Bias = the punishment far exceeding the crime….

FLORIDA LAW WEEKLY

VOLUME 50, NUMBER 7

FEBRUARY 21, 2025

TRIAL COURT ERRED IN DISMISSING ACTION FOR PLAINTIFF’S FAILURE TO COMPLY WITH DISCOVERY DEADLINE WITHOUT MAKING ANY WRITTEN FACTUAL FINDINGS ADDRESSING THE KOZEL FACTORS — IT WAS ALSO ERROR TO DENY THE PLAINTIFF’S MOTION TO DISQUALIFY THE JUDGE BECAUSE A REASONABLY PRUDENT PERSON IN THE PLAINTIFF’S POSITION COULD QUESTION THE JUDGE’S IMPARTIALITY WHEN HE LEVIED A MORE SEVERE SANCTION THAN THE DEFENDANT REQUESTED

Montez v. Universal Property and Casualty Ins. Co., 50 Fla. L. Weekly D338 (Fla. 2nd DCA Feb. 12, 2025):

The plaintiffs sued Universal alleging it had breached the parties’ insurance contract by failing to make a coverage determination and failing to pay a covered loss. After the case did not settle in mediation, the trial judge entered an order to establish deadlines for discovery and witness disclosures.

One week after the deadline to file witness disclosures had expired, Universal filed a motion to strike any future witness or exhibit lists submitted by the plaintiff as untimely and in violation of the order. Two months later, Universal filed a motion to continue, stating that the parties were still in the process of securing discovery and depositions. Universal then asked to amend its answer and affirmative defenses.

At the motion for continuance, Universal responded it would like to move the case forward if the judge were to grant the motion to strike the plaintiff’s witness and exhibit lists and would then withdraw its motion seeking to amend its affirmative defenses.

Interestingly, instead of striking those lists, the judge dismissed the case, noting that it had been filed in 2016, was still not ready for trial and that the plaintiff had not complied with the order establishing the deadlines. The plaintiff moved for rehearing and moved to disqualify the judge.

A court abuses its discretion when it dismisses an action based upon violations of discovery orders without making express written findings of fact to support the conclusion that the failure to obey the court order demonstrated willful or deliberate disregard. In this case, the trial judge failed to make any written factual findings and there was nothing to indicate that the judge even considered the Kozel factors.

The court reversed the order of dismissal and remanded for an evidentiary hearing and an entry of order with written findings.

However, the appellate court found that the trial judge should have disqualified himself. It found the plaintiff’s motion was legally and procedurally sufficient because a reasonably prudent person might have feared not receiving a fair and impartial trial in this situation, where the judge dismissed the entire case, which was a sanction more dramatic and draconian than the one (striking witnesses and exhibits) that the defendant even asked for.

COURT REVERSES SUMMARY JUDGMENT ENTERED IN WRONGFUL DEATH CASE — FINDS THAT THE REAR-END PRESUMPTION RELATES ONLY TO THE CAUSAL NEGLIGENCE OF THE REAR DRIVER, NOT TO ANY FACTUAL OR LEGAL ISSUE REGARDING THE NEGLIGENCE OF THE FRONT DRIVER

Baxter v. Morelli, 50 Fla. L. Weekly D335 (Fla. 2nd DCA Feb. 12, 2025):

Before sunrise a man and his brother were driving to work in his Toyota Corolla. Driving in front of the brothers was the defendant, who was operating an 80,000-pound truck hauling a tanker trailer filled with cement for his employer.

The defendant took his foot off the accelerator to slow down when he saw vehicles ahead of him in a grassy area off the shoulder of the road but ultimately had to slam on his brakes after one of those vehicles pulled out in front of him. A few seconds later the Corolla crashed into the defendant’s truck, killing the passenger brother instantly. The driver brother survived but had no memory of the accident.

The defendant driver and the vicarious entities who owned the truck moved for summary judgment on the cement driver’s negligence. The motion asserted that the driver had been driving within the speed limit, had done a pre-trip inspection before leaving for the road that morning, and had acted with due care as a matter of law.

The plaintiffs opposed summary judgment, submitting depositions of two eyewitnesses who testified that it was pitch dark out and that contrary to the defendant’s testimony, she didn’t see any lights on the truck until the collision. Another eyewitness testified that he too did not see the truck before the collision due to the lack of trailer lights.

The trial court concluded that the plaintiff failed to produce any evidence to rebut the rear-end presumption against the vehicle the decedent was riding in with negligence. The trial court also found there was no evidence of a deficiency in the trailer because there was uncontroverted testimony by the driver that he had performed a pre-trip inspection of the brake lights on the trailer before leaving the parking yard, and that they were in working order.

The court reversed. It noted that while there is a rebuttable presumption of negligence that attaches to the rear driver in a rear-end motor collision case, the presumption bears only upon the causal negligence of the rear driver and not to any factual or legal issue regarding the negligence of the front driver.

Thus, even though the rear driver is presumed to be negligent in a rear-end collision case, the presumption does not bar a rear driver’s claim where there is evidence from which a jury could conclude that the front driver was negligent and comparatively at fault, as was the case here.

The court also found that the evidence about the lights was in fact controverted because two eyewitnesses testified, they never saw any lights despite the defendant driver’s own testimony. Evidence must be viewed in a light most favorable to the non-moving party, and this evidence could support a conclusion that the defendant driver’s actions made him comparatively at fault.

Finally, because the plaintiff alleged that the owner entities were vicariously liable, the genuine disputes of material fact also precluded summary judgment against them.

COURT AFFIRMS JURY’S VERDICT FOR PLAINTIFF IN CARBON MONOXIDE POISONING CASE — REJECTS THAT TRIAL COURT SHOULD HAVE STRICKEN PLAINTIFF’S EXPERTS BASED ON DAUBERT

Sun Belt Rentals v. Burns, 50 Fla. L. Weekly D378 (Fla. 3rd DCA Feb. 12, 2025):

After being seen alive the night before, a man was found on the floor of his auto repair shop dead from carbon monoxide poisoning. The whole case turned on the source of the carbon monoxide that killed him.

The estate contended that the carbon monoxide came from a Blast Pro BP 10-27 shot blaster which the decedent had rented from Sun Belt to resurface the floors in his shop. The equipment had a 25-horsepower propane motor designed to strip floors with high-pressure blasts of recirculating shot.

The manual indicated that a carbon monoxide monitor should be used when operating the shot blaster, but Sun Belt did not provide him with one. Sun Belt also failed to advise him regarding the use of a carbon monoxide monitor when instructing him on the use of the machine.

The plaintiff sued for strict liability, negligent failure to warn, and negligent failure to maintain. The plaintiff retained a medical expert who opined that even a low concentration of carbon monoxide over a long period of time could cause carbon monoxide poisoning. The expert’s opinion was based on his review of various documents including the police report, photographs, the medical examiner’s report, fire rescue report, photos and videos, as well as deposition transcripts. His opinion was also based on his training and experience.

The expert acknowledged he had not conducted any site inspections or tested any machinery, explaining that he reached his opinion because the decedent was operating a machine that produced carbon monoxide, and he had ruled out other sources of carbon monoxide based on the depositions.

There was also an engineering and carbon monoxide expert who opined that the machine should not have been used in indoor or partially enclosed environments, partly citing to CDC publications and his experience.

Again, this witness did not do any testing to determine what the air circulation amount of fresh air or exchange rate of air was in the garage throughout the day when the decedent ran the machine.

The third district found that both experts’ testimony were the product of reliable principles and methods and that those methods were applied reliably to the facts of the case. It rejected the defendant’s argument that either expert should have been stricken pursuant to Daubert. The court also rejected that one of the experts had given surprise testimony (finding the disclosures included his testimony) and affirmed the jury’s verdict.

ERROR TO ALLOW EVIDENCE CONCERNING A PROPERTY DAMAGE SETTLEMENT MADE BETWEEN THE PARTIES, AT TRIAL

CRST Expedited Inc. v. Wallace, 50 Fla. L. Weekly D397 (Fla. 3d DCA Feb. 12, 2025):

In an automobile negligence case, there was testimony regarding who paid to fix the plaintiff’s vehicle.

Because evidence of offers to compromise a claim that is disputed, as well as any relevant conduct or statements made in negotiations concerning a compromise is inadmissible under Section 90.408, Fla. Stat., the trial court should not have allowed the evidence in before the jury, and the court reversed and remanded for a new trial.