Elderly woman being assisted to stand up and use a walker.

Does a Patient’s Fall at a Medical Facility Constitute Medical Malpractice, or Ordinary Negligence? Small Factual Distinctions Make a Big Difference

Under Florida law, the mere fact that a negligent act occurred in a medical setting does not make it medical negligence. The distinction is important, because vastly different laws and procedures apply to each class of claim. Most importantly, a condition precedent to bringing a medical negligence claim is compliance with the presuit screening and notice requirements set forth in section 766.106(2), Florida Statutes.

The Second and Fourth DCAs recently grappled with this issue, and reached opposite conclusions based upon the specific facts of each case.

In McManus v. Gamez (Fla. 2d DCA Aug. 7, 2019), a patient fell off a table during a visit for a neurological examination. At the time of the fall, the treating doctor and a staff member had left the patient alone on an examination table without sides. The trial court held that the claim sounded in medical negligence, and dismissed the patient’s lawsuit for failure to follow the presuit requirements.

The Second DCA reversed. The court began by noting that “medical negligence” is statutorily defined as “a claim, arising out of the rendering of, or the failure to render, medical care or services.” To determine whether a claim sounds in medical negligence, a court must consider whether the action arose out of medical diagnosis, treatment, or care; and whether such “diagnosis, treatment, or care” was rendered by a health care provider.

The Second DCA held that the patient’s claim was for ordinary negligence, because the patient’s treatment had been completed, and no health care providers were in the room assisting the patient off the table at the time of the incident. The Second DCA distinguished other cases deeming falls from hospital beds medical negligence, because those cases involved patients admitted into a hospital receiving active medical care.

However, the Fourth DCA reached the opposite conclusion in North Broward Hospital District v. Slusher (Fla. 4th DCA Aug. 21, 2019). In that case, a patient admitted to the hospital was classified as a fall risk. A nurse attempted to transfer the patient from a bed to use the bathroom. However, the nurse answered her phone while attempting the transfer, causing the patient to fall.

The hospital moved to dismiss the plaintiff’s complaint for failure to comply with the medical negligence presuit notice requirements. The patient successfully opposed the motion to dismiss, arguing that his allegations sounded in general negligence. The patient argued that the nurse’s actions did not involve professional skill or judgment.

The Fourth DCA granted the hospital’s petition for certiorari. The Fourth DCA held that the case sounded in medical negligence, because liability will be determined by analyzing the standard of care that applies to transferring “fall risk” patients from hospital beds.

Judge Taylor dissented, arguing that the routine task of assisting a patient out of bed is not an act directly related to medical care or services requiring the use of professional judgment or skill.

These cases illustrate that the distinction between ordinary negligence and medical negligence, especially in the context of patient falls, is vary narrow, and will depend greatly on the specific facts of each case.

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Amount In Controversy Limits for Florida County Courts Set To Increase

Under a new law passed by the legislature earlier this year, the amount in controversy threshold between county court and circuit court cases will raise to $30,000 on January 1, 2020. The threshold will raise again to $50,000 in January of 2023.

However, until January 2023, the District Courts of Appeal will retain jurisdiction over any appeals where the amount in controversy exceeds $15,000, regardless of whether the case originated in the county or circuit courts.

The Florida Bar News reports that preparations for the new jurisdictional amounts are already underway throughout Florida’s judicial system. Before the new law was passed, a working group analyzing the issue estimated that an increase of the amount in controversy threshold to $25,000 would result in 7,831 cases per year being filed in county court, rather than circuit court. The working group concluded that the change in caseload would be absorbable within existing court resources.

According to the Bar News, a major concern with the new law is that many county court judges hearing civil cases are assigned to courtrooms without jury facilities. Furthermore, the new law may ultimately require a rebalancing of circuit and county judge positions throughout Florida’s trial courts due to changes in case allocation. Also beginning in 2023, the circuit court appellate panels will likely see a significant increase in their caseloads.

The new law also requires the Office of State Courts Administrator to submit a report in February 2021 making recommendations regarding the adjustment of county court jurisdictional limits. A proposed new rule will update the civil cover sheet form, requiring parties to state the amount of the claim. The new civil cover sheet will make it possible to track the effect of raising the civil jurisdiction limit.

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Jury Selection: Odd Facts Lead to Rare Case Where Cause Challenge to a Juror Is Preserved Without a Final Objection to the Jury Panel and Without a Request for Additional Peremptory Challenges

In Sanchez v. GEICO Indem. Co. (Fla. 1st DCA July 22, 2019), an unusual series of events caused a juror to be improperly included on a panel. The First DCA affirmed the trial court’s granting of a new trial, despite the fact that the party opposing the juror did not make a final objection to the panel before the jury was sworn, and did not request an additional peremptory challenge to use against the juror.

In this uninsured motorist case, potential jurors number 13 and 17 both had the last name “Johnson.”

During voir dire, juror number 13 answered several questions by indicating that he would be biased in favor of the plaintiff and against the insurance company. He stated that he was dissatisfied with the result of his own previous insurance claim, and that his girlfriend had a current claim against Geico.

Conversely, the other Johnson, juror number 17, answered questions indicating a bias in favor of Geico.

Plaintiff’s counsel successfully challenged juror number 17 for cause. However, Geico’s counsel did not seek to have juror 13 removed for cause. During the peremptory strike phase, Geico used all of its peremptory strikes on other jurors. This resulted in juror 13, the anti-Geico Johnson, being selected for the panel. Both sides agreed to the jury. However, the judge did not put the jury under oath at that time, but first called a lunch recess.

Over lunch, Geico’s counsel realized that he had failed to move to strike juror 13 for cause, due to mixing up the two Johnsons. Plaintiff’s counsel objected, and the trial court announced that juror 13 would only be stricken if it was clear that the juror should be stricken for cause.

Juror 13 was brought in for additional questioning, and maintained that although he would do his best to be fair, he would be inclined to find for the plaintiff if the evidence equally favored the plaintiff and defendant.

The judge denied Geico’s strike for cause, over defense counsel’s continued objections that the juror had repeatedly expressed bias against Geico. Geico’s renewed motion to strike juror 13 on the second day of trial was never ruled upon.

The jury returned a verdict for Plaintiff, awarding her $2.5 million in damages. The trial court granted Geico’s motion for new trial, conceding that juror 13 should have been struck for cause because there was reasonable doubt as to his impartiality. The trial court further stated that it accepted defense counsel’s failure to move to strike juror 13 was caused by to mistake, due to the existence of two jurors Johnson seated on the same row.

In a divided opinion, the First DCA affirmed the trial court’s order granting a new trial. The opinion agreed that the juror expressed bias against the defendant, and that the juror was not rehabilitated by subsequent questioning.

The opinion also held that the objection to juror 13 was properly preserved, despite defense counsel not renewing his objection before the jury was sworn, and despite not moving for an additional peremptory challenge to exercise on juror 13. Nonetheless, defense counsel made a clear argument that juror 13 should be stricken for cause immediately before the jury was sworn, thus putting the trial court on notice that he was dissatisfied with the panel. Moreover, the trial court had previously announced that it would not strike juror 13 unless it was clear that he should be stricken for cause. Thus, for the purposes of appellate preservation, any defense motion for an additional peremptory challenge would have been futile.

In a dissent, Judge Bilbrey wrote that he would have reversed the order granting a new trial because defense counsel did not request an additional peremptory challenge. Judge Bilbrey noted that long-standing Florida precedent requires a party to exhaust its peremptory challenges, and have a motion for additional peremptory challenges be denied, in order to preserve the question of an improper denial of a challenge for cause for appellate review. Judge Bilbrey further observed that it is speculative to assume that the trial court would not have granted an additional peremptory challenge.

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Construction Law: Because Attic Ladder is an Improvement To Real Property, Statute of Repose Applies

In Harrell v. The Ryland Group (Fla. 1st DCA Aug. 13, 2019), a homeowner was injured when an attic ladder collapsed underneath him. The homeowner sued the builder, alleging that the builder was negligent in its installation of the ladder.

The builder moved for summary judgment, arguing that the homeowner’s claim was barred by the statute of repose. The statute of repose, codified at Section 95.11(3)(c), Florida Statutes, requires an action founded on the construction of an improvement to real property to be brought within 10 years of the date the owner takes possession of the property (or certain other events not relevant here).

The trial court granted summary judgment, finding that the installation of the ladder was an improvement to real property as defined in the statute of repose. The trial court also found that the statute of repose applied because the accident happened more than ten years after the original owners took possession of the home.

The First DCA affirmed the trial court’s summary judgment order. The legislative intent of the statute of repose is to protect engineers, architects, and contractors from stale claims. Thus, the statute applies if the homeowner’s suit was founded on the “construction of an improvement to real property.”

Because the Legislature did not define “construction” or “improvement” in the statute, the First DCA referred to Black’s Law Dictionary to determine the ordinary meaning of the words. The current edition of Black’s defines “construction” as “the act of building by combining or arranging parts or elements,” and defines “improvement” as “an addition to property, [usually] real estate, wether permanent or not; [especially] one that increases its value or utility or that enhances its appearance.”

A prior Florida Supreme Court opinion, relying on the 1972 edition of Black’s Law Dictionary, defined “improvement” as “a valuable addition made to property (usually real estate) or an amelioration in its condition, amounting to more than mere repairs or replacement of waste, costing labor or capital, and intended to enhance its value, beauty or utility or to adapt it for new or further purposes.”

The First DCA held that an attic ladder meets meets both definitions of an “improvement.” The ladder was an affixed addition to real property, and provided added utility. Under the older definition, the ladder is an addition to the property, cost labor and capital to install, and enhanced the value and utility of the property. Furthermore, nothing in the statute or dictionary definitions requires an addition to significantly increase the value or utility of the property to be deemed an improvement. Thus, the statute of repose applied to the homeowner’s claim.

Because it was undisputed that the original owners took possession of the property more than ten years before the subject incident, the claim was properly barred under the statute of repose.

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Nominal Proposals For Settlement Are Enforceable If Good Faith Basis Exists For Concluding That Exposure Is Minimal

In Miccosukee Tribe of Indians of Florida v. Lewis Tein, P.L. (Fla. 3d DCA August 14, 2019), a nominal proposal for settlement was upheld because the party making the proposal had a good-faith basis for concluding that its exposure was minimal.

The underlying case involved a convoluted saga between the Miccosukee Tribe and its former lawyers, described in detail in a prior opinion from the Third DCA. During the pendency of the previous appeal, the tribe served proposals for settlement in the total amount of $7,500 on the former lawyers, which were not accepted. The prior appellate opinion held that the claims alleged in the lawsuit were barred by tribal sovereign immunity, and reversed the trial court order denying the tribe’s motion to dismiss.

On remand, the trial court dismissed the action, but denied the tribe’s motion for attorney’s fees. The trial court ruled that the proposals for settlement were filed in bad faith because they were nominal.

The Third DCA reversed the trial court. It held that a nominal proposal for settlement is not made in bad faith if the party making the proposal has a reasonable basis to conclude that its exposure is nominal or minimal. Thus, proof of bad faith requires a showing beyond the mere amount of the offer. Rather, a determination that a proposal was made in bad faith requires an inquiry into the circumstances shown by the entire record of the case.

In this case, the Miccosukee Tribe had a “well-founded, good faith, and legally correct” basis to conclude that sovereign immunity barred the Plaintiff’s claim. Thus, its nominal proposals for settlement were enforceable. Therefore, the trial court abused its discretion in ordering that the proposals were unenforceable.

Note: this post was updated on August 19, 2019 at 1:25 p.m. to reflect minor changes to the opinion issued by the Third DCA pursuant to its recent granting of a motion for rehearing.

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Juror Conducting Internet Research Causes New Trial

In State v. Needelman (Fla. 5th DCA 2019) a juror violated the trial court’s explicit instructions by conducted extensive independent research online during a two week criminal trial.

After the jury returned a guilty verdict against the defendant, a juror approached defense counsel in the parking lot, suggesting that there had been improper behavior by another juror. Juror interviews revealed that one of the jurors, a paralegal at a local law firm, repeatedly engaged in online legal research, and shared the results with some of the other jurors. The juror also improperly shared her work-related knowledge with the jury regarding the court’s procedures before imposing a sentence upon the defendant.

The 5th DCA affirmed the trial court’s ruling that the juror’s misconduct could have affected deliberations, thus requiring a new trial. Moreover, a new trial was required on all counts, even though the misconduct only clearly tainted some of the counts. The tainted charges, although alleged as separate counts, were intertwined with the overall allegations. Moreover, it would have been impermissible to question jurors as to whether they actually relied on the information from outside the record.

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Appellate Court to Trial Judges: Don’t Try to Be Funny

In Cannon v. State (Fla. 1st DCA July 9, 2019), a trial judge made a poor attempt at humor by making a flippant comment about about a criminal defense attorney. A previous opinion reveals that there is much bad blood between that attorney and the judge: the attorney previously brought a post conviction case arguing that, before taking the bench, the judge had provided ineffective assistance of counsel to a different defendant. The First DCA held that the defendant was not entitled to postconviction relief, as the comment was made in jest, and denial of relief was otherwise justified by the thorough record.

Nonetheless, the First DCA noted that the case “highlights why judges should avoid attempts at humor while on the bench, even if it is intended for the laudable purpose of reducing unnecessary tension in the courtroom.” The judge’s offhand comments spawned years of postconviction litigation and multiple appeals in at least two cases, which could have been avoided if the judge had exercised self-restraint. The First DCA concluded that “judicial humor is rarely as funny as the judge thinks it is, and judicial humor is never funny when it is at the expense of an attorney or a party.”

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Even With Clear Video Evidence, Summary Judgment Not Available If Video Contradicted By Witness Testimony

In Lopez v. Wilsonart (Fla. 5th DCA Jul 12, 2019), the Fifth DCA held that a trial court erred by granting summary judgment based upon video evidence. A question of fact existed because an eyewitness’s testimony differed from the video, even though the video completely contradicted an eyewitness’s testimony about the facts of the incident.

In this wrongful death action, the driver of a pickup truck died after rear-ending a freightliner truck. A front-facing dashboard camera clearly showed that the freightliner was traveling straight in its lane. As the frieghtliner came to a gradual stop at a red light, the camera shows that the freightliner experienced a large impact, forcing it to veer to the left. The frieghtliner driver moved for summary judgment based upon the video and his consistent testimony about the events of the crash.

Despite the clear video evidence, the estate of the pickup truck driver opposed the summary judgment motion with the deposition testimony of an independent eye witness. The witness testified that he saw the freightliner suddenly swerve to the left before the collision. The estate’s expert, relying primarily on this witness account, testified that the truck was partially in another lane before the collision.

The trial court granted summary judgment. In granting summary judgment, the trial court concluded that the video evidence blatantly contradicted the eyewitness testimony and the expert opinion.

However, the Fifth DCA reversed, holding that the trial court improperly weighed the evidence by ruling that the video completely negated the eyewitness testimony and expert opinion. Under long-standing Florida precedent, summary judgment is not available if there is any possible dispute of fact, no matter how minimal. Although the appellate court recognized that the video was compelling and directly contradictory to the estate’s evidence, summary judgment encroached into the jury’s exclusive responsibility to weigh evidence and determine credibility.

The opinion rejected the United States Supreme Court’s analysis in Scott v. Harris, 550 U.S. 372 (2007), which held that summary judgment is available if video evidence so blatantly contradicts eyewitness testimony that no reasonable jury could believe it. The opinion distinguished the Supreme Court’s logic due to the significant differences between the Federal and Florida summary judgment standards.

The opinion also rejected the analysis of the Florida Supreme Court in Wiggins v. Florida Department of Highway Safety and Motor Vehicles, 209 So. 3d 1165 (Fla. 2017), in which a circuit court conducting appellate review of a driver’s license suspension hearing did not err in rejecting a police officer’s testimony where real-time video evidence “totally contradicted and refuted” the officer’s testimony. Again, the opinion distinguished Wiggins because it analyzed a standard of appellate review, rather than Florida’s strict summary judgment standard.

Interestingly, the opinion did not cite to Brookie v. Winn-Dixie Stores, Inc., 213 So. 3d 1129 (Fla. 1st DCA 2017), which affirmed summary judgment based on video evidence that “conclusively refuted” the plaintiff’s testimony describing the facts of the incident.

Nonetheless, the Fifth certified a question of great importance to the Florida Supreme Court, seeking clarity on whether an exception to Florida’s strict summary judgment standard should be carved out where video evidence clearly negates or refutes the evidence in opposition.

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Florida Appellate Opinions – June 2019

Scott J Edwards, P.A. provides monthly case updates on Florida appellate court decisions, with a focus on cases relevant to civil litigation matters.

Expert Witness Opinion Testimony In re Amendments to the Florida Evidence Code (Fla. May 23, 2019) In a sua sponte ruling, the Florida Supreme Court revisited the court’s prior decisions reaffirming that the Frye standard applied to the evaluation of the admissibility of expert witness opinion testimony. A majority of the court, invoking its inherent rulemaking authority, has now ruled that the Daubert standard applies in Florida, effective immediately.

Insurance Appraisals State Farm Florida Ins. Co. v. Sheppard (Fla. 1st DCA Apr. 29, 2019) If an insurer admits that there are at least some covered damages, the insurer’s partial denial of a claim is an “amount of loss” question subject to appraisal. However, if an insurer completely denies coverage, causation of the loss is a coverage question for the court. Thus, in this case, the insurer’s motion to compel appraisal should have been granted because it agreed that part of the loss was covered under the policy.

Proposals for SettlementSuarez v. Citizens Prop. Ins. Co. (Fla. 3d DCA May 8, 2019) In a first party insurance action, an insurer’s proposal for settlement was valid despite the insured including a declaratory judgment count in its complaint. The Third DCA held that the trial court correctly determined that the “real issue” in the case was a claim for breach of contract and money damages. However, the fee award recovered by the insurer due to its successful proposal for settlement could not exceed the amount actually incurred by the insurance company.

Findings of Fact, Motion to Intervene Troncoso v. Larrain (Fla. 3d DCA May 8, 2019) An order on a motion to intervene requires a trial court to make findings of facts on numerous factors. Thus, a trial court committed reversible error by denying a motion to intervene without holding a hearing, and without making any findings of facts in its order.

Sanctions and Dismissal Almazan v. Estate of Aguilera-Valdez (Fla. 4th DCA May 8, 2019) Because a voluntary dismissal of an action removes the trial court’s jurisdiction, the trial court did not have the authority to impose sanctions on its own initiative after a voluntary dismissal was filed.

Expert Discovery, Part I: Discovery of Relationship Between Plaintiff’s Attorney and Treating Physician Bellezza v. Menendez (Fla. 4th DCA May 8, 2019) A trial court erred by allowing evidence of a plaintiff law firm’s relationship with the plaintiff’s treating physician. Although this information was discoverable at the time discovery was allowed, a subsequent Florida Supreme Court opinion held that such information was protected by the attorney-client privilege. The trial court nonetheless allowed the evidence to be admitted at trial over the plaintiff’s objection, concluding that “the horse had left the barn.” Because this information is privileged, a party is forbidden from discovering it, as well as using it as evidence. The trial court further erred by compelling the plaintiff’s lawyer to testify at trial about the firm’s relationship with the treating physicians.

Expert Discovery, Part II: Discovery of Relationship Between Defendant’s Attorney and Medical Expert Salber v. Frye (Fla. 5th DCA May 10, 2019). In contrast to the previous case, a plaintiff is still allowed discovery under current law regarding the relationships between a defense lawyer, an insurance company, and defense experts. However, the Fifth DCA noted its concern that the law on this question is not being applied in an even-handed matter as to all litigants. Thus, the Fifth DCA certified as a question of great public importance whether defense law firms or insurance companies should be compelled to disclose financial relationships with retained experts.

Expert Discovery, Part III: The Supreme Court Steps In Younkin v. Blackwelder (Fla. May 21, 2019) The Florida Supreme Court has accepted jurisdiction in this case, which will evaluate the issues raised in the cases above.

Personal Jurisdiction, Tort Committed in Florida Kaminsky v. Hecht (Fla. 4th DCA May 8, 2019) The beneficiaries of a trust sued the trustee in Florida, alleging various breaches of fiduciary duty. However, there was no personal jurisdiction in Florida because the trust was administered only in New York and New Jersey, and there were no allegations of acts or misconduct in Florida. Mere injury in Florida resulting from a tort committed elsewhere does not create personal jurisdiction.

Reopening Evidence, Dissolution of Marriage Manko v. Manko (Fla. 5th DCA May 10, 2019) In a nonjury trial, a party may seek to reopen the evidence by filing a timely motion for rehearing. The trial court has the discretion to reopen the evidence if the presentation of the evidence will not unfairly prejudice the opposing party, and if reopening the evidence will serve the best interests of justice. Thus, in this dissolution of marriage case, the trial court abused its discretion by denying the former husband’s request to reopen the judgment to submit evidence that he could not obtain life insurance due to a medical condition.

Construction, Statute of Repose Manney v. MBV Engineering, Inc. (Fla. 5th DCA May 10, 2019) The purchaser of a newly-constructed home hired an engineering firm to inspect for structural defects. Thirteen years later, the purchaser sued the firm for negligently performing the inspection. The trial court granted the firm’s motion for judgment on the pleadings, ruling that Florida’s statute of repose barred the claim. Under the statute of repose, a claim founded on the design, planning, or construction of an improvement to real property must be brought within 10 years of the owner taking possession. The Fifth DCA reversed: because firm was alleged to have performed a negligent inspection of a completed structure, its work did not arise out of the design, planning, or construction of the home.

Punitive Damages Tallahassee Memorial Healthcare, Inc. v. Dukes (Fla. 1st DCA May 16, 2019) In order to bring a punitive damages claim against a corporate entity based on an employee’s conduct, a plaintiff must show that the officers, directors, or managers of the company knowingly condoned, ratified, or consented to the conduct. Thus, the conduct of low-level supervisory employees does not expose a company to a punitive damages claim unless corporate management knowingly condoned, ratified, or consented to the conduct. In this case, an emergency room “director” was a low-level supervisor, not corporate management. Thus, allegations that the director made defamatory comments could not expose the company to a punitive damages claim.

Settlement, Prevailing Party Attorney’s Fees Valencia Golf and Country Club Homeowner’s Ass’n v. Community Resource Services, Inc. (Fla. 2d DCA May 22, 2019) If a party voluntarily dismisses a complaint due to settlement, neither party is the “prevailing party” for the purposes of an attorney’s fee award.

Waiver of Arbitration SHP Harbour Island, LLC v. Boylan (Fla. 5th DCA May 24, 2019) Engaging in discovery on the merits of an action is inconsistent with an arbitration request, and thus waives the right to compel arbitration.

About Scott J. Edwards, Esq.

EDWARDS-SMALL_002511

Scott J. Edwards is an appellate and civil litigation attorney in Boca Raton, Florida, with a practice focused on personal injury, commercial litigation, insurance law, and jurisdictional issues.  He can be reached at scott@scottjedwards.com or 561-609-0760.

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Florida Appellate Updates – May 2019

Scott J Edwards, P.A. provides monthly case updates on Florida appellate court decisions, with a focus on cases relevant to civil litigation matters. This month, we begin with a review of changes at the Florida Supreme Court following the appointment of three new justices in January 2019. Then, our Case of the Week examines a trial court’s jurisdiction following the denial of a motion for rehearing. Next, the case law update includes new decisions on summary judgment evidence, limitations on the accident report “privilege,” orders striking a proposal for settlement, and more. Finally, our “Only in Florida” case examines one of the many unusual cases that arise here in the Sunshine State.

Florida Supreme Court Update

A new era is underway at the Florida Supreme Court. In January, three longtime justices left the court due to the mandatory retirement requirements of the Florida Constitution. Newly-elected Governor Ron DeSantis quickly appointed three successor justices. Due to this extensive change in the court’s composition, the Florida Supreme Court did not issue any substantive opinions for nearly three months.

The court issued its first substantive opinions since the appointments of the new justices in April. Most significantly, the new court revisited two opinions issued before the January retirements of the three prior justices. In Glass v. Nationstar Mortgage, LLC the court recalled the mandate and dismissed the petition for lack of jurisdiction. In doing so, the court withdrew a 4-3 previous opinion on prevailing party attorney’s fees that had found in favor of the petitioner.

Likewise in Orange County v. Singh, the court had originally issued a 4-3 decision upholding a county’s ability to require nonpartisan elections for state constitutional officers. The new court recalled the mandate, and issued a new opinion holding that state election law preempts a county’s ability to require nonpartisan elections for state constitutional officers.

Also notable is the court’s decision in Jackson v. DeSantis, where the unanimous court denied on the merits a petition for a writ of quo warranto by a superintendent of schools suspended by the governor for incompetence. A concurring opinion by newly-appointed Justice Lagoa engaged in a detailed textual analysis of the relevant constitutional provision. Justice Lagoa’s opinion signals that the current court may be more likely to rely upon textualism in reaching its orders.

Case of the Week: A trial court lacks jurisdiction to consider a motion for reconsideration of a final order denying rehearing

Florida Organic Aquaculture, LLC v. Advent Enviro. Systems, LLC (Fla. 5th DCA Apr. 5, 2019):

There are several key distinctions between motions for rehearing and motions for reconsideration, which have significant impacts on the jurisdiction of both trial and appellate courts. A motion for reconsideration is directed only to non-final orders, and may be filed at any time. Importantly, a motion for reconsideration does not toll the time for an appeal. A motion for rehearing is directed only to final orders, and the filing of a timely and authorized motion for rehearing does toll the time period for an appeal until after the court rules on the motion.

In Florida Organic, the trial court denied a plaintiff’s post-trial motion for attorney’s fees. The plaintiff filed a timely motion for rehearing and to stay the case, pending the Florida Supreme Court’s review of another case that would resolve a district conflict dispositive of the denied attorney’s fee motion. The trial court granted the stay. After the Supreme Court decided the conflict case, the trial court issued an order denying the motion for rehearing. The plaintiff then filed a motion for reconsideration of the order denying rehearing, which the trial court ultimately granted several months later.

The Fifth DCA reversed, holding that the trial court lacked jurisdiction to consider the motion for reconsideration once it denied the original motion for rehearing. The order denying the motion for rehearing was a final order that divested the trial court to proceed further on the motion. Trial courts do not have jurisdiction to consider a second motion for rehearing. Likewise, the motion was not a proper motion for reconsideration, as reconsideration is only available for non-final orders. Thus, the plaintiff’s only remedy to challenge the denial of its motion for rehearing would have been to file a timely notice of appeal, which it failed to do.

Other Notable Decisions

Accident Report PrivilegeAnderson v. Mitchell (Fla. 2d DCA Apr. 5, 2019): Florida’s accident report “privilege” prevents the admission at trial of statements made by a motorist for the purpose of creating a crash report. However, the Second DCA held that the “privilege” is a rule of admissibility, rather than a true privilege protecting disclosure of the statements. Therefore, accident report statements are subject to discovery. The appellate court noted that although the statute was substantially amended in 1989 to eliminate language granting a privilege to accident report statements, Florida courts have nonetheless continued to incorrectly refer to the rule as if it were a true privilege.

Insurance Claim File DiscoveryJiminez v. Granada Ins. Co.(Fla. 3d DCA Apr. 10, 2019) – A claim file is an insurer’s work product. However, the privilege belongs to the insurer only. Thus, an insured lacks standing to raise a work product objection if the insurer does not object to discovery of the claim file.

Insurer’s Duty to Defend, Summary Judgment EvidenceAdvanced Systems, Inc. v. Gotham Ins. Co. (Fla. 3d DCA Apr. 17, 2019) In this case, an insurer improperly refused to defend its insured for a lawsuit arising from a covered loss, claiming that an exclusion for pollutants excluded coverage. The underlying complaint against the insured did not mention any pollutants; rather, the insurer claimed that the substance causing the loss was a pollutant based on a document downloaded from the internet.

An insurer’s duty to defend its insured is separate and distinct from its duty to indemnify, and is determined only by the allegations contained in a complaint filed by a third party against an insured. A narrow exception to this rule allows an insurer to rely on evidence external to the third party’s complaint if the evidence is uncontroverted or manifestly obvious. Thus, it was improper for the insurer to rely upon external evidence to refuse the defense because it was hotly disputed whether the loss was caused by a “pollutant.”

Moreover, because summary judgment evidence must be in the form of evidence that would be admissible at trial, it was error for the trial court to rely upon the unauthenticated document from the internet in granting its summary judgment motion.

Summary Judgment Evidence, Part 2Edelman v. Citizens Prop. Ins. Co. (Fla. 4th DCA Apr. 24, 2019) Summary judgment for an insurer was reversed because the summary judgment evidence was not properly authenticated under Florida Rule of Civil Procedure 1.510(c).

Third Party Duty to Preserve EvidenceShamrock-Shamrock, Inc. v. Remark (Fla. 5th DCA Apr. 26, 2019) A third party who is not a party to a law suit does not have a duty to preserve evidence merely based on the knowledge or foreseeability of litigation.

Order Striking a Proposal for SettlementFlorida Peninsula Ins. Co. v. Deporter (Fla. 4th DCA Apr. 10, 2019) – An order striking a party’s proposal for settlement before trial is a non-final order, and cannot be immediately appealed. Likewise, the striking of a proposal for settlement does not justify certiorari jurisdiction, because such an order does not create irreparable harm that cannot be cured on a final appeal.

Proposals for Settlement in Maritime CasesMarco Marine Const., Inc. v. Kopras (Fla. 2d DCA Apr. 17, 2019) Proposals for settlement are unenforceable in maritime cases, because maritime cases are governed by Federal law. Federal maritime law preempts state laws allowing attorney fee shifting. This en banc decision receded from previous Second DCA precedent suggesting that proposals for settlement were enforceable in maritime actions.

Waiver of PrivilegeAmerican Airlines, Inc v. Cimino (Fla. 3d DCA Apr. 17, 2019). Before compelling disclosure of privileged documents for which the privilege has been allegedly waived, a trial court must first conduct an in camera inspection of the documents, and delineate the scope of the waiver.

Failure to Object to Improper Closing ArgumentCEC Entertainment, Inc. v. Zaldivar (Fla. 3d DCA Apr. 24, 2019) A trial court improperly granted a new trial due to an attorney’s improper closing arguments. Although the arguments were improper, opposing counsel failed to preserve the issue because they failed to make a contemporaneous objection to the argument.

Prior Similar Incidents, Preservation of ErrorCarnahan v. Norvell (Fla. 4th DCA Apr. 24, 2019) A plaintiff alleged that a landowner was negligent for allowing his cows to escape their enclosure and wander onto a public road. The trial court properly excluded evidence of a prior incident of the cows escaping, because the facts of the prior incident were not substantially similar to the facts of this case.

Only in Florida: No worker’s compensation coverage for a work-from-home employee who tripped over her dog

In Segdwick CMS v. Valcourt-Williams (Fla. 1st DCA Apr. 5, 2019), an employee authorized to work at home injured herself after tripping and falling over her dog while reaching for a coffee cup. The employee argued that she was entitled to worker’s compensation benefits because the fall occurred during working hours, and was granted benefits by the judge of compensation claims. The First DCA reversed, holding that the employee’s risk of injury from her dog did not arise from her employment. In other words, the injury must have an “occupational causation,” arising from a risk that does not exist in the employee’s non-employment life. Ironically, the employee worked as a worker’s compensation claims adjuster for Segdwick, one of the nation’s largest worker’s compensation insurers.

About Scott J. Edwards, Esq.

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Scott J. Edwards is an appellate and civil litigation attorney in Boca Raton, Florida, with a practice focused on personal injury, commercial litigation, insurance law, and jurisdictional issues.  He can be reached at scott@scottjedwards.com or 561-609-0760.

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