< Return to Articles of Interest page

Florida Legal Updates || Compiled by Barbara Green, P.A.
March 2016

Bad Faith

Fridman v. Safeco Ins. Co.,
No. SC13-1607, __ So.3d __, 2016 WL 743258, 41 Fla. L. Wkly. S62 (Fla. 2016)

Shortly before trial, the insurer tried to “confess judgment” by tendering a check for the policy limits.  The trial court refused to accept the confession of judgment.  The case was tried to a substantial verdict.  The trial court reserved jurisdiction in the final judgment to allow the plaintiff to amend to allege a bad faith cause of action.

The Fifth DCA reversed and held that, once the insurer tendered the policy limits, the action became moot.  The Supreme Court quashed the 5th DCA’s decision.

The Court held that an insured is entitled to a determination of liability and the full extent of his or her damages, including the amount of damages in excess of policy limits, in an uninsured/underinsured motorist (UM) action , before litigating a first party bad faith cause of action under section 624.155, Florida Statutes (2007).  A determination of liability and the full extent of damages is a prerequisite to a bad faith cause of action.

That determination of damages in the UM action is then binding, as an element of damages, in a subsequent first party bad faith cause of action against the same insurer, provided that the parties have had the opportunity for appellate review of any trial errors that were timely raised.

When litigating the subsequent bad faith action, the insurer should be given the full opportunity to defend its actions related to its handling of the insured's UM insurance claim. Although the amount of the UM verdict is a binding element of damages under section 627.727(10) in the bad faith case, the insurer is not precluded in the bad faith case from explaining its actions in failing to pay the policy limits when demanded and presenting its case for why it did not act in bad faith in the handling of the UM claim.

Where a plaintiff brings a claim for UM benefits and includes a bad faith cause of action in the complaint, the appropriate procedure is to abate the bad faith action until coverage and damages have been determined.  Here, it was not error for the trial court, in the final judgment in the UM case, to retain jurisdiction to allow the insured to formally amend his complaint to add a bad faith cause of action.

Collateral Source

Go v. Normil, 
Case No. 4D13-88, 2016 WL 64560, 41 Fla. L. Weekly D 91(Fla. 4th DCA 2016)

In Joerg v. State Farm Mu. Auto. Ins. Co., 176 So.3d 1247 (Fla. 2015), the Florida Supreme Court held that the collateral source rule does not permit the admission of evidence of future benefits from Medicare or Medicaid.  The court reasoned that future benefits are too speculative and that the benefits from these programs are not free or unearned.  In this case, the Fourth District applied Joerg and held that the trial court properly excluded evidence that the child’s future medical expenses would be “lowered significantly based on free or low-cost medical care provided by the State of New York.”  The trial court also properly excluded evidence of therapy and attendant care that was available to the child at his public school in New York until the age of 21.

The court also applied the rule from Estate of McCall v. United States, 134 So.3d 894 (Fla. 2014) and Broward Hosp. Dist. v. Kalitan, 174 So.3d 403 (Fla. 4th DCA 2014) and held that the medical malpractice caps on noneconomic damages were unconstitutional in this personal injury suit.

Medical Malpractice

Edwards v. Rosen,
No. 2D14-3093, 2016 WL 358973, 41 Fla. L. Weekly D295 (Fla. 2d DCA 2016)

A popular “gotcha” tactic among some medical malpractice defense lawyers has been to drop their Fabre defense during trial, after all of the evidence of the fault of the Fabre defendant has come in.  In this case, the Second District holds that the prejudice caused by this tactic requires a new trial.

After a late Fabre amendment shortly before trial, the opening statements were made, the court gave preliminary instructions, and the plaintiff presented his case, all based on the amended pleading including the Fabre defense.  After the plaintiff rested, on the last day of trial, the defense withdrew the Fabre defense.  The plaintiff objected, moved for mistrial, and asked the trial court to give a curative instruction to tell the jury that the defendant had withdrawn the defense, but the court failed to do so.  As a result, the plaintiffs presented their case premised on the belief that the jury would apportion fault between the defendant and the Fabre defendants, “only to have the jury instead decide the case on an all or nothing basis.”  The jury chose to give the plaintiff nothing.

In Hartong v. Bernhart, 128 So.3d 858 (Fla. 5th DCA 2013), the court rejected similar tactics with respect to a comparative negligence defense.  In Philip Morris USA, Inc. v. Arnitz, 933 So.2d 693 (Fla. 2d DCA 2006), the plaintiff was able to amend his complaint to plead comparative negligence after the defendant dropped it as a defense.

Here, the court holds that amendment was not an option available to the plaintiff, because the plaintiff already had settled with and dismissed the Fabre defendants.  The court held that the defendant’s “gamesmanship” here required a new trial:

We recognize that a defendant may waive any defense. ...  However, such a right is not carte blanche to engage in gamesmanship or abuse procedure. From our review of the record, it is apparent that [defendant’s]trial counsel engaged in conduct designed to acquire the benefit of the Fabre defense, i.e., having evidence of the negligence of others introduced at trial, without the cost of having fault apportioned between the Fabre defendants and himself. This gamesmanship was an attempt by [defendant’s] counsel to exert control over [plaintiff’s] presentation of the case.  ... More importantly, raising an affirmative defense only to withdraw it in an attempt to muddle the plaintiff's presentation of the case undermines the truth seeking purpose of a trial.

The court cautioned that it was not holding that a defendant may not waive a defense, but that the defendant’s procedural maneuvering in this case was unacceptable.

Negligence - Duty

Manfre v. Shinkle
Case No. 5D14-3368 __ So.3d __, 2016 WL 438227 (Fla. 5th DCA 2016)

This decision by Judge Sawaya contains a thorough discussion of statutory causes of action, public duty vs. duty to an individual, and the undertaker's doctrine.

The plaintiff was injured when her car hit a dead horse lying in a country road and flipped.  

Before the crash, a deputy had responded to a report of two horses running loose.  When he approached them in his car, they ran back into the pasture.  The deputy left without getting out of his car.  One of the horses later left the pasture again and apparently was struck and killed by another motorist.  The horse was lying dead in the road when the plaintiff arrived at the scene and ran into it.

The court held that the sheriff did not owe the plaintiff a statutory duty of care under §588.16, Fla. Stat., which  requires the sheriff  "where livestock is found to be running at large or straying, to take up, confine, hold, and impound any such livestock ...".  The court held the statute imposes only a "public duty" on the sheriff, not a duty to any individual.

The sheriff did not owe the plaintiff a special duty because the sheriff did not take control of the situation so as to place anybody within a zone of risk.

The sheriff did not owe a duty under the undertaker's doctrine because there was no evidence that anything the deputy did increased the danger or zone of risk to anyone, and because the plaintiff could not have relied on anything the deputy did.

Nursing Home - Arbitration

Estate of Novosett v. ARC Villages IL, LLC,
Case No. 5D14-4385, __ So.3d __, 2016 WL 916936 (Fla. 5th DCA 2016)

The Fifth District invalidated a nursing home arbitration provision because of a damages cap contained in the provision. The Court ruled based on Gessa v. Manor Care of Fla., 86 So. 3d 484, 490 91 (Fla. 2011).  In Gessa, the Supreme Court held that limitation of liability provisions in an arbitration agreement included in  nursing home’s admissions documents violated public policy and were not severable because they constituted the “financial heart” of the arbitration agreement.

The contract here contained a severability clause, which the contract in Gessa did not.  The court held that the severability clause did not save the arbitration provision.  The court held that a severability clause is not dispositive of whether a void clause invalidates the entire contract.  The question is whether the clause goes to "the very essence of the agreement."

The court certified the following question:

Does the Court’s holding in Gessa v. Manor Care of Florida, 86 So. 3d 484 (Fla. 2011), control where, as here, the contract contains a severability clause? 

Barbara Green is an appellate lawyer in Coral Gables, Florida, concentrating on appeals and litigation support. She is a graduate of the University of Miami School of Law (J.D., 1978, Magna Cum Laude).

< Return to Articles of Interest Page