One for the good guys

FLORIDA LAW WEEKLY

VOLUME 49, NUMBER 44

NOVEMBER 15, 2024

CLE CREDITS NOW AVAILABLE FOR PRO BONO WORK

In Re: Amendments to Rules Regulating The Florida Bar – Rules 6-10.3, 49 Fla. L. Weekly S269 (Fla., Oct. 31, 2024):

The Florida Supreme Court has amended Bar Rule 6-10.3 addressing minimum continuing legal education standards to allow lawyers to earn one hour of general CLE credit for an hour of pro bono service, up to five credit hours over a three-year reporting cycle. The Court made clear, however, that no CLE credit will be awarded for monetary donations.

TRIAL COURT ERRED IN GRANTING PLAINTIFF LEAVE TO AMEND TO ASSERT A CLAIM FOR PUNITIVE DAMAGES BASED ON CELL PHONE USAGE – DEFENDANT’S GLANCE AT HIS CELL PHONE WHILE DRIVING DID NOT CONSTITUTE “ACTIVE ENGAGEMENT” OR “HANDLING” OF A CELL PHONE AND THUS NO ACT OCCURRED SUGGESTING THE CELL PHONE USAGE WAS RECKLESS.

Creech v. Santomassino, 49 Fla. L. Weekly D2137 (Fla. 4th DCA Oct. 24, 2024):

The defendant was driving a truck into an intersection when he allegedly struck a golf cart driven by the plaintiff. There was a dispute about who had the green traffic light.

During the defendant driver’s deposition, he admitted that while at the intersection where the accident occurred, he heard an audible text message and looked down and saw his wife was texting him. The driver admitted it was unreasonable and reckless to text while operating a motor vehicle.

After the deposition, the plaintiff sought leave to amend to add a claim for punitive damages asserting that the driver intentionally operated his vehicle in violation of section 316.305(3)(a), showing a conscious disregard and indifference to life. The plaintiff provided orders from other circuit courts granting leave to amend in cases where there was texting and driving, as well as a scientific report showing that cell phone usage provides equal or greater danger to the motoring public than drunk drivers do.

The defendant driver acknowledged the existence of negligence but asserted that the allegations did not rise to the level of punitive conduct.

The trial court allowed the amendment based on the plaintiff’s evidence. The court was also persuaded by the fact that the accident occurred on Halloween during the boat show when traffic was extremely heavy. The trial court found the defendant had met both the intentional and gross negligence prongs of the punitive damages statute.

Before reversing, the appellate court reiterated that the level of negligence required for punitive damages is equivalent to the conduct involved in criminal manslaughter.

The trial court must make a preliminary determination of whether a reasonable jury viewing the totality of proffered evidence, in the light most favorable to the movant, could find by clear and convincing evidence that punitive damages are warranted. As part of the trial court’s gatekeeping function, it must deny the motion to amend if the opposing party’s conduct is not alleged or shown by a proper pretrial evidentiary hearing to be sufficiently reprehensible and outrageous as to merit punitive damages.

The defendant driver argued that the plaintiff’s allegations involved only negligence arising out of a run-of-the-mill automobile accident, further arguing that the plaintiff’s allegations of intentionality and gross negligence were conclusory. He noted that section 316.305 is a non-criminal statute.

In reversing, the appellate court concluded that the record showed that the defendant driver did glance down at his phone but did not actually read or respond to his wife’s text, despite the plaintiff’s allegations to the contrary. The court found that the evidentiary showing and proffer did not actually match the evidence.

The court analogized the case to Mercer v. Sadler Creek, where a driver used his cell phone in foggy and smoky conditions a few seconds before the crash but had simply handled the phone in a static position. It found that the defendant’s driver’s brief glance at his cell phone was not “active engagement” or “handling of a cell phone,” and that there was no additional act to suggest that the cell phone usage was reckless. While the defendant driver’s actions were arguably negligent, the court found they did not rise to the level of either gross negligence or intentional misconduct needed to assert a claim for punitive damages.

WHEN THERE IS A CONFLICT IN AFFIDAVITS REGARDING PERSONAL JURISDICTION, THE TRIAL COURT MUST CONDUCT A LIMITED EVIDENTIARY HEARING

Cash v. Stoltenberg, 49 Fla. L. Weekly D2136 (Fla. 4th DCA Oct. 23, 2024):

To determine the appropriateness of personal jurisdiction over a non-resident defendant, the complaint must allege sufficient jurisdictional facts to bring the action within the ambit of Florida’s long-arm statute. Then the court must determine whether sufficient minimum contacts are demonstrated to satisfy due process requirements.

A defendant who challenges personal jurisdiction may contest the plaintiff’s assertions by filing an affidavit in support of a motion to dismiss. If the defendant sufficiently disputes the allegations, then the burden shifts back to the plaintiff to present evidence establishing a sufficient factual basis for personal jurisdiction.

If the evidence and affidavits can be harmonized, the trial court may render a decision upon the undisputed facts.

However, if a direct conflict exists between the affidavits and evidence which cannot be reconciled, the court must hold a limited evidentiary hearing to determine jurisdiction.

Here, there was a direct conflict between the defendants’ and plaintiffs’ affidavits which could not be reconciled so the court remanded for a limited evidentiary hearing.