Florida Decision Weekly Wrap-up 12/12

December 14, 2009

Florida Decision Weekly Wrap-up 12/12

PETRO STOPPING CENTERS, L.P., ETC., ET AL., Appellant, v. MARGARIT GALL, Appellee. 5th District. (Torts. Election of workers’ compensation remedy barred tort claim)

The plaintiff in the underlying action was an employee who was injured working on meat tenderizing equipment. She filed a workers’ compensation claim and eventually entered into a mediated settlement. She subsequently filed a civil action in tort claiming that F.S. 440.11 (1)(b)Torts provided her with an exception to employer immunity because her manager was aware that a safety guard had been removed from the machine she was working on and therefore injury was almost certain. The employer filed a motion for summary judgment and the trial court denied the motion on the basis that 1.) a mediated settlement was not a conclusion on the merits of the workers’ compensation claim and 2.) the plaintiff had not shown a conscious intent to pursue her workers’ compensation remedy exclusively and to waive her right to pursue her tort claim. The Fifth District reversed finding that a mediated settlement of a workers’ compensation is a conclusion on the merits and Plaintiff’s pursuit of the tort remedy was did not warrant a conclusion that she lacked a conscious intend to elect her workers’ compensation to the exclusion of a tort remedy. According to the Fifth District, “the test for election of remedies, as set forth by the Supreme Court . . ., does not require a party to show both litigation of a workers’ compensation case to conclusion on the merits and a separate conscious intent to elect workers’ compensation benefit to the exclusion of tort benefit. Rather, litigating a workers’ compensation case to a conclusion on the merits manifests a conscious intent to choose workers’ compensation benefits to the exclusion of tort benefits.”

WORKMEN’S AUTO INSURANCE COMPANY, Appellant, v. WAYNE FRANZ and SHARI FRANZ, Appellees. 2nd District. (Civil Procedure. Court lacked jurisdiction where certain issues still pending in trial court)

The plaintiff, who was insured by the defendant Workmen’s Auto Insurance Co., was involved in an automobile accident in which the other driver was uninsured. Plaintiff’s policy of insurance covered more than one vehicle, but did not state whether the policy provided stacked coverage. The plaintiffs filed a complaint for declaratory relief containing five counts. In the first count, the plaintiff sought a finding that he was entitled to stacked coverage under the policy. The trial court issued an order finding that the plaintiff was entitled to stacked coverage, without ruling on the remaining four counts. The defendant/insurer appealed the trial court’s order. Workmen’s argument was based on Florida Rule of Appellate Procedure 9.110(m) which allows for certain appeals from judgments that determine the existence of insurance coverage. The Second District stated that this statute applies to coverage disputes where the dispute involves liability coverage, but is not applicable to coverage disputes for first party claims for PIP, medical benefits, or uninsured motorist benefits. The Second District therefore held that Rule of appellate procedure did not apply to this case, and that it lacked jurisdiction to review the trial court’s decision on Count 1 because the issues of plaintiffs’ right to receive UM benefits and the amount owed by insurer were still pending in trial court

RUBY MANN, as Administrator of the Estate of Melinda Neal Fairbanks, et al., Plaintiffs, v. TASER INTERNATIONAL, INC., Defendant, HAMILTON HEALTH CARE SYSTEMS, INC., d.b.a. Whitfield County Emergency Medical Services, JOE BURGE, SHAWN GILES, CLAUDE CRAIG, Individually and in Their Official Capacity as Deputy Sheriff of Whitfield County, et al., Defendants, 11th Circuit.

(Product liability, wrongful death, spoliation of evidence, civil rights. Taser not liable. Law enforcement officers not liable. Emergency medical personnel not liable.) 

The plaintiffs in the underlying case were the survivors of Melinda Neal Fairbanks, who died after she was immobilized by a Tazer during a drug arrest. The complaint included claims against Taser for design defects and failure to warn. The claims against the law enforcement defendants were for excessive force, inadequate medical treatment, false arrest, and failure to train, among others. The claims against the emergency medical services were for inadequate medical treatment. The Eleventh Circuit issued a long opinion that included rulings on an extensive list of issues.

Claims Against Taser

In the underlying action, Taser filed a motion for summary judgment that was granted by the trial court. The Eleventh Federal Circuit held that summary judgment in favor of Taser was proper because the plaintiffs had submitted no admissible evidence to support a claim that the Taser used in her arrest caused her death.  

Claims Against Law Enforcement

The Eleventh Circuit likewise held that judgment in favor of the law enforcement officers was proper because the evidence showed that law enforcement officers had used reasonable force against Melinda Near Fairbanks, that Ms. Fairbanks actively resisted arrest and posed a danger to herself and others. The court further held that that the law enforcement officers were entitled to qualified immunity against the claim that they were deliberately indifferent to her medical needs because, prior to death, Ms. Fairbank’s behavior did not indicate that she had a serious medical need and officers took action as soon as they realized she needed medical help. The court held that claims against law enforcement officers in their official capacities could not be supported because liability for those claims was derived from the liability of the officers in their individual capacities. Next, the court held that Georgia law, which governed the case, provided immunity for discretionary acts unless the plaintiff can show malice or the intent to injure her and the plaintiff had failed to make such a showing. The plaintiffs claimed law enforcement defendants destroyed evidence and therefore, they were subject to an adverse inference with regard to the destroyed evidence. The court upheld the trial court’s decision refusing to apply an adverse inference because plaintiffs had presented no evidence that the law enforcement defendants acted in bad faith.

Decisions on Procedural Issues

A number of procedural issues were raised and decided in this case, well. The Eleventh Circuit held that the guardians of Ms. Neal Fairbank’s children lacked standing to file the wrongful death claims because Georgia’s Survival Action statute only permits claims by the guardians of surviving children if there is no surviving spouse present and able to manage the decedent’s estate. After a contribution claim was filed against Mr. Fairbanks alleging he was convicted of solicitation for encouraging Ms. Neal Fairbanks to buy the methamphetamine she consumed prior to her death, the plaintiffs filed a motion in the trial court to substitute Ms. Neal Fairbank’s children for Mr. Fairbanks. Based on the above mentioned statute, the Eleventh Circuit confirmed the trial court’s decision denying the motion for substitution. The claims against Taser design defect and failure to warn.

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