Florida Legal Updates || Compiled by Barbara Green, P.A.
March 18, 2015
Section 44.103, Fla. Stat (2012), and Fla. R. Civ. P. 1.820(h) provide that a party to court-ordered, nonbinding arbitration has twenty days after service of the arbitrator's decision to request a trial de novo before the decision is referred to the trial court for entry of a final judgment. Florida Rule of Civil Procedure 1.090(e) (2011) adds five days to a prescribed period when a party is required to take some action within a prescribed period after a paper is served and the paper is served by mail. (This 5-day rule has now been relocated in Fla. R. Jud. Adm 2.514(b)).
The court holds that Rule 1.090(e) extends the time for a party to request a trial de novo by five days when a court-ordered, nonbinding arbitration decision is served by mail.
A PFS was ambiguous where it was unclear whether it was intended to resolve only the claims in the lawsuit or also to extinguish UM and health insurance claims.
In part, the Offer provided:
The claims resolved by this offer are all actions, causes of action, demands for damages of whatever name or nature and tort, contract or by statute, in any manner arisen, arising to grow out of any and all known and unknown, foreseen and unforeseen bodily and personal injuries resulting or to result from the accident, casualty or event which occurred on or about February 26, 2010 at or near the intersection of Cypress Point Parkway and Cypress Branch Way, Palm Coast, Florida.
In essence, this language constitutes a general release implicating claims extrinsic to the litigation. The fact that the Offer did not require a separate document entitled release is immaterial because the only claim involved in the underlying suit was a tort claim. Nevertheless, the Offer expressly proposes to resolve contractual and statutory claims. For that reason, the Offer is ambiguous as to whether it would preclude Cruz’s potential uninsured motorist and health insurance claims, and thus, is unenforceable
Aligning itself with the 4th DCA in Pembroke Lakes Mall Ltd. v. McGruder, 137 So. 3d 418 (Fla. 4th DCA 2014), the 1st DCA holds that §768.0755, Fla. Stat. does not apply retroactively. The court certifies conflict with the 3d DCA's decision in Kenz v. Miami-Dade County, 116 So. 3d 461 (Fla. 3d DCA 2013).
The court held that the statute is substantive because it "re-inserts the knowledge element" into the cause of action.'
The court quoted extensively from the 4th DCA decision in McGruder:
The shift from 768.0710 to 768.0755 was far more than a simple procedural change to the burden of proof. See Castellanos v. Target Corp., No. 10-62456-CIV, 2011 WL 5178334, at *3 (S.D. Fla. Oct. 14, 2011). Under the 2002 statute, a plaintiff could succeed in a slip and fall case by showing “the business premises acted negligently by failing to exercise reasonable care in the maintenance, inspection, repair, warning, or mode of operation of the business premises,” without showing the business had actual or constructive knowledge of the transitory foreign substance. Under the 2010 statute, however, the same plaintiff would be unable to successfully assert such a cause of action, no matter how persuasive or compelling the evidence the plaintiff had in support of the claim.
We also respectfully disagree with the Kenz court’s conclusion that applying section 768.0755 retroactively would not abolish a plaintiff’s cause of action. Slip and fall plaintiffs who could successfully assert a cause of action under the 2002 statute even without the owner having knowledge of the spill would be completely unable to pursue their causes of action if the 2010 statute was applied retroactively. If these plaintiffs were injured before the effective date of the statute, the imposition of section 768.0755 would result in a wholesale abolition of their accrued causes of action. That type of impediment to a preexisting cause of action is constitutionally impermissible. See Am. Optical, 73 So. 3d at 133