FJA JOURNAL - September_October_2017

JOURNAL FLORIDA JUSTICE ASSOCIATION

Florida Justice Association • September/October 2017 • #598 ®

FLORIDA JUSTICE ASSOCIATION

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SEPTEMBER/OCTOBER 2017–NO. 597 March 2014

March 2014

CONTENTS HIGHLIGHTS

ON THE COVER:

2017 Founders’ Awards Winners

pg 12

28

Supreme Court Holds An Initial Tortfeasor Must Pay The Entire Judgment Before Seeking Equitable Subrogation Against A Subsequent Tortfeasor

30

Products Liability: An Overview And Primer On Spoliation

38

Pleading Elements Of Actual And Apparent Agency

42

The Supreme Court Has Resolved The Issue Of Discovery Into The Relationship Between A Law Firm And A “Hybrid Expert”

46

Practice Tips For Premises Liability Cases Arising From Accidental Storefront Crashes

IN THIS ISSUE

Florida Legislature may be poised to eliminate PIP in favor of mandatory BI

pg 24

What to do when the defendant fails to preserve your actual or potential evidence?

pg 30

5 President’s Message— Dale Swope 8 Executive Director’s Message — Paul Jess 12 Special Focus: Founders’ Awards Winners 16 Cases and Commentaries — Kenneth D. Kranz 18 Legislative Notes 24 Tips for Auto Practitioners — Brent Steinberg 28 Medical Malpractice — Scott R. McMillen and Allison McMillen 30 Products Liability — Poorad Razavi and Leslie M. Kroeger 34 Evidence — Matt Schultz 38 Civil Procedure — Roy D. Wasson 42 FJA Appellate Practice Section — Tracy S. Carlin 46 FJA Young Lawyers Section — Ian Kirtman 50 Member Outreach 53 EAGLE 56 CLE 57 Index

www.FloridaJusticeAssociation.org | September/October 2017 | 3

2017-2018 FJA OFFICERS, EXECUTIVE COMMITTEE AND BOARD OF DIRECTORS PRESIDENT Dale M. Swope

EXECUTIVE DIRECTOR Paul Jess

PRESIDENT-ELECT Lake H. (Trey) Lytal, III

EXECUTIVE COMMITTEE Laurie Briggs Nathan P. Carter Tiffany M. Faddis Christopher N. Ligori Todd J. Michaels

TREASURER Leslie Mitchell Kroeger SECRETARY Eric Romano IMMEDIATE PAST PRESIDENT James W. Gustafson, Jr

DIRECTORS 2017-2019 Hubert R. Brown Richard E. Chait Clifton C. Curry, Jr. Tiffany M. Faddis Jason F. Lamoureux Christopher N. Ligori Damian B. Mallard Todd J. Michaels Curry Pajcic Waylon Thompson Hendrik Uiterwyk Gregory M. Yaffa Mark Zamora

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

DIRECTORS 2016-2018 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

members and ask your most pressing Paralegal List Server, contact the FJA Membership Department at (850) 521-1093.

AMICUS CURIAE COMMITTEE Phil Burlington

APPELLATE PRACTICE SECTION Celene Humphries WORKERS’ COMPENSATION SECTION Richard E. Chait YOUNG LAWYERS SECTION Heather Freeman Jones Christopher Keller WOMEN’S CAUCUS Amber Hall Kerri C. Smith

Network with other FJA paralegal questions. To sign up for the

DIRECTORS AT LARGE Thomas W. Carey William T. Cotterall Matthew K. Foster Allison McMillen H.K. Skip Pita Anthony Quackenbush Brent G. Steinberg

PRESIDENTIAL APPOINTMENTS Nathan P. Carter

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

MARKETING COORDINATOR Kalon Hopkins

LOCAL TLA REPRESENTATIVES BCJA– Scott L. Henratty CCJA - Kimberly Hogan CFTLA - Glenn M. Klausman JJA – Daniel A. Iracki MTLA – Bernard F. Walsh MDJA – Shannon Del Prado PBCJA – Peter Hunt TBTLA – James W. Guarnieri, Jr. TCJA – Gloria Seidule AAJ OFFICER Julie Braman Kane AAJ BOARD OF GOVERNORS Sean C. Domnick Brenda Fulmer Rodney G. Gregory James R. Holland Adam Langino Ricardo Martinez-Cid Troy Rafferty Herman J. Russomanno Jean Marie Whalen Edward H. Zebersky AAJ STATE DELEGATES Jack Hickey Clancey Bounds Daryl D. Parks

PRESIDENT’SMESSAGE

FJA’S NEW EXECUTIVE DIRECTOR IS...

by FJA President Dale Swope

B

y the time this Journal hits your desk, the Florida Justice Association will have a brand new executive director.

The Search When it became necessary to find a new leader for the FJA, thenpresident Gustafson wanted to ensure that we resisted the temptation to just take the easiest path. Instead, he insisted that we should do everything we needed to do in order to find absolutely the best person for this critically important position.

He appointed our Secretary, Leslie Kroeger, who in turn selected an exceptionally diverse and talented group to work with her and conduct a nine month nationwide search for excellence. Her committee included four past presidents, Rafferty, Coker, Barnhart, and Roth, as well as those who are destined to be the future of our organization’s leadership like herself, Trey Lytal, Tiffany Faddis and Leslie Jean-Bart, and the toughest interviewer I know, Angela Rodante!

Leslie and Angela sifted through 200 resumes of applicants, to thin that down to six eminently qualified candidates. After one round of interviews the field was cut to three, and then after one final day of in-person questioning and discussion, the recommendation was finally made.

Now, the people on this committee are obviously exceptionally strong intellects from a variety of different backgrounds and perspectives, and who are willing to hold and defend their opinions and beliefs. So, we assumed from the beginning that getting a final decision was going to be difficult. Surprisingly, it was not. Their recommendation was quick, and it was unanimous.

The Executive Committee was the next stop, where that recommendation was adopted – again unanimously – and then at the board meeting in October it became official. When you learn about the candidate who was selected, you will understand why it was so smooth.

The Candidate’s Qualifications The committee’s hard work truly paid off.

The candidate they recommended is a lawyer who graduated from Ohio State with a BA in Social work, and a law degree from FSU where he was on Law Review, Order of the Coif, and Moot Court, where he participated on a national championship team. (Just like you, right?).

He has practiced law, actually participated in litigation, clerked for a DCA judge, and even taught at FSU law school where we discovered the only apparent error of judgment – giving a passing grade in legal writing to past president Paul Anderson – in an otherwise unblemished career.

Before law school he served in the Navy and later the Navy Reserves where his work in command and leadership positions within Navy Intelligence led to several medals and commendations for Meritorious Service, and the Defense Meritorious Service Medal.

But wait. There’s more The recommended candidate actually has decades of experience lobbying the Florida Legislature for consumer causes, has testified before committees and has drafted countless pieces of proposed and adopted legislation specific to our area of law. He was actually part of a small work group that wrote up two amendments to the Florida Constitution that the Supreme Court approved for the ballot and that were actually adopted by the people of the state.

He has won awards for excellence in legal writing, and professionalism, and even a coveted President’s Award from the Florida Justice Association!!

Meet Executive Director Paul Jess Yeah, that’s Paul Jess. The one who has been with our organization longer than you, and even longer than me, and in fact just about anybody else you can name other than maybe Bill Wagner. Paul actually did every single thing I have already listed and has also served in just

www.FloridaJusticeAssociation.org | September/October 2017 | 5

PRESIDENT’SMESSAGE about every professional capacity in our organization you can think of, including general counsel, deputy executive director and most recently, interim executive director.

security, as examples, have enjoyed ten years of advancement in the past ten months, and the fruits of that are about to become obvious to all of us.

If you think back over the decades Paul has served with us, they include some incredibly tumultuous times. Through all of them, the one constant, the one stabilizing force through all those battering storms, has been Paul.

Expect big changes in membership benefits that are going to create competitive advantages for our members over those goofballs who try to practice in our field without being FJA members. Expect a streamline of our fundraising processes to align us with the reality of the current political scene and to permit us to build a real endowment to secure the future financial stability of our institution. Expect growth – lots of growth.

Literally everyone in the organization knows Paul and all of us who have passed through the board have taken comfort in knowing that we have this resource, who always seems to know the answers, and the reasons for how our association is as it is.

And now, finally, he is where he belongs.

The Path Ahead If you are thinking that this means that the FJA is settling in to just comfortably continue doing the same things the same way we always have, you are going to be in for a shock. Paul comes to this position with huge plans for its improvement. Even as interim ED, he has already made changes in our infrastructure that may not be obvious from the outside, but that were critically necessary to position us for growth and change that is long overdue. Our digital platform and IT

Our mission, our principles and our calling have not changed. With this new leadership now in service, the means by which we carry those out to defend and enhance the civil justice system for the afflicted in our state are about to be more effective and powerful than they have been in the history of our organization.

And that is saying something.

So please join me in thanking all the members of the search committee for their tireless, superb work in finding this new leader, and in congratulating Captain Paul Jess for his new command as the Executive Director of the Florida Justice Association.

COULDN’T ATTEND THE MASTERS OF JUSTICE? NO WORRIES! GENERAL SEMINAR INFORMATION FJA REGISTRATION DESK

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Take @ floridajusticeassociation.org OR Call CLE at (850) 521-1097

EXECUTIVEDIRECTOR’SMESSAGE

AFTER HURRICANE IRMA:

FJA STANDS READY TO DEFEND CONSUMERS

by Paul Jess, FJA Executive Director

H

urricane Irma formed in the Eastern Atlantic Ocean shortly after Hurricane Harvey hit Texas and is the strongest hurricane ever recorded outside of the Caribbean Sea and Gulf of Mexico, with winds peaking at 185 mph.

This catastrophic hurricane made landfall in Florida as a Category 4 storm on September 11th and impacted every region of the state.

Damaging winds, rain, and coastal storm surges moved from South to North.

In its wake, Hurricane Irma left widespread power outages, flooding, and property damage. Preliminary loss estimates from property information analytics company CoreLogic® set the total insured and uninsured loss for residential and commercial properties at between $42.5 billion and $65 billion. The company says of that, an estimated $13.5 billion to $19 billion in insured loss is attributed to damage from wind for both residential and commercial properties.

Property can be rebuilt or replaced. Lives cannot.

At least 75 people died in Florida because of the hurricane. At least 11 of those deaths happened at a nursing home in Hollywood, Fla. In the aftermath of the storm, FJA members raised awareness of how 20 years of neglect have left nursing home residents at risk to the most vile mistreatment. In wake of the tragic deaths, reporters interviewed FJA Board member Steve Watrel about the state’s nursing home laws, and FJA Board member Nathan Carter wrote a published op-ed saying, “Florida law treats nursing home residents like dogs.”

After more than a decade of relatively calm hurricane seasons, the deaths, the damage, and fuel shortages caused by Hurricane Irma have spurred lawmakers to begin working on a package of bills to be reviewed once they return for committee meetings scheduled in advance of the January opening of the 2018 Legislative Session.

House Speaker Richard Corcoran appointed a select committee to 8 | September/October 2017 | www.FloridaJusticeAssociation.org

look at steps to improve Florida’s short- and long-term readiness and response capabilities and outlined three areas for the committee members to address: • Protection of Elderly, Disabled, and Other Vulnerable Persons; • Efficient Evacuation and Reentry; and • Mitigation of Future Storm Damage According to published reports, Speaker Corcoran specifically identified legislation requiring assisted-living facilities to have generators and fuel available for power outages as another item to be included on the agenda.

Judging by the number of insurance lobbyists registering, lawmakers also are predicted to discuss property insurance issues. FJA created an Insurance Emergency Response Task Force to serve as a resource for lawmakers. The volunteer task force is comprised of FJA members statewide who help lawmakers answer constituent insurance questions.

Sir Winston Churchill famously said, “Never let a good crisis go to waste.” We fully expect big insurance lobbyists and their Florida corporate supporters to follow that advice. We are on watch for them to brazenly use Hurricane Irma as cover to slip their anti-consumer agenda through the Legislature. Please know, our FJA Lobby Team is ready to protect access to our civil justice system and defend our practices and clients (already hit hard by Hurricane Irma) from falling victim to corporate attacks on consumer rights.

Unlike big, greedy corporate executives looking to twist the state’s consumer protection laws to create a windfall from Hurricane Irma, we are Floridians. This is our home. These are our people, and many are hurting. We will come together to protect them from anyone who tries to take advantage of unfortunate events.

As FJA members, you have multiple opportunities to join together to protect our state’s citizens, two of which are our FJA Insurance Emergency Response Task Force and The Florida Bar Young Lawyer Division’s Statewide Emergency Legal Services Response Plan (the “Florida Plan”).

Members volunteering for the FJA Insurance Emergency Response Task Force serve as a resource to legislators by working with their constituents and answering questions related to property insurance claims. The task force is chaired by Steve Marino of Ver Ploeg & Lumpkin, P.A.,

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EXECUTIVEDIRECTOR’SMESSAGE

Satellite image of Hurricane Irma. Credit: NOAA

The “stadium effect” from Inside the eye of Hurricane Irma. Credit: NOAA

Miami. I encourage all attorneys interested in participating in task force activities to please contact FJA Communications Director Ryan Banfill at (850) 521-1047 or rbanfill@floridajusticeassociation.org.

without taking them on as a client. The volunteer lawyers return calls placed to the YLD’s 1-800 hotline or at FEMA centers. There is a pressing need for volunteer lawyers to return these calls.

FJA members volunteering for The Florida Bar Young Lawyer Division’s (YLD) Statewide Emergency Legal Services Response Plan help with ongoing and future disaster relief efforts. Under the plan, volunteer lawyers simply answer consumers’ questions over the phone

For more information and to sign up as a volunteer contact Lynn McCartney at lmccartney@floridajusticeassociation.org for the FJA Task Force, or visit https://flayld.org/get-involved/disaster-relief-femahotline/ for the Florida Bar YLD program.

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

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

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

Paul Jess @ (850) 521-1026

FloridaJusticeAssociation.org

SPECIALFOCUS:FOUNDERS’AWARDS

FJAHONORS Outstanding Florida Trial Attorneys at The 2017 FJA Founders’ Awards Luncheon

F

rom across the state, FJA members gathered in Sarasota for the highlight event of the 2017 Masters of Justice event – the annual FJA Founders’ Awards Luncheon.

“Each of the award recipients we honor has, without question, impacted our system of justice. They embody vision, dedication, perseverance, leadership, and excellence. They guide us, they inspire us, and they represent the very spirit of the law we practice,” said FJA President Dale Swope, who served as master of ceremonies for the event. “Celebrating their accomplishments and recognizing their true dedication to the cause of justice reminds us of what we fight for daily. Their immeasurable contribution to the civil justice system in Florida serves as an example of how important it is to continue our work on the legislative, judicial, and political fronts in Florida. We are a better association, a better Florida, and a better country because of them.”

1

PERRY NICHOLS AWARD

FJA’s most prestigious award, the Perry Nichols Award, was presented to Michael A. Haggard of The Haggard Law Firm. Mike, a past president of the FJA, was honored with this award for his lifelong dedication of unabashedly seeking justice for his clients, tirelessly striving to keep Floridians safer by working to change egregious Florida’s laws, and guiding our profession into the future by mentoring young attorneys and teaching colleagues as a frequent speaker at educational seminars across the nation.

“When you look through the great law firms of this state, the great trial lawyers of this state, there’s always a connection to Perry Nichols,” Haggard said as he accepted the award.

2

During his acceptance remarks, Haggard took a few moments to tell the audience about his “Holy Grail” – a book that he reads before every trial and every closing argument.

foundation of what they built, what they built for all of us is in this book. And you can see it throughout our organization.”

“In this book are the hand-written notes of Murray Sams, JB Spence, Bill Frates, Billy Gaither, and the one Perry Nichols,” Haggard told the audience. “These are the notes that, when they talked about opening statement and closing argument at the famous roundtable of the Nichols firm of how – when we go to seminars today – the

The Perry Nichols Award is a permanent tribute to Perry Nichols – the visionary who first brought Florida’s leading trial attorneys together to create the Negligence and Compensation Lawyers of Florida, a few years after World War II. Presenting the award to Mike Haggard was 2 another FJA past president, Fred Cunningham.

12 | September/October 2017 | www.FloridaJusticeAssociation.org

AL J. CONE AWARD

F. Gregory Barnhart of Searcy Denney Scarola Barnhart & Shipley, P.A., was presented the Al J. Cone Lifetime Achievement Award for exhibiting the outstanding traits that Cone possessed — leadership, hard work, devotion, and courage. This award honors the accomplishments of Al Cone, the association’s first elected president (196162) and mentor to thousands of attorneys during his lifetime.

In the award introduction, Barnhart’s partner, Chris Searcy stated “When other people cut and run, Greg stands up and fights. Greg is very richly deserving of this award. I’ve been blessed to be his partner for 39 years now and to give you an idea of the quality of person Greg is, in four decades we have never had a cross word.”

Searcy continued … “What I admire most about Greg is his courage.

When the chips are down, Greg is there. When the going gets tough, the tough get going … that’s Greg.”

In accepting the Al Cone award, Barnhart praised his firm and the generosity of his partners. “Everything we can do for our staff, for our support people, and for our young lawyers, we max out. We could be more efficient, we could be. But you know something, we are a happy firm. And we are a good firm. And we serve our clients. And we don’t win them all, but we win enough.”

2

Greg now joins the impressive list of premier attorneys who have received the Al J. Cone Lifetime Achievement Award and with this presentation, continues the legacy of Al Cone and what it means to be a caring and brilliant attorney.

JON E. KRUPNICK AWARD

you that I don’t deserve the award. There is a young man named Ben Hintz that deserves the award. The reason he deserves the award is that he never gave up. The honor belongs to Ben Hintz. But I accept it on his behalf.”

Uiterwyk’s representation of Hintz echoes a case handled by award namesake Jon Krupnick. Created in 2000, the award honors Krupnick’s tenacity and professional excellence in the representation of a 4-year old child in a case that took 15 years, several trials, and difficult appeals before he finally obtained victory for his client.

S. VICTOR TIPTON AWARD

The award for superior achievement in legal writing was presented to Jessie Harrell of the Jacksonville firm Creed and Gowdy, P.A. Jessie received the S. Victor Tipton Award, and became the firm’s third recipient of this prestigious award.

Harrell was recognized for the numerous, well-written amicus briefs that were submitted on behalf of FJA, where her attention to detail and the law is exemplary. Colleagues remarked that Julie “has the unique ability to write like a lawyer and write to entertain. She writes in a way that is very readable; she knows her audience -- she knows the judges and law clerks that we are addressing and she has an imagination and creativity.”

Jamie Holland, in presenting the award to Jessie, recounted a few of her important briefs. However, he was most impressed with this account - “Those that know Jessie’s writing and work best are those before the First DCA. And the highest compliment that could happen to an appellate lawyer is to have the judges in the black robes

FJA President Dale Swope presented the Jon E. Krupnick Award for Perseverance to his good friend Hendrik “Henk” Uiterwyk of Abrahamson & Uiterwyk. This award reflects Henk’s relentless efforts, perseverance and fortitude to seek justice and achieve success through many obstacles and lengthy legal roadblocks.

Uiterwyk was recognized for his work to win justice for client Ben Hintz, who suffered a severe brain injury. This case involved three lawsuits, two trials, and seven appeals over eight years. The appeals included five trips to the 5th District Court of Appeals, one trip to the 11th Circuit Court of Appeals, and one to the Florida Supreme Court.

Swope said, “Thank God for Ben Hintz, Henk hadn’t given up. Henk, you stopped a breakdown in the system of justice and you pulled off the miracle. Congratulations on winning this award.”

In accepting the award, Uiterwyk remarked “I’m very honored and grateful for the award that I’ve received. However, I’m forced to tell

4

1 - (L-R) Dale Swope, Michael Haggard and Fred Cunningham 2 - Michael Haggard speaking about his “holy grail” 3 - (L-R) Dale Swope and Henk Uiterwyk

3 www.FloridaJusticeAssociation.org | September/October 2017 | 13

SPECIALFOCUS:FOUNDERS’AWARDS

1 1 pull them aside and say, ‘please, we have heard your advocacy. We have seen your work. Please, some day in the future, come join us amongst the black robes.”

Jessie, in accepting the award, stated “I am very humbled and grateful and it really wouldn’t be possible without the shoulder of giants to stand on. I have my amazing partners, Rebecca Creed and Bryan Gowdy, who have taught me so much and always supported my career.”

This founders’ award was created in 1989 to honor the legacy of the founder of the FJA Journal, S. Victor Tipton, who served as editor of the legal magazine for over four decades. President Dale Swope spoke fondly of Victor, saying that Victor’s “DNA is still in this organization. As Victor used to say, ‘we will comfort the afflicted and afflict the comfortable.”

B.J. MASTERSON AWARD FOR PROFESSIONALISM

Julie Braman Kane, of Colson Hicks Eidson, is the 2017 recipient of the B.J. Masterson Award for Professionalism. Unfortunately, due to family illness, Julie was not able to attend the luncheon.

“Receipt of the B.J. Masterson Award is a great honor for me, and I couldn’t be more thrilled,” Kane said in a statement expressing her appreciation. “Thank you, and as always, I’m grateful to the Florida Justice Association and all of you.”

First awarded in 1996, the B.J. Masterson Award is presented annually to an attorney recognized as an excellent advocate who has an unimpeachable reputation for ethical and moral behavior and fair play in the practice of law.

As President of the American Association for Justice (AAJ) and climbing through the officer positions to achieve that rank, Julie is 14 | September/October 2017 | www.FloridaJusticeAssociation.org

2 a leading defender of justice and has been advocating for justice on a national level for many years. Her advocacy for more than 20 years on behalf of all Americans to achieve justice in the courts is far reaching and unparalleled.

Julie has served on the Florida Elections Commission and volunteered on many other organizations in her community. She has been honored multiple times for her tireless charitable and legal efforts and is deeply respected by both the defense and plaintiff’s bar, as well as many others due to her integrity, positive attitude, and strong desire to always do right by her clients and others.

FJA will present the award to Kane at a later date.

“FROM DAY ONE” AWARD

The late William H. “Bill” Harrell is the 2017 recipient of the FJA “From Day One” Award. The award recognizes Harrell for his 41 years of service to the Florida Justice Association and actively participating in the FJA EAGLE program from his first days as an association member.

This award is named in honor of former Pensacola attorney Jim McKenzie, whose steady service, principled leadership, generosity and commitment to civil justice “from day one” exemplifies the best in all of us.

Bill was too ill to attend the ceremony and, sadly, died on October 14th after a long bout with cancer. FJA will honor Harrell’s life and commitment to defending justice by presenting this award to his family at a later date.

1 - (L-R) Brian Gowdy, Jessie Harrell, and Rebecca Creed 2 - (L-R) Chris Searcy and Greg Barnhart

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CASES&COMMENTARIES

In Brie f I

by Kenneth D. Kranz

FJA JOURNAL EDITOR-IN-CHIEF

n a 4-3 decision, the Florida Supreme Court held that a party that has had judgment entered against it is not entitled to seek equitable subrogation from a subsequent tortfeasor when the judgment has not been fully satisfied.

Holmes Regional Medical Center, Inc. v. Allstate Ins. Co., So.3d , 42 FLW S738 (Fla. 7-13-2017). The Court concluded that the Fifth District erred in holding that the initial tortfeasor below could assert claims for contingent equitable subrogation against subsequent tortfeasors without first paying the judgment in full. The FJA, represented by Roy M. Wasson, participated as amicus curiae.

The Supreme Court adopted several sets of amendments including those to the Rules of Appellate Procedure (re definitions, the record and appendix), the Rules of Judicial Administration (re foreign attorneys, service of pleadings and documents, and amending rules of court), and the Probate Rules (re petition to determine incapacity and annual guardianship reports). In Re: Amendments to the Fla. Rules of Appellate Procedure, So.3d , 42 FLW S794 (Fla. 9-7-2017); In Re: Amendments to Fla. Rules of Judicial Administration—2017 Regular Cycle Report, So.3d , 42 FLW S798 (Fla. 9-7-2017); and In Re: Amendments to Fla. Probate Rules 5.550 and 5.695—2017 Fast-Track Report, So.3d , 42 FLW S801 (Fla. 9-7-2017).

The trial court erred in denying a motion to compel arbitration under a nursing home residency agreement that was executed 34 days after the resident was admitted to the facility. FI-Pompano Rehab, LLC v. Irving, So.3d , 42 FLW D1492 (Fla. 4th DCA 7-5-2017). Plaintiff had argued below only that the delayed signing constituted procedural unconscionability, and the trial court held the agreement to be unenforceable based only on that one prong of unconscionability. The Fourth District held that even though the additionally required prong of substantive unconscionability was not raised below and was not a basis for the trial court’s decision, and thus could not be raised on appeal, nevertheless the agreement at issue was not substantively unconscionable because it did not deprive the plaintiff of any statutory cause of action, did not defeat the remedial purpose of Ch. 400, did not limit damages, and did not violate any public policy. The court also noted that the post-admission execution of the agreement was not in and of itself a fatal flaw because the agreement made it very clear that signing it was voluntary and not a precondition to the furnishing of services to the resident.

The trial court erred in ordering the Florida Agency for Health Care Administration to produce public documents within 48 hours of the date of the order where the documents requested were voluminous and first had to be reviewed by ACHA for the redaction of statutorily exempt confidential information. Fla. Agency for Health Care Admin. v. Zuckerman Spaeder, LLP, So.3d , 42 FLW D1151 (Fla. 1st DCA 7-6-2017). “ACHA’s duty to protect exempted information through redaction precedes its duty to provide 16 | September/October 2017 | www.FloridaJusticeAssociation.org

the documents to [the requester].” The trial court also erred in ordering production of the documents prior to payment of the agency’s invoices for the costs of providing the public records.

Here, the records were requested by a law firm representing a client who was charged in a federal criminal case with Medicaid fraud and other related offenses.

“Although a defendant may lawfully be charged and convicted of multiple counts of contempt during the course of one proceeding, the basis for each charge must be sufficiently distinct. … [A] defendant may not be charged and convicted of multiple counts of contempt based on one continuous episode of contemptuous behavior.” Williams v. State, So.3d , 42 FLW D1548 (Fla. 4th DCA 7-12-2017). In the present case, the defendant became irate during a calendar call and unleashed a stream of profanities at the court in a tirade that consisted of several repeated episodes interspersed with interruptions by the court. In response, the trial court adjudicated the defendant guilty of three counts of direct criminal contempt. The Fourth District held that he should have been convicted of only one count of contempt: “All in all, the obscenities shouted by Appellant were part of the same continuous outburst and seem to best be read as an attempt to get the last word.”

In a legal malpractice action by a physician against the attorneys who represented her in several criminal cases, the trial court erred in ordering the physician to produce confidential medical information related to a patient without complying with the substantive notice and authorization requirements set forth in §456.057(7)(a), Fla. Stat. Paylan v. Fitzgerald, So.3d , 42 FLW D1583 (Fla. 2nd DCA 7-14-2017). The statute contains, with certain limited exceptions, a broad prohibition preventing a health care practitioner who generates a medical record for a patient from furnishing the record to ‘any person other than the patient or the patient’s legal representative … except upon written authorization of the patient.’” One exception is: “In any civil or criminal action, unless otherwise prohibited by law, upon the issuance of a subpoena from a court of competent jurisdiction and proper notice to the patient or the patient’s legal representative by the party seeking such records.” See §456.057(7)(a)3., Fla. Stat. The court noted that the Florida statutory protection exceeds that provided by HIPAA in this context.

In a dram shop liability case arising from a fatal automobile accident that occurred after the intoxicated perpetrator had played a round of golf, deposition testimony by golf club employees and his regular golfing partner as to his usual practice of heavy drinking while golfing was sufficient to raise a genuine issue of material fact as to whether the player was habitually addicted to alcohol and, if so, whether the defendant golf club serving him the alcohol knew that the player was a habitual drunkard. Gonzalez v. Stoneybrook West Golf Club, LLC, So.3d

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CASES&COMMENTARIES , 42 FLW D1593 (Fla. 5th DCA 7-14-2017). Section 768.125, Fla. Stat., provides that a vendor serving alcoholic beverages is not liable for damages resulting from a purchaser’s intoxication unless the vendor serves the purchaser knowing that he or she is habitually addicted to alcohol. A wrongful death action was filed by the estate of the deceased driver against the golf club pursuant to the statute, and the trial court granted summary judgment for the club, finding no evidence that the player was habitually addicted to alcohol, or, if so, that the club had any knowledge of same. The Fifth District disagreed and reversed, holding that there was sufficient evidence in the record to preclude summary judgment. The evidence in the record demonstrated that: the player played regularly at the course, having played at the club 70-80 times over the previous three years; was regularly intoxicated when playing; usually started the day with two large strongly poured whiskey and Cokes poured by clubhouse bartenders who were familiar with the player; usually returned to the clubhouse for another of these large strong drinks at mid-round; and would often buy additional drinks out on the course from the club “cart girl” (and that he had four of these, at 8 oz. of straight alcohol each, the day of the accident). There was also expert testimony by the Medical Examiner to the effect that the player’s BAC when he left the golf club was over .27. The court noted that evidence of a vendor’s knowledge may be met by circumstantial evidence and that serving an individual a substantial number of drinks on multiple occasions would be circumstantial evidence to be considered by a jury in determining whether the vendor knew the person was a habitual drunkard.

The trial court did not err in denying a motion to vacate an arbitration award based on partiality of one of the arbitrators where there was no actual bias shown by the arbitrator, there was no actual conflict and the arbitrator did not even know of the business relationship between her husband’s corporate employer and one of the parties to the arbitration. Managed Care Ins. Consultants, Inc. v. United Healthcare Ins. Co., So.3d , 42 FLW D1599 (Fla. 4th DCA 7-19-2017). Section 682.041(1), Fla. Stat., requires that an arbitrator disclose any “known facts that a reasonable

LEGISLATIVE NOTES CALENDAR: After a quiet summer, things are picking up quickly—bills are being filed and the first couple sets of Interim Committee meetings have already been held. The 2018 Regular Session will be in the early time slot again next year like it was in 2016; it begins on January 9, 2018, and, if it ends on time, will conclude on March 9, 2018.

October 23-27 November 6-9 November 13-17 December 4-8 January 9-March 9

Interim Committee Meetings Interim Committee Meetings Interim Committee Meetings Interim Committee Meetings 2018 Regular Legislative Session

18 | September/October 2017 | www.FloridaJusticeAssociation.org

person would consider likely to affect the person’s impartiality as an arbitrator in the arbitration proceeding[.]”

A hotel was without fault in an incident wherein a drunk driver lost control of her car, which ran off a public road and crashed into the wall of an adjacent hotel cabana that was located about 15 feet from the roadway, causing the structure to collapse, which in turn injured a man and killed his pregnant wife. The Las Olas Holding Co. v. Demella, So.3d , 42 FLW D1605 (Fla. 4th DCA 7-19-2017). Suit was brought against both the driver and the hotel.

The plaintiff argued that the physical layout of the road created a foreseeable zone of risk encompassing the cabana, and in support it offered evidence to show that the vehicles on the adjacent road travel straight toward the cabana before turning, that had palm trees been planted in front of the cabana the accident might not have occurred, that the road in front of the cabana was dangerous due to chronic speeding in excess of the 25-mph speed limit, and that the hotel was well aware of a speeding problem on the road (albeit their concern was primarily for the safety of hotel guests crossing the road). The hotel moved unsuccessfully for directed verdict at the close of plaintiff’s case.

In its case in chief, the defense presented evidence about the structural integrity of the cabana, including that the damage indicated that the car had to be traveling over 50 mph when it struck the supporting columns; evidence that the road was properly designed; and evidence that there had not been an accident at or near the curve in the 49 years from the road’s creation in 1963 until the present accident in 2012. A renewed motion for directed verdict was denied; and the jury ultimately awarded substantial damages, finding the hotel to be 15 percent at fault and the driver 85 percent at fault. On appeal, the Fourth District reversed and remanded with directions for the trial court to grant the hotel’s motion for a directed verdict. The court lamented that the couple “were, unfortunately and through no fault of their own, in the wrong place at the wrong time. However [the hotel] was also without fault. [The hotel] owed no duty of care to invitees within its walls with regard to [the road], as a danger to the hotel’s invitees from the placement of the pool cabana in relation to that road was not one of which [the hotel] knew or should have known. Additionally, even if a duty was owed, the actions taken to prevent injury were legally sufficient such that there was no breach of this duty. [The court noted that these actions included a 3-inch curb along the road, a palm tree and various hedges between the road and the cabana, steel-reinforced concrete supports for the cabana, and lobbying efforts to slow traffic on the road.] Finally, even assuming a duty and a breach, the collision of the severely intoxicated driver’s car with the pool cabana, at such speed and force as to collapse the steel-reinforced concrete columns of the cabana, was an extraordinary and unforeseeable event, making [the hotel] legally not the proximate cause of any of the injuries suffered in this highly fact-specific case.”

Trial courts have the discretion to reduce awards of prejudgment interest based on equitable considerations. The Leila Corp. of St. Pete v. Ossi, So.3d , 42 FLW D1632 (Fla. 2nd DCA 7-21-2017). “[A] plaintiff may recover damages for loss of earning capacity only ‘when such damages are established with reasonable certainty.’” Rasinski v. McCoy, So.3d , 42 FLW D1711 (Fla. 5th DCA 8-4-2017). “[T]he plaintiff need not necessarily demonstrate a permanent injury, but ‘it is a significant factor in establishing the reasonable certainty of future damages.’ … To establish a claim for loss

of future earning capacity, the plaintiff must introduce ‘reasonably certain evidence that the capacity to labor has been diminished and that there is a monetary standard against which the jury can measure any future loss.’ … After the plaintiff introduces evidence sufficient to warrant an award for lost earning capacity, the jury should consider ‘all relevant factors including the plaintiff’s age, health, habits, occupation, surroundings, and earnings before and after the injury.’” In the present case, the court found that while the plaintiff had suffered a permanent injury, he continued to work after the accident at the same hourly rate he was making before the accident, and his testimony questioning his future job security amounted to pure speculation that did not serve as a proper basis for an award of lost earning capacity because it did not provide a monetary standard against which the jury could measure any future loss. The award for lost earning capacity was reversed and the case was remanded for the trial court to enter a remittitur or grant a new trial solely on the issue of damages for loss of earning capacity.

“Whatever its wisdom, tribal immunity endures, and Indian tribes are not subject to the civil jurisdiction of our courts absent a clear, explicit and unmistakable waiver of tribal sovereign immunity or a congressional abrogation of that immunity.”

Miccosukee Tribe of Indians of Fla. v. Lewis Tein, P.L., So.3d , 42 FLW D1733 (Fla. 3rd DCA 8-9-2017). The plaintiffs in this action, two lawyers, alleged that the Miccosukee Tribe spent five years filing false lawsuits, suborning perjury, and obstructing justice in an effort to damage the attorneys’ finances, reputations, and law firm. The origins of the case date back to a fatal 1998 car accident and the

ensuing wrongful death action against two individual Tribe members.

In 2005 the lawyers were hired to take over as defense counsel; that suit ended in 2009 with a large damage award. The wrongful death plaintiffs began collection efforts against the two defendants, but also sought to enforce the judgment against the Tribe. In the course of that endeavor, the Tribe’s new attorney provided the wrongful death plaintiffs with copies of checks paid to the law firm from the Tribe’s general account, falsely representing to the trial court that the Tribe had paid for the defense of the defendants in the wrongful death action. The Tribe’s actions led the family of the decedent to bring what turned out to be a false claim of perjury and fraud on the court against the law firm, from which the firm was eventually exonerated.

In those proceedings, by its actions of providing the checks to the plaintiffs in the wrongful death action, the Tribe was held to have expressly waived its sovereign immunity. The Tribe then went on a vendetta against the lawyers, filing an action in state court alleging malpractice, breach of fiduciary duty, fraud, fraud in the concealment, conspiracy to defraud, civil RICO conspiracy, civil racketeering, theft and conversion. That case was ultimately resolved for the lawyers by summary judgment or alternatively dismissed for lack of subject matter jurisdiction, and sanctions were awarded against the Tribe for bad faith filing of unfounded and frivolous claims. The Tribe followed with an action in federal court alleging, in part, federal racketeering, conspiracy to engage in racketeering, fraud, aiding and abetting fraud, state racketeering, and breach of fiduciary duty. The federal district court dismissed the suit, and again sanctions were awarded against the Tribe and its attorney, this time for nearly $1 million. A second state suit followed, asserting essentially the same claims that were dismissed

www.FloridaJusticeAssociation.org | September/October 2017 | 19

CASES&COMMENTARIES

in federal court. These claims were dismissed on res judicata grounds.

The lawyers then filed the present case against the Tribe alleging one count of civil remedies for criminal practices and four counts of malicious prosecution based on the state and federal suits the Tribe had brought. The Tribe filed a motion to dismiss for lack of subject matter jurisdiction based on tribal sovereign immunity. In response, the lawyers argued that the Tribe’s sovereign immunity waiver in the wrongful death case applied broadly to this case as well and that, alternatively, the Tribe’s litigation conduct in knowingly filing frivolous lawsuits against the lawyers waived the Tribe’s immunity.

The trial court agreed with the lawyers and denied the motion to dismiss based on the earlier finding of an explicit waiver in the wrongful death suit and the Tribe’s litigation conduct, which the court held demonstrated a clear, explicit and unmistakable waiver.

On appeal, the Third District found that the Tribe’s conduct and active participation opened itself up to litigation in the same cases in which the conduct occurred, but it did not act as a clear, explicit and unmistakable waiver in a subsequent case on the same subject matter, as was the present case. Noting that “[g]ranting sovereign immunity to Indian tribes is a policy choice made by our elected representatives to further important state and federal interests,” the court lamented that one consequence of this is that injured persons can suffer loss without a remedy, including the lawyers who had a right not to have their reputations ruined and their business destroyed by the Tribe. However, there being no clear, unequivocal and unmistakable waiver of the Tribe’s immunity, the DCA reversed and remanded for the trial court to grant the Tribe’s motion to dismiss on tribal sovereign immunity grounds.

The trial court erred in calculating the amount of a prevailing party attorney fee award by failing to reduce the lodestar amount upon consideration of the results obtained. Peterson v. Hecht Consulting Corp., So.3d , 42 FLW D1739 (Fla. 4th DCA 8-9-2017).

Appellants were homeowners who hired Appellee public adjuster to assist in recovering insurance proceeds for their hurricane-damaged home. The contract provided for a 10% fee to the public adjuster and for prevailing party attorney’s fees in the event of litigation. The homeowners recovered close to $100,000 from their insurer, and the public adjuster eventually sued the homeowners for breach of contract, civil theft and unjust enrichment. The civil theft count was disposed of by summary judgment, and the remainder of the case eventually settled for $3,000, despite the fact that the homeowners had earlier offered to settle for $7,768. Litigation continued over the questions of entitlement to and amount of fees due to the public adjuster. The trial court determined the public adjuster was the prevailing party, and its attorney then sought more than $90,000 in fees, eventually receiving an award of about $29,000. Noting that the court may increase or decrease a lodestar amount based on a contingency risk multiplier or the results obtained, the court reversed and remanded for a downward recalculation, stating: “Here, under any view, Appellee achieved limited success in the underlying litigation. Appellee lost at summary judgment on its most lucrative count—civil theft. Appellee then spent an exorbitant amount of time pursuing a simple breach of contract suit where his maximum recovery was $10,000. Even this endeavor was limited in its success as Appellee’s recovery, $3,000, was less than a third of the amount sought and less than amounts offered

by Appellants at the onset of the litigation.”

20 | September/October 2017 | www.FloridaJusticeAssociation.org

Where a process server’s actions were not necessary to effectuate service of process, they were not covered by absolute immunity under the litigation privilege. Pace v. Bank of New York Mellon Trust Co. National Ass’n, So.3d , 42 FLW D1767 (Fla. 5th DCA 8-11-2017). The defendant in this foreclosure action counterclaimed alleging tortious interference with its business relationships with its tenants on the subject property. Specifically, it alleged that when the plaintiff bank served process on the tenants, the process server demanded to inspect the property, told the tenants that they would soon need a new place to live, and encouraged the tenants to withhold paying rent to the defendant. The bank asserted absolute immunity under the litigation privilege, which the court rejected. It declined to reach the issue of qualified immunity because it had not been raised below.

The applicable statute of limitations for a negligence action by a prisoner alleging physical injury against a private entity providing correctional services in Florida is the four-year statute of limitations set forth in §95.11(3)(a), Fla. Stat., not the one-year statute of limitations set forth in §95.11(5)(g). Parker v. The Geo Group, Inc., So.3d , 42 FLW D1775 (Fla. 1st DCA 8-14-2017).

“An assumption that all Facebook ‘friends’ rise to the level of a close relationship that warrants disqualification [of a judge] simply does not reflect the current nature of this type of electronic social networking.” Law Offices of Herssein and Herssein, P.A. v.

United Services Automobile Ass’n, So.3d , 42 FLW D1830 (Fla. 3rd DCA 8-23-2017). “In fairness to the Fourth District’s decision in [Domville v. State, 103 So.3d 184 (Fla. 4th DCA 2012)] and the Judicial Ethics Advisory Committee’s 2009 opinion, electronic social media is evolving at an exponential rate. Acceptance as a Facebook ‘friend’ may well once have given the impression of close friendship and affiliation. Currently, however, the degree of intimacy among Facebook ‘friends’ varies greatly. The designation of a person as a ‘friend’ on Facebook does not differentiate between a close friend and a distant acquaintance. Because a ‘friend’ on a social networking website is not necessarily a friend in the traditional sense of the word, we hold that the mere fact that a judge is a Facebook ‘friend’ with a lawyer for a potential party or witness, without more, does not provide a basis for a well-grounded fear that the judge cannot be impartial or that the judge is under the influence of the Facebook ‘friend.’” The court denied the petition for a writ of prohibition to disqualify the trial judge below because he was a Facebook “friend” with a lawyer representing a potential witness and a potential party in the pending litigation, and it acknowledged conflict with Domville.

Section 90.701, Fla. Stat., which governs lay opinion testimony, does not limit perception to visual perception, and the trial court did not abuse its broad discretion in allowing witnesses’ testimony regarding the speed of a motorcycle based on its sound and on what they observed. Sajiun v. Hernandez, So.3d , 42 FLW D1857 (Fla. 4th DCA 8-23-2017). Before trial of this case involving a collision between a motorcycle and a truck the plaintiff had moved in limine to exclude the testimony of three defense-listed witnesses who did not actually see the accident. One of the witnesses testified at trial that he had operated motorcycles since 1980 and, based on his familiarity with motorcycles, he could tell the difference between the sounds emitted by the engines of a Japanese motorcycle and a Harley

CASES&COMMENTARIES Davidson, which has a distinctive (and even patented) sound. The witness was sitting in his backyard where a fence blocked the view of the street, but he heard the sound of the motorcycle engine. When defense counsel asked him what he heard, he responded that he heard the sound of “a motorcycle traveling at a high rate of speed, revved up.” Plaintiff moved for a mistrial, which was denied. Two other defense witnesses also testified that they had seen the motorcycle and heard the sound of a motorcycle traveling at a high rate of speed shortly before the accident. The Fourth District held that allowing admission of the perceptions of these lay witnesses, which did not rely on a methodology requiring something beyond everyday reasoning, was within the trial court’s discretion.

The fact that a person filling out an incident report of injury in accordance with company policy did not personally foresee the potential legal claim and did not know the purpose for the company policy did not negate a finding that the incident report was prepared in anticipation of litigation and subject to the work product privilege. Ruby Tuesday, Inc. v. Metalonis, So.3d , 42 FLW D1862 (Fla. 5th DCA 8-25-2017). The incident in question involved a chair that collapsed in the defendant’s restaurant.

Where there was evidence presented at the evidentiary hearing on attorney’s fees as to the hourly rate and the reasonableness of the fees, but the only evidence detailing the work actually completed consisted of an affidavit and related documents that were neither introduced into evidence nor stipulated to at hearing, the evidence was insufficient to support an award of attorney’s fees. Chandler v.

KCCS, Inc., So.3d , 42 FLW D1884 (Fla. 2nd DCA 8-30-2017).

Because there was some competent evidence to support an award of fees, the court remanded for further proceedings to determine the proper amount.

In an Engle progeny tobacco case, the trial court erred in admitting into evidence several Surgeon General’s Reports on cigarettes. Philip Morris USA, Inc. v. Pollari, So.3d , 42 FLW D1896 (Fla. 4th DCA 8-30-2017). The defendants had moved before trial to exclude the reports from evidence as inadmissible hearsay.

Plaintiff did not dispute the reports were hearsay, but argued that they were admissible under the exceptions for public records and adoptive admissions. The trial court allowed them in. At trial, the plaintiff’s counsel endorsed the Surgeon General as a leading medical authority “on cigarette smoking and health and nicotine addiction” and relied on the Reports at every major stage of the trial for numerous propositions. On appeal, the plaintiff argued that the Reports were admissible because: 1) they were not hearsay because they were not offered for the truth of the matters asserted, but only to show notice; 2) the Reports qualified under the public records exception to hearsay; and 3) the Reports qualified as adoptive admissions by the defendants under an exception to hearsay. The court rejected all three arguments and, based upon the plaintiff’s extensive use of the Reports during trial, found the error was not harmless, thus requiring a new trial.

Conflict and question of great public importance certified: “Whether a law enforcement officer, who while making a lawful arrest, used deadly force which he or she reasonably believes is necessary to prevent imminent death or great bodily harm or to prevent the imminent commission of a forcible felony, is

22 | September/October 2017 | www.FloridaJusticeAssociation.org

limited to invoking a defense under Section 776.05(1), or is also permitted to seek immunity from criminal prosecution under Sections 776.012(1) and 776.032(1), Florida Statutes (2013), more commonly known as Florida’s ‘Stand Your Ground’ Law.” State v. Peraza, So.3d , 42 FLW D1917 (Fla. 4th DCA 8-302017). In the present case, the state appealed a circuit court’s final order granting a law enforcement officer’s amended motion to dismiss the indictment against him for manslaughter with a firearm. The officer was indicted after shooting a man who was walking down the street with an air rifle that appeared to be a firearm, failed to obey the officer’s commands to drop the weapon, and pointed the weapon at the officer. The trial court found the officer was entitled to immunity under §§776.012(1) and §776.032(1), Fla. Stat., commonly known as the “Stand Your Ground” law, which describe the circumstances under which any person may use deadly force. The state argued that these sections were inapplicable because law enforcement officers are already provided a defense under §776.05(1), Fla. Stat., which describes the justifiable use of force in making an arrest. The Fourth District agreed with the trial court that the broad “any person” language of the “Stand Your Ground” law is clear on its face, and that the officer was eligible to seek immunity under the statute and was in fact entitled to the immunity. In addition to certifying the question, the court certified conflict with State v. Caamano, 105 So.3d 18 (Fla. 2nd DCA 2012). Note that while this case and the certified question specifically address immunity in the context of criminal liability, the operative statute in question, §776.032(1) explicitly addresses both criminal and civil liability: “A person who uses force as permitted in s.

776.012 … is justified in using such force and is immune from criminal prosecution and civil action for the use of such force.”

A trial judge abused her discretion in an attorney fee proceeding by sua sponte reducing an attorney’s hourly rate based on the judge’s expressed personal belief that attorneys with two years in practice could not reasonably command the hourly rate they were requesting. Westaway v. Wells Fargo Bank, N.A., So.3d , 42 FLW D1926 (Fla. 2nd DCA 9-1-2017). The court noted that even though the judge was not bound by the expert’s supporting opinion, an hourly rate could not be affirmed where the record was devoid of evidence that the award was reasonable. “Here, the judge did not indicate that her determination of reasonable hourly rates was rooted in her experience as a lawyer, nor did she explain why the varying rates that she applied were more reasonable than the single rate that [the] attorneys proposed (and all the evidence adduced at the fee hearing supported). Her only apparent justification for reducing the hourly rate was her personal opinion of what attorneys should charge based on their number of years in practice. This alone does not constitute competent, substantial evidence.”

KEN KRANZ, FJA JOURNAL EDITOR-IN-CHIEF

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

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Senator Lee’s bill also requires that all motor vehicle liability policies on private passenger vehicles carry $5,000 of medical payments coverage (“MedPay”), over which the carrier would have a right of subrogation once the injured claimant is made whole. But under Representative Grall’s bill, MedPay would remain completely optional.

If Florida is going to successfully transition away from a no-fault insurance system, the two versions of the bill will need to be reconciled.

But regardless of what the final version looks like, it would result in significant changes to your auto practice.

The Drum Beats Louder in Tallahassee:

Above all, these proposals would go a long way towards eliminating the all-too-familiar situation where an innocent accident victim, hit by a completely uninsured, financially irresponsible tortfeasor, is left with no avenue of recovery. Surely, the time has come for Florida to join ranks with the 48 other states (looking at you, New Hampshire) that require drivers to carry at least minimal bodily injury liability coverage.

Legislature May Be Poised to Eliminate PIP in Favor of Mandatory BI

The elimination of PIP would also mean no $10,000 offset and, perhaps most importantly, no “tort threshold.” Non-economic damages would be available in every case, without proof that your client suffered a “permanent injury within a reasonable degree of medical probability.”

And, without the need for a prolonged course of conservative care to prove up permanency, routine neck/back auto cases should resolve quicker and net your client more money.

by Brent Steinberg

T

he 2018 Regular Legislative Session does not begin until January 9, 2018, but bills have already been filed in the House and Senate that would repeal the Florida Motor Vehicle No-Fault Law and instead require all drivers to carry bodily injury liability coverage.

Representative (and FJA member) Erin Grall has filed HB 19, which is nearly identical to the bill that passed the House by an 89-29 margin in April 2017.

Entitled the “Responsible Roadways Act,” HB 19 requires all owners and operators of private passenger vehicles to maintain proof of financial responsibility for bodily injury liability in the amount of $25,000 per person, $50,000 per occurrence.

Although individuals would still be allowed to “self-insure” as permitted under current law (see Fla. Stat. §324.031), the vast majority would meet their financial responsibility obligations by buying a compliant “motor vehicle liability policy,” with the coverages mandated by statute.

See Fla. Stat. §§324.021(8) and 324.151.

Senator Tom Lee has also filed SB 150, which is substantively identical to the bill he filed last year that ultimately stalled in committee before it could make it to the Senate floor. SB 150 requires bodily injury liability financial responsibility at limits of 20/40, which would then step up to 25/50 in January 2021 and 30/60 in January 2023.

24 | September/October 2017 | www.FloridaJusticeAssociation.org

Eliminating PIP would also, hopefully, eliminate the accusations of fraud, patient brokering and kickback schemes that, even if unproven, serve only to tarnish our profession and our clients in the court of public opinion. See, e.g., Four South Florida lawyers accused in health care kickback scheme, Sun Sentinel (Sept. 14, 2017), http://www.sunsentinel.com/news/crime/fl-reg-lawyers-kickback-arrest-20170914story.html.

No doubt, the overwhelming majority in Tallahassee believe that the 2012 reforms to the No-Fault Law were largely ineffective and that the PIP system is “broken.” Change is coming, and 2018 may very well be the year.

Fifth DCA Attempting to Rewrite Law on Collateral Source Setoffs?

As most practitioners are aware, §768.76 provides that “there shall be no reduction for collateral sources for which a subrogation or reimbursement right exists.” §768.76(1), Fla. Stat.

Until recently, Florida appellate courts uniformly construed the phrase “for which a subrogation or reimbursement right exists” to be referring to whether the right existed at the outset (when the care was provided) rather than post-trial. As the Fifth DCA has explained: The waiver or relinquishment of [subrogation or reimbursement] rights does not destroy their character … [I]t is the existence of such rights, not their exercise, which denies a tortfeasor the statutory right to a collateral source reduction.

Sutton v. Ashcraft, 671 So. 2d 301, 303 (Fla. 5th DCA 1996); see also Centex-Rodgers Const. Co. v. Herrera, 816 So. 2d 1206, 1207 (Fla. 4th

DCA 2002); Bruner v. Caterpillar, Inc., 627 So. 2d 46, 47 (Fla. 1st DCA 1993).

Now, however, the Fifth DCA may have receded from its prior precedent without even recognizing it was doing so.

In Rasinski v. McCoy, So.3d , 42 FLW D1711, 2017 WL 3318712 (Fla. 5th DCA 8-4-2017), the court held that the defendant was entitled to a setoff where it was undisputed that the healthcare provider released its lien and waived it subrogation rights. Citing to only section 768.76(1), and not Sutton or any other case construing that statute, the Rasinski court reasoned that the subrogation right did not “exist,” warranting a setoff.

If the Rasinski opinion becomes final, it would give defendants an unwarranted windfall. The tortfeasor should not reap the benefit of the plaintiff’s successful negotiation with a medical provider to reduce the amount of his or her balance. See Bruner.

Practical considerations also make the Rasinski approach untenable.

For instance: •

What must the “release” and “waiver” say for the right to not “exist” under section 768.76(1)?

•

What if a medical provider which initially wrote off the balance as a bad debt decides to exercise its subrogation rights upon learning that the plaintiff recovered money in a lawsuit? Would the judgment get amended to undo the setoff?

•

Will the court postpone the entry of a final judgment to give medical providers time to evaluate whether they will release their lien and/or waive their subrogation rights?

At the time of writing, plaintiff’s motion for rehearing remains pending, so perhaps the court will revise its opinion to follow its prior Sutton opinion or at least certify conflict with the First and Second DCA’s opinions in Bruner and Centex-Rodgers Construction. Stay tuned.

15-Day Deadline to Join Insurance Carrier to Judgment A motion to join the defendant’s insurance carrier to a judgment under the Non-Joinder Statute, §627.4136(4), Fla. Stat., must be made no later than 15 days after the entry of the judgment. See GEICO Gen. Ins. Co. v. Nocella, So.3d , 42 FLW D1781, 2017 WL 3495338 (Fla. 2d DCA 8-16-2017).

New Rule: Check Your Online Case Dockets Regularly “Excusable neglect” is one of those phrases that can strike fear in even the most hardened trial lawyer, at least when speaking of one’s own conduct.

But no one is perfect. And at one time or another, most of us have experienced the utter terror of realizing you missed a deadline because the tickler was not updated properly, having your computer crash at 11:55 pm on the day of the deadline while you’re trying to upload your filing, and so on.

Rule 1.540(b) provides attorneys with some solace, permitting courts to vacate a default or any final order because of excusable neglect,

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The Florida Justice Association recommends that attorneys who do provide names of non- recourse advance funding companies to clients should provide only names of companies that are in conformity with the guidelines contained in the agreement between the New York Attorney General and certain companies dated Feb. 17, 2005. The Florida Justice Association makes no determination or representation as to whether any particular non-recourse advance funding company is in conformity with Florida Bar rules or opinions, or any other guidelines.

Applications available online or by phone: 305-740-0603 • Toll Free: 866-738-3817 • Email: money@fastfunds4you.com • www.fastfundsforyou.com www.FloridaJusticeAssociation.org | September/October 2017 | 25

TIPSFORAUTOPRACTITIONERS

when demonstrated by sworn testimony. Excusable neglect is found “where inaction results from clerical or secretarial error, reasonable misunderstanding, a system gone awry or any other of the foibles to which human nature is heir.” Somero v. Hendry Gen. Hosp., 467 So. 2d 1103, 1106 (Fla. 4th DCA 1985).

preferred remedy. See Sayler v. Travelers Prop. Cas. Co. of Am., 2017 WL 3316483 (M.D. Fla. Aug. 3, 2017); see also, e.g., Starlight Tower, Inc. v. Lexington Ins. Co., 2016 WL 6821139 (M.D. Fla. Nov. 17, 2016); Beaubrun v. Geico Gen. Ins. Co., 2016 WL 6804626 (S.D. Fla. Nov. 17, 2016).

However, as the First DCA recently reminded us, the boundaries of what is “excusable” are not unlimited.

Combatting Frivolous Motions to Sever a Claim or Party Over the past couple of years, motions to sever a claim or party have become the defense bar’s motion du jour.

In Emerald Coast Utilities Auth. v. Bear Marcus Pointe, LLC, 42 FLW D1753, 2017 WL 3428275 (Fla. 1st DCA Aug. 10, 2017), a law firm’s e-mail spam filter somehow deleted an e-mail from the clerk attaching an adverse final order, which resulted in the law firm failing to timely file a notice of appeal. Because there was evidence that the law firm was aware e-mails could be deleted without notice but failed to implement safeguards to protect against it in an effort to save money, the First DCA affirmed the trial court’s ruling that the law firm failed to demonstrate excusable neglect.

The court also noted that opposing counsel had a protocol where an assigned paralegal would check the online case docket every three weeks to see if the court had taken any action or entered any orders, but that the appellant’s law firm lacked any such procedure. It observed that “the neglect of a law firm’s duty to actively check the court’s electronic docket was not excusable.”

In light of this opinion, it would be wise to assign a paralegal to regularly check online dockets for any court activity, particularly where, as in Emerald Coast, the parties were waiting on the trial court to issue a final order.

Another Juror Secret: What Happens if They Check “Yes” Of course, trial lawyers are free to discuss the verdict form during closing argument and give jurors recommendations on how to fill it out, based on the evidence. Everyone does that.

But, according to a recent Fifth DCA case, you cross the line when you start discussing the legal consequences of checking “yes.”

In Harrison v. Gregory, So.3d , 42 FLW D1523, 2017 WL 2885599 (Fla. 5th DCA 7-7-2017), the Fifth DCA held it was improper for plaintiffs’ counsel to advise the jury that the decedent would recover nothing (under §768.36, Fla. Stat.) if they found that the decedent was greater than 50 percent at fault as a result of being under the influence of cocaine and/or marijuana. The court continued that it could “conceive of no other reason” for making such a statement “other than to deliberately and improperly evoke sympathy and compassion for Decedent’s parents.”

Although the trial court had sustained defense counsel’s objection and given a curative instruction, this was among the cumulative errors warranting reversal.

Abatement > Dismissal for Unripe Bad Faith Claims Another federal trial court has held, applying Florida law, that when the policyholder files an unripe bad faith claim against his or her uninsured motorist carrier, abatement, rather than dismissal, is the 26 | September/October 2017 | www.FloridaJusticeAssociation.org

When responding to such motions, practitioners must recognize the differences between the two types of severance available under the Rules: 1. Rule 1.250(a) permits a claim or party to be severed into a separate lawsuit when a defendant has been “misjoined” with another defendant. See, e.g., Carbonell v. Am. Intern. Pictures, Inc., 313 So. 2d 417, 418 (Fla. 3d DCA 1975) (holding that misjoinder occurs when defendants “who have no common interest in the subject matter of the litigation or connection with each other insofar as the issues in the litigation are concerned join in the same suit”).

2. Rule 1.270(b) permits issues to be severed only for the purposes of trial, but still within the same lawsuit, whenever necessary “in furtherance of convenience or to avoid prejudice.” This is more commonly known as bifurcation.

Unfortunately, the defense bar frequently conflates the two distinct types of severance. As a result, trial judges may be misled into believing they can sever a properly joined party into an entirely separate lawsuit “in furtherance of convenience or to avoid prejudice.”

This tactic is most common when the plaintiff sues a diverse defendant (i.e., the UM carrier) and diversity-defeating defendant (i.e., the Florida driver/tortfeasor) in the same lawsuit. Even though the parties are not “misjoined,” the diverse defendant may move to sever itself into a separate lawsuit, to attempt to escape to the safe harbor of federal court.

See “Federal Court: The Insurer’s Nirvana,” Tips for Auto Practitioners, FJA Journal (March/April 2017).

Although the plaintiff should ultimately be able to get the case remanded from federal court back to state court, the resulting delay can be very costly to the injured claimant and his or her counsel.

Thankfully, a recent case from the Second DCA should help put an end to such abusive litigation conduct.

In Choi v. Auto-Owners Ins. Co., So.3d , 42 FLW D1780, 2017 WL 3495603 (Fla. 2d DCA 8-16-2017), the Second DCA, on certiorari review, held that the trial court departed from the essential requirements of law by severing a claim against the UM carrier from the claim against the tortfeasor for the purposes of trial.

The Second DCA reasoned that because the claims were “inextricably interwoven” and could result in inconsistent verdicts if tried separately, severance under Rule 1.270(b) was improper. The court also noted that the UM carrier was properly joined with the tortfeasor, meaning that a severance under Rule 1.250(a) would have been equally inappropriate.

Habitual Pub Golf Sufficient for Dram Shop Claim For many of us hackers, golf and alcohol go together like peas and carrots. Of course, as a recent Fifth DCA case reminds us all, if you decide to get behind the wheel after a round of pub golf, the consequences can be deadly.

In Gonzalez v. Stoneybrook W. Golf Club, LLC, Inc., So.3d , 42 FLW D1593, 2017 WL 2988826 (Fla. 5th DCA 7-14-2017), the negligent driver had a BAC of .302 at the time of the fatal crash, after playing a round at his local golf club. The decedent’s estate brought a dram shop action against the golf club, contending the golf club had knowledge that the golfer was a habitual drunkard. See §768.125, Fla. Stat.

After the trial court granted summary judgment in the golf club’s favor, the Fifth DCA reversed, finding there was sufficient circumstantial evidence to demonstrate the golf club’s knowledge of the golfer’s alleged addiction where (1) the negligent driver had played golf at the club approximately 70-80 times during the prior three years, (2) it was his normal practice to purchase three double whiskeys from bartenders, and would also often order additional drinks from the cart girl during his round, and (3) he was intoxicated “virtually every time” he played with one of his golfing buddies at the club.

This case reaffirms that “serving an individual a substantial number of drinks on multiple occasions would be circumstantial evidence to be considered by the jury in determining whether the vendor knew that

the person was a habitual drunkard.” See Ellis v. N.G.N. of Tampa, Inc., 586 So.2d 1042, 1048 (Fla. 1991).

Massive Insurer Price-Fixing Scheme Exposed When you have a few minutes to do some pleasure reading, take a gander at Quality Auto Painting Ctr. of Roselle, Inc. v. State Farm Indem.

Co., 2017 WL 3910750 (11th Cir. 9-7-2017).

It is an Eleventh Circuit opinion reversing the dismissal of federal antitrust and state tort claims against a handful of insurance companies – including State Farm and GEICO – for illegal price-fixing and boycotting auto repair shops who refused to charge less than the market rate for repairs.

The depth of the alleged scheme is pretty shocking, even for a bad faith lawyer used to seeing insurance companies implement secret policies that are designed to maximize profits and cheat their customers in the process.

BRENT STEINBERG

Mr. Steinberg is an attorney at Swope, Rodante P.A. in Tampa. He is a proud graduate of the University of Florida and UF College of Law, where he was a member of the Florida Law Review. Mr. Steinberg is an EAGLE member of the FJA, has served as the Chair of the FJA Auto Insurance Committee since 2016, and is a FJA Director at Large for 2017-18. He represents victims of catastrophic personal injury, wrongful death, insurance bad faith, legal malpractice and wrongful coverage denials, handling cases throughout Florida and Georgia at both the trial and appellate levels.

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M

MEDICALMALPRACTICE

EDICAL

ALPRACTICE

F

lorida Supreme Court holds initial tortfeasor who has not paid entire judgment owed to plaintiff may not seek equitable subrogation in plaintiff ’s later suit against subsequent tortfeasors. Holmes Regional Medical Center, Inc. v. Allstate Ins. Co., So.3d , 42 FLW S797, 2017 WL 2981863 (Fla. 7-13-2017), corrected opinion released September 7, 2017. The driver of a scooter was in a collision with an automobile, and suffered head injuries which were allegedly made worse by medical malpractice.

The guardian of the scooter driver’s property first sued the automobile driver and owner, and the owner’s insurance company. In that case, the plaintiff successfully argued that Stuart v. Hertz, 351 So. 2d 703 (Fla. 1977) meant the defendants could not present evidence of any medical malpractice which aggravated the injuries. The jury awarded the plaintiff almost $15 million in damages, which was reduced by 25 percent for comparative negligence. The insurance company paid its policy limit of $1.1 million, and the owner and driver paid nothing.

The plaintiff subsequently filed a medical malpractice case against the health care providers who treated the ward’s injuries from the collision. The driver and insurance company from the automobile case were permitted to intervene, and filed complaints seeking equitable subrogation. The trial court dismissed the complaints with prejudice on the grounds that neither the insurance company nor the driver had paid the plaintiff’s damages in full, but the Fifth District Court of Appeal reversed. The Fifth District held that the equitable subrogation claims should be permitted to go forward on a contingent basis, stating that “the right to equitable subrogation arises when payment has been made or judgment has been entered, so long as the judgment represents the victim’s entire damages.” However, the Fifth District certified the following question to the Florida Supreme Court as one of great public importance: IS A PARTY THAT HAS HAD JUDGMENT ENTERED AGAINST IT ENTITLED TO SEEK EQUITABLE SUBROGATION FROM A SUBSEQUENT TORTFEASOR WHEN THE JUDGMENT HAS NOT BEEN FULLY SATISFIED? The Florida Supreme Court answered the question in the negative, and quashed the Fifth District decision below. The Court agreed with the plaintiff that allowing the insurance company and driver to bring contingent subrogation claims “would overly complicate the 28 | September/October 2017 | www.FloridaJusticeAssociation.org

by Scott R. McMillen & Allison McMillen

litigation and unfairly prejudice [the plaintiff].” Justice Pariente filed a concurring opinion, and Justices Polston and Lawson filed separate written dissents.

Third District holds trial court erred by failing to grant summary judgment for plaintiff on statute of limitations defense. Martin v. Sowers, So.3d , 42 FLW D1887, 2017 WL 3722513 (Fla. 3d DCA 8-30-2017). A patient filed suit in October 2012 against several doctors for a delay in diagnosis of her breast cancer. The defendant radiologist admitted that he had suspected cancer based on a July 2008 mammogram, but argued that the statute of limitations had already run as to him, because the plaintiff first had knowledge of her injury when she experienced breast pain in November of 2008 – even though she did not learn she had cancer until May 2010. The plaintiff moved for summary judgment on the issue, arguing that the injury she was suing for was not the cancer itself, but rather its metastasis into her bones, which she did not become aware of until August of 2010. Therefore, she argued, with the petition for extension of the statute of limitations, and tolling for presuit, her suit against the radiologist was timely. The trial court denied the plaintiff’s motion, as well as her subsequent motion for directed verdict on the issue, and the jury ultimately found for the radiologist. The Third District Court of Appeal reversed, holding that the trial court’s failure to grant summary judgment on the statute of limitations issue “allowed [the radiologist] to inadvertently cloud the issues before the jury by enabling him to consistently argue that [the plaintiff] had knowledge of her injury outside the scope of the statute of limitations and to engage in a closing argument which misled the jury as to the nature of the injury sued for.” Judge Luck filed a written dissent, arguing that the jury was not affected by any errors regarding the statute of limitations, because it found the radiologist had not been negligent, and never considered the statute of limitations defense at all.

Second District holds medical malpractice plaintiff entitled to expert witness fees as part of cost judgment. Santa Lucia v.

Diaz, So.3d , 42 FLW D1868, 2017 WL 3642893 (Fla. 2d DCA 8-25-2017). The plaintiff in a successful medical malpractice case appealed the trial court’s cost judgment, arguing that he should have been awarded expert fees for certain witnesses. The defendant conceded that the plaintiff was entitled to fees for two experts who testified regarding economic losses, to the extent the plaintiff could show the fees were reasonable and necessary, and the Second District Court of Appeal agreed. In regard to three treating physicians who

testified on behalf of the plaintiff, the Second District held that the plaintiff should be awarded expert fees for one, because the doctor had been listed as an expert and provided expert testimony. But the Second District agreed with the trial court that the other two doctors could not be considered experts.

Third District affirms directed verdict for defendant doctor, finding no competent substantial evidence doctor caused patient’s death. Ruiz v. Tenet Hialeah Healthsystem, Inc., So.3d , 42 FLW D1727 (Fla. 3d DCA 8-9-2017). A patient died after undergoing surgery to remove a cancerous tumor from her skull, and the personal representative of her estate sued a number of her doctors as well as the hospital where the surgery had taken place. The evidence showed that one anesthesiologist did all or part of the patient’s pre-operative anesthesia evaluation, after which another anesthesiologist took over and conducted his own complete evaluation. Both doctors signed off on the assessment form and cleared the patient for surgery. The first anesthesiologist admitted that the patient’s pre-operative EKG had been abnormal, and that he had missed seeing laboratory results showing excess protein in the patient’s urine. Neither anesthesiologist mentioned the abnormal EKG or the abnormal laboratory results to the surgeons, and the primary cause of death was exsanguination during or after the surgery. The trial court granted a directed verdict in favor of the first anesthesiologist, and the jury found the second one not liable, but found two neurosurgeons liable for the death. The plaintiff appealed the directed verdict, and the Third District Court of Appeal affirmed, finding that there was “no competent, substantial evidence that [the first anesthesiologist] caused the tragic death.” According to the Third District’s analysis, the plaintiff offered no expert testimony that the anesthesiologist’s evaluation had fallen below the standard of care, or that any breach on his part more likely than not caused the patient’s death. Judge Emas filed a lengthy dissenting opinion, in which he argued that there was sufficient evidence that a jury could have found the anesthesiologist’s negligence was a legal cause of the patient’s death.

SCOTT R. MCMILLEN

Mr. McMillen is the founder of McMillen Law Firm, P.A., with a principal office in Orlando. He is a former member of the Florida Bar Board of Governors, a former FJA Board member, 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 started his career as a hospital defense attorney, but has been exclusively representing medical malpractice victims throughout Florida and Georgia for over 30 years.

ALLISON MCMILLEN

Ms. McMillen is proud to be a second-generation plaintiffs’ attorney, working with her father Scott McMillen to represent victims of medical malpractice. She is a Director at Large on the Board of the FJA and the Treasurer of the Central Florida Trial Lawyers Association. Ms. McMillen is also on the Editorial Board of The Florida Bar Journal and News, and a member of the Order of the Coif, the George C. Young First Central Florida American Inns of Court, and the Central Florida Association for Women Lawyers.

TLEL

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PRODUCTSLIABILITY

WARNING! SPOILER ALERT

by Poorad Razavi and Leslie M. Kroeger

A primary principle of a products liability attorney is to always preserve the product at issue. Having litigated defects ranging from airbags to guardrails to chemical receptacles, I can confidently confirm the cogency of that credo.

The absence of the product provides the defense expanded reign to fabricate alternate failure mode theories to the detriment of your case and client.

S

o what happens when the defendant itself fails to preserve your actual or potential evidence? This brief primer on the law humbly seeks to address this issue.

I. IS THERE A CAUSE OF ACTION FOR FIRST PARTY SPOLIATION? Spoliation of evidence occurs when any document, object, or information that is required for discovery is significantly altered or destroyed. The Florida Supreme Court has ruled that there is no cause of action for first-party spoliation. Martino v. Wal-Mart Stores, Inc., 908 So.2d 342 (Fla. 2005). Instead, the Florida Supreme Court explained that sanctions, including striking of pleadings, under the Rules of Civil Procedure provide enough protection against a first-party defendant who destroys, damages, or misplaces evidence. Jimenez v.

Cmty. Asphalt Corp., 968 So. 2d 668, 671 (Fla. 4th DCA 2007). League of Women Voters of Florida v. Detzner, 172 So. 3d 363, 391 (Fla. 2015).

Generally, in order to establish a claim for spoliation, a plaintiff must prove six elements: 1. Existence of a potential civil action; 2. A legal or contractual duty to preserve evidence which is relevant to the potential civil action; 30 | September/October 2017 | www.FloridaJusticeAssociation.org

3. Destruction of that evidence; 4. Significant impairment in the ability to prove the lawsuit; 5. A causal relationship between the evidence destruction and the inability to prove the lawsuit; and 6. Damages.

Gayer v. Fine Line Const. & Elec., Inc., 970 So. 2d 424, 426 (Fla. 4th DCA 2007).

“A duty to preserve evidence can arise by contract, by statute, or by a properly served discovery request (after a lawsuit has already been filed).” Royal & Sunalliance v. Lauderdale Marine Ctr., 877 So. 2d 843, 845 (Fla. 4th DCA 2004).

Establishing destruction of evidence and its detrimental impact on your client’s ability to prove his or her damages is typically not where the spoliation battles are fought. Instead, the majority of spoliation claims hinge on the establishment of the duty to preserve (# 2) as the primary hurdle to overcome, which brings us to the next discussion.

II. IS THERE A DUTY TO PRESERVE IN ANTICIPATION OF LITIGATION?

a. Florida

Law

i.

Good Law In Hagopian v. Publix Supermarkets, Inc., 788 So.2d 1088 (Fla. 4th DCA 2001), Publix was sued for destroying a bottle that had exploded and injured the plaintiff. The store manager filled out an accident report, collected the bottle fragments, and placed them in storage.

The plaintiff requested a copy of the incident report, but the manager refused. Three months after the accident, plaintiff’s counsel then wrote a letter to Publix notifying the company of his client’s claim, but the attorney did not request that Publix actually save the broken bottle. Several months later, the Publix store closed, and the broken soda bottle was discarded.

The plaintiff sued Coca Cola and Publix for strict liability and premises liability. Coca Cola requested that Publix produce the bottle for inspection, and Publix admitted that it had been discarded. Six years after the accident, the plaintiff also sought to inspect the bottle, and amended the complaint to add a cause of action for spoliation upon learning about the destruction.1 The Fourth District determined that Publix had a duty to preserve the bottle for use in anticipated litigation based on the fact that there was preparation of an incident report coupled with a refusal to give a copy to the plaintiff based on work product grounds. According to the court, these two facts evidenced Publix’s anticipation of litigation, which made preserving the instrumentality of the injury a necessity.

Therefore, the court determined that an adverse party’s duty to preserve evidence is created when that party recognizes that an adverse suit is imminent. Id. See also, Silhan v. Allstate Ins. Co., 236 F. Supp. 2d 1303, 1313 (N.D. Fla. 2002).

It should be noted that the Florida Supreme Court recently found that an adverse inference could be asserted for destruction of evidence “even in the absence of a legal duty.” League of Women Voters of Florida v. Detzner, 172 So.3d 363, 391 (Fla. 2015). [Emphasis supplied].

However, despite not having a “legal duty,” the defendant in League had acknowledged that litigation was “a moral certainty.” Id at 378.

This ruling would therefore seem to correlate with the “imminent” suit notion.

Hagopian and League arguably expand the duty to preserve beyond contractual and statutory obligations. However, they appear to significantly temper that requirement by implicitly requiring notice of upcoming litigation. ii.

Bad Law In St. Mary’s Hospital, Inc. v. Brinson, 685 So.2d 33 (Fla. 4th DCA 1996), the plaintiffs brought a claim against the hospital after their infant suffered cardiac arrest while receiving excessive anesthesia. The claim was rooted in the negligent and/or intentional destruction of evidence after it was discovered that the hospital disassembled the halo thane vaporizer used in the anesthesia machine. The vaporizer allegedly played a significant role in the administration of the anesthesia.

In its subsequent discussion of St. Mary’s, the Fourth District Court of Appeal in Royal & Sunalliance v. Lauderdale Marine Ctr., 877 So.2d 843 (Fla. 4th DCA 2004) stated that the hospital’s duty to preserve evidence in anticipation of litigation had arisen out of a statutory duty.

The Fourth District stated that “neither Hagopian nor Brinson [St. Mary’s] establishes a duty to preserve evidence when litigation is merely anticipated. Accordingly, we find Royal’s argument that there was a common law duty to preserve the evidence in anticipation of litigation to be without merit, and thus, we affirm the trial court’s dismissal of its claim for spoliation of evidence.”2 Royal & Sunalliance v. Lauderdale Marine Ctr., 877 So. 2d 843, 846 (Fla. 4th DCA 2004) [Emphasis supplied].

To add to the confusion, the concurrence in Royal stated that the majority had misconstrued its own Hagopian opinion, resulting in an ensuing misinterpretation by the Silhan court. Without fully dissecting the legal gymnastics conducted in that concurrence, it is sufficient to say that it does not meaningfully alter the general conclusions reached in this primer. However, it could have an impact based on specific facts of a spoliation claim – i.e., if an entity voluntarily offered to protect evidence, it could have unwittingly imposed a duty of preservation upon itself.

It should also be noted that the Third District Court of Appeal also rejected the idea that there is a common law duty to preserve evidence absent formal notice to the alleged spoliator of an intent to file a lawsuit.

Pennsylvania Lumberman’s Mutual Insurance Co. v. Florida Power and Light Company, 724 So.2d 629, 630 (Fla. 3d DCA 1998). Silhan v.

Allstate Ins. Co., 236 F. Supp. 2d 1303, 1312 (N.D. Fla. 2002).

It should be noted that the dissent in the Florida Supreme Court’s earlier Martino decision emphasized that there was not a legally recognized duty for Walmart to maintain the defective shopping cart.

And as a matter of fact, the majority did indeed gloss over the duty element, and instead focused on the fact that Walmart was aware that the specific shopping cart led to an injury. Martino v. Wal-Mart Stores, Inc., 908 So. 2d 342, 348 (Fla. 2005).

Therefore, these cases indicate that mere anticipation of a potential lawsuit is likely insufficient to trigger a duty to preserve evidence in the absence of a contractual or statutory obligation. b. Federal Law “[F]ederal law … makes clear that a litigant ‘is under a duty to preserve what it knows, or reasonably should know, is relevant [to litigation or potential litigation].’ Telectron, Inc. v. Overhead Door Corp., 116 F.R.D. 107, 127 (S.D.Fla.1987) (quoting Wm. T. Thompson Co. v.

General Nutrition Corp., 593 F.Supp. 1443, 1455 (C.D.Calif.1984)).”

St. Cyr v. Flying J Inc., 3:06-CV-13-33TEM, 2007 WL 1716365, at *3 (M.D. Fla. 6-12-07).

However, “[t]here is no federal cause of action for spoliation.” See, e.g., Sterbenz v. Attina, 205 F.Supp.2d 65, 74 (E.D.N.Y.2002). In re Elec.

Mach. Enterprises, Inc., 416 B.R. 801, 872 (Bankr. M.D. Fla. 2009), aff’d in part, 474 B.R. 778 (M.D. Fla. 2012) [Emphasis supplied].

www.FloridaJusticeAssociation.org | September/October 2017 | 31

PRODUCTSLIABILITY

So while a broader duty to preserve may exist under Federal Law, the execution of it is also couched in sanctions and inferences as opposed to an independent cause of action. c. Additional Considerations There is also potentially helpful, albeit distinguishable, authority under the workers’ compensation statute and resultant case law regarding a duty to preserve in anticipation of litigation that may be triggered based on additional factors in a case. See, Florida Statute §440.39. (“[D]uty to cooperate also includes the duty to preserve evidence.”

Shaw v. Cambridge Integrated Services Group, Inc., 888 So. 2d 58, 64 (Fla. 4th DCA 2004)).

III. REMEDIES The Florida Supreme Court ruled that Florida courts may: [I]mpose sanctions, including striking pleadings, against a party that intentionally lost, misplaced, or destroyed evidence, and a jury could infer under such circumstances that the evidence would have contained indications of liability. If the evidence was negligently destroyed, a rebuttable presumption of liability3 may arise … . In other words, as recognized by the Fourth District Court of Appeal, “an adverse inference may arise in any situation where potentially self-damaging evidence is in the possession of a party and that party either loses or destroys the evidence. Golden Yachts, Inc. v. Hall, 920 So.2d 777, 781 (Fla. 4th DCA 2006) (quoting Martino v. Wal–Mart Stores, Inc., 835 So.2d 1251, 1257 (Fla. 4th DCA 2003), approved, 908 So.2d 342); see also Nationwide Lift Trucks, Inc. v. Smith, 832 So.2d 824, 826 (Fla. 4th DCA 2002) (stating that “[c]ases in which evidence has been destroyed, either inadvertently or intentionally, are discovery violations” that may be subject to sanctions).”

League of Women Voters of Florida v. Detzner, 172 So. 3d 363, 391 (Fla. 2015). [Emphasis supplied].

Therefore, depending on the nature of the destruction of the evidence and/or its correlation with a client’s injuries, a court could strike the pleadings or impose an adverse inference/rebuttable presumption against a spoliating defendant.

IV. CONCLUSION Florida case law is not clear regarding the trigger for preservation of evidence in the absence of a contractual or statutory obligation. In instances where the nexus between the product and the harm is more tenuous, the defense will draw a distinction with the more favorable Hagopian case by noting that Hagopian involved a single and discrete piece of evidence that related to a specific person’s injury. Therefore, a much stronger argument would be made for a spoliation claim involving a destroyed product that actually failed and led to injury.

32 | September/October 2017 | www.FloridaJusticeAssociation.org

Otherwise, outside of a contractual or statutory obligation, the case law focuses on having knowledge of “imminent” or “certain” future litigation. An argument, for example, could be made that a massive recall pertaining to guardrail end-rails would be akin to a “moral certainty” to eventually result in litigation, and therefore the company should preserve certain recalled/defective end-terminals as evidence for use in future litigation. However, a court may find that to be far too broad of a standard, as it would require manufacturers to essentially retain every failed recalled product that could conceivably have safety implications.

As is evident, the rulings in the case law are more driven by the facts rather than black letter law. The closer in time to the lawsuit that the product was destroyed, the better the argument will be for the plaintiff’s attorney. Essentially, the argument for spoliation is strengthened as greater notice or knowledge of impending litigation can be imputed onto the defendants. The next time a defendant fails to preserve crucial evidence in violation of its duty, a diligent plaintiff’s attorney can confidently use Florida case law to spoil their fun. __________ 1 Please note that this case came before the 2005 Martino opinion, which precluded first-party spoliation claims, discussed above.

2 Other courts have also declined to expand the doctrine through Brinson. “It appears that the opinion could have been grounded upon a common law duty to preserve evidence due to the foreseeability of future litigation. Since it is questionable as to whether Brinson created a common law duty, this Court will not interpret Brinson so broadly.”

Silhan v. Allstate Ins. Co., 236 F. Supp. 2d 1303, 1312 (N.D. Fla. 2002).

3 Typically referred to as a “Valcin instruction.” See Pub. Health Trust of Dade County v. Valcin, 507 So. 2d 596, 597 (Fla. 1987) POORAD RAZAVI

Mr. Razavi is an attorney at Cohen Milstein, and a member of the firm’s Catastrophic Injury & Wrongful Death, and Unsafe & Defective Products practice areas. Mr. Razavi’s practice focuses on products liability, vehicle defects, roadway design and maintenance defects, vehicle accidents, chemical exposure, and negligent security. He received his J.D. from the University of Cincinnati College of Law. Mr. Razavi is a member of the Palm Beach County Bar Association and the Palm Beach County Justice Association. He has been named a “Rising Star”

by Florida Super Lawyers and a “Legal Elite Up and Comer” by Florida Trend Magazine.

LESLIE M. KROEGER

Ms. Kroeger is a Partner at Cohen Milstein, and a member of the firm’s Catastrophic Injury & Wrongful Death, Managed Care Abuse, and Unsafe & Defective Products practice groups. Ms. Kroeger began her career as an Assistant Public Defender and later became an Assistant State Attorney in Miami-Dade County. She now handles a variety of complex civil litigation matters both in the state of Florida and nationwide. Ms. Kroeger is the Treasurer of FJA and the Past-chair of FJA’s Women’s Caucus. She served on Florida Bar Association’s Professional Ethics Committee, and is Past-president of the Martin County Chapter of the Florida Association for Women Lawyers. She is AV-rated by Martindale-Hubbell and is consistently recognized by Best Lawyers, Florida Super Lawyers, and Florida Trend’s Legal Elite.

Steve Brannock, Celene Humphries & Ceci Berman recognized among the Top 100 lawyers in Florida, and Top 50 lawyers in Tampa Bay. - Florida Super Lawyers, 2017

Steve Brannock, Celene Humphries & Ceci Berman named “Best Lawyers” in Florida for appellate practice; Steve Brannock & Ceci Berman named “Best Lawyers” in Florida for commercial litigation.

–Best Lawyers, 2017

Brannock & Humphries honored as a Metro Tier 1 “Best Law Firm” for appellate practice and commercial litigation.

–U.S. News & World Report, 2017

TOP APPELLATE LAWYERS IN FLORIDA...

Don’t just take our word for it.

Listed as Florida Super Lawyers in Appellate Practice: Steve Brannock, Celene Humphries, Ceci Berman, Tracy Carlin & Sarah Pellenbarg.

–Florida Super Lawyers, 2017

Steve Brannock, Celene Humphries & Ceci Berman ranked among America’s best business lawyers in Florida for appellate litigation.

–Chambers USA, 2017

Maegen Luka, Tom Seider & Joe Eagleton noted as Rising Stars in appellate practice.

–Florida Super Lawyers, 2017

Celene Humphries & Ceci Berman recognized as among the Top 50 women lawyers in Florida.

- Florida Super Lawyers, 2017

Steve Brannock, Celene Humphries & Ceci Berman selected as Florida’s Legal Elite in appellate practice; Steve Brannock & Celene Humphries members of the Hall of Fame.

–Florida Trend, 2017

Tampa Tallahassee 813.223.4300 bhappeals.com

Ceci Berman chosen number one, with Celene Humphries named runner-up, for appellate practice in Tampa Bay. –Tampa Magazine, 2017

RECENT

EVIDENCE

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

P

laintiff’s statement recorded in EMT report is admissible as a party admission. The trial court excluded an EMT report that included the entry: “Husband states he swerved to avoid a mattress in the road and lost control of the car and went off the road,” which was contrary to plaintiff’s position at trial. The Second DCA reversed, finding the EMT report met the hearsay exception for business records and plaintiff’s statement was a party admission.

The court noted that “statements of a party need not speak directly to liability to be admissions” and they are admissible even if the declarant subsequently denies having made the statements—“the admission exception has no trustworthiness component.” Ring Power Corp. v.

Condado-Perez, 219 So. 3d 1028, 1035 (Fla. 2d DCA 2017).

Document created exclusively for the purpose of litigation is not a business record for hearsay purposes. Defendant was accused of shoplifting and a security guard itemized the stolen items at the time of the theft. Shortly before trial the store manager offered an itemized list with a notarized business record certification. Although the information in the list was compiled at or near the time of the incident, the list itself was not. Noting that hearsay exceptions require “strict compliance” with the requirements of the exception, the Fourth DCA reversed the trial court’s admission of the document. It distinguished “computer printout” cases that are now common in foreclosure cases: “[T]he state did not seek to introduce a printout of the information entered by the security guard on the day of the incident. Instead, it offered a list cobbled together by the asset protection manager several days before trial at the state’s request, from the information entered by the security guard on the day of the incident. The list was thus created ‘exclusively for the purpose of the instant prosecution.’” Coates v. State, 217 So. 3d 1048, 1050 (Fla. 4th DCA 2017).

Statement is not hearsay when offered to show “the reaction of the listener.” The court admitted a police-recorded phone conversation between the victim and the defendant. The victim asked defendant why he continued to force himself on her when his friend told defendant “not to do it.” The Fourth DCA affirmed admission of the statement: “The friend’s statement relayed by the victim was not introduced for the truth of the matter but for the reaction of the listener, appellant.

Thus, it was not hearsay.” Hwang v. State, 219 So. 3d 67, 68 (Fla. 4th DCA 2017). Accord Pitts v. State, 2017 WL 3428273 at *2 (Fla. 1st DCA Aug. 10, 2017) (“If a statement is offered to show the effect on the listener rather than the truth of the statement, as was the case in 34 | September/October 2017 | www.FloridaJusticeAssociation.org

by Matt Schultz

this instance, it is not hearsay.”); North v. State, 221 So. 3d 1235 (Fla. 2d DCA 2017) (“[A]n out-of-court statement may be admissible to establish the material effect that statement had on a listener—regardless of whether that statement was true or not—for when a statement is offered to prove what a person thought after the person heard the statement, it is being offered to prove the person’s state of mind and is not hearsay.”) (internal quotation omitted).

Comment: This is different than the state-of-mind exception for hearsay. In these cases the statements were not hearsay, so they required no exception. Proving state of mind went to relevance.

The Fourth DCA explains Florida’s public records exception to the hearsay rule and adoptive admissions. At issue in this Engle (tobacco) case were Surgeon Generals’ reports published in the last 20 years.

Plaintiff sought to admit them under the public records exception. Two types of documents are admissible under this exception, “(1) records setting forth ‘the activities of the office or agency’; and (2) records of a public office or agency which set forth ‘matters observed pursuant to duty imposed by law as to which matters there was a duty to report.’”

To meet the first exception, the documents “must do no more than ‘simply set forth the activities of the government agency.’” Typical examples include “records showing receipts and disbursements … or official reports of a statistical nature.” This exception “encompass[es] only those public records of a factual nature involving the core functions of a government agency, not advocacy reports or compilations and reviews of outside research or contributions [like Surgeon Generals’ reports].” The second exception applies only to records “based upon a public official’s first-hand observation of an event.”

The opinion also discusses adoptive admissions, noting that “[g]enerally, a party’s website content may be considered as its own statement and thus used as evidence against it, but a finding of adoptive approval of a third party’s statement must be decided in light of the circumstances surrounding the statement’s use.... Simply providing a hyperlink on a website to a document or source does not constitute an express manifestation of an adoption or belief in the statements and opinions contained within them.” Philip Morris USA, Inc. v. Pollari, So.3d , 42 FLW D1896, 2017 WL 3730347 at *3 (Fla. 4th DCA 8-30-2017).

Failure to object to notice of intent to rely on business records waives objections at trial. Section 90.803(6)(c), Florida Statutes, requires a party to notify his opponent the party plans to rely on

certification/declaration of business records. Failure to timely object waives “any objection to admission of the evidence.” Sajiun v. Hernandez, So.3d , 42 FLW D1857, 2017 WL 3616391 at *4 (Fla. 4th DCA 8-23-2017).

A mid-trial decision to drop non-economic damages does not reinstate the patient-psychotherapist privilege as to information already disclosed. Plaintiff waived the privilege by seeking noneconomic damages, putting her son’s mental condition at issue.

During trial plaintiff decided to forego those damages and revoke the waiver of the privilege. The Fourth DCA held that one may revoke the waiver of the privilege, “[h]owever, a revocation of a waiver will not reinstate the privilege as to already disclosed information.” Sajiun v. Hernandez, So.3d , 42 FLW D1857, 2017 WL 3616391 at *5 (Fla. 4th DCA 8-23-2017).

Comment: In this case, plaintiff actually took the noneconomic damage claim to the jury despite her announced intention to forego such damages, and the court mentioned this, although it was not part of its holding. Even though the privilege is waived as to information already disclosed, counsel may in the right circumstances have a compelling 403 argument to exclude the evidence although it is no longer privileged, given the sensitive nature of psychotherapistpatient communications. This apparently was not argued, or at least it was not addressed in the opinion.

“There is a difference between authentication and admissibility.” “’Documents must be authenticated before they are admissible evidence .... Even after a document is authenticated, it will not be admitted if another exclusionary rule is applicable. For example, when a document is hearsay, it is inadmissible even if it has been properly authenticated.’”

Friedle v. Bank of New York Mellon, So.3d , 42 FLW D1163, 2017 WL 2264647 at *1-2 (Fla. 4th DCA May 24, 2017) (quoting Ehrhardt, Fla. Evidence § 902.1 (2016 Edition)).

Comment: Extrinsic evidence may be used to authenticate a document; it is a preliminary question of fact for the court. Authenticity is established if there is evidence “that the matter in question is what its proponent claims.”

Warwick Corp. v. Turetsky, 2017 WL 3500336 at *2 (Fla. 4th DCA Aug. 16, 2017).

A 911 caller’s admission she was not “excited” does not control the legal analysis of whether her statements were excited utterances. A 911 caller testified she was not “excited” when she called 911. The Florida Supreme Court found her statement nevertheless met the legal definition of an excited utterance, i.e., a statement (1) regarding an event startling enough to cause nervous excitement; (2) made before there was time to contrive or misrepresent; and (3) while the person was under the stress or excitement caused by the event.” Pasha v. State, So.3d , 42 FLW S569 (Fla. 5-11-2017).

Comment: For a healthy analysis of the “excited utterance” exception, see Beckman v. State, So.3d , 42 FLW D1975 2017 WL 3879292 at *8-10 (Fla. 3d DCA 9-6-2017).

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EVIDENCE A “threefold inquiry” is necessary to determine whether sanctions are appropriate for spoliated evidence. Spoliation includes “the destruction, or significant and meaningful alteration of evidence; or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.” In determining sanctions the court must consider “(1) the willfulness or bad faith, if any, of the party who lost the evidence, (2) the extent of the prejudice suffered by the other party, and (3) what is required to cure the prejudice. Generally speaking, in the absence of willfulness or bad faith, dismissal—the harshest of all sanctions—is appropriate only when the movant presents evidence (e.g., expert testimony) demonstrating that its case is fatally prejudiced by its inability to examine the spoliated evidence.”

Landry v. Charlotte Motor Cars, So.3d , 42 FLW D1963, 2017 WL 3879131 at *3-4 (Fla. 2d DCA 9-6-2017) (internal quotations and citations omitted).

Admission of hearsay is harmless error if the improperly admitted statement is properly introduced to the jury on other grounds during the course of trial. Sexton v. State, 221 So. 3d 547 (Fla. 2017).

Trial judge properly struck affidavit on summary judgment where the affiant failed to attach certified copies of public records alluded to in affidavit. The affidavit itself is hearsay. Wesner v. JMS Marinas, So.3d , 42 FLW D1868, 2017 WL 3642886 at *3 (Fla. 2d DCA Aug 25, 2017.)

Trial court did not err in permitting state to impeach defendant’s only witness with 17-year-old convictions. “The only test for the admissibility of a prior conviction is whether the conviction has any bearing on the witness’s credibility. The remoteness of the conviction will most certainly be a factor in determining whether it bears on the witness’s credibility, but there is no bright-line rule for when a conviction becomes too remote to bear on the witness’s credibility. The determination is within the trial court’s discretion, and a trial court abuses its discretion only when its decision is arbitrary or fanciful. In this case, the witness had four felony convictions, one of which was for a crime of dishonesty. Though the convictions were rather remote in time, this Court is unable to say that the court’s decision to allow them was arbitrary or fanciful.” Nehring v. State, So.3d , 42 FLW D1717, 2017 WL 3361068 (Fla. 1st DCA 8-7-2017) (citations omitted).

Comment: It is disconcerting that the opinion failed to address the circumstances suggesting these remote convictions had some bearing on the witness’s credibility. See, e.g., Children’s Palace, Inc. v. Johnson, 609 So. 2d 755 (Fla. 1st DCA 1992) (reasoning that convictions going back 12 or more years were not so remote as to exclude them where they spanned that entire time frame and “establish a continuing pattern of the same act.”)

A witness who swerved and crashed in avoiding debris from an accident that had just occurred was not “involved in an accident” such that her statements to police would be protected by the accident report privilege. The witness was following a truck that was following a Camaro and three motorcycles that crashed together.

The truck turned off and the witness came upon the accident scene, swerved to avoid it, and crashed into a car that was parked to render aid to the victims (which the court referred to as the “minor accident.”)

36 | September/October 2017 | www.FloridaJusticeAssociation.org

The trial court reasoned that the witness was “involved in an accident,” and her statements were protected by the accident report privilege. The Fourth DCA disagreed: “While it is true that the accidents were, in some fashion, related, the accidents were separate. Neither the minor accident witness nor the vehicle she struck collided with the plaintiffs, their motorcycles, or any of the debris from their accident. Further, the investigating officer who obtained the minor accident witness’s statement indicated in his proffered testimony that he was investigating only the motorcycle accident, not the minor accident witness’s fender bender, and that the fender bender was memorialized in a separate accident report authored by a different officer. Any statements made to the other officer regarding the minor accident witness’s own accident are privileged, but her Fifth Amendment rights were not implicated in her statements to the officer about the motorcycle accident.” Stewart v. Draleaus, 42 FLW D1666, So.3d , 2017 WL 3169272 at * 2-3 (Fla. 4th DCA 7-26-2017).

Evidence that plaintiff was carrying a passenger in violation of the driver’s license law was relevant and admissible. Plaintiff driver had only a temporary motorcycle license and was carrying a passenger in violation of that statute. Both sued defendant for injuries. The court acknowledged that a violation of the driver’s license law is admissible only if relevant and cited case law observing that relevancy concerning traffic regulations “is usually established when the traffic regulation which was violated concerns the manner in which the automobile was operated.” Because “carrying a passenger can change the unique dynamics of a motorcycle, i.e., the manner in which the motorcycle operated,” plaintiff’s violation of the driver’s license law was relevant and should have been admitted.” Stewart v. Draleaus, So.3d , 42 FLW D1666, 2017 WL 3169272 at * 2-3 (Fla. 4th DCA 7-26-2017).

Comment: A clearer factual analysis would have been helpful. The defendant alleged the comparative negligence of the operator, so this evidence might well be relevant, at least as it pertained to the passenger’s injuries (and the court notes that the passenger was aware of this restriction on the license, so it could go to the passenger’s comparative fault as well). Still, without evidence of a causal connection between the presence of the passenger and the accident, one may question the relevancy. After all, Brackin v. Boles, which was quoted at length, held that violation of a traffic statute “is admissible evidence only if it tends to prove that [a] person has negligently operated an automobile.” 452 So. 2d 540, 545 (Fla. 1984) (emphasis added). The Stewart court cites no evidence suggesting the passenger’s presence in any way caused the accident. Perhaps this is why the court ended its opinion with a caution that the evidence must be shown to relate to the relevant issues “and not be used solely to create prejudice in the minds of the jurors.”

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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CIVILPROCEDURE

AVOIDING LEGAL MALPRACTICE

By Pleading Elements Of Actual And Apparent Agency

by Roy D. Wasson Re-Introduction of Concept of “Pleading”

W

e trial lawyers regularly attempt to litigate issues of agency and apparent agency. We are forced to do so when the active tortfeasor is a professional or alleged “independent contractor” of the employer hospital or other entity, as opposed to a W-2 employee. But the litigation of this issue in our lawsuits is often a very small part of the whole case, and we give more thought to establishing violation of the standard of care, ownership of a dangerous instrumentality, and other obstacles to a favorable verdict. This article brings some focus to an important part of litigating agency issues that is largely overlooked.

First we need to remember the procedure by which a trial lawyer informs the court that he or she hopes to ask the jury to decide an issue, such as the issue of whether Dr. Jones is an agent of the hospital where the negligence occurred. Issues like this are raised through the pleadings. That does not mean “pleadings” in the general sense of motions and legal memoranda, but “pleadings” under the definition of Fla. R. Civ. P. 1.100(a). This article is a blast-from-the-past from our days with Professor Kingsfield of Paper Chase in Civil Procedure 101. How many years since you thought about whether and how something so basic as what should be pleaded in a complaint on the subject of an agency claim?

Of course, good pleadings contain facts supporting all the elements of a cause of action: duty, breach, causation, and damages. But before getting to the elements of a cause of action, complaints should plead the relationships between the parties, including who is alleged to be whose agents. That proposition should be understood: no decent trial lawyer would fail to allege the fact that “At all times material, Dr. Jones was acting as the Hospital’s actual or apparent agent.” But that is not enough. You must plead the sub-elements of agency and apparent agency, and separate the two agency claims into different paragraphs of the complaint.

38 | September/October 2017 | www.FloridaJusticeAssociation.org

More and more defense attorneys are moving to dismiss counts asserting apparent agency, with such motions to dismiss based (at least in part) on the ground that the complaint fails to plead the theory of apparent agency or the elements of an apparent agency claim. The complaint must do more than mention the doctrines of “actual” and/or “apparent” agency. Your initial pleading should plead the factual elements of those theories, not merely the legal conclusion that the doctor was the actual or apparent agent of the hospital.

Although research does not quickly reveal any malpractice claims against trial lawyers for failing to properly allege the factual elements of actual and apparent agency, appellate decisions reflect that cases have been lost because of the plaintiff’s failure to properly plead such matters.

Trial lawyers should write themselves something of an insurance policy against such malpractice claims by learning how to plead the existence of an actual and apparent agency, so that it withstands a motion to dismiss and appeal.

Theory of Apparent Agency Must Be Pleaded in Complaint: To begin with, when a defendant moves for summary judgment on your claim that it is responsible for the actions of an active tortfeasor, and presents evidence that the active tortfeasor was not an actual agent, but was an independent contractor, you cannot oppose the summary judgment on the argument that the tortfeasor was an apparent agent, unless you have pleaded that theory separately from pleading actual agency in your complaint. E.g. Fernandez v. Florida National College, Inc., 925 So.2d 1096 at 1101 (Fla. 3d DCA 2006).

In the Fernandez case, the trial court granted summary judgment on the plaintiffs’ claims against the college based on a motor vehicle accident that injured a mother and killed her daughter. The active tortfeasor had been an instructor at the college. The summary judgment was affirmed on appeal, in part because counsel for the plaintiff had failed to plead the theory that the tortfeasor was the college’s apparent agent.

In holding that the plaintiff had waived the right to oppose summary judgment on the apparent agency issue, the court of appeal stated as follows: A review of the Complaint demonstrates that the plaintiffs failed to allege that Mr. Cisneros was FNC’s apparent agent at the time of the accident. We agree with FNC that issues that are not pled in a complaint cannot be considered by the trial court at a summary judgment hearing. Am. Title Ins. Co. v.

Carter, 670 So.2d 1115 (Fla. 5th DCA 1996)(holding that at summary judgment hearing, trial court erred by considering theory not raised in the pleadings); Hemisphere Nat’l Bank v. Goudie, 504 So.2d 785 (Fla. 3d DCA 1987)(holding that “under Florida law a court hearing a case on a motion for a summary judgment can only consider those issues raised by the pleadings”); Reina v. Gingerale Corp., 472 So.2d 530, 531 (Fla. 3d DCA 1985)(“At the summary judgment hearing, the court must only consider those issues made by the pleadings.”). In addition, although FNC’s counsel argued that apparent agency was not pled in the Complaint, the plaintiffs did not at any time move to amend the Complaint. Therefore, we find that apparent agency was waived by the plaintiffs.

Id. at 1101 (emphasis added).

Thus, unless you have good reason to expect that the defendant is going to admit an actual agency relationship with the active tortfeasor, you should always plead the theory that the defendant is liable because the tortfeasor is its apparent agent. Otherwise the theory will be waived.

The better practice is to plead the two theories in separate counts.

Factual Elements of Actual and Apparent Agency Must Be Pleaded It is not enough to allege in a conclusory form that the tortfeasor was the defendant’s “actual or apparent agent.” To plead a claim for apparent agency, “facts supporting [the following] three elements must be alleged: ‘1) a representation by the purported principal; 2) reliance on that representation by a third party; and 3) a change in position by the third party in reliance on the representation.’” Saralegui v. Sacher, Zelman, 19 So.3d 1048, 1051-52 (Fla. 3d DCA 2009) (quoting Ocana v. Ford Motor Co., 992 So.2d 319, 326 (Fla. 3d DCA 2008)).

In order to plead a claim for actual agency, the following elements must be alleged: “(1) acknowledgment by the principal that the agent will act for him, (2) the agent’s acceptance of the undertaking, and (3) control by the principal over the actions of the agent.” Fernandez v. Fla. Nat’l Coll., Inc., 925 So.2d 1096, 1101 (Fla. 3d DCA 2006) (quoting Goldschmidt v. Holman, 571 So.2d 422, 424 n. 5 (Fla. 1990)).

Further, it is not enough to simply plead the legal conclusions that each of those three elements exist. “While ‘apparent agency’ is not a magic phrase or the exclusive incantation necessary to assert the claim, facts supporting all three elements must be alleged: “1) a representation by the purported principal; 2) reliance on that representation by a third party; and 3) a change in position by the third party in reliance on the representation.” Saralegui v. Sacher, Zelman, Van Sant Paul, Belly, Hartman & Wallace, P.A., 19 So.3d 1048, 1051-52 (Fla. 3d DCA 2009)

(quoting Ocana v. Ford Motor Co., 992 So.2d 319, 326 (Fla. 3d DCA 2008))(emphasis added).

On the first element of apparent agency, the “facts supporting . . . a representation by the principal” include things like a uniform being worn by a doctor that bears the name and logo of the hospital, a sign on the side of a tow truck identifying a company that provides roadside assistance, signs and stationery at an insurance agent’s office with the name of the defendant insurer, and so on. Without some badge or other communication provided by the target defendant linking it to the active tortfeasor, apparent agency fails. The key to establishing this element will be to demonstrate that the connection between the active tortfeasor and the target defendant was something conveyed by the target defendant, not something done exclusively by the purported agent to link him or her to the principal. That is because the doctrine of apparent authority “rests upon appearances created by the principal and not the agents who often ingeniously create an appearance of authority by their own acts.” Taco Bell v. Zappone, 324 So.2d 121, 124 (Fla. 2d DCA 1975). So your complaint first must say what the target defendant did or said to identify the person claimed to be an independent contractor as being associated with the principal.

Next your complaint must plead “reliance.” This means that you must allege that the plaintiff saw the “representation[s]” furnished by the target defendant and understood from that (or those) representations the active tortfeasor to be an agent of the employer. A sign on the side of a tow truck reading “American Automobile Association” provided

by AAA to its contracting operators will do you no good if that truck collided with your client before the plaintiff ever saw the sign. But if that towing operator arrived on the scene of a breakdown to tow your client’s car after your client called AAA, and your client understood from that sign (or a uniform) that the driver was AAA’s agent, the second element of apparent agency has been satisfied. But you must plead the facts that establish such reliance.

Finally, your complaint must allege “a change in position” by the plaintiff in reliance on the representation. Examples of such a change in position include things like your client would not have agreed to be treated by a doctor who was not really working for the hospital whose name and logo appeared on the doctor’s scrubs, or would not have permitted his expensive Maserati to be towed by someone really working for “Joe’s Garage” instead of AAA, and so on.

Conclusion Just when you thought you had learned how to try a case and get a good verdict, a defendant’s attorney moves to dismiss or moves for summary judgment alleging that you failed to properly plead a basis for his client’s vicarious liability for the active tortfeasor. Now is the time to look back at your complaints in cases where agency issues are involved, and if you have not succeeded in properly pleading those theories, move to amend or get a stipulation that the issues are properly pleaded.

CIVIL PROCEDURES CASE SUMMARIES Dismissals for Failure to Prosecute Under Fla. R. Civ. P. 1.420(e).

After ten months of record inactivity, court clerks are to send out a www.FloridaJusticeAssociation.org | September/October 2017 | 39

CIVILPROCEDURE

notice requiring record activity within the next sixty days or the case will be dismissed “unless a party shows good cause in writing at least five days before the hearing on the motion why the action should remain pending.” In Lesinski v. South Fla. Water Mgmt. Dist., So.3d , 42 FLW D1950, No. 4D17-40; 2017 Fla. App. LEXIS 12913 (Fla. 4th DCA Sept. 6, 2017), after the plaintiff received the FWOP notice, no record activity occurred during the next sixty days. Thereafter, two days before the hearing the plaintiff’s counsel filed a “‘showing of good cause,’ claiming he had not been prosecuting the case because the defendant never filed an answer to the pending version of the complaint. The plaintiff’s counsel also noted that “his office had failed to calendar the sixty-day and five-day deadlines under Rule 1.420(e).” Id. at **2-3.

At the hearing, the trial court, “without explanation, stated that the case was dismissed,” and the Fourth District affirmed. Id. at *3. The appellate court rejected the argument that the trial court erroneously failed to consider counsel’s showing of good cause filed two days before the hearing, holding that “[u]nder Rule 1.420(e)’s plain meaning, the plaintiff’s counsel’s good cause showing was untimely.” Id. at *6.

Although seeming to recognize that the reasons offered by the plaintiff were potentially meritorious, the court “reason[ed] that allowing the circuit court’s Rule 1.420(e) dismissal order to be vacated under Rule 1.540(b)(1) due to the plaintiff’s counsel’s excusable neglect even if uncontradicted, would eviscerate the application of Rule 1.420(e)’s bright-line deadlines in this case.” Id. at *6 (emphasis added).

Substitution for Deceased Party. Fla. R. Civ. P. 1.260(a)(1) provides the mechanism for substituting deceased parties with their personal representatives and states that “[u]nless the motion for substitution is made within 90 days after the death is suggested upon the record by service of a statement of the fact of the death in the manner provided for service of a motion, the action shall be dismissed as to the deceased party.” In Northrop Grumman Sys. Corp. v. Britt, No. So.3d , 42 FLW D1985, 3D16-2583; 2017 Fla. App. LEXIS 12834 (Fla. 3d DCA 9-6-2017), the Third District affirmed the trial court’s denial of a defendant’s motion to dismiss complaint based on the fact that the motion to substitute party was not filed until nearly six months after the plaintiff died and after his counsel “sent an email and attached letter to the trial judges and parties advising them of Mr. Britt’s death.”

Id. at *7. Noting that “the email correspondence was not filed or recorded, however, in the circuit court docket or in the official records of Miami-Dade County,” and noting that the correspondence was not “‘served’ pursuant to Florida Rule of Judicial Administration 2.516(d),” the Third District held that the defendant’s motion to dismiss was properly denied.

Default Judgment Void. In Emami v. Progressive Brands, Inc., So.3d , 42 FLW D1967, No. 3D16-2227; 2017 Fla. App. LEXIS 12849 (Fla. 3d DCA 9-6-2017), the Third District reversed a default judgment entered in favor of the plaintiff for more than $263,000 even though the default itself was unopposed by counsel representing the defendant. Due to a miscommunication between counsel for the parties, defense counsel (who agreed to the default) had not agreed to the amount of damages being sought, but plaintiff mistakenly submitted a motion for final judgment after default “that also included the word ‘UNOPPOSED’ as the caption’s first word.” Id. at *5. New counsel for the defendant 40 | September/October 2017 | www.FloridaJusticeAssociation.org

filed a motion for relief from that judgment arguing that neither it nor prior counsel had agreed to the entry of the default judgment without a hearing, but that motion was denied. Upon appeal, the Third District held that “final default judgment is void as a matter of law because Emami was not afforded an opportunity to contest damages prior to its entry. Id. at *9.

Pleading Punitive Damages. In Fetlar, LLC, v. Suarez, So.3d , 42 FLW D1988, 3D17-1315; 2017 Fla. App. LEXIS 12830 (Fla. 3d DCA 9-6-2017), the court on certiorari review quashed an order granting leave to amend the plaintiff’s complaint to plead a claim for punitive damages. The Third District held that the order was incorrect because the plaintiff had failed to attach the proposed amended complaint to the motion, rejecting the plaintiff’s argument “that it is permissible to file a motion to amend ‘separately’ when the proposed amendment only adds the punitive damages claims, based on their interpretation of Rule 1.190(f ).” Id. at *2. As additional grounds for quashing the order allowing the amendment, the Third District noted that “Plaintiffs also failed to file and serve one of their deposition transcripts comprising part of their proffer [of evidence supporting the motion to seek punitive damages] at least twenty days before the hearing on the motion to amend, an additional requirement of Rule 1.190(f ).” Id. at *4.

Commingling Multiple Claims Against Multiple Defendants. In Collado v. Baroukh, So.3d , 42 FLW D1916, No. 4D16-2075; 2017 Fla. App. LEXIS 12469 (Fla. 4th DCA 8-30-2017), the Fourth District held that the plaintiff’s complaint was properly dismissed “for cominging separate and distinct claims against multiple defendants and failing to clearly allege how each defendant caused the injury,” among other grounds. Id. at *5. The court held that dismissal was proper because the plaintiff “made blanket references to ‘defendants’ throughout the complaint, specifically under counts two and three for negligence and improper management, respectively. By cominging separate and distinct claims against multiple defendants, the [plaintiff] violated Rule 1.110(f ) for failing to state in a separate count ‘[e]ach claim founded upon a separate transaction or occurrence.’” Id. at **5&6 (emphasis added). However, the Fourth District held that the trial court improperly dismissed the complaint with prejudice, and that leave to amend should have been granted.

We can never avoid all the pitfalls of pleading practice; all we can do: Keep Tryin’!

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, the 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.

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APRIL 13, 2017

WAS A GREAT DAY FOR THE GOOD GUYS: The “Hybrid Expert” Challenge Was Resolved

by Tracy S. Carlin

O

n April 13, 2017, the Supreme Court of Florida issued its opinion in Worley v. Central Florida Young Men’s Christian Assn., Inc., So.3d , 42 FLW S443, 2017 WL 1366126 (Fla. 4-1317), reh’g pending. Worley reversed a line of cases that had been developing primarily out of the Fourth District Court of Appeal which potentially threatened the financial survival of many plaintiffs’ law firms by allowing costly discovery into the alleged bias of a treating physician who would also give expert opinions at trial.

A practical reality of representing personal injury plaintiffs is that we (and our clients) cannot afford to retain expert medical witnesses in every case. A number of reasons exist for this situation. First, because most injury cases involve a relatively small amount of damages, little or no money would be left for the client’s recovery if an expert were hired in every case. Second, the pool of qualified medical experts is a relatively limited resource that is best reserved for the more serious cases, the ones most likely to be hotly contested. Third, the treating physician is the one most familiar with the plaintiff’s injuries and can best determine whether the injuries are permanent and the plaintiff’s future medical needs. Thus, the easy, cost-efficient, and logical course in most cases is to simply rely on the expert medical opinions of the medical professionals who treated the plaintiff.

The Fourth District Court of Appeal coined the phrase “hybrid expert” to describe treating physicians, typically fact witnesses, who would also give expert opinions at trial. See Katzman v. Rediron Fabrication, Inc., 76 So.3d 1060 (Fla. 4th DCA 2011). Ironically, the Fourth District admonished that “[t]rial courts should not allow discovery to become a tactical litigation weapon to harass the witness, the party, or the law firm(s).” Id. at 1065. Prior to Worley, that admonition was being honored in the breach.

Indeed, defense lawyers seized on these decisions to engage in costly discovery into the collateral issue of the treating physician’s alleged bias in virtually every case, even those involving minor injuries or resulting 42 | September/October 2017 | www.FloridaJusticeAssociation.org

in relatively low damages. Defense lawyers asserted that bias could potentially arise if a referral or financial relationship existed between the plaintiff’s lawyer or law firm and the treating physician or his practice.

This bias-related discovery was sometimes directed to the plaintiff, sometimes to the doctors, and later, directly or by implication to the plaintiff’s lawyers or law firms. And, the Fourth District’s decisions allowed the defense to engage in this discovery under ever broadening circumstances. Then, adding some insult to injury, in Worley, the Fifth District Court of Appeal not only permitted extensive, costly discovery into any alleged relationship, but it also required the plaintiff’s law firm to pay the discovery costs upfront with little hope of recovering those costs at the end of the case. Sadly, the issue of the attorney-client privilege was either overlooked or not raised by the parties in most cases. Thus, the privilege appeared to be suffering some erosion as a result of this defense tactic.

Consequently, numerous, significant questions arose from this defense practice: • • • • • •

Does the attorney-client privilege protect information about whether an attorney referred the plaintiff to the treating physician?

Is the possible existence of a “referral” or “financial relationship” between the hybrid expert and the plaintiff ’s law firm discoverable?

Can a plaintiff be required to provide discovery regarding the law firm’s other clients?

Can a hybrid expert be required to answer discovery if the information is not already kept in the ordinary course of business?

What do the courts even mean when they refer to a referral or financial relationship – is one referral enough to open this door?

Does Boecher and Rule 1.280(b)(5) even apply to hybrid experts?

• • •

Should the discovery be allowed even if it will cost more than the amount in controversy related to the disputed medical bills?

Who should pay for this discovery upfront?

How much time should be taken up at trial to conduct a minitrial into the hybrid expert’s alleged bias?

These are all questions the Supreme Court grappled with in Worley, and generally, resolved in favor of plaintiffs and the plaintiffs’ bar.

Now, after Worley (if it survives rehearing, which we suspect it will), it is certain that Boecher and Rule 1.280(b)(5) of the Florida Rules of Civil Procedure, which deal with interrogatories to retained experts, do not apply to discovery into the potential bias of a treating physician who will also provide expert opinions at trial. It is also established that it is permissible to seek discovery from the doctor, practice, or clinic as to whether treatment was provided pursuant to a letter of protection, how their bills are calculated, what their fee structures are, and whether their practice accepts only letters of protection or also accepts payment from the plaintiff’s insurance carrier. In addition, Worley helps establish that creative attempts to increase the cost of discovery and to divert the jury’s attention from the true issues in the trial by protracted questioning about a certain witness’s alleged bias should not be permitted. Rather, there should be a proper balance between the defendant’s right to impeach a witness for bias and the need to focus the case on the true issues involved in the trial – duty, breach, causation, and damages.

Worley does nothing if not remind us that bias is a collateral issue that should not become an expensive sideshow or, worse yet, the focus of the trial or a vehicle through which to cast aspersions on the plaintiff’s lawyers or law firm.

Because Worley is not yet final, plaintiffs’ lawyers may still be receiving Boecher interrogatories and other discovery requests related to any alleged referral or financial relationship between their client or their firm and the treating physicians who may also offer expert opinions at trial.

There are several objections plaintiffs’ lawyers in that position should raise to preserve the issues pending the supreme court’s disposition of the motion for rehearing in Worley.

When the discovery is directed to the plaintiff or the plaintiff’s lawyers or law firm: 1. Object and argue that Boecher and Rule 1.280(b)(5) of the Florida Rules of Civil Procedure dealing with retained experts do not apply to treating physicians who will give expert opinions at trial under Worley. In the cite to Worley, however, you should make it clear that the case is pending on rehearing and is not yet final.

2. Object on attorney-client privilege grounds, unless the client reported on her patient intake form that her lawyer referred her to the doctor. Under those circumstances, the privilege was arguably waived, at least insofar as the referral itself is concerned. You can still object generally to protect the confidential reasons you or your predecessor attorney referred the patient to that particular

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www.FloridaJusticeAssociation.org | September/October 2017 | 43

FJAAPPELLATEPRACTICESECTION

doctor. But, bear in mind, given the client’s arguable waiver, you may be required to disclose some information about the referral of the patient to that doctor.

3. Object and argue that the discovery is burdensome, harassing, and too expensive given the collateral issue involved. Although the Worley decision did not reach the question of who should pay the costs of discovery in this area because it concluded that the discovery the lower courts allowed is impermissible, plaintiffs’ lawyers should continue to argue that any discovery in this area must be fully paid for, up front, by the requesting party. Under no circumstances should the party responding to the discovery or the witness be ordered to pay the costs involved. The argument that the defendant made in Worley was that the plaintiff’s law firm should have to pay the costs – almost $100,000 – because it could recoup those costs at the end of the case. That logic was fundamentally flawed, however, because many of the expenses that would have been incurred were not recoverable costs under the applicable guidelines. Thus, the party who wants to obtain the discovery must pay for it.

4. Object and argue that allowing this discovery will create a chilling effect with respect to both lawyers willing to take cases on a contingency basis and treating physicians willing to treat patients involved in litigation.

5. Finally, object and argue that the trial court should deny any discovery on these issues or hold the discovery matters in abeyance pending a final decision in Worley.

In addition to those objections, these objections should also be made when the discovery is directed to the nonparty law firm only: 1. Object and argue that Rule 1.340 of the Florida Rules of Civil Procedure authorizes interrogatories only to parties and not to non-party law firms.

it overruled Boecher and somehow repealed or revoked Rule 1.280(b) (5), both of which pertain only to retained experts. Of course, Worley did no such thing. But that has not stopped the defense bar from objecting to standard discovery into retained experts and doctors hired to perform compulsory medical examinations. The Worley decision makes it clear, however, that there is a distinct difference between permissible discovery related to treating physicians who gain their knowledge from treating the plaintiff and who will also give some expert opinions at trial and retained experts who garner their knowledge about the case for the expressed purpose of testifying at trial in a specific way. Worley pertains only to the former situation and not to the latter.

Thus, these newly-minted defense objections to standard expert discovery are frivolous and should arguably be met with a motion for sanctions under Section 57.105 of the Florida Statutes.

Alternatively, plaintiffs’ lawyers should file immediate motions to compel in which they should cite to Worley, Boecher, and Rule 1.280(b)(5), as well as the numerous cases addressing the issue of retained-expert discovery. That motion should also point out that, in Florida, “the presumption in favor of stare decisis is strong.” See Brown v. Nagelhout, 84 So. 3d 304, 308 (Fla. 2012) (quoting N. Fla. Women’s Health & Counseling Servs., Inc. v. State, 866 So. 2d 612, 637-38 (Fla. 2003)). And, generally, the court is unwilling to withdraw from prior precedent without a good reason to do so and a solid explanation of the reasons why it is doing so. See, e.g., id.

It is unlikely the Supreme Court would have intended to reverse Boecher or to revoke Rule 1.280(b)(5) without saying so expressly in the Worley opinion – something it clearly did not do. As a result, these creative, but incorrect defense objections should be overruled based not only on the plain meaning of Worley, but also based upon the long-standing precedent set by Boecher and Rule 1.280(b)(5) themselves. This type of discovery pertaining to retained experts is still fair game under Florida law generally and the rules of procedure specifically.

2. Object and argue that Rule 1.280(b)(5) applies only to retained experts who will testify at trial and not to lawyers or law firms who, because of their role in the case, will not testify at trial.

Once Worley is final, however, at least one thing will be certain: The alleged referral or financial relationship between a treating physician who will give some expert opinions at trial and a plaintiff or plaintiff’s lawyer or law firm is simply not discoverable under 3. Object and argue that a nonparty law firm is not required to Florida law thereby significantly reducing the costs associated with produce documents or lists that do not exist or to generate reports the average, smaller personal injury case. Thus, April 13, 2017, was that it does not generate or keep in the ordinary course of business. truly a good day for the good guys.

In the final analysis, Worley was a win for plaintiffs and the plaintiffs’ bar because it ended a defense strategy that was increasing the cost of litigation, reducing the availability of treating physicians willing to treat patients embroiled in litigation, and potentially impacting plaintiff’s firms’ ability and willingness to represent clients on a contingencyfee basis. But, the battles are just beginning it seems; the war is by no means won.

Since Worley, however, defense lawyers have begun to take the untenable position that Worley benefits them because, by implication,

44 | September/October 2017 | www.FloridaJusticeAssociation.org

TRACY S. CARLIN

Ms. Carlin is of counsel with Brannock & Humphries, a firm specializing in appeals and trial support, which has been twice named by Super Lawyers as the best, small litigation firm in Florida. Ms. Carlin is board certified by The Florida Bar in appellate practice and has been since 1997. She has been recognized by numerous “Best Lawyer Lists,” including Florida Super Lawyers, the list of top 50 lawyers in Florida, and Florida Trend’s Legal Elite.

Ms. Carlin’s practice involves appeals of all kinds, trial support, and she has recently been developing special knowledge regarding proposals for settlement.

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PRIORITIZE AND WIN THE PREMISES LIABILITY CASE Arising from Accidental Storefront Crashes

by Ian Kirtman

I

f you represent a client injured when a vehicle crashed into a building or drove errantly onto a sidewalk, the most apparent case to evaluate is against the responsible driver. But with Florida drivers habitually underinsured and statewide storefronts routinely kept unsafe, the most effective way of achieving justice for your client may be through a premises liability case against the commercial property owner or operator.

As trial lawyers, we can add tremendous value to our clients’ storefront crash cases by holding these corporations responsible for the harms they cause. When handling a storefront crash case, focus on proving (1) that the commercial property owner or operator owed your client a duty of care; (2) your client’s accident was foreseeable; and (3) had the defendant installed reasonable protective barriers on the property, the accident would have been prevented.

Approximately sixty times per day in the United States vehicles crash into stores, office buildings, bus stops, shopping centers, post offices, restaurants, and onto storefront sidewalks.1 According to the Storefront Safety Council, each year more than 4,000 people are injured and as many as 500 people are killed as a result of these incidents.2 While the public may not realize how often these crashes occur, building owners, property managers and business operators have recognized this as a major public safety issue. In 2015 and 2016, alone, insurers and businesses paid more than $100 million dollars to storefront crash victims across the country.3 Given the consequences, one may think commercial property owners and operators would recognize the risk posed by storefront crashes and install protective devices. Most do not. Instead, they needlessly endanger their customers and employees even though these incidents are well-known, well-publicized, and predominantly foreseeable.

Proving Foreseeability With Evidence of Prior Storefront Crashes Businesses have a common law duty to protect their customers from foreseeable storefront crashes.4 Well established Florida law holds that when “a defendant’s conduct creates a foreseeable zone of risk, the law generally will recognize a duty placed upon defendant either to lessen the risk or see that sufficient precautions are taken to protect others from the harm that the risk poses.”5 As in any premises liability case, offer evidence of prior similar incidents to establish the owner or operator’s actual or constructive notice to prove foreseeability. This imposes a duty on the defendant to take reasonable steps to protect customers and invitees from future harm.

46 | September/October 2017 | www.FloridaJusticeAssociation.org

Ideally, you can identify prior similar incidents that have occurred on the premises to establish the business’ actual knowledge of the harms posed by storefront crashes. Once aware of the safety issues, businesses have a duty to address or correct the problems. If they fail to do so they can be held liable or partly at-fault for future incidents occurring on their premises.

However, the absence of prior substantially similar storefront crashes occurring on the subject premises is not fatal to your case.6 Constructive knowledge of storefront crashes occurring at other similar locations can be sufficient to establish foreseeability.7 For cases involving defendants operating stores with multiple locations, discover whether storefront crashes occurred previously at any of their other properties. Florida law holds that evidence of prior storefront crashes involving the same chain of stores at different locations elicits a duty of care at other locations, even those with no history of prior accidents.8 In Grissett v. Circle K Corp. of Texas, 593 So. 2d 291 (Fla. 2d DCA 1992), a Circle K convenience store customer was using a storefront payphone when a car accidentally drove from the parking lot onto the sidewalk where the customer was standing and pinned him against the exterior wall of Circle K. The customer sued Circle K alleging that Circle K negligently maintained a dangerous storefront because it was devoid of any protective barriers rendering the payphone area unsafe. Circle K claimed the presence of a curb coupled with the absence of other similar accidents at the subject location satisfied any duty owed to pedestrian invitees.9 The Second DCA overturned the trial court’s entry of summary judgment against the customer, holding that evidence of similar storefront crashes at other Circle K locations sufficiently raised a jury question regarding foreseeability.10 Do not rely solely on the formal discovery process to identify relevant prior incidents. Many major national retailers operate locations that lack proper safety mechanisms and have often been struck multiple times. Start with a simple Google search for news reports. Request police reports and fire department records to uncover other similar incidents not publicized, including ones that merely caused property damage. Search Clerk of Court records for other lawsuits filed against the potential defendant. Utilize the data compiled by the Storefront Safety Council. Then, request information through formal discovery once in suit concerning all similar crashes involving your defendant, and retain an expert who maintains a database of location and business specific incidents. These tactics can help establish the defendant’s actual or constructive knowledge necessary to satisfy the element of foreseeability.

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Dangerous Designs Necessitate Adequate Storefront Safety Barriers Head-in parking spots adjacent to storefronts with regular pedestrian traffic illustrate apparent hazards which property owners and operators know, or should know, pose a significant risk of harm to their customers. These parking spots point vehicles directly at vulnerable pedestrian areas, including entrances and exits, exterior seating areas, and ATM machines. Customers are placed directly in the zone of risk because drivers all too frequently mistake the gas pedal for the brake when parking. In fact, 28 percent of storefront crashes are caused by pedal error.11 Yet, many parking lots continue to be developed with head-in parking spots lacking any kind of safety or landscape barrier.

Florida law recognizes that head-in parking spaces facing storefronts expose customers to foreseeable harm unless adequate protective devices are installed, even in the absence of prior similar incidents on the premises.12 In Springtree Properties, Inc. v. Hammond, 692 So.2d 164 (Fla. 1997), a customer exiting a restaurant was struck by a car when the driver inadvertently stepped on the accelerator while attempting to park in a head-in parking space located directly in front of the restaurant. The customer in Springtree argued the restaurant was not maintained in a reasonably safe condition, in part, because the restaurant owner and operator failed to: 1. Prohibit parking directly in front of the restaurant door; 2. Provide an adequate barrier between the restaurant’s front parking spaces and the front door; 3. Install bollards, also known as vertical bumper posts, in front of the restaurant’s front parking spaces; and, 4. Install wheel stops in the restaurant’s front parking spaces.13 The customer offered expert testimony from a professional engineer that: 1. The front walkway, sidewalk, and parking lot were defectively designed and constructed; 2. Tests demonstrated a similar vehicle could mount the restaurant’s five-inch curb traveling as little as four miles per hour; 3. The failure to install and maintain bollards in the front of the head-in parking spaces was the proximate cause of the customer’s injuries; and, 4. Forty-five commercial establishments located in the area used vertical bumper posts in front of head-in parking spaces.14 Florida’s Supreme Court overturned the trial court’s entry of summary judgment in favor of the restaurant, holding this evidence was sufficient for a reasonable person to determine the restaurant breached its duty to maintain a reasonably safe storefront, and that the breach proximately caused the customer’s injury.15

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The Springtree opinion highlights the fact specific nature of these cases.

It distinguishes those storefront crashes that do not give rise to liability against the business owner or operator.16 The Springtree and Grissett crashes involved cars driving on the defendant’s premises at relatively low speeds, which struck customers in areas outside of the storefront frequently experiencing pedestrian traffic. Florida law holds premises owners and operators liable under these circumstances if they fail to implement reasonable safety measures.

ASTM F3016: Reasonably Safe Barriers Can Prevent Injuries Pervasive inadequate storefront protection led to the development and adoption of American Society for Testing and Materials (ASTM) standards to promote customer safety. ASTM F3016 certifies the effectiveness of any tested barrier in the event of an impact from a 5,000-pound vehicle (the size of a large SUV or pickup truck) at 10, 20, and 30 mile-per-hour speeds.17 A business’ failure to install protective devices conforming with ASTM F3016 can constitute a breach of the standard of care.

The yellow vertical posts you will occasionally see affixed into the ground outside of banks, convenience stores, and other storefront locations are called “bollards.” Designed and sold in assorted colors, shapes and sizes, they are most commonly used to prevent storefront crashes. Determine whether any bollards installed on the subject property conform with ASTM F3016. Offer expert testimony applying ASTM F3016 to establish industry standards regarding the use of protective devices to prove that your client’s crash was preventable if the business implemented reasonable safety measures. In doing so, consider retaining an accident reconstructionist to download the vehicle’s black box data to determine its speed at the time it struck your client. Then illustrate how ASTM tested barriers would have prevented the crash.

Florida Ordinances Impose Storefront Safety Standards In Florida, Miami-Dade County and Orange County responded to this rampant threat of harm by enacting regulations promoting the use of protective devices in parking lots, at retail locations, in pedestrian areas, and places where the public congregates. The relevant MiamiDade County and Orange County ordinances impose specific duties of care on certain landowners and operators. Where a municipal ordinance imposes a specific duty for the protection or benefit of others, businesses neglecting to comply with the ordinance can be held liable for injuries caused when (1) the injury was suffered by a person(s) for whose protection or benefit the ordinance was imposed, (2) the injury suffered was what the ordinance was designed to prevent, and (3) that the injuries were proximately caused by noncompliance with the ordinance.18 Enacted in 2012, Miami-Dade County Ordinance No. 12-47 amended its zoning code to mandate the placement of protective devices to separate head-in parking spaces from storefronts and pedestrian areas. The ordinance requires anti-ram fixtures, or concrete security planters at least 40 inches deep. These devices promote safety by physically separating the vehicle and pedestrian areas to protect store customers from harm posed by head-in parking spaces. Orange County Ordinance 2016-09 requires child care facilities to install protective safety barriers in exposed areas to withstand the impact of a large SUV traveling 30 miles-per-hour.

If your case falls under these relatively narrow circumstances, investigate it thoroughly for noncompliance. This can serve as evidence of negligence in your case and open the door for the use of Florida Standard Jury Instruction 401.9 at trial.19

actionable, but you can help achieve the justice your clients deserve by identifying and successfully litigating ones that are. ___________

Common Defenses The premises owner or operator in your case will likely assert several defenses you should anticipate, including:

2

Unforeseeable and unpreventable crashes: Commercial property owners and operators cannot be held liable for unforeseeable, unpreventable storefront crashes. Florida courts have declined to impose liability against businesses in cases where cars have veered off a public roadway and into a private building, injuring customers inside.20 If the facts of your case align closely with this scenario, you may need to demonstrate that the defendant had actual knowledge of prior similar crashes occurring on the premises in order to prevail on the issue of liability.21 Comparative fault of the driver: Defendants will argue the negligence of the driver caused your client’s injuries. This attempt to escape all or some responsibility is particularly problematic in cases where the driver has limited liability insurance coverage available. If the driver is not a party at the time of trial, the defense will seek to add the driver to the verdict form pursuant to Fabre v. Marin, 623 So.2d 1182 (Fla. 1993). Then, any judgment obtained against the premises owner or operator will be reduced by the percentage of fault assessed against the driver. Use demonstrative aids, including a digital recreation of the crash based on physical evidence, to minimize the role the driver’s negligence played in causing your client’s injuries.

Reasonable safety precautions were present: The defense may claim that their property was reasonably safe because its storefront had wheel stops and/or curbs. They may further argue that it is unreasonable to impose a duty of installing ASTM conforming barriers Both positions are likely without merit. Florida law holds wheel stops and/or curbs alone may not constitute adequate safety barriers.22 Argue that, at a minimum, ASTM conforming bollards should be installed. Have your engineering expert testify (1) that ASTM standards are widely used in the industry; (2) that vendors sell bollards and protective devices, marketing their conformance with ASTM F3016; (3) that bollards are relatively cheap and easy to install; and, (4) bollards are effective devices to prevent the harms posed.

[Ed.: An example of a situation where these defenses were successful is the recent case of The Las Olas Holding Co. v. Denella, So.3d , 42 FLW D1605 (Fla. 4th DCA 7-19-2017), summarized supra at page 15.]

Achieve Justice for Your Client Develop the facts of your client’s case to establish that the crash was foreseeable, preventable and that your client’s injury was caused by the defendant’s failure to implement reasonable safety measures on its premises. Retain credible experts, offer evidence of prior crashes, and apply local regulations and nationally recognized safety standards to successfully hold commercial property owners and operators responsible for your clients’ injuries. Not all storefront crashes are

http://www.storefrontsafety.org (last visited Sep. 21, 2017) Id. 3 Rob Reiter, Storefront Crashes: Vehicle Intrusion Risks Increase, April 5, 2017, at 1, available at http://www.propertycasualty360. com/2017/04/05/storefront-crashes-vehicle-intrusion-risks-increas.

4 Springtree Properties, Inc. v. Hammond, 692 So. 2d 164 (Fla. 1997); Grissett v. Circle K Corp. of Texas, 593 So. 2d 291 (Fla. 2d DCA 1992); Cohen v. Schrider, 533 So. 2d 859 (Fla. 4th DCA 1988).

5 McCain v. Florida Power Corp., 593 So. 2d 500 (Fla. 1992), citing Kaisner v. Kolb, 543 So. 2d 732 (Fla. 1989).

6 Springtree, 692 So. 2d 164; Grissett, 593 So. 2d 291.

7 Springtree, 692 So. 2d at 168.

8 Grissett, 593 So. 2d 291; Cohen, 533 So. 2d 859.

9 Id. 10 Id. 11 http://www.storefrontsafety.org/statistics-by-cause.html (last visited Sep. 21, 2017) 12 Springtree, 692 So. 2d 164 13 Id. at 166.

14 Id. 15 Id. 16 See Schatz v. 7-Eleven, Inc., 128 So.2d 901, 904 (Fla. 1st DCA 1961); Jones v. Dowdy, 443 So.2d 467 (Fla. 2d DCA 1984); Krispy Kreme Doughnut Co. v. Cornett, 312 So.2d 771 (Fla. 1st DCA 1975); Winn-Dixie v. Carn, 473 So.2d 742 (Fla. 4th DCA 1985) (involving a pedestrian injured by a car which left the public roadway in front of the grocery store and struck appellee on the public sidewalk).

17 “Standard Test Method for Surrogate Testing of Vehicle Impact Protective Devices at Low Speeds,” ASTM F3016 / F3016M - 14, in Annual Book of ASTM Standards, vol. 15.08.

18 Hines v. Reichhold Chemicals, Inc., 383 So. 2d 948 (Fla. 1st DCA 1980); Hoskins v. Jackson Grain Co., 63 So. 2d 514 (Fla. 1953); Lewis v. City of Miami, 127 Fla. 426, 173 So. 150 (1937).

19 Fla. Std. Jury Instr. (Civ.) 401.9. (“Violation of this [statute] [ordinance] [regulation] is evidence of negligence. It is not, however, conclusive evidence of negligence. If you find that (defendant or individual(s) claimed to have been negligent) violated this [statute] [ordinance] [regulation], you may consider that fact, together with the other facts and circumstances, in deciding whether such person was negligent.)

20 See cases cited supra note 16.

21 Cohen v. Schrider, 533 So. 2d at 860.

22 See Springtree, 692 So. 2d 164; Grissett, 593 So. 2d 291.

1

IAN KIRTMAN

Mr. Kirtman is an attorney at Gold & Gold, P.A. in Boca Raton, Florida. His practice is focused exclusively on representing victims of catastrophic personal injury and wrongful death resulting from motor vehicle accidents, unsafe premises, medical malpractice, and defective products. He is an Eagle member and currently serves on the FJA’s Young Lawyers Section Board of Directors.

www.FloridaJusticeAssociation.org | September/October 2017 | 49

MEMBEROUTREACH

FJA MEMBERS SUPPORT

HURRICANE RELIEF EFFORTS

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POST-IRMA SUPPLIES FOR SEBRING FJA member Andres N. Oliveros organized a trip to his hometown of Sebring, Florida to deliver water, food, gas, and other supplies to those affected by Hurricane Irma. Joined by FJA member Kristin Norse, Oliveros’ efforts helped more than 200 families in need.

1. Sebring residents collect food to bring back to their families.

2. A volunteer hands out ice from an ice truck.

Photo Credit: Zack Zuroweste

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FJA MEMBERS PROVIDE RELIEF FOR PUERTO RICO Multiple FJA members are helping with the recovery efforts in Puerto Rico following the devastating aftermath of Hurricane Maria.

Dan Newlin and his team of lawyers and staff at Newlin & Partners sent the firm’s corporate jet with loads of baby food, diapers and water. They brought back three desperate citizens in need of medical care.

1. Dan Newlin loads plane with supplies 2. Dan Newlin interviews with reporter before departing Photo Credit: Zack Zuroweste

John Morgan of Morgan & Morgan sent a plane full of medical specialists from Atlanta, Miami, and other parts of Florida to tend to those suffering injuries to Puerto Rico.

Photo Credit: Joanne Vazquez

Donations from the Searcy Denney Scarola Barnhart & Shipley, PA firm underwrote the cost of two Eagles Wings Foundation jets to bring citizens in need of food, shelter and medical care from Puerto Rico.

1

1 - FJA member Jack Scarola comforts a woman who arrived in Florida after escaping the devastation in Puerto Rico. He says, “To see the looks on faces of the folks who have made it here to safety, to know there are others who are going to follow as a consequence of our intervention, that’s a wonderful feeling.”

Photo Credit: Searcy Denney Scarola Barnhart & Shipley, PA firm

www.FloridaJusticeAssociation.org | September/October 2017 | 51

MEMBEROUTREACH

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FJA HONORS JUSTICE JAMES E.C. PERRY FOR EXCELLENCE

WE’RE VERY SOCIAL! Keep in touch and up-to-date with all of our latest news, events and campaigns.

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! @florida_justice twitter.com/floridajustice facebook.com/floridajusticeassociation

The FJA Membership Diversity Enhancement Committee (MDEC) held the 5th annual Diversity & Inclusion Reception to honor Justice James E.C. Perry with the FJA Beyond Excellence Award for his lifetime commitment to furthering diversity, inclusion, and excellence in the legal field. The reception was held at the Masters of Justice at the Ritz Carlton in Sarasota.

The recipient of the FJA Beyond Excellence Award has worked, whether in an individual capacity or with a group, to develop a legal community that includes and values all aspects of diversity. Congratulations, Justice Perry!

1. Reception honoree Justice James Perry delivers an address on his experience as a member of the highest bench in Florida.

2. Thank you to the Platinum+ Reception Sponsors: Mallard Law Firm and the Shapiro Goldman Babboni & Walsh firm. (L-R) Damian Mallard, Justice James Perry, and Bernie Walsh.

3. (L-R) FJA President Dale Swope, FJA Fund Development Coordinator Kristin Broner, Justice James Perry, FJA Membership Diversity Enhancement Committee Chair Vanessa Brice, and FJA Deputy General Counsel GC Murray

EAGLESPOTLIGHT SPONSOR–$3,000

2017-2018 EAGLE RECRUITING CHAMPIONS Since May 10, 2017 Recruiter Name

Recruiting Value

Lake H. Lytal, III $41,250 Dale M. Swope $40,000 Curry G. Pajcic $29,500 Matthew K. Foster $26,000 Richard E. Chait $14,000 Thomas W. Carey $12,000 Hendrik Uiterwyk $10,000 Fermin Lopez $9,500 Hubert R. Brown $9,000 Cassidy Perdue $9,000 H. L. (Larry) Perry $7,000 James W. Gustafson, Jr. $6,500 Vanessa Brice $6,000 Brenda S. Fulmer $5,500 Paul M. Anderson $5,000 James Lawrence Magazine $5,000 Jonathan T. Gilbert $4,500 James W. Guarnieri, Jr. $4,500

# of Recruits 2 1 10 7 6 8 2 4 3 6 3 2 2 1 1 1 3 3

Recruiter Name

Recruiting Value

# of Recruits

Gregory M. Yaffa $3,750 1 Peter Hunt $3,250 1 Laurie J. Briggs $3,000 2 Nathan P. Carter $3,000 1 Sean C. Domnick $3,000 1 Tiffany M. Faddis $3,000 1 Vivian H. Fazio $3,000 1 Christopher Ligori $3,000 1 Todd Jordan Michaels $3,000 1 Ben J. Whitman $3,000 1 David J. Zappitell $3,000 2 Waylon Thompson $2,500 1 Philip A. Gold $1,500 1 Celene Humphries $1,500 1 Jason F. Lamoureux $1,500 1 Skip Pita $1,500 1 Kimberly J. Syfrett $1,500 1 James G. Vickaryous $1,500 1 As of 9/30/17

YOU CAN UPDATE YOUR FJA MEMBER PROFILE ONLINE • Has your contact or practice information changed recently? Update your online

profile to ensure you can be easily located when someone searches the public directory looking for an attorney.

•Updates are easy. Simply log in to your account and make changes including adding

or updating your profile photo!

Contact The Member Services Department For More Information

EAGLESPOTLIGHT

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

BENEFACTOR – $10,000

Laurie J. Briggs Upgraded

by Brenda S. Fulmer

PATRON – $5,000

Brent Bradley Upgraded

Scott D. Sheftall Recruited by Curry G. Pajcic

Brian O. Sutter Upgraded by Richard E. Chait

SPONSOR – $3,000 Jay Cooper Recruited by Christopher Ligori

ASSOCIATE –$1,500 Dario Diaz Recruited by Jason F. Lamoureux

Carter Scott Upgraded by James W. Gustafson, Jr.

Jordan A. Dulcie Recruited by Laurie J. Briggs

David P. Vitale, Jr. Recruited by Brenda S. Fulmer

54 | September/October 2017 | www.FloridaJusticeAssociation.org

Boris L. Zhadanovskiy Recruited by Laurie J. Briggs

SOARING–Yr1 Bryan R. Greenberg Recruited by Richard E. Chait

Drew L. Kapneck Recruited by David J. Zappitell

Corbin Scott Sutter Recruited by Richard E. Chait

Fay O. Pappas Recruited by Jonathan T. Gilbert

BFE LEGACY–$40,000

Upgraded by Lake H. Lytal, III

BFE SPONSOR – $3,000

Recruited by Ben J. Whitman

www.FloridaJusticeAssociation.org | September/October 2017 | 55

CLE

FLORIDAJUSTICEASSOCIATION

WORKHORSE SEMINAR • MARCH 20-23, 2018 • ORLANDO Featuring Dr. Bennet Omalu

First Doctor to Diagnose Chronic Brain Damage in NFL Athletes In 2002, Dr. Omalu made a career breakthrough when he became the first doctor to discover and identify chronic brain damage as a major factor in the deaths of some professional athletes. He called the disease Chronic Traumatic Encephalopathy (CTE), which he first discovered as the result of an autopsy he performed on Mike Webster—one of the best Centers in NFL history.

Keynote MARCH 23

SAVE THE DATE FJA CLE Department 850.521.1097

For More Info Go Online Floridajusticeassociation.org

2018 SEMINAR HIGHLIGHTS: • Expert Witness Challenge Session • Traumatic Brain Injury – Featuring Randy Scarlett of San Francisco, Mariusz Ziejewski, Ph.D. of North Dakota • FJA Annual Medical School for Lawyers (featuring Orthopedics, Physician Life-care Planning, Chiropractic Medicine, Pathology, Neuroradiology, and Neurosurgery) • LOPs, Billings, Defending Depositions of Physician Billing Managers, Lien Resolution, MSAs, Protecting the Treating Physicians • Essential Hot Topics including Negligent Security, and Damages in Personal Injury and Wrongful Death Cases Regarding Children with Autism or Other Physical/Mental Challenges

Index Arbitration nursing homes, substantive as well as procedural unconscionability required, post-admission signing of agreement does not necessarily render agreement unenforceable…16 partiality of arbitrator, arbitrator’s knowledge of facts creating conflict required as a basis for vacatur…18 Attorneys fees, absence of evidence in the record detailing the work actually completed required remand for determination as to amount…22 fees, lodestar calculation, reduction for results obtained…20 fees, reasonable hourly rate, judge improperly reduced rate based on personal opinion of what attorneys with two years of experience should charge…22 Auto Repair Shops, illegal price fixing and boycotting certain shops by insurers...27 Auto legislation, 2018 legislature may repeal PIP in favor of mandatory BI...24 UM, error to sever claim against UM carrier from claim against tortfeasor...26 Closing Argument, error to discuss legal consequences of finding decedent was under the influence, improper appeal to sympathy ...26 Collateral Sources, defendant entitled to setoff where healthcare provider released lien and waived subrogation rights...25 Complaint pleading actual and apparent agency, practice tips...38 pleading, commingling separate and distinct claims against multiple defendants...40 Contempt, direct criminal, basis for each charge must be distinct, one continuous episode does not support multiple convictions…16 Damages loss of earning capacity, establishment requires reasonable certainty and a “monetary standard”…18 punitive, failure to attach proposed amended complaint to motion for leave to plead a claim for punitive damages...40 Deceased Party, substitution, dismissal for failure to substitute was error where notice of death had not been properly served...40 Discovery, confidential medical information, patient’s authorization and notice required…16 Dismissal, failure to prosecute, untimely showing of good cause did not prevent dismissal...40 Dram Shop, golfer who caused fatal auto accident after leaving golf club, evidence of regular heavy drinking while playing golf at club precluded summary judgment for club…16, 27 Equitable Subrogation, requirements for...28 Evidence accident report privilege, not applicable to witness who swerved and crashed in avoiding debris from accident that had just occurred...36 admission by a party, plaintiff’s statement to EMT...34

Evidence (Continued) business record, document created exclusively for purpose of litigation does not qualify...34 business records, failure to object to lack of notice waives objection to admission...35 discover, alleged bias of “hybrid experts” addressed by Supreme Court...42 documents, difference between authentication and admissibility...35 excited utterance, utterer’s statement that she was not “excited” does not control admissibility...35 hearsay, admission is harmless when improperly admitted statement is properly introduced on other grounds...36 hearsay, statement offered to show the reaction of the listener is admissible...34 impeachment of witness’ credibility by prior conviction, remoteness in time is a factor but not controlling...36 lay opinion testimony, testimony regarding speed of motorcycle by persons who did not see accident based on sound of engine admissible…20 patient-psychotherapist privilege, revocation of waiver of privilege does not reinstate privilege as to information already disclosed....5 product liability, Surgeon General Reports on cigarettes and nicotine addiction are inadmissible hearsay...34 spoliation, imposition of sanctions requires “threefold inquiry”...36 summary judgment affidavit, attachment of certified copies of public records alluded to in affidavit required...36 violation of driver’s license law, carrying passenger in violation of motorcycle law was relevant and admissible...36 Executive Director, Paul Jess, Hurricane Irma, FJA ready to defend consumers...8 Filing Deadlines, excusable neglect, failure to notice adverse judgment in spam folder not excusable...26 FJA President Dale Swope, announces new Executive Director...5 Immunity litigation privilege, not applicable to process server’s actions that were unnecessary to effectuate service…20 “Stand Your Ground”, applicability to law enforcement officer incident to arrest…22 Insurance, bad faith, abatement rather than dismissal is preferred remedy for unripe bad faith claim...26 Joinder, joining defendant’s carrier to judgment, deadline is 15 days after judgment entered...25 Judges, disqualification, the mere fact of being a Facebook “friend,” without more, does not automatically disqualify a judge…20 Judgment default, void where party who agreed to default was not given opportunity to contest the damages prior to entry...40 equitable subrogation, claim not available until judgment paid in full…16 prejudgment interest, trial courts have discretion to reduce based on equitable considerations…18 Legislature, 2017-18 committee meeting and Session dates...18 www.FloridaJusticeAssociation.org | September/October 2017 | 57

INDEX Medical Malpractice aggravation of original injury...28 causation...29 nature of injury...28 statute of limitations, calculation...28 Premises Liability hotel pool cabana’s fatal collapse caused by collision from drunk driver’s car, hotel owed no duty to its invitees to protect from this unforeseeable event…18 incident report, report of injury is subject to work product privilege even if employee completing same did not personally foresee the potential legal claim…22 storefront vehicle crashes, discussion and practice tips...46 Product Liability tobacco, Surgeon General Reports on cigarettes and nicotine

addiction are inadmissible hearsay…22 spoliation, discussion and practice tips...30 Public Records, agency must be given sufficient time to redact exempt information, agency invoices must be paid prior to production…16 Rules, amendments, amendments to Appellate Rules, Rule of Judicial Admin. and Probate Rules…16 Sovereign Immunity, tribal, tribal actions in one lawsuit which open itself up to litigation do not constitute a clear waiver of tribal immunity in a subsequent case relating to the same subject matter…18 Special Focus: Founders’ Awards winners...12 Statute of Limitations, prisoner suits, four-year statute is applicable to suits against private entities providing correctional services…20

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58 | September/October 2017 | www.FloridaJusticeAssociation.org

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I AM EAGLE

When the question 'Who will defend the defenseless?' is asked, Florida Justice Association EAGLE members say, 'WE WILL!' Leslie Kroeger, Cohen Milstein

FJA EAGLE members support the delivery of member benefits and allow the FJA to provide value that far exceeds the annual dues paid. By supporting our legislative advocacy and political programs, your EAGLE commitment provides the tools and resources necessary

to defend civil justice at the Capitol and promote lasting and meaningful reforms to protect injured victims, to preserve the safety of Florida’s consumers, and to ensure the continued success of your practices for years to come.

MAKE AN EAGLE PLEDGE TODAY! For more information on EAGLE benefits, pledge levels, or to download the pledge form go online to the FJA website, navigate to the About FJA tab and then click on EAGLE. FloridaJusticeAssociation.org

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