Newsome Melton Obtains $25.9 Million Verdict against Ford and The Baptist Church of New Port Richey for Single Wrongful Death

Florida Decision Weekly Wrap-up 12/4

December 4, 2009

Florida Decision Weekly Wrap-up 12/4

The following are decisions issued by Florida courts during the week of 11/31 through 12/4 that are relevant to product liability and other personal injury litigation

Tort Case Decisions

MARVIN RAY HOWARD and JANNIE L. DRISKELL, Appellants, v. BOULANGER DRYWALL CORP., Appellee. 4th District.

The Plaintiff in this case was an employee of a window subcontractor. The defendant was a subcontractor accused of negligently installing safety railings on a jobsite. The 4th Appellate District found that a summary judgment on negligence issues was proper where there was uncontested evidence that guardrail system wasn’t negligently installed. The court found that an expert report stating that the guardrail was not evidence the guardrail was improperly installed, because the expert’s opinion was based solely on the fact that the window was not installed according to the manufacturer’s installation instructions, and not on any independent professional opinion of the expert.

STEPHEN RAPHAEL and MARJORIE RAPHAEL, Appellants, v. SAUL M. SILVERMAN, RICHARD M. KLEID, EDWIN MASINTER, MIKE SUTTON, SEYMORE I. SCHARER, BA-BETTE WOLFF and BEACH POINT CONDOMINIUM ASSOCIATION, INC., a Florida Non-Profit Corporation, Appellees. 4th District.

The plaintiffs in this case were condominium owners. The defendants were members of the board of directors of the condominium association. The plaintiffs claimed the defendants breached their fiduciary duties to owners by refusing to approve requests by the owners to modify privacy dividers. The trial court dismissed the complaint because the directors had statutory immunity and the allegations in the complaint establish self-dealing. The Fourth DCA upheld the trial court’s decision and remanded to allow the plaintiffs the opportunity to amend the complaint.

THOMAS LESLIE AND KATHRYN BARRY, Appellants, vs. CARNIVAL CORPORATION, etc., Appellee. LAURINE SPIVEY-FERGUSON, Appellant, vs. Carnival Corporation, etc. Appellee. GRACE GARCIA, Appellant, vs. CARNIVAL CORPORATION, etc. Appellee. 3rd District.

The plaintiffs in these consolidated cases were cruise line passengers and the defendant was the cruise line. Each of these passengers’ tickets contained a forum selection clause that required passengers’ lawsuits be filed exclusively in the United States District Court for Southern District of Florida. The plaintiffs argued that this clause improperly “federalized” personal injury lawsuits by requiring that lawsuits that would otherwise meet the requirements for filing in state court be filed in federal court. The 3rd DCA held that the clause was enforceable because forum selection clauses are prima facie valid and enforceable under maritime law.

MICHAEL L. WEATHERLY and CARLA WEATHERLY, Appellants, v. JOSEPH G. LOUIS and JEANNE DURELLAN, Appellees. 3rd District.

The plaintiff in this case was the driver of a motorcycle that collided with an SUV driven by the defendant. In the accident, the defendant drove out of a parking lot and failed to yield to traffic in the plaintiff’s lane of travel. The case went to verdict which was in favor of the defendant. The Plaintiff filed a motion for new trial claiming that the jury’s verdict was against manifest weight of evidence which was denied by the trial. The motion was denied by the trial court, however, the trial court did not specifically state that the jury’s finding was NOT contrary to the manifest weight of the evidence. The 3rd DCA held that the trial court was within its discretion to deny the motion for new trial because conflicting evidence was introduced suggesting that the plaintiff may have a ran red light immediately before the accident, and that the trial court was not required to specifically state that jury’s finding was NOT contrary to manifest weight of evidence.

MARK E. HAGER, et al., Plaintiffs, v. LIVE NATION MOTOR SPORTS, INC., Defendant. U.S. District Court, Southern District of Florida, Miami Division.

The Plaintiff in this action was a stunt driver who was injured when a depression in the dirt right in front of ramp caused her car to lose speed and fall short of his intended landing point. The defendant was an event producer. The Plaintiff alleged that the event producer’s failure to ensure that the approach to the ramp approach was properly smoothed was grossly negligent. Additionally, she claimed that the manager of the event schedule was negligent for refusing to change the schedule to allow enough time to prepare the area leading up to the ramp before the plaintiff’s stunt. The defendant filed a motion to dismiss relying on a release signed by the plaintiff prior to the event that released the defendant from liability for any injury arising out of the event, regardless of whether the injury was caused by negligence or otherwise. The U.S. District Court denied the motion holding that the football stadium where the event took place was the equivalent of a closed-course motorsports facility and the release was unenforceable pursuant to a Florida statute that prohibited the operator of a closed-course motorsports facility to disclaim liability for gross negligence.

 

ZAKIYYAH FATIMA IRONS-COLLINS, as Personal Representative of the Estates of KEEYAHN AHMIR CLINTON and NASIR LAKWAH CLINTON, Plaintiff, vs. CSX TRANSPORTATION, INC. Circuit Court, 5th Judicial Circuit in and for Marion County.

The plaintiff in this case was the representative of two minors killed by a CSX train. In this trial court decision, the court held that CSX was immune from suit because the deceased minors were trespassing at the time of the accident.  

RICHARD HERNDON and BELINDA HERNDON, Appellants, v. SHANDS TEACHING HOSPITAL AND CLINICS, INC., A FLORIDA NONPROFIT CORPORATION, Appellee. 1st District.

The plaintiffs in this case were the parents of a woman who was murdered when a surgical nurse at Shands Hospital injected her with hazardous controlled drugs. The plaintiffs claimed that Shands Hospital was negligent in hiring and supervising (or failing to supervise) the nurse. The trial court dismissed the complaint for failure to allege a legal duty.

The 1st DCA held that the following allegations were sufficient to establish a duty: 1. Shands knew or should have known of the risk of the unsupervised release of hazardous controlled drugs; 2. A reasonable provider would understand that the public would be at risk if the provider did not put procedures and actions into place to to guard against the risk of unauthorized removal of hazardous drugs without a prescription; and 3. The decedent’s death was a foreseeable result of Shands Hospital’s failure to use reasonable care in hiring and supervising the nurse.

Insurance Cases

THE ESTATE OF STEVEN ADAM TINERVIN as assignee of ZENAIDA R. GONZALES and ALFREDO V. GONZALES, M.D., P.A., Appellants, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Appellee. 4th District.

The appellant in this case was a pediatrician who had a business owner’s policy of insurance. The policy contained a professional services exclusion for bodily injury, property damage, personal injury or advertising injury due to rendering or failure to render professional services. The insured’s wife performed clerical tasks and assisted in all aspects of her husband’s practice. The estate of a deceased patient sued the insured for medical malpractice for failing to make the patient aware of important lab results. The trial court held that the insurance policy excluded coverage for services performed by the insured’s wife because the wife was a medical assistant and her duties included the rendering of professional services. The 1st DCA held that, even though the insurer had no duty to indemnify the physician, it had a duty to defend because the patient’s complaint against the physician alleged facts that fell within the insuring language of the policy.

UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. TOTAL HEALTH CARE OF FLORIDA, INC., ETC., Appellee. 3rd District.

The trial court granted summary judgment to Total Healthcare of Florida and certified the following question:

WHETHER THE CANCELLATION OF A NO FAULT INSURANCE POLICY CAN BE EFFECTIVE AB INITIO IN LIGHT OF THE MANDATORY REQUIREMENTS IMPOSED BY THE FLORIDA NO FAULT LAW, §§ 627.730-7405, FLORIDA STATUTES (2007)?

Based on the 3rd DCA decision in United Automobile Insurance Company v. Salgado, 34 Fla. L. Weekly D1578 (Fla. 3d DCA Aug. 5, 2009), the court answered the question in the affirmative, reversed the summary judgment, and remanded.

UNITED AUTOMOBILE INSURANCE COMPANY, Petitioner, vs. PROFESSIONAL MEDICAL GROUP, INC., a/a/o Gaston M. Botta, Respondent. 3rd District.

The plaintiff in this action was a medical provider which sued a medical insurer for unpaid benefits. The insurer claimed it was not required to pay the provider’s bills because the provider did not provide the insurer with proper written notice of a covered loss where the bills submitted by the insured did not include the provider’s license number, nor a required disclosure and acknowledgment form. The trial court granted summary judgment to the provider and the 3rd DCA affirmed stating that, bills that included the physician’s name were substantially complete, and provided sufficient notice to the insurer. The court held that, even if physician’s license number and the disclosure form were material provisions of the bills submitted, the physician cured the defect by providing the license number and disclosure forms to the insurer later.

JAMES RIVER INSURANCE COMPANY, Plaintiff, v. LAURA DIMAURO, Defendant. U.S. District Court, Southern District of Florida, Miami Division. Case No. 08-23235-CIV.

This was a declaratory judgment action filed by James River Insurance Company against a consumer who used dietary supplements produced by James River’s insured. The dietary supplement caused liver problems resulting in the defendant having a liver transplant and ongoing medical treatment. The period of the defendant’s treatment spanned two claims periods, including a Retroactive Date Endorsement period, entitling her to $1 million in benefits under the first claims period and $4 million in benefits under the subsequent claims period because the policy at issue was claims made and reported policy, rather than an occurrence policy.

Evidence Cases

MANDY MORGAN, Appellant, v. BRIAN C. DECKER, FLORENCE CHAPMAN and TRAVIS DANFORD, Appellees. 1st District.

Appellant was a plaintiff in the lower court case filed against two defendants. Appellant settled with one of the defendants and proceeded to trial against the other. The trial court admitted evidence of the appellant’s settlement agreement and by denied motions for mistrial and new trial filed by the appellant after defense counsel mischaracterized the settlement agreement during opening statements. The 1st DCA held that admission of evidence of the settlement and denial of the plaintiff’s motions was reversible error.

Civil Procedure Cases

SUNTRUST BANK, Appellant, vs. ELECTRONIC WIRELESS CORP. 3rd District.

The plaintiff in the underlying lawsuit obtained service of process on one defendant who later claimed that Spanish and Creole information was required to be included in the summons but was not. The defendant further claimed that the summons failed to provide the Clerk or Court’s address, and the process server did not properly return service. The plaintiff obtained service on a second defendant who later claimed that service was made on an employee who was not authorized to accept service. The trial court quashed service on both defendants. The 3rd DCA held that the trial court erred because, with regard to the first defendant, there is no requirement that a summons include the clerk’s address, the summons included the address where the responsive pleading could be served, and process server properly completed the return of service. Likewise, the trial court erred in quashing service on the second defendant because that defendant presented no evidence to rebut the plaintiff’s claim that service was made on employee who was authorized to accept service between 10 a.m. and 12 p.m., in compliance with Florida law.

UNITED AUTOMOBILE INSURANCE COMPANY, Petitioner, v. FRIEDMAN CHIROPRACTIC CENTER, P.A., etc., Respondent. 3rd District.

In the underlying action, the trial court ordered a medical expert for United Automobile Insurance to produce a list of all the IME and peer review reports he had prepared during the preceding three years, as well as certain information about his earnings from insurance companies. United Automobile filed a petition in the circuit court’s appellate division for certiorari to obtain relief from this discovery order. The circuit court denied the relief sought by United Automobile. The 3rd DCA held that the circuit court’s denial of the motion for relief from the discovery order was improper.

Quoting the Florida Supreme Court’s decision in Elkins v. Syken, 672 So. 2d 517, 521 (Fla. 1996)) the court stated:

Beyond [the] limits [set forth in Florida Rule of Civil Procedure 1.280(b)(4)(A)(iii)], production by an expert witness of financial and business records may be compelled “only under the most unusual or compelling circumstances” ordinarily only “[w]hen it is disclosed or made apparent to the trial court that [the expert] witness has falsified, misrepresented, or obfuscated the required data.”

DONALD LINCKS, Appellant, v. JOAN KEENAN, et. al., Appellees. 4th District.

Plaintiff filed a complaint and obtained a default judgment. The defendant obtained relief from the default judgment and filed a motion to dismiss the complaint for failure to state a cause of action. The trial court granted the motion to dismiss and the Plaintiff appealed. The 4th DCA held that the trial court acted properly in granting the motion to dismiss because entry of a default judgment constitutes an admission of only the well-pleaded factual allegations of complaint. However, a complaint that fails to state a cause of action can’t form the basis of a judgment.

DEPARTMENT OF AGRICULTURE, DEPARTMENT OF CHILDREN AND FAMILY SERVICES, DEPARTMENT OF JUVENILE JUSTICE, DEPARTMENT OF CORRECTIONS, and TROY TIDWELL, Appellants, v. BRYANT MIDDLETON, WILLIAM HORNE, ROGER KISER, and JIMMY JACKSON, individually and on behalf of all others similarly situated, and ROBERT E. CURRY, Appellees. 2nd District.

In the underlying action, the plaintiffs filed an action against various state agencies and employees of a reform school in Pinellas County for violations of the Florida Constitution, and against individual defendants for assault and battery and intentional infliction of emotional distress. Based on the “home venue privilege,” the state agency defendants filed a motion claiming that venue with respect to the state agencies was proper in Leon county and venue with respect to the individual defendants was proper in Jackson County. Therefore, the state agencies requested a transfer to either Leon or Jackson County. The only in dividual defendant who was properly served in the action filed a motion for transfer of venue to Jackson County, yet stated that venue would be proper either in Leon or Jackson County.

In response to the motions, the Plaintiffs argued that the “home venue privilege” was not absolute and that the state agencies waived the privilege by requesting a transfer of venue to Jackson County. The trial court denied the motion to transfer without prejudice on the basis that it was premature and requested more time to locate potential defendants in Pinellas County. The trial court denied the defendants’ motion to transfer.      

The defendants appealed and the 2nd DCA stated that the “home venue privilege” appears to be absolute but there are 4 exceptions to the rule:

(1) waiver, (2) the “sword wielder” exception, (3) suit against the governmental defendant as a joint tortfeasor, and (4) petitions for access to public records.

The court held that the governmental agency bears the initial burden of proving its entitlement to the home venue privilege after which the burden then shifts to the plaintiff to plead and prove that an exception applies. The court found that the agencies had met their burden but the plaintiffs had failed to establish that an exception should apply.

The court held that the trial court erred in denying the Defendants’ motion to transfer venue, remanded and ordered the trial court transfer venue to Leon County.  

Attorney’s Fees

MOHAMMED ABU-GHAZALEH, et al., Appellants, v. GERARDO MARTIN DEMERUTIS CHAUL, et al., Appellees. 3rd District.

In the underlying case, a Mexican corporation sold its shares of two subsidiary companies to Abu-Ghazaleh. The shareholders in the Mexican corporation filed a lawsuit claiming that Abu-Ghazaleh committed civil theft and conspiracy to commit civil theft. Before the litigation began, the plaintiffs entered into an agreement with two non-parties to the litigation, Van Diepen and CSI who financed and controlled the litigation. Van Diepen was to receive 18.33% of any award the plaintiffs received plus reimbursement for the expenses of the case. He was has the right to approve the filing of the lawsuit, control the selection of the plaintiffs’ attorneys, recruit fact and expert witnesses and veto any settlement agreements.

The jury returned a verdict in favor of Abu-Ghazaleh, who filed a motion for attorney’s fees on the basis that the plaintiffs’ civil theft claims lacked substantial legal support. Abu-Ghazaleh filed a similar motion against Van Diepen and CSI. The trial court awarded attorney’s fees against the plaintiffs but declined to award fees against Van Diepen and CSI. The 3rd DCA reversed and held that the defendant was entitled to award of attorney’s fees against Van Diepen and CSI under civil theft statute because their involvement in the case gave them the status of parties. However, the court held that the defendant was not entitled to an award of attorney’s fees against those parties under offer of judgment statute because the offer of judgment was not served on them. 

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