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The Week in Torts – Cases from the Week of April 19, 2019
Successor Judge Can Grant Motion For New Trial
FLORIDA LAW WEEKLY
VOLUME 44, NUMBER 16
CASES FROM THE WEEK OF APRIL 19, 2019
SUCCESSOR JUDGE UPHELD IN GRANTING PLAINTIFF’S MOTION FOR NEW TRIAL AFTER ORIGINAL TRIAL JUDGE DISQUALIFIED.
Winn-Dixie Stores v. Winters, 44 Fla. L. Weekly D939 (Fla. 3rd DCA April 10, 2019):
Throughout a trial in a slip and fall case, the trial judge cautioned the parties and the jury that they were not to assume that any of his trial decisions indicated any bias or opinion as to the merits of the case. The jury found the defendant was not negligent (NOTE: not sure how the plaintiff complied with the 10-day rule).
The plaintiff subsequently filed a motion to disqualify the trial judge, alleging that his comments and behavior demonstrated a prejudice against her attorneys, and deprived her of a fair trial. The trial judge appropriately recused himself from the case and a successor judge was assigned. The successor judge entered final judgment in favor of the defendant Winn-Dixie pursuant to the jury verdict. He subsequently conducted a hearing on the plaintiff’s motion for new trial and granted it.
The court explained that it still reviews a successor judge’s grant of a motion for new trial for abuse of discretion. Winn-Dixie argued that when a successor judge is evaluating a motion for new trial the standard of review is significantly narrowed, because the trial judge is reviewing the cold record and not from his or her recollection of presiding over the trial.
The court found that Winn-Dixie’s point was well-taken but ultimately unavailing, because even applying the narrowed abuse of discretion standard, the court said it would affirm the successor judge’s order.
When the appellate court determines that reasonable people could differ as to the propriety of the trial court’s action, there can be no finding of an abuse of discretion. Because there was none here, the court affirmed the order.
DRIVER OF VEHICLE IN ACCORDANCE WITH PLAINTIFF ON BIKE LACKS STANDING TO CHALLENGE SUBPOENAS SEEKING INFORMATION CONTAINED IN CLAIMS FILE OF NON-PARTY INSURERS–NEITHER PARTY OBJECTED TO THE SUBPOENAS IN THE LOWER COURT NOR PARTICIPATED IN WRIT PROCEEDING.
Jimenez v. Granada Insurance Co., 44 Fla. L. Weekly D930 (Fla. 3rd DCA April 10, 2019):
A non-party driver argued that the trial court departed from the essential requirements of law in failing to grant his motion for protective order directed to two non-party subpoenas served on two non-party insurance companies.
The plaintiff in the case was injured when his bike collided with Mr. Jimenez’s vehicle. Plaintiff filed a personal injury action against Mr. Jimenez’s employer and the vehicle’s owner.
The employer was insured under a commercial garage liability policy through respondent Granada, and Granada filed a declaratory judgment action against the employer and the plaintiff seeking a declaration that it was not required to defend and indemnify the employer, because the accident allegedly did not occur within the scope of defendant’s employment.
The insurer then served a non-party subpoena for production to the driver’s personal insurer and on the vehicle owner’s insurer. The subpoenas sought information contained in the claims files, specifically any and all recording statements and transcriptions of the driver with respect to the claims made in connection with the incident.
The driver moved for a protective order arguing that there was no portion of the claims files that should be produced because they were privileged work product. In ruling on the motion, the trial court ordered that the insurance company modify the two non-party subpoenas to reflect that the requested documents be produced to the driver’s counsel so that the driver could provide all non-privileged documents to the insurance company and prepare and file a privilege log.
The court had previously recognized that an insurer’s claims file is the insurer’s work product, and that privilege belongs solely to the insurer. Neither of the subpoenaed insurers objected to the non-party subpoenas in the lower court, and neither participated in the petition for writ. Therefore, the driver did not have the requisite standing to assert the work product privilege on behalf of those subpoenaed matters and could not establish the requisite irreparable harm when neither insurer participated in the lower court or in the petition.
FAILURE TO TIMELY NOTIFY CLIENT OF CLAIM OF LIEN FATAL TO THE CLAIM OF LIEN–TRIAL COURT FAILURE TO CONDUCT AN EVIDENTIARY HEARING BEFORE IMPOSITION OF LIEN ALSO ERROR.
Benitez v. Leal, 44 Fla. L. Weekly D931 (Fla. 3rd DCA April 10, 2019).
APPELLATE COURT LACKS JURISDICTION TO CONSIDER A PRE-JUDGMENT ORDER STRIKING A PARTY’S PROPOSAL FOR SETTLEMENT–CONTINUATION OF LITIGATION AND ENSUING COSTS, TIME AND EFFORT IN DEFENDING LITIGATION DOES NOT CONSTITUTE IRREPARABLE HARM.
Florida Peninsula Insurance Co. v. DePorter, 44 Fla. L. Weekly D953 (Fla. 4th DCA April 10, 2019):
While the case does not make clear exactly at what point in the litigation the proposal was stricken, post-judgment orders denying claims for entitlement to attorney’s fees are considered final and appealable because there is no further judicial labor to be done. However, this case involved a pre-judgment denial of a motion for fees, and it did not foreclose the possibility that the party might seek to recover fees via another mechanism “at some point during the litigation.” Pre-judgment orders denying a claim for fees are not final appealable orders.
The court struck the insurer’s proposal for settlement and the insurer took a writ of certiorari. Because the continuation of litigation and any ensuing costs, time and effort in defending the litigation does not constitute irreparable harm, the insurance company did not meet the threshold for certiorari jurisdiction.
NOTE: More interesting about this case is the idea that a party may be able to move to strike a proposal for settlement at some point before final judgment. However, this begs the question about the judge learning of settlement discussions before the case concludes. There is simply not enough in the opinion to ascertain answers to these questions unfortunately.
ERROR TO DENY DEFENDANT’S MOTION FOR ATTORNEY’S FEES WHERE A PROPOSAL WAS PROPERLY SERVED AND AMOUNT AWARDED SUFFICIENT TO TRIGGER FEES–ARGUMENT THAT PROPOSAL WAS INVALID BECAUSE IT WAS A STATUTORILY AMBIGUOUS JOINT OFFER THAT FAILED TO APPORTION DAMAGES AMONG THE PLAINTIFFS FAILS WHERE CASES WERE CONSOLIDATED FOR THE SPECIFIC PURPOSES OF DISCOVERY AND TRIAL–PLAINTIFFS’ CLAIMS DID NOT MERGE UNDER CONSOLIDATION ORDERS, BECAUSE CASES DO NOT LOSE THEIR INDIVIDUAL IDENTITIES WHEN BEING CONSOLIDATED.
Weiner v. Maulden, 44 Fla. L. Weekly D953 (Fla. 4th DCA April 10, 2019):
The plaintiffs’ claims were consolidated for discovery and trial. Defendant served separate proposals for settlement to the two plaintiffs and after the first plaintiff’s case went to trial, she did not beat the proposal.
When the defendant moved for fees, plaintiff claimed that the proposal was invalid because it failed to apportion the total amount between her and the other plaintiff, thus leaving her reasonably uncertain as to whether her acceptance would extinguish the co-plaintiff’s claim in light of the consolidation.
The Fourth District rejected that argument. It found that plaintiff’s claims did not merge with the co-plaintiff’s claims under the consolidation orders, because even though cases are consolidated for discovery and trial they do not lose their individual identities. Also, the proposal explicitly stated that acceptance would resolve all damages in the action and referred only to the parties identified in the proposal. There was no mention of any other pending claims or parties that would be affected by the acceptance.
The court reversed the trial court’s order denying the defendant’s entitlement to attorney’s fees.
ERROR TO DENY A FACIALLY SUFFICIENT MOTION TO QUASH SERVICE OF PROCESS WITHOUT AN EVIDENTIARY HEARING.
Lilly v. Bank of America, 44 Fla. L. Weekly D955 (Fla. 4th DCA April 10, 2019).