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April 18, 2014

Joint Vehicle Owner Is Vicariously Liable

Under Florida law, the owner of a vehicle can generally be held vicariously liable for the negligent actions of a permissive driver pursuant to the dangerous instrumentality doctrine. This doctrine helps ensure that accident victims have a source of recovery for their injuries when the negligent driver is not vehicle’s owner. By allowing another to take custody of the vehicle, the owner commits himself or herself to the permissive driver’s judgment and accepts liability for the driver’s actions.


There is, however, a “beneficial ownership” exception to the doctrine. An owner who lacks the beneficial ownership of the vehicle and does not have the authority to exert dominion or control over it will not be held liable. This exception has been applied very narrowly, specifically in circumstances where the owner has entered a conditional sales agreement or has completed a common law sale but failed to transfer legal title.

In a case recently decided by the Florida Supreme Court, a former husband attempted to use the exception to avoid liability for the negligence of his former wife in driving a vehicle the two co-owned. In Christensen v. Bowen, both the former wife and husband were sued by the estate of a man who was killed after being hit by the vehicle.

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April 9, 2014

Client-Drafted Interrogatory Answers Can Be Privileged

Generally, communications between an attorney and his or her client are protected by attorney-client privilege, if those communications are not intended to be disclosed to third parties except parties who will engage in rendering legal services to the client and those parties necessary to achieve the transmission of the communication. Section 90.502, Florida Statutes. Such communications are confidential and the client has a privilege to refuse to disclose them. Attorney-client privilege is a fundamental part of the relationship between attorney and client. It allows the client to be open and forthright with the attorney without fear of the conversation being disclosed.


Sometimes, however, other parties will attempt to obtain access to communications that the attorney believes to be confidential. The Fifth District recently heard a case in which a defendant wanted to obtain the handwritten interrogatory answers the plaintiff had provided to her attorney.

In Montanez v. Publix Super Markets, Inc., the plaintiff had been injured in a slip and fall on water on the floor of a supermarket. In the interrogatories propounded upon the plaintiff, the defendant asked for all facts that formed the basis of the allegations that “Defendant knew a dangerous condition existed on the premises.” The response stated: “Defendant’s responsibility is to maintain premises safe for the public. The liquid had been on the floor long enough that the defendant should have discovered it.” The plaintiff had signed the interrogatory answers and verified they were true and correct to the best of her knowledge.

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April 7, 2014

Parents Not Liable for the Acts of Mentally Ill Adult Children

People are generally not liable for the criminal acts of third parties, but there are exceptions based on special circumstances. Liability may lie when there is a special relationship between the plaintiff and defendant, or where the defendant had control of either the premises where the incident occurred, the instrumentality that caused the injury, or the person who caused the injury.


The plaintiffs in a tragic case recently decided by the Fourth District sought to hold parents liable for their adult son’s actions. Knight v. Merhige resulted from a tragic event in which several family members were killed at Thanksgiving dinner. The event was hosted at the home of the Sittons. The Merhiges were invited to the event, as they had been the year before when it was hosted by Mrs. Sitton’s father, Dr. Joseph. The Merhiges’ son Paul, however, had not been invited, and Dr. Joseph informed the Merhiges the previous year that he would cancel the dinner if they brought Paul to his home.

Paul had a history of violence, threats, and aggressive behavior toward his family. While he lived with his parents, law enforcement was called ten times as a result of his violent and aggressive acts and threats of violence. He was involuntarily committed three times, and once shot himself in the chest. He was particularly hostile toward his sisters and his uncle, Dr. Joseph. Nevertheless, Paul’s parents did not prevent him from buying firearms. They got him a condominium, and he subsequently became extremely reclusive, allowing only the housekeeper in. The housekeeper informed his parents that he had stopped both his mental health treatment and his medication.

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March 31, 2014

Liability for the Actions of Third Parties

It is not uncommon for multiple people to bear some responsibility for an incident that leads to injury. It can be difficult to determine whether a party can be held liable when the actions of another party directly led to the injury. The Supreme Court of Florida recently considered this issue in Dorsey v. Reider.


This case arose after a man was seriously injured in an altercation with two men at a bar. Mr. Reider, one of the defendants, grew rowdy while the three men were drinking. Mr. Dorsey commented with an insult, and walked out of the bar. Mr. Reider and his friend Mr. Noordhoek followed. When Dorsey walked between Reider’s truck and another vehicle, Reider trapped him between the truck and the adjacent car. Noordhoek followed him between the vehicles. Dorsey subsequently heard the truck door open and saw Noordhoek get a tomahawk from the truck. Dorsey asked Reider, “What is this?” but did not receive an answer. Dorsey testified that he and Noordhoek grappled and Noordhoek suddenly struck him in the head with the tomahawk. The other two men fled the scene while Dorsey was unconscious.

Mr. Dorsey filed suit against Reider and won an award in excess of $1.5 million. The Third District Court of Appeal reversed, holding that Reider did not owe a duty of care to Dorsey. The district court found no evidence that Reider knew that Noordhoek would hit Dorsey with the tomahawk and no evidence that the two had colluded.

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March 29, 2014

Bankruptcy and Personal Injury Claims

A person who has filed bankruptcy must disclose all assets, including personal injury actions. The Third District recently heard a case involving a debtor who failed to disclose a personal injury claim. In Montez v. Mastec North America, Inc., the plaintiffs appealed a summary judgment in favor of the defendants. The personal injury action arose from an incident in which a condominium security guard was injured when a ladder owned or used by the defendant fell on him.

A law firm accepted his case and sent a letter to the condominium stating a liability claim would be made against both the condominium and the vendor who was allegedly using the ladder. The law firm subsequently sent a letter to the condominium’s insurer regarding the claim.


Another law firm later filed a joint petition for Chapter 13 bankruptcy on behalf of the injured man and his wife. The potential lawsuit against Mastec was not listed under contingent and unliquidated claims. In July 2010, the bankruptcy court approved the Chapter 13 plan, but the order did not close the bankruptcy or discharge the plaintiffs’ debt.

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March 25, 2014

Motion for Summary Judgment Before Completion of Discovery

It is common for parties to civil litigation to file Motions for Summary Judgment, asking the court to find in their favor on the information available because there remain no genuine issues of material fact to be resolved. Summary judgment is generally not available while discovery is still pending. Issues of fact may arise or be identified during the discovery process.
The Fifth District recently addressed the issue of summary judgment when one of the parties requested discovery after the Motion for Summary Judgment had been filed by the other party.


In Harper v. Wal-Mart Stores East, L.P., the plaintiff filed suit after she fell at a Wal-Mart store. Slightly more than a year after suit was filed, Wal-Mart filed a motion for summary judgment, which it supported with two affidavits. After the plaintiff’s attorney deposed both affiances, Wal-Mart withdrew one of the affidavits because the affiant did not have personal knowledge. Wal-Mart filed another affidavit from an employee of its contractor who had witnessed the incident. Although it revealed that there may have been a witness to the incident, Wal-Mart did not provide the witness’s identity until it filed the motion for summary judgment. The plaintiff’s attorney tried to schedule a deposition of the witness, but was unable to do so. He then filed a motion to continue the hearing on the motion for summary judgment, but was denied. The plaintiff appealed.

A trial court has discretion in deciding whether to grant a continuance of a summary judgment hearing, but summary judgment may be premature where discovery is still pending. Florida does not allow a party to “thwart” a summary judgment hearing by starting discovery. Although the plaintiff attempted to schedule the deposition only after the motion for summary judgment had been filed, there was no evidence that the plaintiff tried to thwart summary judgment. Here, the plaintiff’s attorney did not know the identity of the witness until receiving the affidavit. Once the identity was known, the plaintiff’s attorney made efforts to schedule a deposition, and even warned the defendant that he intended to file for a continuance if they could not arrange the deposition before the hearing. The appellate court, therefore, reversed and remanded the case to the trial court.

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March 21, 2014

Cap on Medical Malpractice Wrongful Death Violates Florida Equal Protection

In a lengthy and thoughtful plurality opinion, the Florida Supreme Court struck down the statutory cap on non-economic damages in medical malpractice wrongful death actions. Section 766.118, Florida Statutes, limits total noneconomic damages in a medical malpractice wrongful death claim to $1 million from all practitioners, regardless of the number of claimants.


The plurality opinion in McCall v. United States of America was written by Justice Lewis. Justice Pariente wrote a concurring opinion, with which Justices Quince and Perry concurred. Chief Justice Polston dissented, with Justice Canady concurring in the dissent.

This case arose from the death of a woman after pregnancy and delivery of a child, during which she was treated by Air Force family practice doctors. She died after the delivery of healthy baby when she went into shock and cardiac arrest as a result of blood loss. Suit was filed in federal court. The court found the United States liable, finding economic damages in excess of $900,000, and noneconomic damages of $2 million. However, the district court limited the recovery of noneconomic damages to the $1 million statutory cap in section 766.118(2), Florida Statutes. The plaintiffs appealed, challenging the application and constitutionality of the statute.

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March 17, 2014

Insured Does Not Automatically Forfeit Coverage by Refusing Medical Exam

Accidents are traumatic enough, but an insurer can make things worse for the victim by questioning her injuries. The insult is increased when it comes from the victim’s own insurer. In State Farm Mutual Ins. Co. v. Curran, the Florida Supreme Court considered whether an insured forfeits benefits under her policy by breaching a provision requiring a medical examination.


In this case, an accident victim reached a settlement with the at-fault driver and subsequently requested her $100,000 underinsured motorist policy limits. The policy contained a provision requiring her to submit to examination by physicians as often as the insurer reasonably required. It also stated that she had no right of action against the insurer until all of the terms of the policy were met. Her insurer, State Farm, attempted to schedule a compulsory medical examination (“CME”), but after some correspondence, including a reservation of rights letter, the woman ultimately refused to attend.

The woman filed suit and State Farm asserted an affirmative defense that she had breached the policy’s terms. The trial court granted summary judgment in favor of the plaintiff, finding she had placed conditions on her participation that were not unreasonable. A jury awarded damages in excess of $4.6 million to the plaintiff and the court entered judgment against State Farm for the $100,000 policy limits.

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March 14, 2014

Stand Your Ground and Civil Immunity

Florida’s Stand Your Ground law has made a lot of headlines in recent years. The focus has generally been on issues involving deadly force and criminal law. Many people do not realize that the Stand Your Ground laws also provide for civil immunity in the case of non-deadly force. The Third District Court of Appeals addressed this issue recently in Pages v. Seliman-Tapia.


This case arose as the result of an altercation between two couples in a parking lot. According to the opinion, Defendant Tapia confronted Plaintiffs Dr. and Mrs. Pages, claiming they had parked to close to his car. Witnesses testified that Dr. Pages behaved aggressively, and that Mr. Tapia had his hands in his pockets and backed away. Dr. Pages bumped into Tapia, and Mrs. Pages got between the two men. Dr. Pages turned toward Tapia’s wife, a disabled woman, and rushed toward her aggressively. Tapia rushed toward Dr. Pages and pushed him down. Mrs. Pages testified that Tapia picked her husband up and threw him in the air, also making contact with her and injuring her back. No other witnesses testified that Tapia made any contact with Mrs. Pages.

Tapia was charged with felony battery on Dr. Pages and misdemeanor battery on Mrs. Pages. He negotiated a deal and pleaded guilty only to the misdemeanor battery charge, while the felony charge was dropped. The Pages filed suit against Tapia, alleging assault and battery on Dr. Pages and loss of consortium for Mrs. Pages. They later amended the Complaint to include an assault and battery claim for Mrs. Pages.

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March 10, 2014

Can Multiple Dog Bites Equal a Single Occurrence?

Is it one “occurrence” or two when a dog bites two people in short succession? This issue was before the Fifth District Court of Appeals in a September 2013 case. The question was of great importance because whether a woman could recover anything for her injuries depended on its answer.


In Maddox v. Florida Farm Bureau General, Etc., a woman and her two sons lived with her boyfriend and his two dogs. Unfortunately, one of the dogs bit one of the children in the face. The mother and boyfriend attempted to get the dog to release the child, but after the dog let go of the boy, it also bit the mother in the face.

The boyfriend had homeowner’s insurance with a personal liability policy limit of $100,000 per occurrence. Ultimately, the woman filed suit against the boyfriend for her injuries. His insurer denied it was liable to pay for her injuries because it claimed that her injuries were part of the same “occurrence” as her son’s injuries, and he had already received the full policy limit. The trial court granted a motion for summary judgment in favor of the insurer on these grounds.

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March 6, 2014

Florida Slip and Fall Law

A recent Fourth District case detailed the history of slip and fall law in Florida. In 2008, the plaintiff in Pembroke Lakes Mall, Ltd. v. McGruder slipped and fell on a clear slippery substance on the floor at a mall. In 2010, she filed suit against the owner of the mall and the company contracted to clean and maintain the mall premises. She alleged negligence in failure to warn, allowing the spill to remain on the floor, and failure to have a proper maintenance and clean-up plan. The defendants moved for the court to determine that section 768.0755, Florida Statutes (2010), applied retroactively to the case. The trial court denied this motion and determined that 768.0710, Florida Statutes (2008), would be the applicable statute. Section 768.0755 requires an injured person to prove that the defendant had actual or constructive knowledge of the substance and should have taken action to remedy the dangerous condition. The statute the trial court applied, 768.0710, did not require the plaintiff to prove either actual or constructive notice. The jury ultimately returned a verdict in favor of the plaintiff and the owner appealed.


The appellate court noted that all premises owners owe invitees a duty of reasonable care to maintain the premises in a safe condition. Before 2001, a person injured in a slip and fall on a foreign substance had to show that the owner had actual or constructive knowledge of the dangerous condition. In 2001, the Florida Supreme Court held that the presence of a foreign substance on a business’s floor creates a rebuttable presumption that the owner did not maintain the premises in reasonably safe condition. If the plaintiff shows that she slipped and fell on a transitory foreign substance on the floor, the burden shifts to the defendant to show that it exercised reasonable care to maintain the premises in a safe condition under the circumstances.

In 2002, Florida enacted 768.0710, Florida Statutes (2002), which eliminated that burden-shifting. That statute specifically noted that actual or constructive notice of the presence of the object or substance was not a required element of proof, but could be considered with the other evidence.

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March 4, 2014

Confidentiality Clauses in Settlement Agreements

It is important for people to read and understand the terms of any agreement they sign, including a settlement agreement. Failure to comply with the terms of a settlement agreement can be very expensive, as one plaintiff recently learned.


In Gulliver Schools, Inc. & School Management Systems, Inc.v. Snay, the Third District had to determine if the plaintiff’s actions violated the confidentiality clause of his settlement agreement and precluded his enforcement of the agreement. The plaintiff had filed suit after the school did not renew his employment contract. He alleged age discrimination and retaliation in violation of the Florida Civil Rights Act. The parties ultimately entered into a settlement agreement. The agreement required the school to pay $10,000 to the plaintiff in back pay, $80,000 to the plaintiff as a “1099,” and $60,000 to the plaintiff’s attorneys.

The parties executed a general release and a settlement agreement. The agreement included a confidentiality clause that prohibited the plaintiff from “directly or indirectly” communicating the terms or existence of the settlement to any person or entity except his attorneys, professional advisors or spouse. Breach of this provision would result in “disgorgement of the Plaintiffs portion of the settlement Payments.”

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