Florida Decision Weekly Wrap-up 04/09

April 12, 2010

Florida Decision Weekly Wrap-up 04/09


PEDIATRIX MEDICAL GROUP OF FLORIDA, INC., et al. v. FALCONER, et al. Case No. 4D09-3584. 4th DCA. April 7, 2010.

[Torts. Medical Negligence]

The Plaintiffs were the parents of a child who was brain damaged as a result of birth-related neurological injuries. The Defendants were the delivering physician, the hospital and Pediatrix, a physicians’ group. In an administrative proceedings, the parties stipulated that the claim was compensable under NICA because the delivering doctor was a participating physician, and the delivering physician and hospital had both complied with the notice provisions of NICA. The parents accepted NICA benefits and summary judgments were entered for the delivering physician and hospital.

Defendant, Pediatrix moved for summary judgment claiming that the NICA remedies provided by F.S. 766.303(2) are exclusive. None of the Pediatrix physicians were “participating physicians” under F.S. 766.303(2). The trial court denied the motion on the basis that, since the Pediatrix doctors were not participating physicians as defined in the statute, the exclusivity of remedies provision of the statute did not apply to them. Pediatrix filed this appeal.

The 4th DCA held that after a claimant accepts NICA benefits for a compensable claim, he or she forgoes any civil suit against “any person or entity [including non-covered persons or entities] directly involved with the labor, delivery, or immediate post-delivery resuscitation.” § 766.303(2).  According to the Court, when a claim is compensable under NICA as to some persons or entities involved, but not others, a claimant must elect to accept the NICA no-fault benefits OR to pursue a civil action against any non-covered persons or entities, but may not pursue both.

Pediatrix physicians cared for the Plaintiffs’ child in the pediatric ICU after delivery. The plaintiffs argued that they were entitled to pursue a civil action against Pediatrix, because Pediatrix’s alleged negligence did not occur during “the labor, delivery, or immediate postdelivery resuscitation.” The 4th DCA held that whether an injury occurred during the “immediate postdelivery resuscitation” period” requires a case-by-case analysis. (citations omitted) and remanded the case to the Trial Court to consider whether Pediatrix’s alleged negligence was inside or outside the covered period which would determine whether NICA would be the Plaintiffs’ exclusive remedy.

JOHN RANDO, et al. v. GOVERNMENT EMPLOYEES INSURANCE COMPANY. Case No. SC09-240. Florida Supreme Court. April 8, 2010.

[Insurance. Uninsured Motorists. Stacking Coverage]

The Plaintiffs were Florida resident John Rando, who sustained serious injuries in an automobile accident, and his wife. The Defendant was GEICO Insurance Company. The accident was caused by an underinsured driver. At the time of the accident, Plaintiffs were the named insureds on two insurance policies issued by the Defendant, one issued in Florida for two vehicles maintained in Florida and the other issued in Deleware for a vehicle driven mainly by the Plaintiffs’ daughter who resided there. Each of the Plaintiffs’ policies provided uninsured motorist coverage. Following the accident, the Plaintiffs were paid the full amount of uninsured motorist benefits under the Florida policy; however, they were denied benefits under the Delaware policy because of a provision that prohibited the combining, or stacking, of uninsured motorist benefits from separate GEICO policies. The Plaintiffs filed suit in Federal District Court and, during an appeal in the United States District Court for the Eleventh Circuit, that Court certified the following question to the Florida Supreme Court:


The Court indicated that Florida’s public policy favors providing insurance coverage for losses caused by uninsured motorists. In the event of a loss caused by an uninsured motorist, stacking coverage from multiple policies is allowed to an insured who paid separate premiums for uninsured motorist coverage in order to obtain benefits for each premium paid (citations omitted). The Court concluded that under Florida law, the uninsured motorist anti-stacking provision contained in the policy that was executed, issued and delivered in Florida to the named insureds, who were residing in Florida at the time and thus, subject to Florida law, was unenforceable.

F.S. 627.727(9) provides insurers with a mechanism to limit stacked coverage. However, in order for an insurer to prohibit the stacking of multiple uninsured motorist policies, it must inform the insured of the limitations imposed by that statute on the form approved by the Office of Insurance Regulation for giving such notice. If such a notice is signed by the insured, it is presumed the insured made an informed, knowing acceptance of the limitations and the anti-stacking provision is enforceable. In this case, GEICO did not obtain informed consent from the Plaintiffs for the anti-stacking provision and therefore, the Florida Supreme Court held that the anti-stacking provision was unenforceable.

CHARRON v. BIRGE. Case No. 5D08-4504. 5th DCA. April 9, 2010.


[Torts. Negligence. Presumption of Negligence in Rear End Collision]

The Plaintiff was injured while a passenger on a motorcycle that rear-ended a vehicle in Orlando. She sued the driver of the vehicle for negligence, claiming that the driver made an abrupt stop that was the cause of the accident. The Defendant filed a motion for summary judgment that was granted by the trial court based on the presumption in Florida law that the driver of the “following vehicle” is negligent in a rear end collision.

The Court discussed the presumption of negligence that attaches to the following driver in a rear-end collision as follows:

A plaintiff ordinarily bears the burden of proof of all four elements of negligence-duty of care, breach of that duty, causation and damages. Yet, obtaining proof of two of those elements, breach and causation, is difficult when a plaintiff driver who has been rear-ended knows that the defendant driver rear-ended him but usually does not know why. Beginning with McNulty (citation omitted), therefore, the law presumed that the driver of the rear vehicle was negligent unless that driver provided a substantial and reasonable explanation as to why he was not negligent, in which case the presumption would vanish and the case could go to the jury on its merits. (citations omitted).

Citing the Florida Supreme Court case of Clampitt v. D. J. Spencer Sales, 786 So. 2d 570, 573 (Fla. 2001), the 5th DCA went on to say: “The rebuttable presumption of negligence that attaches to the rear driver in a rear-end collision in Florida cases arises out of necessity in cases where the lead driver sues the rear driver . The presumption bears only upon the causal negligence of the rear driver . . . .” 786 So. 2d at 572-73. (Emphasis added). “The presumption exists to fill an evidentiary void for the lead driver; it does not exist to insulate a negligent lead driver from liability for his negligence.”

The Court stated that the presumption clearly does not apply where a passenger of the following vehicle sues the lead driver for his negligence. Further, where there is evidence that the lead driver’s negligence contributed to the accident, the presumption is rebutted and the issue should be submitted to the jury (citations omitted).   The Court stated that, to the extent the Defendant suddenly stopped, the inquiry should not have been whether the rear (motorcycle) driver should have anticipated the sudden stop, but whether the Defendant’s sudden stop was negligent. There was evidence in the case that the Defendant suddenly stopped and that the stop was unnecessary. Therefore, the Court held that it was error for the Trial Court to enter summary judgment for the Defendant and remanded for jury consideration of whether the Defendant’s stop, under the circumstances, was negligent.  



SOLTWISCH, et al. v. PASCO COUNTY, A SUBDIVISION OF THE STATE OF FLORIDA. Case No. 2D08-6070. 2nd DCA. April 9, 2010.


[Torts. Negligence. Evidence. Res Ipsa Loquitur]


The Plaintiff’s husband, Mr. Soltwisch, was at a clinic receiving treatment for sores on his foot when he appeared to experience mild tremors. The treating physician noted that when Mr. Soltwisch moved his extremities, there was no evidence of any pain or fractures. Following the clinic’s policy regarding patient’s who appear to have had a seizure, the clinic staff called for an ambulance to transport him to an emergency room. After being transported to the hospital by Pasco County Fire Rescue, Mr. Soltwisch was complaining of pain in his right hip and he had experienced a sharp increase in his blood pressure. An x-ray showed an acute fracture in his right femur. During surgery to repair the fracture, Mr. Soltwisch contracted an infection that resulted in his death. Plaintiffs filed this wrongful death action against the Defendant, Pasco County. The Defendant filed a motion for directed verdict on the Plaintiffs’ negligence claim which was granted by the trial court and the Plaintiffs appealed.

At trial, Mrs. Soltwisch testified that she heard a loud bang as the paramedics placed Mr. Soltwisch in the back of the ambulance. She also presented expert testimony that Mr. Soltwisch’s fracture occurred as a result of the transport by Pasco County’s paramedics, not from a seizure or osteoporosis, and that the Pasco County paramedics did not meet the requisite standard of care during the transport.

The Court held that the Plaintiffs were not required to establish the identity of the instrumentality that caused Mr. Soltwisch’s injury because the res ipsa loquitur doctrine merely requires “that the instrumentality causing [the plaintiff’s] injury was under the exclusive control of the defendant, and that the accident is one that would not, in the ordinary course of events, have occurred without negligence on the part of the one in control” (citations omitted). There was evidence at trial that Mr. Soltwisch, who did not appear to have any fracture before he left the Clinic, somehow incurred a femoral fracture while he was under Pasco County’s exclusive control. The 2nd DCA found that these facts were sufficient to overcome Pasco County’s motion for directed verdict, that the trial court’s directed verdict was error, and that the plaintiffs were entitled to have the jury determine whether Mr. Soltwisch’s fracture occurred while he was being transported to the hospital by the Defendant.

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