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It is common for a party in litigation to serve the other party with a written request for admission pursuant to Florida Rule of Civil Procedure 1.370. Under the rule, a party may request admission of the truth of any matters that fall within the scope of discovery “that relate to statements or opinions of fact or of the application of law to fact….” The requests are limited to 30, including any subparts, unless the parties agree or the court grants a motion to allow more. The matter is considered admitted unless a written answer or objection is served upon the requesting partyfile3441297827352 (800x600) within 30 days after the request was served, or the time allowed by the court. If a matter is admitted, it is conclusively established unless the court allows it to be withdrawn or amended. The court may permit withdrawal or amendment when it will subserve the presentation of the merits, and there is no prejudice to the requesting party. Admissions are limited to the present action.

Since matters are deemed admitted if the party fails to answer in a timely manner, it is possible for a matter to be accidentally or inadvertently admitted. The Fourth District recently ruled on a case in which admissions were inadvertently made by the defendant.

In United Automobile Insurance Company v. West Hollywood Pain & Rehabilitation Center, the rehabilitation center, as the agent of an insured, filed suit against an automobile insurer for payment of personal injury protection benefits. The plaintiff requested admissions, including requests that the defendant admit liability. The defendant inadvertently filed a late response to the requests for admissions. The defendant moved for relief and on the same day filed an answer. Almost a year later, the plaintiff moved for summary judgment.

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The 11th Circuit has reversed the trial court’s decision in Murphy v. Dulay. As this blog has previously discussed, Florida malpractice law requires a prospective medical malpractice plaintiff to provide pre-suit notice to the prospective defendants, including a list of the injured person’s healthcare providers after the alleged negligence and those seen in the two years immediately prior. The law also requires the prospective plaintiff to provide a signed authorization allowing the healthcare providers to release information to the defense attorneys, defense experts, the liability insurer, and the trier of fact. The authorization also specifically allows the defense to interview the healthcare providers outside the presence of the patient or the patient’s attorney. The trial court found that the Health Insurance Portability and Accountability Act (“HIPAA”) preempted Florida medical malpractice statutes.1370556_32170671 (800x600)

The 11th Circuit noted that the statute expresses an intent to conform with HIPAA. Furthermore, the authorization does not apply to health care providers that the plaintiff certifies are not potentially relevant to the case. The plaintiff must provide the inclusive dates of the treatment that is to be withheld. Although the statute requires the authorization to permit ex parte communications between the defense and the health care providers, nothing in the statute requires the providers to agree to an interview. The authorization must inform the plaintiff that the information disclosed pursuant to the authorization may be subject to additional disclosure and may not be protected by HIPAA regulations.

On appeal, the defense argued that the Florida statute was compliant with HIPAA and its regulations. The circuit court analyzed the statute as to the relevant provisions of HIPAA and agreed.

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Accident victims are often required to sign a release when settling their injury claims. The scope of the claims covered by the release is determined by the language in the release. It is generally wise to wait until all claims are known and quantified before settling a claim and signing a release, but sometimes special circumstances mean additional claims arise after the release is signOLYMPUS DIGITAL CAMERAed.

In Moxley v. U-Haul Co. of Florida, the Second District determined the scope of a release signed by the personal representative of a man killed in an automobile accident. Mr. Bell was listed as an authorized driver on the rental agreement of a moving truck. While Mr. Bell was driving, the truck struck another vehicle, killing Mr. Bell and allegedly injuring the other driver. Mr. Bell’s personal representative settled certain claims the estate had against the moving truck company for $5,000 and signed a release.

The personal representative subsequently filed suit against the other driver, and the other driver filed a counterclaim. Neither the moving truck company nor the deceased person’s own insurer provided a defense to the counterclaim. The court dismissed the claim filed on behalf of the estate and ultimately entered a judgment of more than $2 million for the other driver and her husband.

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Florida personal injury cases often involve one or more citizens of another state or country. Procedural requirements are complicated when a OLYMPUS DIGITAL CAMERAparty is not a Florida citizen. Service of process becomes far more complex when the defendant is a foreign citizen.

In Alvarado-Fernandez v. Mazoff, the Fourth District addressed a case in which the plaintiff had difficulty serving a foreign defendant. The plaintiff sued the defendant for injuries he received in an accident in which the defendant was driving a rental car. Shortly thereafter, he filed an affidavit of compliance stating that the Secretary of State accepted service of process and that he had tried to serve the defendant by mail. The defendant did not receive the documents. The plaintiff later amended his complaint and made a second attempt to serve the defendant, and again amended the complaint and made a third attempt when the second failed. He subsequently filed a third amended complaint, and the trial court allowed him eight extensions to attempt to effect a successful service.

The plaintiff then served the Secretary of State pursuant to the substituted service statute. He also mailed a copy to the defendant’s last known address by registered mail, but it was not claimed. He filed a late affidavit of compliance and asked the court to either accept it or grant another extension.

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Determining where a lawsuit should be filed is generally reasonably straightforward. In some cases, however, it is not always clear. In a jurisdiction like Florida, where the roads are often filled with travelers from other areas, the issue arises more often than it might in other jurisdictions. When the parties are from outside the jurisdiction, complicated procedural issues can arise, as in the case of Branch v. O’Selmo. This case is procedurally unusual, in that the plaintiff filed separate suits in two different jurisdictions, possibly to preserve the statute of limitations in both jurisdictions, should one court decide that the case should properly be before the other.file000835303432 (2)

The plaintiff was involved in an accident while riding as a passenger in a car driven by her co-worker. Both the plaintiff and her co-worker lived in Barbados and worked for a bank located there. The plaintiff sued her co-worker and employer in Barbados but did not take further action in that case. She instead filed against the same defendants in Florida.

After engaging in active litigation in Florida for two years, in the month before the trial date, the defendant driver moved to dismiss in Florida on the grounds that Barbados was a more “appropriate” forum. The defendant also argued the plaintiff could seek a double recovery by pursuing the case in Barbados after the Florida case was decided. The trial court abated the Florida case for 30 days to allow the plaintiff to either dismiss the other case or abate it and provide documentation that the Florida judgment would be res judicata.

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Since bad faith claims are related to an underlying claim, the procedure involved can be rather complex.  The injured person must decide at what point to add the bad faith claim.  Furthermore, the insurer often wants to remove the bad faith claim to federal court.  When the timing of the bad faith claim can affect the insurer’s ability to remove the case, the procedural complexities can raise a number of legal issues.

file7571263662948(1)The Fourth District recently addressed the issue of abatement, rather than dismissal, of the bad faith claim during the underlying case in Safeco Insurance Company of Illinois v. Beare. The plaintiff filed suit against the allegedly at-fault drivers in an automobile accident. The parties subsequently agreed to settle, and the plaintiff was granted leave to amend her complaint to add her insurer to her complaint. The plaintiff sought recovery under her underinsured motorist benefits as well as under a claim for bad faith. The insurer moved to dismiss the bad faith claim as premature, but the court instead abated that count.

The insurer petitioned the Fourth District for certiorari, arguing that the abatement caused irreparable harm by preventing removal of the claim to federal court. Three elements must be met before an appellate court can grant certiorari relief from the denial of a motion to dismiss. First, the petitioner must show that the trial court departed from “the essential requirements of the law.” This departure must cause a material injury for the duration of the case. Finally, the petitioner must show that the injury cannot be rectified through post-judgment appeal. The appellate court has jurisdiction only if the last two elements are met, so they should be analyzed before the court considers the issue of irreparable harm.

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Uninsured motorist (“UM”) coverage provides benefits to the insured when the at-fault vehicle does not have insurance. In Florida, when a person owns multiple vehicles, he or she may pay a premium to “stack” UM coverage, which allows the insured to recover UM benefits under multiple policies for the same accident. If stacked coverage is not purchased, the insured can only recover UM benefits under one policy.

Many people do not fully understand the complex language of insurance policies. What happens, then, when the insurance agent tells the insured she has coverage that the insurer later denies exists? The Second District recently decided such a case.

856340_85280678 (556x800)In Gallon v. Geico General Insurance Company, the plaintiff was injured as a passenger in his mother’s car. The mother had insurance on the vehicle through the defendant, and the plaintiff made a claim for UM benefits. The insurer argued that he was subject to $50,000 limits, even though there were two vehicles on the policy, and the policy indicated that the mother had purchased stacked coverage. Coverage was limited, argued the insurer, since the mother had purchased UM coverage on only one of the vehicles.

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Florida law allows both first-party and third-party bad faith claims. Insurance companies have a duty to handle and adjust claims in good faith. When they fail to do so, the claimant may have a bad faith claim against them.$ Car- Ching $

Since the basis of a bad faith claim is the actions of the insurer and not the underlying liability or first-party claim, the elements of a bad faith claim and the procedures involved in litigating it are different from those of the underlying tort. The actions of the insurance company, and possibly the attorney who represented the insured on behalf of the insurance company, are relevant in the bad faith case. Obtaining the claim file and the litigation file from the underlying case can be very helpful in proving the bad faith claim. The files of an attorney, however, are often protected by the work-product doctrine and attorney-client privilege. A significant issue in a bad faith case is what documents from the underlying claim are discoverable.

The Fifth District addressed this issue in the recent case of Boozer v. Stalley. In this case, the attorney and his client sought to quash a trial court order allowing the plaintiff in a bad faith action to depose and obtain documents from the attorney.

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The Third District recently decided an insurer’s obligation to pay for sanctions resulting from a misrepresentation in testimony by the insured. This case arose after a vehicle struck two pedestrians. In addition to providing liability coverage, the driver’s insurance covered court costs. The pedestrians filed suit against the 83-year-old driver. In deposition, the defendant denied having physical impairments that would affect his vision or prevent him from being a safe driver. His medical records, however, showed that he was legally blind and had been told by his doctors not to drive.

347461_5300Alleging the defendant committed a fraud on the court, the plaintiffs moved for sanctions, costs, and attorney fees, and the striking of the defendant’s pleadings. The court struck the pleadings and allowed the plaintiffs to add a punitive damages claim.

The defendant died, and the personal representative of his estate was substituted into the lawsuit. Before the sanctions hearing, the insurer sent a reservation of rights letter, stating there may not be coverage for the claim, sanctions, or fees or costs awarded in connection with sanctions. The letter referenced the “Fraud and Misrepresentation” section of the policy.

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Florida law encourages insurers to act in good faith by allowing injury victims to bring “bad faith” claims. In a successful bad faith claim, the injury victim may be able to recover an amount greater than the policy limits. Insurers who do not handle claims in good faith, therefore, put themselves at risk of paying a much larger amo916495_50801631unt. Sadly, insurers sometimes take that risk.

In Geico General Insurance Company v. Patton, a passenger was injured in an automobile accident resulting from the negligence of an underinsured (“UIM”) driver. She received the driver’s $10,000 policy limits. Her attorney demanded the $100,000 policy limits, but the insurer offered only $1,000. The insurer subsequently raised the offer to $5000, but lowered it back to $1,000 when the injured woman refused to settle. Against her attorney’s advice, she lowered her demand to $22,500, but the insurer did not even respond.

The injured woman filed a bad faith claim against the insurer. The jury found in favor of the plaintiff, finding her total damages to be $469,247. The insurer did not move for a new trial. The court entered judgment in favor of the plaintiff for the $100,000 policy limits. The insurer paid that judgment.

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