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Florida Law Weekly Update

February 9, 2010

Maguire v. Pool Doctor of the Palm Beaches and Hector Jaime Alvarez

4th DCA Case No. 4D09-3509
 
Plaintiff’s sought certiorari review of circuit court order allowing the defense to discover a video and transcript of a compulsory medical exam (“CME”).  Plaintiff’s objected that the video and transcript they requested of the CME were counsel’s protected work product.  Citing McGarrah v. Bayfront Medical Center, Inc., 889 So.2d 923 (Fla. 2d DCA2004), which held that because the videotape was prepared pursuant to the instructions of plaintiff’s counsel and not as an objective recording of the CME, it falls under the category of materials prepared in anticipation of litigation or for trial, the 4th DCA quashed the circuit court order compelling discovery of the video and transcript of plaintiff’s CME.
 
Demelus v. King Motor Company of Ft. Lauderdale

4th DCA Case No. 4D08-3946
 
Action against automobile dealership by Plaintiff who was injured in auto accident involving vehicle which was stolen from dealership property by a juvenile gang.  The trial court granted summary judgment for dealership.  Plaintiff’s appealed.  The 4th District Court of Appeals held that while the dealerships security practices were deficient, the deficiency does not constitute an affirmative act.  The dealerships security practices are better understood as an omission or a failure to act, rather than as an affirmative act, or commission (“Acts of commission…historically generate a broader umbrella of tort liability than acts of omission”).  Because the risk of being injured in an auto accident already existed when the Plaintiff chose to travel on the public roads, the fact that the dealership kept its cars secured on its premises makes the Plaintiffs’ risk of injury no worse.  Because the dealership kept kept its cars secured, it did not create a risk of third-party criminal conduct. For the dealership to have created a risk of third-party criminal conduct, it would have had to affirmatively make its vehicles available to the thieves.  Moreover, because the dealership had not experienced similar thefts in the past, the vehicle theft at issue in this appeal was unforeseeable as a matter of law.  The trial court’s granting of summary judgment is affirmed.  

February 3, 2010

As you are aware, §627.428, Florida Statutes provides that if an insured sues his or her insurer in order to seek coverage, and succeeds, the insured automatically is entitled to attorney’s fees.  With that being said, however, please note that there have been some recent changes in this law.  Accordingly, please allow the following to represent a summary of these recent changes.

In the case of Grider-Garcia v. State Farm, 14 So.3d 1120 (Fla. 5th DCA 2009), the Fifth District held that §627.428, does not authorize an award of appellate attorney’s fees in a certiorari proceeding to an insured who does not succeed in the application for certiorari.  Further, the Third District reached a similar ruling in United Auto Insurance v. Perez, 990 So.2d 607 (Fla. 3d DCA 2008).

In the case of Pawtucket Mutual Insurance v. Manganeloi, 3 So.3d 421 (Fla. 4th DCA 2009), the Fourth District affirmed an award of attorney’s fees to an insured under §627.428 – concluding that the insured, who prevailed in a declaratory judgment action concerning the location of arbitration of the insured’s claim for UM benefits, was entitled to §627.428 attorney’s fees.  According to the Fourth District Court, even though the insured did not deny the availability of UM coverage, it did force the insured to engage in unnecessary litigation to pursue his claim via arbitration. 

Moreover, in the State of Goff v. State Farm, 999 So.2d 689 (Fla. 2d DCA 2008), the Second District reversed a summary judgment in favor of an insurer regarding the issue of attorney’s fees pursuant to §627.428.  According to the Second District, the insured was entitled to attorney’s fees pursuant to §627.428 even though the insurer voluntarily paid the lost prior to an entry of judgment in favor of the insured.  Finally, in the case of Amerus Life Insurance v. Lait, 2 So.3d 203 (Fla. 2009), the Florida Supreme Court made an interesting decision as to when a party can file a Motion for Attorney’s Fees and Costs.  Pursuant to Florida Rules of Civil Procedure 1.525, the prevailing party must move for attorney’s fees within 30 days of the entry of a judgment.  According to the Florida Supreme Court, however, the 30-day time requirement under Florida Rules of Civil Procedure 1.525 does not apply once the trial court has determined entitlement to attorney’s fees and costs, but reserves jurisdiction to determine the amount.

January 25, 2010
Gonzalez v. Claywell – 1st DCA Case No. 1D09-1421

Defendant Gonzalez appealed a final judgment on a jury verdict in favor of the plaintiff.  The defendant contended the trial court should have granted his motion for summary judgment on the defense of accord and satisfaction, because the parties had entered into a binding settlement agreement.  In this case, the plaintiff offered to release only the driver and co-owners of the vehicle involved in the accident, and made it clear that her offer was a “unilateral offer” that could be accepted by “complete performance”.  The liability insurer responded to the unilateral offer by tendering a check for the agreement amount but sent along a proposed release form releasing itself as well as the driver and owner of the vehicle.  The plaintiff returned the check and unsigned release form to the insurer, explaining that the proposed release deviated from the terms of her offer.  
 
The 1st DCA opined that the plaintiff’s offer was specific.  She agreed to release “only the driver and the co-owners of the vehicle he was driving” and she made it clear that this was a unilateral offer that could be accepted by “complete performance.”  The liability insurers proposal to add itself to the release was a counteroffer, not an acceptance of the original offer.  Because the plaintiff immediately rejected the counteroffer by sending the check back and declining to sign the proposed release, there was no agreement.  Therefore, the trial court properly denied the defendant’s motion for summary judgment.  
 
January 18, 2010
This update is to serve to inform you of some recent changes in Florida law. Specifically, the Third District Court of Appeal held in the case of Mercury Insurance Company vs. Fonseca, 3So.3d 415 (Fla. 3d DCA 2009), that the Trial Court erred when it found correspondence between plaintiff counsel and the defendant's insurer was insufficient to form a settlement. The demand letter from plaintiff counsel constituted an offer to settle, and the insurer validly accepted the offer by tendering the bodily injury policy limits. The fact that the insurer's response requested the execution of release did not transform the insurer's acceptance into a counter-offer. Obviously this ruling is favorable to insurance companies.

Please be assured that we will continue to keep you informed of further changes in Florida law when they occur and welcome any thoughts of questions you may have regarding this or any other matter.

October 23, 2009
This week, I will update you on some additional cross examination material regarding Robert C. Nucci, M.D. For those of you who have deposed or been involved with Dr. Nucci in the past he has been quite vulnerable regarding his exclusive use of letters of protection. Recently, he has testified that he really doesn’t use letters of protection that much, doesn’t know anything about his marketing, advertising, etc.  A link is provided below for your review a copy of Dr. Nucci’s advertisement in the Hillsborough County Bar Association CLE Monthly where he advises lawyers that he now “Gladly welcomes patients with letters of protection.” This certainly will be great material for cases involving Dr. Nucci.

In the interim should you have any questions, please do not hesitate to give me a call.

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July 27, 2009
Please let the following serve as updates on Florida law which may be applicable to various insurance situations:

• Sunshine State Insurance Company v. Davide – the 3rd District Court of Appeal in this decision determined that an insurer did not have to pay pre-judgment interest on a hurricane claim following the appraisal decision by the umpire;
• Monzo v. Nicholetti – the 3rd District Court of Appeal determined that the court erred in dismissing a complaint for failure to state a cause of action without giving the Plaintiff’s notice and opportunity to respond to a Motion as the Plaintiffs were incarcerated;
• Hungerman v. Nationwide – The 2nd District Court of Appeal determined that Nationwide, as a UM carrier, has the right to ask it’s insured to submit to an examination under oath and to provide medical records at the examination under oath;

We would ask that you continue to utilize our website for updates, and please let me know if you have any questions regarding these case or should you need any information on a seminar, please do not hesitate to give us a call.

June 29, 2009
Please let the following serve as the most recent update on the status of the law in the State of Florida. The updates this week are as follows:

• In Central Florida Lumber Unlimited, Inc. v. Doug Ross Construction, the Second District Court of Appeal determined that Worker’s Compensation immunity applied to a contractor even though it was unlicensed;
• In Advantage General Insurance v. Kiln-KBUE International, d/b/a Lloyd’s Underwriter’s, the Fourth District Court of Appeal determined that Florida Statute §626.903, which prohibits suits by unauthorized insurers did not apply, as it purchased re-insurance from the Defendants, Certain Underwriter’s at Lloyd’s London;
• In Straub v. Reedy, the Fourth District Court of Appeal determined that a case was properly dismissed as false light invasion of privacy is not a cause of action in the State of Florida;
• The Third District Court of Appeal in Casa Investment v. Nestor determined that a court erred in granting an oral motion for Summary Judgment as Motions for Summary Judgment are required to be served at least 20 days before the time fixed for hearing.

June 22, 2009
The following update is short, but important in the realm of bad faith.

• In Westbend Mutual Insurance Company v. Higgins, the Fifth District Court of Appeal granted a mild victory to the insurers in the State of Florida, determining that an attorney’s communications are sacrosanct and that the attorney client privilege precludes discovery of those communications. The Fifth District however sawed off a narrow exception by allowing for the discovery of a bill for legal services, but allowed the redaction of the substantive privileged communications.

June 15, 2009
Please let the following serve as a short update regarding the changes in Florida Law this week. The representative cases are as follows:

• United Automobile Insurance Company v. Marn, 3d DCA March 4, 2009: In this matter, the Third District Court of Appeal determined where policy provides separate coverage for bodily injury and property damage, the insurer is not collaterally estopped from contesting bodily injury coverage because of the fact they paid property damage liability claim;
• Leavins v. Crystal, The First District Court of Appeal determined that a claim for punitive damage must be stricken where the plaintiff failed to follow the proper procedural requirements in amending the complaint and seeking the court’s permission prior to filing the complaint for punitive damages.