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 Privilege – Anderson 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 Discovery – Jiminez 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 Evidence – Advanced 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 2 – Edelman 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 Evidence – Shamrock-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 Settlement – Florida 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 Cases – Marco 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 Privilege – American 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 Argument – CEC 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 Error – Carnahan 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.
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 firstname.lastname@example.org or 561-609-0760.
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