therefore did not warrant a new trial. Id. The court stated: Even though it was Loyola’s defense at trial that others were negligent, we find that the objectionable statement could be construed to improperly refer to the underlying reason why those other parties were not involved in the case. Of course, one of the reasons they were not directly involved is because they had settled with the plaintiff. Id. at 507. Ricks then referenced section 768.041(3), and found: Jurors logically could have interpreted counsel’s statement to imply that a settlement had been reached with others involved in the case, despite the fact that counsel did not actually use the word settlement. Id. at 508 (emphasis added). Additionally, the court noted that it was an improper burden to place on the plaintiff to explain the absences of parties in the courtroom, and that the defense improperly insinuated that the plaintiff was responsible for the absence of the other parties. Id. at 508. Finally, Ricks verified that the trial court has discretion to reserve ruling on motions for mistrial concerning such statements until after the jury returns its verdict, reiterating the principles set forth in Ed Ricke & Sons. The principle that “magic words” (such as “settlement”) do not have to be used to violate the statute was applied in Vucinich, M.D. v. Ross, 893 So. 2d 690 (Fla. 5th DCA 2005). There, the estate sued an urgent care physician and his professional association for alleging they negligently failed to diagnose and treat the deceased’s heart disease. The estate also sued a radiologist for negligently interpreting the deceased’s chest x-ray. The urgent care physician settled prior to trial, and the case against him was dismissed. In closing, defense counsel stated: The verdict form asks, the first question is “Was there negligence on the part of the Defendant Janice Vucinich, M.D., which was the legal cause of death of Gordon Ross? Yes or no? If the answer is no, if she didn’t cause the death of Mr. Ross, then we don’t get into the apportionment question. It’s not an issue of you apportioning damages whether you care for or don’t care for what Dr. Baringer did; whether or draw any conclusions or don’t draw any conclusions from his absence here or that of his partner. That’s not for your consideration. No portion of the verdict will ever be paid by them. Id. at 692. (emphasis in original). On appeal, the doctor argued that the trial court abused its discretion in ordering a new trial because “counsel made only one passing reference to Baringer,” and “as long as a reference to a third party does not include the word ‘settlement,’ and as long as the reference does not become a ‘feature’ of the trial, it is an abuse of discretion to order a new trial.” 46 | January/February 2017 | www.FloridaJusticeAssociation.org

Id. at 693. The appellate court disagreed with these arguments and affirmed, relying on Ricks where “counsel did not directly tell the jury about the settlement either.” See also Muhammad v. Toys “R” Us, Inc., 668 So. 2d 254, 256 (Fla. 1st DCA 1996) (reversing and remanding for new trial where counsel’s statements during voir dire which suggested a settlement with others were “patently prejudicial and may have influenced the jury to return a verdict in favor or Toys “R” Us”); In Webb v. Priest, 413 So.2d 43 (Fla. 3d DCA 1982), the plaintiff settled with Jackson Memorial Hospital and its employees before trial, but continued to trial against certain defendant doctors, their professional corporation, and the Florida Patients Compensation Fund. The court found “the most damaging error to be that of permitting appellees to bring repeatedly to the jury’s attention the fact that Jackson Hospital and its employees . . . had been dropped as defendants.” Id. at 46. The court noted that “though neither the fact of the settlement, nor the terms of that settlement were put before the jury, the record shows numerous incidences where appellees were permitted to bring to the jury’s attention that Jackson Hospital and its employees had been prior defendants.” Id. Bern v. Camejo, 168 So. 3d 232 (Fla. 3d DCA 2014), involved a comment made in opening by defense counsel, though the principle set forth in the case would certainly have been equally applicable if it was made during closing argument. In Bern, the plaintiff sued the drivers and owners of two cars that were involved in the automobile collision. The plaintiffs settled with one driver and owner prior to trial. In his opening statement, defense counsel, responding to plaintiff’s counsel’s opening statement, stated: First, Counsel, as he suggested to you in opening, said to you that my client ... is the one who blamed Keilin Perez, the [driver of the] purple Civic. The evidence will show you that it was his client, Ms. Bern under oath who sued and blamed Ms. Perez – The evidence will show [Ms. Bern] blamed them under oath, okay? And the evidence will show that she sued them as well. Id. at 233 (emphasis in original). The plaintiff moved for a new trial, which the trial court denied. The appellate court reversed, citing Ed Ricke & Sons, Ricks, and Webb. While the defendants “did not expressly use the words ‘settlement,’ ‘release’ or ‘dismissed by the court’ … the defendants made repeated references, in testimony and argument, to the fact that Bern had sued Perez and that Perez was a prior defendant in the case, leaving the jury to logically and reasonably conclude that Bern had settled her claim against Perez prior to trial.” Id. at 236. Further, the defense attempted to circumvent the plain language of the statute by arguing the plaintiff, by calling the dismissed defendant as a witness, opened the door to allowing evidence of a settlement in order to prove bias. See also Saleeby v. Rocky Elson Constr., Inc., 3 So. 2d 1078 (Fla. 2009) (discussed below) (rejecting attempt to avoid the statutory language when former defendant testified as an expert for the plaintiff); Henry, 424 So. 2d 914 (Fla. 4th DCA 1982) (rejecting attempt to avoid the statute by claiming that the other side “opened the door”).

The Supreme Court once again examined the scope of the statute in Saleeby v. Rocky Elson Constr., Inc., 3 So.2d 1078 (Fla. 2009), though not in the context of closing argument. Yet, practitioners should be aware of the case because of the strongly worded conclusion that the “meaning of paragraph (3) of the statute could not be clearer,” and the Court’s rejection of a suggested exception to the statute which sought to allow evidence of a settlement to impeach a former defendant who was called as a witness by the plaintiff. In Saleeby, a construction worker was rendered a paraplegic after roof trusses collapsed on him. He sued the construction company that installed the trusses as well as the company that manufactured them, though the plaintiff settled with the manufacturer before trial. The Court once again focused on the public policy of encouraging settlements in adopting a strict reading of the section 768.041(3). The Court also cited Florida Statute section 90.408, which states: Evidence of an offer to compromise a claim which was disputed as to validity or amount, as well as any relevant conduct or statements made in negotiations concerning a compromise, is inadmissible to prove liability or absence of liability for the claim or its value. Id. at 1083 (emphasis in original). Saleeby involved an express and direct conflict between the Fourth District’s decision in the case and Ellis v. Weisbrot, 550 So.2d 15 (Fla. 3d DCA 1989). Both involved the admissibility of settlement evidence at trial to demonstrate the bias of a testifying witness. In the Fourth District’s opinion, such evidence was admitted despite the language of the statute, while the Third District in Ellis found admission of such evidence to be “clear error.” The Saleeby court sided with the Ellis decision and drew a line concerning the language of the statute which it found quite clear. As the Court ultimately concluded: We find the plain language of sections 768.041(3) and 90.408 expressly prohibits the admission at trial of evidence of settlement and that a defendant has been dismissed from the suit. These statutes do not contain an explicit exception permitting such evidence to be used for impeachment purposes. Id. at 1086. Again, though not directly on point for improper references made in closing, Saleeby may be read as a clear statement from the Court that, given the plain language of the statute and the important policy considerations involved, violations of the statutory prohibitions will not be tolerated. Although not a closing argument case, Holmes v. Area Glass, Inc., 117 So.3d 492 (Fla. 1st DCA 2013) is instructive on how strictly the clear terms of section 768.041(3) are construed. In Holmes, the plaintiff sued State Farm Mutual Insurance Company and Area Glass in a negligence action concerning the allegedly negligent replacement of a windshield on a vehicle. The plaintiff settled with Area Glass before trial, and at State Farm’s insistence, the verdict form included Area Glass in the caption. The plaintiff filed a motion for new trial asserting the inclusion of the settling defendant was error, and it was denied by

the trial court. The appellate court reversed, finding that inclusion of Area Glass on the verdict form was error pursuant to the statute and Saleeby. They noted that “the unambiguous language of the statute admits no exceptions, and violation of the prohibition is reversible error” even where such violations are made “during voir dire or arguments [of counsel].” Id. at 495 (emphasis added). It should be noted that the more stringent interpretation of the statute adopted by the Supreme Court in recent years, particularly in Saleeby, would seem to call into question the validity of older cases which refused to reverse where apparent violations of the statute occurred, though were not pervasive. For example, in Samick Corp. v. Jackson, 645 So. 2d 1095 (Fla. 4th DCA 1994), counsel told the jury in closing argument that it should consider the interest in the case of a witness called by the plaintiff “when he was being sued.” Id. at 1096. The plaintiff moved for a mistrial, which the trial court denied. On appeal, the plaintiff claimed that the comment violated the statute, and although the appellate court found it to be improper, it held that a violation of the statute did not automatically require a mistrial or a new trial. It then remanded the matter for determination of whether or not the comment was harmless. In Cenvill Communities, Inc. v. Patti, 458 So. 2d 778 (Fla. 4th DCA 1984), the court similarly found that the mention of a “claim” against a non-party was not prohibited by section 768.041(3). The prohibition against references to settlements is clear as set forth in the relevant statutes and cases. Counsel should be ever alert for such improper comments, even if words such as “settlement” or “dismissed by the court” are not used. Further, attempts to avoid the statute’s terms by arguments that such testimony (and thus argument) should be allowed on another basis such as an empty chair argument or credibility should be carefully considered. 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.

www.FloridaJusticeAssociation.org | January/February 2017 | 47

FJAYOUNGLAWYERSSECTION

INDEPENDENT CONTRACTOR?... SO WHAT! Establishing Vicarious Liability for the Negligence of an Independent Contractor by Matthew A. Crist

e know the general rule: One that hires an independent contractor is not liable for the contractor’s negligence. We know this going back to law school. Plus, when this issue comes up in a case, the defense lawyer reminds of us the general rule at every turn, in every motion, and at every hearing.

Fortunately, like a lot of general rules, this one has exceptions – a lot of them. City of Coral Gables v. Prats, 502 So.2d 969, 971 (Fla. 3d DCA 1987) (the general rule is “riddled with exceptions”). This article focuses on three exceptions that allow you to hold a defendant that is entirely without fault vicariously liable for the negligence of its independent contractor: (1) apparent agency, (2) non-delegable duty that arises under a contract or statute, and (3) inherently dangerous activity. We then revisit the Restatement (Second) of Torts to see if there are any other exceptions that might be useful to establish vicarious liability. 48 | January/February 2017 | www.FloridaJusticeAssociation.org

Note: This article only addresses defendants that are without fault and whose liability can only be vicarious. Theories of direct liability, like when the defendant negligently hires, selects, or fails to supervise an independent contractor, are outside the scope of this article. Apparent Agency A defendant is vicariously liable for the acts of its independent contractor if they are committed within the independent contractor’s apparent agency. Roessler v. Novak, 858 So. 2d 1158, 1161 (Fla. 2d DCA 2003). One who employs an independent contractor to perform services for another which are accepted in the reasonable belief that the services are being rendered by the employer or by his servants, is subject to liability for physical harm caused by the negligence of the contractor in supplying such services, to the same extent as though the employer were supplying them himself or by his servants. Rest (2d) Torts §429 (emphasis supplied); Irving v. Doctors Hosp. of Lake Worth, Inc., 415 So.2d 55, 60 (Fla. 4th DCA 1982) (applying §429 against a hospital for the negligence of an independent contractor, a non-employee ER physician). Put another way, apparent agency is authority that the defendant knowingly tolerates or permits through its own actions or words. The rationale for apparent agency is based on estoppel: a defendant should not be able to deny that the independent contractor had authority when (1) the defendant’s conduct gives the appearance of authority, (2) the plaintiff justifiably relies on that representation of authority, and (3) the plaintiff changes its position accordingly. Roessler, 858 So.2d at 1161. Apparent agency only exists when the defendant creates the appearance of agency, not the apparent agent. Roessler, 858 So.2d at 1162. So the focus is on what the defendant said and did, not what the apparent agent said and did. Apparent agency is generally a jury question. Robbins v. Hess, 659 So.2d 424, 427 (Fla. 1st DCA 1995). Contractual and Statutory Duties Although a party to a contract or subject to a statute can always subcontract the performance of its duty to an independent contractor, if the duty is “non-delegable,” it cannot avoid liability for the negligent performance of that duty by its independent contractor. Arminger v. Associated Outdoor Clubs, Inc., 48 So. 3d 864 (Fla. 2d DCA 2010) (because a landowner’s statutory duty to maintain its premises in reasonably safe condition is non-delegable, it cannot avoid liability for the ngeligence of an independent contractor hired to maintain and clean its premises). Gordon v. Sanders, 692 So. 2d 939 (Fla. 3d DCA 1997), is helpful here. The plaintiff hired the defendants to remove trees from her property. The defendants subcontracted the tree removal work to an independent contractor without the plaintiff’s knowledge or consent. The independent contractor then damaged the plaintiff’s home while removing a tree. The

plaintiff sued the defendants for breach of contract. The court determined that under the non-delegable duty exception, the defendants breached the contract and were liable for the independent contractor’s negligence in performing their contract obligations to the plaintiff. Where the contracting party makes it his duty to perform a task, he “cannot escape liability for the damage caused to the other contracting party by the negligence of independent contractors hired to carry out the task.” Id. at 941 (emphasis in original). Although many of the cases that deal with this exception focus on the language of the contract to determine if a duty was non-delegable, interestingly, in Gordon, the court did not cite any specific provision of the contract showing that the defendants’ tasks were non-delegable. Inherently Dangerous Activity One who employs an independent contractor to perform “inherently dangerous activity” is vicariously liable for the contractor’s negligence in failing to take reasonable precautions to protect against the danger. American Home Assurance Co. v. National Railroad Passenger Corp., 908 So. 2d 459, 468 (Fla. 2005) (citing Rest (2d) Torts § 427). An activity is “inherently dangerous” if it is “of such a nature that in the ordinary course of events its performance would probably, and not merely possibly, cause injury if proper precautions were not taken.” Fla. Power & Light Co. v. Price, 170 So. 2d 293, 295 (Fla. 1964). The defendant is liable for the independent contractor’s negligent performance of “inherently dangerous activity” even though the defendant is entirely without fault. Generally, the issue of whether activity is “inherently dangerous” is a jury question “determined based on all of the circumstances surrounding the activity.” L.E. Myers Co. v. Young, 165 So.3d 1, 6 (Fla. 2d DCA 2015), reh’g den. (6-10-15). But some activities are “inherently dangerous” as a matter of law, such as 1. a crane in operation (Atl. Coast Dev. Corp. v. Napoleon Steel Contractors, 385 So.2d 676, 679 (Fla. 3d DCA 1980)); 2. using steel beams to construct a building (Channell v. Musselman Steel Fabricators, Inc., 224 So.2d 320 (Fla. 1969)); 3. logging (Baxley v. Dixie Land & Timber Co., 521 So.2d 170 (Fla. 1st DCA 1988)); 4. clearing land by fire (Madison v. Midyette, 541 So.2d 1315 (Fla. 1st DCA 1989)); and 5. transporting extremely heavy equipment (American Home Assurance, 908 So.2d at 468). Getting Creative with the Second Restatement of Torts Consider the complicated direct and vicarious liability issues in Estate of Smyth v. Infrastructure Corp. of America, 113 So.3d 904 (Fla. 2d DCA 2013). At about 9:00 p.m., Edward Smyth was heading south on I-75 in Hillsborough County. Ahead of Mr. Smyth, on the roadway and in the passing lane, a large lawn mower was moving at about 25-30 miles per hour. To avoid hitting the lawn mower, other vehicles had to slow down and get out of the way, which caused Mr. Smyth’s car to slam into a fuel truck. The truck exploded and Mr. Smyth was killed. www.FloridaJusticeAssociation.org | January/February 2017 | 49

FJAYOUNGLAWYERSSECTION

The Florida Department of Transportation (“FDOT”) was responsible for maintaining the interstate and had a contract with Infrastructure Corporation of America (“ICA”) to perform that maintenance, including mowing the grass. ICA could enter into subcontracts, but they had to be approved by FDOT. ICA subcontracted with Titan Lawn Service (“Titan”) to perform mowing services, but the subcontract was not approved by FDOT. Although Titan’s contract with ICA required Titan to add ICA as an additional insured on its insurance policy, Titan did not do that, and when Titan’s insurance carrier learned that it was mowing lawns on the interstate, it cancelled Titan’s policy and denied coverage for the collision. Under ICA’s contract with FDOT, interstate work could not be performed as late as 9:00 p.m.

a passing pedestrian, steps into the hole and is injured. A is subject to liability to B.” •

Mr. Smyth’s estate alleged that FDOT and ICA each negligently failed to supervise and instruct the lawn mower’s operator, and that FDOT and ICA had non-delegable duties to maintain the interstate to make it reasonably safe for drivers. Reversing a summary judgment entered in favor of FDOT and ICA on the issue of non-delegable duty, the Second DCA refused to hold that all highway maintenance involving large mowers was inherently dangerous. Significantly though, in remanding, the court stated that there “are other sections of the Restatement that were not considered when the trial court granted summary that the trial court may wish to consider in making its decision on remand.” Estate of Smyth, 113 So. 3d at 912. So when faced with difficult liability issues like the ones in Smyth, get creative with the Restatement. Chapter 15 is called “Liability of an Employer of an Independent Contractor” – a good place to look for ideas on establishing vicarious liability against a defendant that is without fault, specifically Sections 416 through 429 (“Harm Caused by Negligence of a Carefully Selected Independent Contractor”). •

§ 417: Work Done in Public Place o

One who employs an independent contractor to do work in a public place which unless carefully done involves a risk of making the physical condition of the place dangerous for the use of members of the public, is subject to liability for physical harm caused to members of the public by a negligent act or omission of the contractor which makes the physical condition of the place dangerous for their use. To illustrate this, take the example from §417’s comment: “A’s building abuts on the public sidewalk. A has constructed a coal chute leading to his basement, which opens in the middle of the sidewalk. A employs an independent contractor to deliver a truck load of coal to his basement by means of the coal chute. The work involves opening the hole in the sidewalk, which makes its condition dangerous to members of the public. The contractor fails to take proper precautions to guard the hole or to warn the public, and as a result B,

50 | January/February 2017 | www.FloridaJusticeAssociation.org

•

§ 419: Repairs Which Lessor is Under a Duty to His Lessee to Make o

A lessor of land who employs an independent contractor to perform a duty which the lessor owes to his lessee to maintain the leased land in reasonably safe condition, is subject to liability to the lessee, and to third persons upon the land with the consent of the lessee, for physical harm caused by the contractor’s failure to exercise reasonable care to make the land reasonably safe.

See Suarez v. Gonzalez, 820 So. 2d 342, 346 (Fla. 4th DCA 2002) (although the court did not mention §419, “the landlord-tenant relationship imposes a nondelegable duty of care upon a landlord who undertakes to make repairs or improvements for the benefit of a tenant;” the court also discussed the landlord’s negligent selection of the independent contractor).

§428: Contractor’s Negligence in Doing Work Which Cannot Lawfully be Done Except Under a Franchise Granted to His Employer o

An individual or a corporation carrying on an activity which can be lawfully carried on only under a franchise granted by public authority and which involves an unreasonable risk of harm to others, is subject to liability for physical harm caused to such others by the negligence of a contractor employed to do work in carrying on the activity.

See Hamid v. Metro Limo, Inc., 619 So. 2d 321, 322 (Fla. 3d DCA 1993) (holding a taxi company liable for its driver’s negligence; because the defendant had a county taxi license, it had “the responsibility to see that the cab operation is carried out in a non-negligent manner”).

This may become an avenue to hold Lyft and Uber, if they are licensed, vicariously liable for their drivers’ negligence.

Matthew A. Crist

Matthew Crist is an attorney at Clark & Martino, P.A. in Tampa, Florida. He represents plaintiffs in cases involving serious automobile and commercial vehicle collisions, defective consumer products, injuries in public places, and medical malpractice. He also represents consumers in class actions and disputes with insurance companies. He is an Eagle member and currently serves on the FJA’s Young Lawyers Section Board of Directors..

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FEDERAL COURT Decisions Requiring “More than Negligence” to Support Claim of Insurer Bad Faith Are Not Consistent with Existing Florida Law and Involve Improper Judicial Rule-Making by Federal Courts in Diversity of Citizenship Actions.

by Robert G. Kerrigan and E. Hoyt Walston

[Ed.: See also the discussion of the recent GEICO v. Harvey case in this issue’s Tips for Auto Practitioners and Insurance columns at pages 18 and 22.]

Introduction he U.S. Supreme Court’s decision in Erie R.R. v. Tompkins1 requires federal courts presiding over diversity of citizenship cases to apply the substantive law of the forum state. Under Erie, a federal court enforcing a right or obligation created by state law in a diversity case must “enforce the right or obligation as it finds it.”2 A “former Fifth Circuit” decision3 describes the federal court’s duty in this respect as follows: Under Erie R.R. v. Tompkins, we are bound to follow state law, whether or not we agree with the reasoning upon which it is based or the outcome which it dictates…. [T]he latest, most authoritative expression of [state] law applicable to the facts of the case is controlling for our purposes.4 This article contends that several recent decisions by United States District Courts sitting in Florida5 have departed from these principles in applying the cause of action of insurer bad faith recognized under Florida law. They have done so by imposing restrictions and limitations on such right that are neither supported by nor consistent with existing decisions of Florida state courts. Specifically, these district court decisions under consideration have articulated a standard of insurer bad faith under which “more than negligence” by the insurer is deemed necessary to support a cause of action for bad faith. This article will argue that such a “more than negligence” standard of bad faith liability has no basis in existing Florida statutory or decisional law, is largely undefined by existing Florida case law and even inconsistent with such case law in certain respects, and that by requiring such a standard, the federal courts in these cases are improperly creating new substantive law rather than applying established Florida law as they are supposed to do. Such practice is problematic not only because these cases are violating the directive of Erie, but also because the statements in these 52 | January/February 2017 | www.FloridaJusticeAssociation.org

cases to the effect that “more than negligence” is required to establish bad faith by an insurer have no basis in Florida law, and indeed are inconsistent with Florida law. Moreover, the standard defined by such statements is largely meaningless in light of existing Florida law, and thus provides little guidance to courts and attorneys seeking to apply it. The “more than negligence” standard has no basis in pre-existing Florida law The only reported Florida appellate court decision in which specific language bearing any resemblance to a “more than negligence” standard appears is in the dissenting opinion of Justice Cantero in Berges v. Infinity Ins. Co., 896 So.2d 665 (Fla. 2004), where he wrote: “Long ago, we explained an insurer’s responsibilities in settling claims. In Boston Old Colony Insurance Co. v. Gutierrez, 386 So.2d 783, 785 (Fla.1980), we stated that an “insurer must investigate the facts, give fair consideration to a settlement offer that is not unreasonable under the facts, and settle, if possible, where a reasonably prudent person, faced with the prospect of paying the total recovery, would do so.” Id. at 785 (emphasis added). To establish a breach of this duty, claimants must demonstrate more than mere negligence; they must prove the insurer acted in bad faith. Id. That is, the evidence must show that the insurer breached its fiduciary duty to the insured by “wrongfully refusing to settle the case within the policy limits, and exposing its insured to a judgment which exceeds the coverage provided by the policy.” Dunn v. National Sec. Fire & Cas. Co., 631 So.2d 1103, 1106 (Fla. 5th DCA 1993) (emphasis added).”6 Justice Cantero’s dissenting opinion in Berges is the only explicit reference in reported Florida case law to a “more than negligence” requirement, but such dissent is not entitled to any value as precedent under Florida law.7 Probably in recognition of this fact, the federal courts which have advanced the notion of a “more than negligence” requirement in bad faith cases have not cited Justice Cantero’s Berges

dissent as authority for such a requirement. Instead, they have relied on the decision in Boston Old Colony Ins. Co. v. Gutierrez, 386 So.2d 783 (Fla. 1980) which Justice Cantero had himself cited (or to previous decisions of other federal courts citing to Gutierrez) as such authority. However, a careful reading of Gutierrez demonstrates that it does not support a “more than negligence” requirement, instead merely stating that “negligence may be relevant” to a determination of bad faith, as follows: “An insurer, in handling the defense of claims against its insured, has a duty to use the same degree of care and diligence as a person of ordinary care and prudence should exercise in the management of his own business. Auto Mutual Indemnity Co. v. Shaw, 134 Fla. 815, 184 So. 852 (1938). For when the insured has surrendered to the insurer all control over the handling of the claim, including all decisions with regard to litigation and settlement, then the insurer must assume a duty to exercise such control and make such decisions in good faith and with due regard for the interests of the insured. Liberty Mutual Ins. Co. v. Davis, 412 F.2d 475 (5th Cir. 1969). This good faith duty obligates the insurer to advise the insured of settlement opportunities, to advise as to the probable outcome of the litigation, to warn of the possibility of an excess judgment, and to advise the insured of any steps he might take to avoid same. Ging v. American Liberty Ins. Co., 423 F.2d 115 (5th Cir. 1970). The insurer must investigate the facts, give fair consideration to a settlement offer that is not

unreasonable under the facts, and settle, if possible, where a reasonably prudent person, faced with the prospect of paying the total recovery, would do so. Government Employees Ins. Co. v. Grounds, 311 So.2d 164 (Fla. 1st DCA 1975), cert. discharged, 332 So.2d 13 (Fla.1976); Government Employees Ins. Co. v. Campbell, 288 So.2d 513 (Fla. 1st DCA 1973), quashed, 306 So.2d 525 (Fla.1974); Baxter v. Royal Indemnity Co., 285 So.2d 652 (Fla. 1st DCA 1973), cert. discharged, 317 So.2d 725 (Fla.1975). Because the duty of good faith involves diligence and care in the investigation and evaluation of the claim against the insured, negligence is relevant to the question of good faith. American Fidelity and Casualty Co. v. Greyhound Corp., 258 F.2d 709 (5th Cir. 1958); DeLaune v. Liberty Mutual Ins. Co., 314 So.2d 601 (Fla. 4th DCA 1975). The question of failure to act in good faith with due regard for the interests of the insured is for the jury. Campbell v. Government Employees Ins. Co., 306 So.2d 525 (Fla. 1974).8

Similar language appears in the Campbell case cited in the above quotation, where it is said: “Bad faith in a factual situation of this kind is not a matter of law but is a question of fact for the jury. Compare South Florida Rail Company v. Rhoads (1889), 24 Fla. 40, 5 So. 633; Sample v. Hundred Lakes Corporation, supra; Central National Insurance Company v. Gonzales (Fla.App.1974), 295 So.2d 694; Cheek v. Agricultural Insurance Co. of Watertown, N.Y., 432 F.2d 1267 (5th Cir. 1970); Liberty Mutual Insurance Company v. Davis, 412 F.2d 475 (5th Cir. 1969); Springer v. Citizens Casualty Company, 246 F.2d 123

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(5th Cir. 1957); Davis v. National Pioneer Insurance Company (Okla. App.1973), 515 P.2d 580; Buie v. Barnett National Bank (Fla.1972), 266 So.2d 657. In Auto Mutual Indemnity Co. v. Shaw, supra, we aligned Florida with those states whose standards for determining liability in an excess judgment case is bad faith rather than negligence. We ruled therein that such matters as reasonable diligence and ordinary care were material in determining bad faith. Traditionally, reasonable diligence and ordinary care are considerations of fact--not of law.”9 Neither Gutierrez nor Campbell establishes a standard under which “more than negligence” is necessarily required to establish bad faith. Although they do hold that the measure of the insurer’s liability is bad faith rather than negligence, they do not purport to define bad faith or necessarily require “more than negligence” to establish it. To the contrary, by recognizing that negligence is “relevant to a determination of bad faith,” they suggest that at least in some instances negligence alone may indeed be sufficient to establish bad faith. This is particularly true with respect to those aspects of the insurer’s duty to the insured which the courts describe as involving a duty of reasonable care and diligence. For instance, regarding the insurer’s duty to conduct a reasonable investigation of the claim against the insured, which Gutierrez refers to in terms of a duty to exercise “care and diligence,” it is quite conceivable that negligence alone might be sufficient to support a finding of bad faith. On the other hand, with respect to other aspects of an insurer’s duty, more might be required. However, stating that something “more than negligence” is required in all cases to establish bad faith is a materially different statement from merely noting the relevance of negligence to a bad faith determination. Because the federal decisions under consideration purport to impose such requirement without any precedent for doing so in reported decisions of Florida state courts, they are incorrect and unsupportable. Insofar as both Gutierrez and Campbell cited Auto Mutual Indemnity Co. v. Shaw, 134 Fla. 815, 184 So. 852 (1938) as an earlier decision regarding the bad faith standard applied in Gutierrez and Campbell, it is reasonable to also examine Shaw to see whether it perhaps provides some support for a “more than negligence” requirement. However, such an examination of Shaw reveals that it does not support such a standard either in its language or specific holding. The specific holding of Shaw was that the standard of insurer liability for an excess judgment against the insured is one of bad faith rather than negligence, but Shaw, like Gutierrez and Campbell, fails to provide a meaningful definition of the nature and scope of insurer bad faith. In its narrowest sense, Shaw merely recognizes that an insurer’s liability in bad faith cases is ex contractu rather than ex delicto, a principle consistent with many other cases.10 Neither the language of the Shaw opinion nor the specific holding of the decision is much help in ascertaining the scope of the insurer’s contract-based duty, however. The plaintiff/insured in Shaw had sued the insurer based on an excess judgment that had been rendered against the insured in a tort action. Count I of the complaint sought recovery of the portion of the judgment within the liability limits of the policy, while Count II sought to recover the portion of the judgment in excess of policy limits based on a claim of bad faith. The plaintiff prevailed at trial and the defendant/insurer appealed the judgment under Count II for the excess portion of the tort judgment. The Shaw opinion does not 54 | January/February 2017 | www.FloridaJusticeAssociation.org

indicate upon what theory or theories of liability the case had been presented to the jury, but the court held that the evidence submitted at trial failed to establish bad faith by the insurer, and reversed as to Count II, remanding for a new trial on that claim so as to allow a second trial to be held under the correct legal principles. It is significant that the evidence submitted at the first trial included a letter written by the insured to the insurer in which the insured explicitly agreed to the insurer’s failure to settle the claim against the insured within policy limits.11 While Shaw appears to indicate that such evidence would preclude a finding of negligence in failing to settle within policy limits, even if that was all that was required, the remand suggests that it would not necessarily prevent a finding of bad faith under the standard announced in Shaw. Thus, the specific holding of Shaw does not support a “more than negligence” standard. Also, as previously noted, there is nothing in the language of the Shaw decision itself to compel a conclusion that “more than negligence” is always required. The Shaw court declared that there were no previous Florida decisions regarding the standard of insurer liability for an excess judgment, and held that Florida would adopt a standard of bad faith rather than negligence, but as noted above, this does not preclude the possibility that negligence might be sufficient to satisfy a bad faith standard at least in some contexts and cases. In holding that Florida would adopt a standard of bad faith, the Shaw court relied primarily upon two earlier decisions – one by the Wisconsin Supreme Court in Hiker v. Western Auto. Ins. Co., 204 Wis. 12, 235 N.W. 413 (1931) (decision on rehearing) and one by the U.S. Circuit Court of Appeals for the Fifth Circuit in American Mut. Liability Ins. Co. v. Cooper, 61 F.2d 446 (5th. Cir. 1932) – and neither Hiker nor Cooper supports the view that “more than negligence” is necessarily required to establish bad faith. Indeed, the court in Hiker had used language similar to that of Gutierrez in defining the insurer’s duty of good faith in investigating the claim against the insured to encompass a requirement of reasonable care and diligence. It stated that good faith: “requires the insurance company to make a diligent effort to ascertain the facts upon which only an intelligent and good faith judgment may be predicated…. [W]e do not go as far as to say that, in order to characterize its judgment as one of good faith, it is necessary that it should absolutely exhaust all sources of information. We go only so far as to say that it should exercise reasonable diligence in this behalf, which means such diligence as the great majority of persons use in the same or similar circumstances. This is ordinary care.”12 The Hiker court then added that, in addition to this duty of care and diligence in investigating the claim, the insurer’s duty of good faith also encompassed an obligation to communicate with the insured and to settle the claim against the insured within policy limits in appropriate cases. In defining these other aspects of the insurer’s obligation of good faith, the Hiker court did not indicate that they necessarily required “something more than negligence.” Thus, the holding in Hiker does not support any characterization of the Shaw decision as necessarily requiring more than negligence either.

Similarly, the decision of the Fifth Circuit Court of Appeals in American Mut. Liability Ins. Co. v. Cooper, 61 F.2d 446 (5th. Cir. 1932), which was the principal authority relied upon by the Florida Supreme Court in Shaw, also does not impose such a requirement. The opinion in Shaw quotes a paragraph from Cooper in which the Fifth Circuit Court of Appeals noted that there was a division of authority concerning whether an insurer’s liability for an excess judgment against its insured could be based on negligence or required bad faith, and the quoted language from Cooper included a phrase characterizing a bad faith standard as imposing a “heavier burden” than a negligence standard. However, this language is mere obiter dictum,13 and insofar as the phraseology was that of the U.S. Fifth Circuit Court of Appeals rather than the Supreme Court of Florida, such language is not a proper or sufficient basis upon which to construct a “more than negligence” requirement as part of Florida bad faith law. The insufficiency of Cooper to support such a requirement is demonstrated by language in that case immediately following the part of Cooper that was quoted in Shaw. This language is as follows: We are not concerned here with the question whether appellee could have recovered on the ground of mere negligence, since recovery is now sought only on the ground that appellant did not act in good faith toward him. In our opinion the insurer cannot escape liability by acting upon what it considers to be for its own interest alone, but it must also appear that it acted in good faith and dealt fairly with the insured. The insurer, as it had a right to do under the policy, assumed exclusive control of the claim against the insured, and took unto itself the power to determine for the insured all questions of liability, settlement, of defense and management before and during trial, and of appeal after final judgment. We are of opinion that this relationship imposes upon the insurer the duty, not under the terms of the contract strictly speaking, but because of and flowing from it, to act honestly and in good faith toward the insured. It was open to the jury to find that the insurer did not perform this duty. The insurer failed to interview the witnesses, or to make any effort to determine whether there was any liability upon the claim asserted against the insured for damages. It did not attempt to acquaint itself with the extent of Mrs. Auman’s injuries. It was not in position to act intelligently, or in fairness to the insured in considering the offer of settlement made before suit was brought. It ignored the advice of its counsel to settle before the case came on for trial. During the trial it offered to settle for $3,500, thus apparently admitting the liability of the insured for substantial damages; but it failed to have a representative at the trial with authority to settle within the limit of liability named in the policy. It finally rejected a reasonable offer of settlement within that limit because the insured would not assume a part of its contractual liability. The jury were therefore warranted in finding that the insurer did not act in good faith toward the insured in considering Mrs. Auman’s claim for damages, in refusing to settle, and in demanding that the insured contribute to the settlement which it could and should have made at its own expense.”14 In view of the foregoing, there is no substantial support for any “more than negligence” bad faith requirement in any reported Florida appellate decision. Neither Gutierrez, Campbell, nor Shaw supports such a requirement. These cases merely establish that the insurer’s obligation is one of good faith arising out of its contract with the insured, rather than a tort-based negligence standard, but they do not further define the nature and scope of such duty, and they do not impose any rule

that necessarily requires “more than negligence” to establish bad faith in any and all cases. A requirement of “more than negligence” to establish insurer bad faith is largely undefined by established Florida law, and is inconsistent with existing law in certain respects As discussed above, there is no sound basis in Florida decisional law for a “more than negligence” standard of insurer bad faith, and the federal court decisions which have pronounced such a requirement have essentially created it out of thin air. This is problematic not only because it constitutes impermissible creation of new judge-made law contrary to Erie, but because the law thus declared by these federal courts cannot be applied with ease and certainty. This judge-made rule not only lacks any sound basis in Florida law, but it is largely undefined, and in fact inconsistent with established Florida law, which makes its application unpredictable and confusing. It has been argued above that the only principle of law that may fairly be discerned from the Florida Supreme Court decisions in Gutierrez and Shaw is that an insurer’s duty of good faith is a contractual one which ultimately does not rest on principles of negligence. However, this identification of the contractual nature of an insurer’s duty does not provide much guidance in ascertaining the nature or scope of the insurer’s obligations. Although there are some distinctions under Florida law between contract and tort liability in certain respects, these distinctions are not of much assistance in defining an insurer’s duty of good faith. One distinction between torts and contracts, for instance, is that whereas a tortfeasor is liable for all foreseeable consequences of the tort,15 liability for breach of contract is generally more limited in terms of the damages encompassed, and may only extend to injuries within the contemplation of the parties when they made the contract.16 However, this distinction pertains to the injuries for which liability may exist once a breach of duty has been demonstrated, and does not provide any assistance in ascertaining the nature and scope of the insurer’s contract-based duty of good faith. Another distinction between contract and tort liability under Florida law is that while negligence requires carelessness at least, and intentional torts require some sort of specific intent to injure, liability for breach of contract is generally not dependent upon a showing of any wrongful scienter or intent by the defendant.17 In light of this distinction, it is appropriate to ask what these federal courts really mean when they declare that “more than negligence” is required to establish bad faith by an insurer. Are they purporting to require that an “intentional wrong” be demonstrated? Or would merely “gross negligence” (as opposed to simple negligence) be sufficient? In either case, there are serious difficulties with reconciling such a standard with existing Florida decisional law. The Supreme Court of Florida has held that the same objective conduct may constitute negligence or an intentional tort, depending on whether the tortfeasor had a specific intent to cause the resulting harm, and that such an intent may be inferred from the conduct itself, when it is of such a nature that injury of the sort ultimately resulting www.FloridaJusticeAssociation.org | January/February 2017 | 55

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is a natural and probable consequence of the conduct.18 If the “more than negligence” standard of bad faith requires proof that the insurer committed an intentional wrong, in the sense it had a specific intent to injure the insured, such a scienter requirement would be inconsistent with existing decisional law to the effect that liability for breach of contract does not depend upon proof of any wrongful intent or state of mind by the breaching party. On the other hand, if the “more than negligence” standard is deemed not to require proof of an intentional wrong, but only to require proof of an aggravated form of negligence, such as “gross negligence” as opposed to simple negligence, then the results of the federal court cases in which the courts have declared the insurer to be free of liability as a matter of law cannot be reconciled with existing Florida law on the distinction between gross negligence and simple negligence, because under Florida law the difference between gross negligence and simple negligence is generally deemed to be a question of degree only, such that it is for the trier of fact to determine whether the conduct in question is merely simple negligence or gross negligence.19 Therefore, if the “more than negligence” standard is deemed to require only proof of gross negligence, the results of the federal cases in which the insurer is granted summary judgment based on such standard are inconsistent and irreconcilable with these prior state court decisions. Such decisions also are in conflict with another broad principle of Florida law, to the effect that issues concerning a party’s state of mind or intention generally are not suitable for resolution by summary judgment,20 because in granting summary judgment for the insurers in such cases, the district courts are essentially determining that the insurer lacked the requisite intent to commit bad faith. Such inconsistency cannot be justified by the “totality of circumstances’ approach to determining bad faith which some of the cases apparently cite as justification for summary judgment in favor of insurers. The “totality of the circumstances” approach is used in various legal contexts to refer to the fact that application of a particular legal standard is based on one or more factual determinations, and that no single factor is necessarily dispositive of the outcome in all cases. Black’s Law Dictionary defines the phrase “totality of circumstances test” to mean: “Test used to determine the constitutionality of various search and seizure procedures, e.g., issuance of a search warrant or investigative stops. This standard focuses on all the circumstances of a particular case, rather than any one factor.”21 There is nothing about a “totality of circumstances” approach to applying a bad faith standard which serves to justify the summary judgments for insurers in the federal cases under consideration. If anything, a “totality of circumstances” approach would tend to suggest that summary judgment is presumptively improper, because such a standard (under which all relevant facts are to be considered, but no single one alone is necessarily determinative) invites “weighing the evidence,” but it is well established law that courts are not supposed to engage in such a process when ruling on a summary judgment motion.22

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The problem here is not with the “totality of circumstances” approach itself, but with the courts combining such an approach with a substantive standard of bad faith which is deemed to require “more than negligence” but is otherwise largely undefined. The absence of any meaningful definition for the “more than negligence” standard enables these courts to declare the insurers free from liability based on the “totality of circumstances” in cases where disputed fact issues would ordinarily preclude summary judgment. The “more than negligence” standard is unnecessary, as existing Florida law provides a clear and workable definition of insurer bad faith The authors have argued above that there is no sound basis in Florida law for imposing a “more than negligence” requirement as a condition to insurer bad faith, and that such a requirement, standing alone, is largely undefined by Florida law and inconsistent with it in certain respects, making application of such a standard difficult and unpredictable in practice. These considerations alone would be sufficient reason to reject such a “more than negligence” standard, but perhaps the most compelling argument against such a standard is that it is unnecessary, because Florida law already provides a clear and workable definition of insurer bad faith. Florida’s bad faith statute defines bad faith by an insurer to include: “Not attempting in good faith to settle claims when, under all the circumstances, it could and should have done so, had it acted fairly and honestly toward its insured and with due regard for her or his interests.”23 This definition applies in both first party and third party bad faith actions brought under the statute.24 It is also entirely consistent with language in Gutierrez, Campbell and Shaw concerning the nature and scope of an insurer’s duty to the insured. There is absolutely no reason to reject such a standard in favor of a “more than negligence” requirement that lacks any foundation in, and is largely undefined by, Florida law. Conclusion The authors have attempted in this article to articulate the position that the “more than negligence” requirement for insurer bad faith which is imposed by recent federal court decisions lacks any basis or definition in Florida law, and is in fact inconsistent with Florida law in certain respects. Judges in Florida state courts should not grant summary judgment based on a federal court requirement that “more than negligence is required” because that is not the substantive law of Florida. Federal district court judges should not continue to attempt to create new Florida substantive law by requiring a “more than negligence” standard. There is Eleventh Circuit precedent holding that it is improper for U.S. District Courts to criticize or question the correctness or rationale of decisions rendered by the Supreme Court of Florida in those contexts where federal courts are bound to follow state law,25 and the Eleventh Circuit also appears in some recent instances to have studiously avoided using “more than negligence” terminology as applied to Florida bad faith law, in factual scenarios where the district court decisions under consideration here might have been inclined to do so.26

The bad faith cause of action recognized under Florida jurisprudence is a valuable substantive right of insured persons. It should not be limited as a result of statements by federal district courts concerning the relevant standards which are neither authorized by Erie nor supported by existing Florida law. ____________ Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) 2 Eyerly Aircraft Co. v. Killian, 414 F.2d 591, 603 (5th Cir. 1969) 3 All decisions of the U.S. Circuit Court of Appeals for the Fifth Circuit decided on or before September 30, 1981 have been adopted as binding precedent in the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc). 4 Delta Airlines v. McDonnell Douglas Corp., 503 F.2d 239, 245 (5th Cir. 1974) (bracketed matter added). 5 See, e.g., Feijoo v. GEICO, 137 F.Supp.3d 1320 (S.D.Fla. 2015); Cardenas v. GEICO Cas. Co., 760 F.Supp.2 1305 (M.D. Fla. 2011),GEICO v. Prushansky, 2014 WL 47734 (S.D.Fla. 2014); and Kim v. GEICO Cas. Co., 2011 WL 2218894 (M.D. Fla. 2011). 6 896 So.2d at 687 (some emphasis added). 7 See, Miller v. State, 980 So.2d 1092, 1094 (Fla. 2d DCA 2008) (“Only the written, majority opinion of an appellate court has precedential value.”). Indeed, even a concurring opinion lacks precedential value under Florida law. See, Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla. 2006); Greene v. Massey, 384 So.2d 24, 27 (Fla.1980) (“A concurring opinion does not constitute the law of the case nor the basis of the ultimate decision unless concurred in by a majority of the Court. . . . The special concurring opinion has no precedential value and it cannot serve to condition or limit the concurrence in the [majority] opinion. . . .”); Lendsay v. Cotton, 123 So.2d 745, 746 (Fla. 3d DCA 1960) (“A concurring opinion has no binding effect as precedent; such an opinion represents only the personal view of the concurring judge and does not constitute the law of the case.”). 8 386 So.2d at 785 (emphasis added). 9 306 So.2d at 530-31 (emphasis added; citations omitted). 10 See e.g., American Vehicle Ins. Co. v. Goheagan, 35 So.3d 1001, 1003 (Fla. 4th DCA 2010) (“In Florida a bad faith claim is an action ex contractu. N. Am. Van Lines, Inc. v. Lexington Ins. Co., 678 So.2d 1325, 1330 (Fla. 4th DCA 1996) (citing Nationwide Mut. Ins. Co. v. McNulty, 229 So.2d 585 (Fla.1969)). When bad faith is alleged, “the cause is one for breach of a contractual obligation implied in law, namely good faith.” Id.) 11 Such a practice would not be lawful today, but apparently was at the time of the Shaw decision. 12 235 N.W. at 414; emphasis added. 13 Such language cannot be deemed essential to the decision in Cooper, because the court did not purport to offer a specific definition of bad faith, and indeed the Fifth Circuit did not even expressly decide in Cooper whether the applicable standard should be negligence or bad faith, as the court deemed it unnecessary to resolve this question. Moreover, insofar as the specific holding in Cooper was to affirm the insurer’s liability for an excess judgment against the insured, using language which indicates negligence may constitute bad faith at least 1

in come contexts, such holding does not necessarily mandate a “more than negligence” requirement. See text following. 14 61 F.2d at 447-448 (emphasis added). 15 See, e.g., Taylor Imported Motors, Inc. v. Smiley, 143 So.2d 66 (Fla. 2d DCA 1962) 16 See, e.g., Scott v. Rolling Hills Place, Inc., 688 So.2d 937 (Fla. 5th DCA 1996) 17 See, e.g., DeHart v. Moore, 424 F.Supp. 55, 57 (S.D. Fla. 1976) (“to establish breach of contract one need not establish any particular mental state”) 18 Spivey v. Battaglia, 258 So.2d 815 (Fla. 1972) 19 See, e.g., Courtney v. Florida Transformer, Inc., 549 So.2d 1061, 1064-65 (Fla. 1st DCA 1989); Laderman v. Mester, 510 So.2d 630 (Fla. 3d DCA 1987). 20 See, e.g., Weaver v. School Board of Leon County, 661 So.2d 333 (Fla. 1st DCA 1995); Brock v. G.D. Searle & Co., 530 So.2d 428 (Fla. 1st DCA 1988); Batey v. Stone, 24 F.3d 1330, 1336 (11th Cir. 1994); Hairston v. Gainesville Sun Pub. Co., 9 F.3d 913, 921 (11th Cir. 1993); Randle v. City of Aurora, 69 F.2d 441 (10th Cir. 1995).. 21 Black’s Law Dictionary p. 1037 (Abridged Sixth Ed. 1991). Some of the areas and purposes for which the “totality of circumstances” approach is used include (1) determining the existence of probable cause to arrest a suspect; see, Illinois v. Gates, 462 U.S. 213, 231, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); City of Clearwater v. Williamson, 938 So.2d 985, 988-989 (Fla. 2d DCA 2006); (2) determining whether a statement is one of fact or opinion for purposes of a defamation claim, see, Michel v. Nyp Holdings, Inc., 816 F.3d 686, 695-96 (11th Cir. 2016); (3) determining whether an environment is hostile or abusive for purposes of an employment discrimination claim, see, Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993); Jones v. UPS Ground Freight, 683 F.3d 1283 (11th Cir. 2012); (4) determining whether an agency relationship exists between two parties, see, Villazon v. Prudential Health Care Plan, Inc., 843 So.2d 842, 853-54 (Fla.2003); and (5) determining whether a minor has validly waived constitutional rights, see, Fare v. Michael C., 442 U.S. 707, 724-25, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979); and (6) determining whether a party has waived its right to arbitrate a particular dispute, see, Gordon v. Shield, 41 So. 3d 931 (Fla. 4th DCA 2010). 22 See, e.g., Bernhardt v. Halikoytakis, 95 So.3d 1006, 1008-1009 (Fla. 2d DCA 2012); Progressive Express Ins. Co. v. Camillo, 80 So.3d 394, 399 (Fla. 4th DCA 2012). In State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So.2d 55 (Fla. 1995), the court held that a totality of circumstances approach was proper, as against the insurer’s contention that a “fairly debatable” standard (which would have been more favorable to insurers) should be applied. Similarly, in some of the cases in which the courts have granted summary judgment for defendant insurers, the courts acknowledge that the “totality of circumstances” approach is generally inconsistent with summary adjudication, yet hold that under the facts of record in the specific cases before them, summary judgment is nonetheless proper. (See, e.g, Mesa v. Clarendon Nat’l Ins. Co., 799 F.3d 1353, 1359 (11th Cir., 2015) (“Under Florida law, “the question of whether an insurer has acted in bad faith in handling claims against the insured is determined under the totality of the circumstances standard.” … The question of whether this standard has been met is ordinarily for the jury to decide. See id.; see also Farinas, 850 So.2d www.FloridaJusticeAssociation.org | January/February 2017 | 57

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at 559. Whether the insurer acted with “reasonable diligence” and “ordinary care” are ordinarily factual considerations to be decided by a jury; these considerations are material in determining whether an insurer acted in bad faith. … Mesa fails to provide sufficient evidence for a reasonable jury to find that Clarendon acted in bad faith.” – citations omitted). The Florida Supreme Court has similarly expressed approval of summary judgments for insurers in bad faith cases, while noting that the issue of bad faith is generally one of fact. See, e.g., Berges v. Infinity Ins. Co., 896 So.2d 665, 680 (Fla. 2004) (“Although the issue of bad faith is ordinarily a question for the jury, this Court and the district courts have, in certain circumstances, concluded as a matter of law that an insurance company could not be liable for bad faith.”) 23 Section 624.155(1)(b)(1), Florida Statutes 24 State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So.2d 55 (Fla. 1995), 25 See, Delta Airlines v. McDonnell Douglas Corp., 503 F.2d 239, 245 (5th Cir. 1974), a Former Fifth Circuit decision quoted above in text accompanying footnote 4, which notes obligation of federal judges to follow state law regardless of whether they agree with its reasoning or result; see also, Venn v. St. Paul Fire and Marine Ins. Co., 99 F.3d 1058 (11th Cir. 1996), where the court said, in reference to a district court’s reluctance to follow a decision of the Florida court rendered in response to a certified question posed by the Eleventh Circuit: “In a diversity case, we are, “in effect, only another court of the State.” Guaranty Trust Co. v. York, 326 U.S. 99, 108, 65 S.Ct. 1464 1469, 89 L.Ed. 2079 (1945); see Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). We do not sit as a reviewing court over the state supreme court. Thus, we must give effect to the Florida Supreme Court’s holding – its answer to a question of state law – regardless of the reasoning used by that court to reach it.* * *The district court recognized its duty to follow our mandate [requiring further proceedings consistent with the decision of the Supreme Court of Florida], but it sharply criticized the Florida Supreme Court’s Camp II decision. Camp II was decided pursuant to a certification from this court asking the Supreme Court of Florida to advise this court on an unsettled question of state law. When a state court responds to a request for a determination of an unsettled question of state law, and the federal court receives an answer, it is hardly appropriate for a federal court to question the correctness of the answer.” 99 F.3d at 1064 and 1062 n.5 (bracketed matter added). 26 See, e.g., Mesa v. Clarendon Nat’l Ins. Co., 799 F.3d 1353, 1359 (11th Cir. 2015) (affirming summary judgment for insurer, but without using “more than negligence” terminology similar to that used by district court in granting summary judgment, and based on Eleventh Circuit’s determination that evidence of record established that insurer “was diligent in its efforts to settle the claims against its insured.”). In Novoa v. GEICO, 542 Fed.Appx. 794 (11th Cir. 2013), the court similarly affirmed a summary judgment for GEICO based on undisputed evidence that it had tendered the full amount of the insured tortfeasor’s policy limits ($20,000) within nine days after the accident, but such offer was not accepted by the plaintiff, who instead sued the insured and recovered a verdict in excess of $16,000,000.00. The court characterized the complaint as alleging that GEICO acted in bad faith because “it was unable to settle” the claim for $20,000.00, but that the record established it had “diligently sought” to settle the claim. 58 | January/February 2017 | www.FloridaJusticeAssociation.org

The court cited Campbell for the proposition that the “standard for determining liability in an excess judgment case is bad faith rather than negligence,” and that carelessness may be relevant to a determination of bad faith, but avoided any reference to any requirement of “more than negligence.” It concluded that “even viewing the facts in the light most favorable to Novoa, we find it hard to imagine how GEICO acted in bad faith when it offered to pay everything it possibly could under the policy.… Accordingly, Novoa failed to provide sufficient evidence for a reasonable jury to find that GEICO acted in bad faith.” Another recent decision of the Eleventh Circuit which demonstrates a different and better approach and standard in bad faith cases than a “more than negligence” requirement is Hinson v. Titan Ins. Co., ___ Fed. App’x ___, 2016 WL 4169117, 2016 U.S. App. LEXIS 14474 (11th Cir. Case No. 15-14485, Aug. 8, 2016). That case was similar to Novoa insofar as it involved failure to settle a multi-million dollar claim within relatively meager policy limits. However, unlike Novoa where the plaintiff had simply rejected an offer to settle for the full policy limits and sued, the plaintiff in Hinson made a counter-offer to settle for the policy limits, but only if the insured also complied with certain other conditions, including executing an affidavit to the effect that there was no insurance coverage available other than the Titan policy. The insured failed to satisfy these conditions within the time demanded by the plaintiff, as a result of which suit was filed, resulting in a large excess judgment. The court held that where the bad faith alleged included Titan’s failure to advise the insured of the settlement offer in time for the conditions placed on it to be satisfied, there were disputed issues of fact precluding summary judgment, because carelessness is relevant to bad faith. The court said: “Good faith” generally means that an insurer must reasonably act in the best interests of its insured. Berges, 896 So. 2d at 677. “The standard of care that an insurer must exercise in handling claims against its insured is the same degree of care and diligence as a person of ordinary care and prudence should exercise in the management of his own business.” Mesa v. Clarendon Nat’l Ins. Co., 799 F.3d 1353, 1359 (11th Cir. 2015) (internal quotation marks omitted). Whether an insurer acted in good faith is judged by the “totality of the circumstances.” Berges, 896 So. 2d at 680. Further, the focus in bad-faith actions is “not on the actions of the claimant but rather on those of the insurer in fulfilling its obligations to the insured.” Id. at 677. An insurer’s duty of good faith, according to the Florida Supreme Court, includes the obligations to “advise the insured of settlement opportunities, to advise as to the probable outcome of the litigation, to warn of the possibility of an excess judgment, and to advise the insured of any steps he might take to avoid [an excess judgment].” Boston Old Colony Ins. Co. v. Gutierrez, 386 So. 2d 783, 785 (Fla. 1980) (emphasis added). The duty also requires the insurer to “investigate the facts, give fair consideration to a settlement offer that is not unreasonable under the facts, and settle, if possible, where a reasonably prudent person, faced with the prospect of paying the total recovery, would do so.” Id. In addition, “[b]ecause the duty of good faith involves diligence and care in the investigation and evaluation of the claim against the insured, negligence is relevant to the question of good faith.” Id. Finally, while summary judgment may be appropriate in certain cases, Berges, 896 So. 2d at 680 (“[T]his Court and the district courts have, in certain circumstances, concluded as a

matter of law that an insurance company could not be liable for bad faith.”), the question of bad faith is, as a general matter, one reserved for the jury due to the flexible and expansive nature of the bad-faith inquiry. Id. at 672-73; see id. at 677 (“We conclude that the issue as to whether [the insurer] could have met the deadlines if it had acted with due regard for the interests of its insured was properly submitted to the jury and resolved as a material issue of fact.”); Gutierrez, 386 So. 2d at 785 (“The question of failure to act in good faith with due regard for the interests of the insured is for the jury.”).* * * The district court dismissed [the evidence in this case] as insufficient to create a genuine issue of fact because it showed “negligence, at best,” but negligence is relevant to the question of bad faith. See Gutierrez, 386 So. 2d at 785; Campbell, 306 So. 2d at 530-31. Specifically, this evidence suggests that Titan did not handle Hinson’s case with the same degree of care and diligence Titan would have used to handle its own affairs. See Mesa, 799 F.3d at 1359. Overall, we conclude that Hinson has presented sufficient evidence to create a genuine issue of material fact regarding whether Titan handled the claim against Hinson in good faith. See Gutierrez, 386 So. 2d at 785. (emphasis and bracketed matter added).

standard is more consistent with existing Florida case law, as well as being more intellectually honest. While recognizing that bad faith is a flexible standard that may in some instances be satisfied by “mere negligence” and is generally not suited for resolution by summary judgment, the Eleventh Circuit’s approach still allows for summary judgment to be rendered in some cases where appropriate.

Robert G. Kerrigan

Partner Kerrigan Estess, Rankin McLeod & Thompson LLP, offices across the panhandle, member of FJA, board certified civil trial lawyer.

E. Hoyt Walston

E. Hoyt Walston is an attorney who does legal research and writing work concerning civil law matters for other attorneys on a freelance basis

The authors submit that the Eleventh Circuit’s approach in these cases is inconsistent with, and superior to, the “more than negligence” standard employed by the recent district court decisions addressed in this article. The Eleventh Circuit’s articulation of the applicable

Focus on your clients. Leave the healthcare [

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Settlement obligations produce an overwhelming sea of paperwork as you chart your way to closure. Employing GRG’s firm-wide Resolution & Compliance Program allows you to expedite the process and achieve more favorable results. Moreover, our systems and specialists significantly lower your internal costs while eliminating post-settlement liability by ensuring compliance. To learn more about GRG’s Resolution & Compliance Program visit garretsongroup.com or call toll-free at 888-556-7526.

www.FloridaJusticeAssociation.org | January/February 2017 | 59

MEMBEROUTREACH

MEMBER OUTREACH Congratulations to our friends who are moving into new leadership positions within the Florida trial lawyer community

CENTRAL FLORIDA TRIAL LAWYERS ASSOCIATION

1 – (L-R) Judicial Chair Glenn Klausman, President James Vickaryous, Immediate Past President Michael Damaso, II, Directors Brent Miller, Thomas Dennis, VP David Heil, Treasurer Allison McMillen, Secretary Jeremiah Jaspon, Directors William Umansky, Sam Babbs, III, Vanessa Brice, James Gordon and P. Alexander Gillen 2 – Michael Damaso passes the sword on to incoming President James Vickaryous

3 – CFTLA Executive Director Leigh Miller stands with Michael Damaso who served as CFTLA President in 2016. Photos courtesy of the Central Florida Trial Lawyers Association

WE’RE SOCIAL! Keep in touch and up-to-date with all of our latest news, events and campaigns. twitter.com/floridajustice @florida_justice facebook.com/floridajusticeassociation

And if you enjoy the regular and relevant updates on our responses to policies and legislation, information on our work, events and more. we welcome you to offer your comments, questions and thoughtful ideas into the conversation. Engage with us today on Facebook, Instagram and Twitter!

60 | January/February 2017 | www.FloridaJusticeAssociation.org

PALM BEACH COUNTY JUSTICE ASSOCIATION

Pictured is the Palm Beach County Justice Association, newly sworn in, 2017 Board of Directors (L-R) Timothy J. Murphy, Greg Yaffa, Peter Hunt, Salesia V. SmithGordon, Adriana Gonzalez, D. J. Ward, Marlene Clarke, Michael Shiver, Hali Marsocci, Poorad Razavi, Sean Domnick, JC Solomon, Kelsey Burke, Pat Tighe, Chris Keller, John McGovern and Judge Samantha Schosberg-Feuer

(L-R) Salesia Smith-Gordon, John McGovern, Adriana Gonzalez. Photos courtesy of the Palm Beach County Justice Association

MIAMI-DADE TRIAL LAWYERS ASSOCIATION

Pictured is the new Miami â&#x20AC;&#x201D; Dade Trial Lawyers Association 2017 Board of Directors. Bobby Nunez, T. Omar Malone, Eric Bluestein, Janpaul Portal, Shannon Del Prado, Christos Lagos, Matthew Mazzarella, Dave Werner, Pedro Echarte, and Marc Kunen Photos courtesy of Richard Fraginals

www.FloridaJusticeAssociation.org | January/February 2017 | 61

CLE

CLE CALENDAR FEATURED EVENTS

2017 MONTHLY HIGHLIGHTS

OCTOBER-2016

JANUARY 1/18 Trucking Webinar

1/27 Thorny Litigation Issues Webinar

FEBRUARY 2/28 - 3/3 Workhorse Seminar, Wyndham Grand Orlando Resort Bonnet Creek FEBRUARY 28 - MARCH 3, 2017 WYNDHAM GRAND ORLANDO RESORT BONNET CREEK

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

APRIL 4/4, 6, 11, 13, 18, 20, & 25 Boot Camp Webinar Series

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

6/30 Closing Arguments Webinar

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

SEPTEMBER 9/24 Case Law Insider Call

OCTOBER

4/28 Collateral Sources Webinar

10/19 Proposals for Settlement Webinar

MAY

5/12 Trucking Webinar

8/25 Trucking Webinar

10/5-7 Masters of Justice, Ritz Carlton Sarasota

5/18-21 Trojan Horse Method Seminar, Orlando

OCTOBER 5-7, 2017 • RITZ CARLTON, SARASOTA

6/14-17 Annual Convention, Loews Don CeSar St. Pete Beach

4/19 Slip & Fall Webinar

5/11 NEW: Epic Secrets from the Masters of Medical Malpractice Seminar, Miami

MASTERS OF JUSTICE

JUNE

NOVEMBER 11/17 Trucking Webinar

DECEMBER 12/2 NEW: Learn from the Legends Seminar DATES SUBJECT TO CHANGE: AS OF 2.9.2017

GET INVOLVED

The Florida Justice Association values the diverse knowledge and experience of its membership and seeks to harness those qualities to further the mission of the organization. Members can be a part of establishing FJA’s priorities and organizational policy direction by signing up to volunteer their expertise and time.

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

• Join the Young Lawyers Section

• Join the EAGLE Program

• Make a Pledge to Support Political Candidates

• Join a Legislative Committee

• Join the Workers’ Compensation Section

• Come to Tallahassee to Lobby

• Become Active in FJ PAC’s Regional Task Forces

• Join the FJA Membership Committee

• Participate in the FJA Research & Education

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

Foundation Mock Trial • Join the Women’s Caucus Section

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

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

EAGLESPOTLIGHT

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

Since May 1, 2016

Recruiter Name

Recruiting Value

# of Recruits

James W. Gustafson, Jr. $45,000 8 Robert Mayer Rubenstein $45,000 5 Fred A. Cunningham $20,000 2 Lake H. Lytal, III $18,000 2 Paul D. Jess $13,000 2 Philip A. Gold $11,500 2 Jason F. Lamoureux $10,000 2 T. Michael McLeod $10,000 2 Jason D. Weisser $9,000 3 F. Catfish Abbott $8,000 2 Jason Mulholland $8,000 2 Nathan P. Carter $7,500 4 Richard E. Chait $7,500 4 Alexander Murphree Clem $6,500 2 Scott R. Jeeves $6,500 2 Debra Henley $6,000 2 Jeffrey M. Liggio $6,000 2 Tiffany M. Faddis $5,500 1 Todd E. Copeland $5,250 3 Donald M. Hinkle $5,000 1 Olivia D. Liggio $5,000 1 Ricardo M. Martinez-Cid $5,000 1 Troy Rafferty $5,000 1

Recruiter Name

Recruiting Value

Bruce R. Kaster John S. Mills H. L. (Larry) Perry Keith A. Pierro Skip Pita Anthony Quackenbush Dale M. Swope David J. Zappitell Stephen Watrel Vanessa Brice Joseph V. Camerlengo, Jr. Mark W. Clark Celene Humphries Nicholas C. Johnson Stephen A. Marino, Jr. Anthony T. Martino Chad Mitchell Pilon Matthew Nichols Posgay Jason Kyle Whittemore Daniel G. Williams Michael J. Winer Glenn M. Klausman

$3,000 $3,000 $3,000 $3,000 $3,000 $3,000 $3,000 $3,000 $1,800 $1,500 $1,500 $1,500 $1,500 $1,500 $1,500 $1,500 $1,500 $1,500 $1,500 $1,500 $1,500 $750

# of Recruits 1 2 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 2 1 1 1 1 as of 1/31/17

BENEFACTOR - $10,000 Lincoln J. Connolly Lincoln J. Connolly Trials & Appeals, P.A. Recruited by Paul D. Jess

PATRON - $5,000

Chris Limberopoulos The Florida Law Group Recruited by Jason Mulholland

Patrick J. Tighe X1Law Upgraded by Fred A. Cunningham

64 | January/February 2017 | www.FloridaJusticeAssociation.org

Jonah Wolfson Wolfson Law Firm, LLP Recruited by Robert Mayer Rubenstein

SPONSOR - $3,000

Kelsey Carol Burke Lytal, Reiter, Smith, Ivey & Fronrath, LLP Recruited by Lake H. Lytal, III Howard S. Krooks Elder Law Associates, P.A. Recruited by David J. Zappitell Kevin Michael McLaughlin Wagner McLaughlin, P.A. Upgraded by Jason Kyle Whittemore Zachary Tucker Paul M. Doolittle, P.A. Recruited by Richard E. Chait

ASSOCIATE - $1,500

James F. Fee, Jr. Druckman & Fee, P.A. Recruited by Richard E. Chait Christopher J. Smith Christopher J. Smith, P.A. Recruited by Richard E. Chait

SOARING YR 1 - $750

Michal Meiler Ver Ploeg & Lumpkin, P.A. Recruited by Stephen A. Marino, Jr.

Ben J. Whitman Clark, Fountain, La Vista, Prather, Keen & Littky-Rubin, LLP Recruited by Mark W. Clark

FJA PROVIDES A HOST OF NETWORKING OPPORTUNITIES TO HELP YOU MAKE THE MOST OF YOUR MEMBERSHIP. As an FJA member, you have access to the legal expertise, knowledge and skills of Florida’s most experienced civil justice attorneys. Our Networking opportunities include Young Lawyers Section, Women’s Caucus Section, Board of Directors’ Meetings, Annual Convention, Masters of Justice, Member Appreciation Receptions and our Lessons From the Courtroom.

www.FloridaJusticeAssociation.org | January/February 2017 | 65

EAGLESPOTLIGHT

BFE FOUNDER - $25,000

Recruited by Robert Mayer Rubenstein

BFE ADVOCATE - $15,000

Recruited by Lake H. (Trey) Lytal, III

BFE SPONSOR- $3,000

Recruited by Skip Pita 66 | January/February 2017 | www.FloridaJusticeAssociation.org

Index Assisted Living Facility, negligent supervision of employees, gifts accepted from resident by employees in violation of facility policy…13 Attorneys fees, multiplier, difficulty of case alone cannot overcome presumption against multiplier...13, 21 fees, proposal for settlement, recent cases addressing ambiguity...20 fees, proposal for settlement, potential ambiguity in release resolved by reading the proposal and release as a whole…16 fees, §57.105 sanctions, voluntary dismissal ends jurisdiction to consider new motion for fees…16 Closing Argument, empty chairs, discussion and practice tips re prohibited defense references to settlements...44 Consortium, proposals for settlement, discussion and practice tips for drafting in cases involving loss of consortium claims...40 Damages future damages, proof of future surgery or lost wages required by reasonable certainty...20 future medical expenses, not supported where there was evidence of an annual expense but no evidence of plaintiff ’s life expectancy…14, 36 wrongful death, adult child living independent of parent not entitled to multi-million dollar award of compensatory damages in products liability case…14 Dangerous Instrumentality Doctrine, Bobcat bucket loader, although physical characteristics make it capable of causing serious injury, public is not exposed to loaders of this type…14, 20 Discovery, deposition of defendant, improperly barred based on prior brief exploratory deposition in a different case based on same incident where defendant was not a party…16 Dog Bite, statutory strict liability, only exception is for plaintiff’s comparative negligence…13 Evidence attorney-client privilege, client’s personal notes that were discussed but not shared with his attorney are not protected...36 autopsy photographs, admissible if they assist medical examiner in explaining how wounds were inflicted...36 chain of custody, minor break does not necessarily require exclusion...36 dying declarations, curative instruction effective in eliminating discrepancy in witness’ repetition of dying declaration ...38 dying declarations, dying declarant’s credibility may be attacked with evidence of a prior conviction...38 evidence, hearsay, disability does not render a witness unavailable for hearsay purposes...38 expert witnesses, 5th DCA holds “tender and accept” process does not constitute error ...38 expert witnesses, factfinder need not agree with either of the parties’ experts...38 experts witnesses, generally precluded from testifying as to legal conclusions...38

Evidence, trial court’s post-trial reversal of mid-trial ruling excluding expert testimony was error, new trial required...36 hearsay, practice tips re business records exceptions...33 hearsay, submission of business records as summary judgment evidence must include all predicate requirements for hearsay exception...38 subsequent remedial measures, overview and practice tips ...32 FJA, goals for the future, incoming Interim Executive Director Paul Jess...6 Insurance bad faith, carrier had no obligation to respond to offer to settle claim where request was for policy limits without stating a specific amount... 21 bad faith, discussion of impropriety of federal decisions requiring more than negligence” to support claim of bad faith... 52 bad faith, recent 4 th DCA decision incorporates federal standards...18, 22 homeowner’s, calculation of cost of remedying damages to custommade kitchen cabinets caused by water leak...25 negligent procurement of coverage, proof of damages sustained that would have been covered by policy...24 property, application of concurrent cause doctrine when convergence of multiple perils where at least one is excluded from coverage…12, 22 Judges disqualification, disqualification not required for gratuitous comment on ethnic or other stereotypes where no manifestation of impartiality…16 disqualification, ex parte communication with opposing party…14 Supreme Court certification of need for additional judges…12 Judgments, pre-trial stip limiting issues to be tried, trial court erred in including findings in final judgment that exceeded agreed-upon issues ...36 Jurors, challenges, rules do not require that cause challenges must be exercised before peremptories begin...43 Legislation battles that lie ahead in the 2017 Session, President’s Message...5 2017 Regular Session, preview of issues expected to be in play...8 2017 Session, information sources...14 Medicaid, third-party liens, future as well as past medical expenses must be included in calculating amount agency may collect from recipient…14 Medical Malpractice arbitration agreements, agreements that change the cost, award, and fairness incentives of the statutory scheme are void as against public policy…12 arbitration agreement, requirements...26 arbitration, statutory...26 presuit, when required...27 versus simple negligence...27 www.FloridaJusticeAssociation.org | January/February 2017 | 67

Index Negligence, independent contractors, discussion and practice tips re establishing vicarious liability of principal...48 NICA attorney fees and costs...26 minimum birth weight for...27 Procedure, failure to prosecute, filing of any document regardless of whether it is intended to move case forward precludes dismissal ...43 Products Liability, automobiles, Fla. is first state to legalize fully autonomous vehicles...28 Professional Negligence, engineers, an engineer intern is not a licensed engineer and cannot be held liable for professional negligence…16 Punitive Damages, assisted living facilities, hearing required on motion

to amend pleadings to add claim for punitives…16, 43 Venue, location in metropolitan area for convenience of traveling witnesses and parties, insufficient reason where no other connection to the lawsuit or the underlying claim…16 Witnesses, testifying by Skype electronic transmission, objections to procedure waived where not made before trial...43 Wrongful Death estoppel of workers’ compensation immunity claim, ambiguity re basis of previous denial of comp benefits prevented summary judgment for employer on wrongful death claim…13 parental liability for negligent supervision of minor, child’s habit of engaging in the particular type of behavior that resulted in injury…12

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NFP Structured Settlements............................................................... inside front cover

Attorney Banking Esquire Bank............................................................................... 53

Synergy Settlement Services.............................................................. 7

Litigation Funding Fast Funds, Inc..............................................................................41

68 | January/February 2017 | www.FloridaJusticeAssociation.org

Video Production Image Resources, Inc...................................................................... 19

ADVERTISE WITH US OURNAL AL JOUJRON UR

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

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will be accepted only from FJA members in good 1] Ads standing.

Any ad submitted for publication must have been approved by The Florida Bar for print publication under Chapter 4-7, Rules Regulating The Florida Bar unless the ad is of a type that is exempt under the Rules.

Ads must not contain testimonials, must be in good taste and must not reflect unfavorably on the image of the Journal, FJA members or the legal profession. All ads will be subject to review by the FJA to ensure that they meet this standard, and all decisions by the FJA in this regard will be final.

may be a full page or a fraction thereof. Ads will not be 4] Ads accepted for the inside covers or back cover of the Journal. Ads will be accepted for publication on a “first-come, firstserved” basis, and the FJA reserves the right to determine placement and limit the total number of pages available for attorney advertising in each issue.

Diversity

5] rates, deadlines and other publication requirements that

In addition to the foregoing, ads will be subject to the same apply to other commercial advertising in the Journal.

AD RATES

Are you an EAGLE member? If so, you can receive special a Journal Advertising rate

PRICING*

Full Page (EAGLE Member):..$600 Full Page (Member):................ $1,082

Half Page (EAGLE Member):..$400 Half Page (Member):................ $736

FJA Members Offer Personal Insight Into Diversity Within the Practice of Law

(Pricing Subject to change in 2016* Rate based on one time placement)

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 at jbrazzell@floridajusticeassociation or call (850) 521-1020.

Webinar Series

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agenda A Webinar Series for Young Lawyers, Lawyers New to Personal Injury and Any

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Perspectives from an Insurance Adjuster Technology in the Courtroom and Your Practice Evidentiary Issues, Preserving the Record

21, 28 & 30 4, 6, 11, 13, 18, 20 & 25

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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 January/February 2017 Change Service Requested

LAWYER TO LEGACY ENDOWMENT PROGRAM In honor of Al Cone and our other Founders and to commemorate the Florida Justice Associationâ&#x20AC;&#x2122;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 â&#x20AC;&#x201C; become a Lawyer who leaves a Legacy! pjess@floridajusticeassociation.org

Paul Jess @ (850) 521-1026

FloridaJusticeAssociation.org

www.FloridaJusticeAssociation.org | January/February 2017 | 72