An EMERGENCY? Really?

FLORIDA LAW WEEKLY

VOLUME 49, NUMBER 24

JUNE 14, 2024

COURT ADMONISHES THAT EMERGENCIES MUST BE EMERGENCIES OR LITIGANTS WILL PAY THE CONSEQUENCES.

DDD Construction v. Wese Manor Development, 49 Fla. L. Weekly D1215 (Fla. 1st DCA Dec. 6, 2023):

In this case, the appellate court emphasized the importance of true emergencies in litigation and warned that litigants who misuse emergency motions will face consequences. The court described how much court personnel get “triggered” when litigants characterize a motion as an emergency, and how much even more burdensome, when such a motion is filed on a weekend or holiday. Judging from this case, we can expect that courts will start cracking down on “boys (girls) who cry wolf” about what constitutes an emergency.

COURT DID NOT ERR IN GRANTING UM INSURER’S MOTION TO SET OFF LIABILITY POLICY LIMITS FROM PLAINTIFF’S RECOVERY, EVEN THOUGH PLAINTIFF DID NOT RECOVER FROM THE BI INSURER– SECTION 627.727 ENTITLES UM INSURER TO A CREDIT FOR FULL AMOUNT OF LIMITS OF UNDERINSURED MOTORIST LIABILITY POLICY, WHETHER OR NOT THE FULL AMOUNT HAS BEEN PAID TO THE INSURED.

Hale v. Geico General Insurance Co., 49 Fla. L. Weekly D1215 (Fla. 1st DCA June 5, 2024):

The plaintiff was injured in an automobile accident. The tortfeasor had $25,000 in liability coverage.

The plaintiff initially pursued a claim against the liability insurer. He later abandoned that claim, asserting his damages were in excess of those limits, and opting instead to pursue an underinsured motorist claim.

The insurer argued that the defendant was not an underinsured motorist and that any damages the plaintiff suffered were within the tortfeasor’s liability policy limits. The insurance company refused to pay the plaintiff uninsured/underinsured motorist benefits.

While the jury found that the defendant was a legal cause of loss, injury, or damage to the plaintiff, it only awarded him $17,000 in damages. In a post-trial motion, the insurance company moved to set off the verdict by the tortfeasor’s policy limits, which the trial court granted.

Because the defendant was insured under a policy which provided bodily injury liability limits of $25,000 and because the full amount was available to the plaintiff at the time of the accident, the trial court properly found that the insurance company was entitled to a set off.

Section 627.727(6)(c) treats the funds from the defendant’s policy as available to the plaintiff even if they are not actually paid to him. This is because the section entitles an insurer to credit for the full amount of the underinsured motorist’s liability policy, whether or not the full amount has been paid.

The law considers the tortfeasor’s liability coverage as “available” to an insured, even when the insured fails to pursue a claim against the tortfeasor/underinsured motorist, and the insured has not actually received any benefits.

The court affirmed the trial court’s order granting the insurance company a set off, and the amendment of the final judgment which then amounted to a “defense” verdict, entitling the insurer to attorney’s fees.

ERROR TO GRANT SUMMARY JUDGMENT WHERE MOVANT’S SUPPORTING FACTUAL POSITION WAS NOT FILED AT LEAST 40 DAYS PRIOR TO THE HEARING — LACK OF PREJUDICE TO THE OPPOSING PARTY IS IRRELEVANT WHEN A PARTY DOES NOT MEET THE TIME REQUIREMENTS OF THE RULE

Beaches MRI v. Safeco Insurance Co. of Illinois, 49 Fla. L. Weekly D1190 (Fla. 4th DCA June 5, 2024):

Under the new version of rule 1.510, not only must the summary judgment motion be filed within the applicable time frame, the movant’s supporting factual positions must also be filed at least 40 days before the scheduled summary judgment hearing.

Here, the summary judgment motion was filed one week before the hearing, and the affidavit and supporting evidence were only filed one day before the hearing.

Litigants must file the time requirements set forth in procedural rules in all extraordinary circumstances. In this case, the movant did not argue any extraordinary circumstances to invoke the exception to the time requirement.

Instead, it argued that the opposing party suffered no prejudice because it was adequately able to prepare for the hearing despite non-compliance with the procedural safeguards of the rule.

The rules of civil procedure are not advisory and provide time limits to raise arguments and present evidence in order to prevent gamesmanship, unfair surprise, and prejudice.

ATTORNEYS MUST HONOR THEIR LOPs.

Frinzi v. Tolli, 49 Fla. L. Weekly D1216 (Fla. 2nd DCA June 7, 2024):

The actual holding of this case involved the denial of a writ of certiorari that an attorney litigant took when asserting that the plaintiff doctor who was suing him, had failed to join an indispensable party (the court found the litigant fell woefully short of showing irreparable harm).

However, the facts of the case are worth discussing.

Here, the plaintiff had settled her accident claim at mediation for an amount far less than her medical bills. Because of the “relatively meager financial outcome,” the attorney wrote to the subject physician (as well as to the other medical care providers), proposing that the only fair resolution was for them all to take a pro rata share of the recovery based upon their outstanding balances.

The attorney presented a closing statement showing the proposed reduced pro rata share for the attorney, the subject doctor, and the other medical care providers. The subject doctor agreed to take a reduced amount for his medical services.

Over a year later, the attorney filed a complaint for interpleader and/or for equitable distribution against the medical providers. Two of the providers had not agreed to accept reduced payments and consequently, he filed the action so that the trial court could determine which entities were protected via the LOP and should share in the pro rata distribution.

Several of the providers, including the subject physician, failed to respond to the complaint. The subject physician reported he did not take any action because he had no defenses to submit because he had a valid LOP and was going to be paid for his service as agreed. The attorney obtained a clerk’s default against the non-responding medical care providers, including the subject doctor.

Thereafter, the attorney submitted correspondence and a proposed order to the trial court. He advised that the non-defaulted medical care providers agreed with the distribution scheme contained in the order of distribution. Without a hearing, the trial court entered the order approving the distribution. Shortly thereafter, the attorney voluntarily dismissed the complaint for interpleader and equitable distribution, and issued a check to the plaintiff for much more of the recovery than initially was the case when all the physicians were to receive their pro rata share.

The subject physician who had actually continued to treat the plaintiff after the case settled, found out that the money had been distributed (after being told multiple times that they were waiting for the court to rule).

He then sued the attorney and the plaintiff for breach of contract. While the court refused to address the matter on certiorari review, it noted that the doctor had a valid LOP, and had earlier agreed to receive a discount fee for his services. Moreover, equitable distribution was unavailable in this instance because a trial court may not rewrite the party’s contract.

The court dismissed the attorney’s petition for writ, and made clear that ultimately, this doctor would be paid.