Florida Decision Weekly Wrap-up 04/02

April 5, 2010

Florida Decision Weekly Wrap-up 04/02

GRIFFIN vs. ELLIS ALUMINUM & SCREEN, INC. Case No. 3D08-1782. L.T. Case No. 05-319. 3rd DCA. March 31, 2010.

[Torts. Evidence of Subsequent Accidents and Lack of Prior Accidents]

The Defendant installed a hand rail at Plaintiff’s home. Ten months later, the Plaintiff fell while climbing up the stairs, after having several alcoholic beverages. Two months after the fall, the Plaintiff’s wife called the Defendant to come repair some pickets on the fence opposite the handrail, but did not mention any problem with the handrail. Several months after that, the Plaintiff filed a lawsuit claiming that his fall was caused by the handrail which had detatched as he grabbed it. The jury rendered a verdict in favor of the defendant, the Plaintiff’s motion for new trial was denied and the Plaintiff appealed.

The grounds for the appeal, and 3rd DCA’s rulings included: 

1. A claim that the trial court erred by allowing the Defendant to present evidence that the Plaintiff had had a second fall at a different location, subsequent to the accident that was the subject of the lawsuit. The evidence had shown that, in the second fall, the Plaintiff had consumed several alcoholic beverages and fallen. The 3rd DCA held that it was not error to admit this evidence because the evidence was not admitted to show propensity or character to become intoxicated and fall down, but rather was probative of the Plaintiff’s pre- and post-accident condition and lifestyle.

2. A claim that the trial court erred by allowing the Defendant’s counsel to comment on the fact that the Plaintiff would not be calling his wife as a witness. The 3rd DCA held that, while it is improper for one party to comment upon another party’s failure to call a witness when the witness is equally available to both parties, (citation omitted), the comment in this case was harmless.

3. A claim that the trial court erred by allowing the Defendant’s counsel to comment, in its opening statement, that it had never received any complaints of handrails detatching. The 3rd DCA held that, while it is generally not proper to allow testimony of an absence of prior accidents, is was reasonable to interpret the statement made in this case to mean, in context, that there were no complaints from the Plaintiffs for the ten months between installation of the railing and the Platiniff’s fall, and therefore the comment, if error, was harmless; and,

4.   A claim that the trial was unfair because the trial judge momentary fell asleep, once during voir dire, and once during the Defendant’s opening statements. The court held that there is no indication that the Plaintiffs suffered any prejudice as a result of the trial judge’s momentary lapses. (citation omitted).


[Torts. Wrongful Death. Medical Malpractice Damages Cap]

The Plaintiff was the mother and personal representative of the estate of a child who died in the Defendant hospital’s neonatal care unit of after a premature birth.   The primary basis for the Plaintiffs’ medical negligence claim was that the Defendant hospital had a Level III neonatal ICU but did not have a pediatric surgeon on staff at the time the child was born to handle emergencies.   The jury found in favor of the Child’s Estate and awarded $8 million to the child’s mother and $4 million to the child’s father, who, although he was not married to the mother, did take an active interest in the child before the child’s death. The trial court reduced the award to the mother to the $350,000 statutory cap provided by F.S. 766.209(4) and reduced the award to the father to $0. The Plaintiff raised issues on appeal including whether the statutory cap imposed on noneconomic damages in medical malpractice cases in 1988 was still constitutional in 2009, given that it had not been adjusted for inflation in that ten year time period. The 2nd DCA held that the trial court did not err in reducing the award to mother to the statutory limit. However, the trial court did err in denying any compensation to the father who, although he was not married to mother and did not testify at trial, did take an active interest in the child while the child was alive.

The 2nd DCA certified the following question to the Florida Supreme Court: Does the $350,000 limitation or cap on liability for noneconomic damages established in 1988 in section 766.209(4) remain constitutional in 2009, even though the amount of this cap has never been adjusted to account for inflation and the legislature has never been required to reconfirm the continued existence of the “overpowering public necessity” that justified limiting access to the courts in 1988?

ATTORNEYS’ TITLE INSURANCE FUND, INC. vs. GORKA, et al. Case No. SC08-1899. Florida Supreme Court. April 1, 2010.

[Attorney’s fees — Offer of settlement]

The Plaintiffs below were the owners of property covered by a title insurance policy issued by the Defendant, a title insurance company. A claim was made against the property by a third party and the Defendant title company refused to provide the Plaintiffs with a defense. The Plaintiffs sued and the Defendant made a proposal of settlement to both Plaintiffs. The proposal of settlement was made jointly to both Plaintiffs and, under the terms of the proposal, neither party could accept unless both parties accepted. Neither party accepted.

After a bench trial that was decided in favor of the Defendant title company, the Defendant moved the Court to tax fees and costs pursuant to F.S. 768.79, on the basis of the unaccepted proposal for settlement. Florida Statutes Section 768.79 provides for recovery of reasonable costs and attorney fees as a sanction against a party who unreasonably rejects a settlement offer. 

Meanwhile, The Plaintiffs appealed the Trial Court’s decision on the merits to the 2nd DCA and the Defendant filed a motion in the 2nd DCA for appellate attorney’s fees pursuant to the unaccepted proposal of settlement. The Second District remanded the fee issue to the trial court for a determination of whether the Defendant was entitled to fees. The Trial Court concluded the settlement proposal was invalid and unenforceable since it required the mutual acceptance of both parties and entered an order denying the motions for attorneys’ fees. The Second District affirmed the Trial Court’s orders and held that the proposal for settlement was invalid and unenforceable because it did not allow either Plaintiff to independently evaluate or settle his or her claim by accepting the proposal. The 2nd DCA certified this decision to the Florida Supreme Court as being in conflict with the decision of the First DCA in Clements v. Rose, 982 So. 2d 731 (Fla. 1st DCA 2008), with regard to the validity and enforceability of a joint offer or proposal of settlement that is conditioned on the mutual acceptance of all joint offerees.

The Florida Supreme Court upheld the decision of the 2nd DCA. According to the Court, “[t]he conditional nature of the offer divests each party of independent control of the decision to settle, thereby rendering the offer of judgment invalid and unenforceable” (citations omitted). The Court stated that a review of precedent showed that the principles behind the “offer of judgment” statute inherently require that an offer of judgment must be structured such that either offeree can independently evaluate and settle his or her respective claim and financial responsibility by accepting the proposal irrespective of the other parties’ decisions. Otherwise, a party’s exposure to potential consequences from the litigation would be dependently interlocked with the decision of the other offerees (citations omitted).

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