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The Week in Torts – Cases from the Week of January 11, 2019
FLORIDA LAW WEEKLY
VOLUME 44, NUMBER 2
CASES FROM THE WEEK OF JANUARY 11, 2019
PROPOSALS FOR SETTLEMENT DO NOT HAVE TO COMPLY WITH RULE OF JUDICIAL ADMINISTRATION 2.516 ON ELECTRONIC SERVICE.
Wheaton v. Wheaton, 44 Fla. L. Weekly S94 (Fla. January 4, 2019):
The plain language of section 768.79 and Rule 1.442 do not require service by email. Also, because a proposal for settlement is a document that is required to be served on the party to whom it is made and is not a pleading, Rule 2.516 on electronic service does not apply. As such, a proposal for settlement is enforceable even though it does not comply with the email service provisions of Rule 2.516.
FIFTH DISTRICT STICKS BY ITS POSITION THAT WHEN CALCULATING PIP BENEFITS THE DEDUCTIBLE IS SUBTRACTED FROM THE TOTAL MEDICAL CHARGES BEFORE APPLYING THE STATUTORY REIMBURSEMENT LIMITATIONS.
USAA General Indemnity v. Florida Hospital Medical Center, 44 Fla. L. Weekly D119 (Fla. 5th DCA December 28, 2018):
Notwithstanding the Fourth District having reached an opposite conclusion, the Fifth District stands by its prior decisions holding that when calculating the amount of PIP benefits due, section 627.739(2) requires that the deductible be subtracted from the total amount of medical charges before applying the reimbursement limitation under section 627.736(5)(a)1.B.
NO ABUSE OF DISCRETION IN DENYING A MOTION FOR JUROR INTERVIEW BASED ON ALLEGED NONDISCLOSURE WHEN NEITHER ATTORNEY ASKED THE PANEL A SPECIFIC QUESTION WHICH WOULD HAVE ELICITED THE DISCLOSURE–CLAIM THAT JUROR’S FACEBOOK PAGE REVEALED AN IMPROPER CONSIDERATION OF THE CRIMINAL DEFENDANT’S DECISION NOT TO TESTIFY INHERED IN THE VERDICT, AND COULD NOT SERVE AS A BASIS FOR A JUROR INTERVIEW.
Sonneman v. State, 44 Fla. L. Weekly D145 (Fla. 5th DCA December 28, 2018):
In this criminal case, the defendant appealed the denial of his motion to conduct a post-verdict juror interview after his convictions for two counts of lewd and lascivious battery of a child and one count of interfering with the custody of a child.
During jury selection, one prospective juror apprised the prosecutor that the case hit close to home because a member of his family had experienced something similar. Referencing that statement from the prospective juror, the prosecutor then asked if anyone else had “family or friends” that had been involved or impacted by sexual abuse. One prospective juror responded that her grandson had been abused at camp. The juror who made the earlier disclosure also responded. No other prospective jurors responded.
The defense then followed up with those prospective jurors only, but never asked whether any of the venire had personally been sexually abused or a victim of a crime.
The jury found the defendant guilty. Less than a week after the jury returned the verdict, the defendant filed a motion to interview the jury’s foreperson arguing that she committed misconduct by not disclosing that she had been sexually abused as a teenager.
In support of the motion, the defendant attached Facebook posts allegedly authored by the foreperson. The Facebook user indicated that like the victim in the defendant’s criminal case, she too had been sexually abused as a teenager and found personal justice through the verdicts against the defendant. Additionally, in response to a question concerning how the defendant pled, the Facebook user stated “not guilty” and noted that he did not take the stand in his own defense. The Facebook user later wrote that the state’s evidence overcame the defendant’s presumption of innocence.
The trial court found that the foreperson had not concealed the fact that she was a sexual abuse victim, and that the failure to disclose the information was attributable to the defendant’s failure to ask about personal experiences. The court said that her view of the transcript revealed that neither the state nor the defense ever asked any of the jurors if they had personally ever been the victim of sexual abuse.
The defense also argued that he was entitled to a juror interview because the foreperson also improperly considered his decision not to testify.
The appellate court found that the foreperson’s improper consideration of the defendant’s decision not to testify did not support reversal because jurors may not be interviewed concerning matters that inhere in the verdict (the Florida Supreme Court has previously held that a jury’s consideration of a defendant’s failure to testify is a matter which essentially inheres in the verdict itself).
In applying the De La Rosa test to the alleged nondisclosure, the second prong asks whether the juror concealed the instruction during questioning. The third prong of the test states that the failure to disclose the information cannot be attributable to the complaining party’s lack of diligence. To meet these prongs, the information must be directly asked for and not provided, and due diligence must be demonstrated as it relates to the questioning.
In this case, because neither the foreperson nor the venire had ever been asked the question directly, the court agreed with the trial judge that the juror had not concealed the information. The prosecutor had only inquired about friends and family members and the defense limited his voir dire inquiry to the two prospective jurors who responded to the prosecutor’s question. Based upon the record presented, the appellate court found the trial judge acted within his discretion in finding that the defendant did not prove nondisclosure pursuant to the De La Rosa test.
TRIAL COURT ERRED IN PERMITTING PLAINTIFF TO ASSERT CLAIM FOR PUNITIVE DAMAGES, WHERE IT FAILED TO CONDUCT A SECTION 768.72 EVIDENTIARY INQUIRY TO DETERMINE WHETHER THERE WAS RECORD EVIDENCE WHICH PROVIDED A “REASONABLE BASIS” FOR RECOVERY OF PUNITIVE DAMAGES–DENIAL OF A MOTION FOR SUMMARY JUDGMENT ON A FRAUD CLAIM IS NOT THE FUNCTIONAL EQUIVALENT OF A DETERMINATION THAT THERE IS A REASONABLE EVIDENTIARY BASIS FOR PUNITIVE DAMAGES.
Kiss Group v. Deavila, 44 Fla. L. Weekly D166 (Fla. 4th DCA January 2, 2019):
Plaintiff purchased stake in a company and five years later, contacted the company to redeem his investment. Before granting the request, the defendant advised that the company might be sold within the year. Several months after the plaintiff redeemed his investment, the company sold for a substantial profit and plaintiff sued for fraud in the inducement among other things, claiming that the defendant knew the sale was imminent (and was not some remote future possibility) and should have disclosed that.
Plaintiff moved to amend his complaint to add a claim for punitive damages. The plaintiff argued that the court’s previous denial of the defendant’s motion for summary judgment on the fraud claims was the functional equivalent of a determination by a court, that there was a reasonable evidentiary basis for punitive damages. The plaintiff cited First Interstate Development v. Ablanedo, 511 So.2d 536, 539 (Fla. 1987), stating that proof of fraud is sufficient to support compensatory damages is also sufficient to create a jury question regarding punitive damages.
After the hearing, the trial court made it abundantly clear that it did not believe plaintiff established a reasonable evidentiary basis for punitive damages, but felt constrained by the holding in the case referenced above, and granted plaintiff’s motion to amend.
The Fourth District said that a careful reading of the Ablanedo case demonstrates that it does not stand for the proposition that a trial court’s denial of a motion for summary judgment on a fraud claim is the functional equivalent of a determination by the court that there is a reasonable evidentiary basis for punitive damages. That case involved a situation where the trial court had allowed the jury to consider the issue of compensatory damages on a fraud claim with the close of the evidence, but at the same time entered a directed verdict on a punitive damage claim. Accordingly, the court’s holding that the proof of fraud sufficient to support compensatory damages was sufficient to create a jury question regarding punitive damages, was made in that specific context regarding the sufficiency of the evidence on a motion for directed verdict.
The court said that section 768.72 still requires an evidentiary basis before allowing an amendment for punitive damages. Because certiorari review is available to determine whether a trial court has complied with the procedural requirements of section 768.72, and they were not met here, the court granted the petition quashing the trial court’s order granting the motion to amend to assert a claim for punitive damages.
TRIAL COURT DEPARTED FROM ESSENTIAL REQUIREMENTS OF LAW IN APPLYING WRONG LEGAL STANDARD, AND DETERMINING THAT PLAINTIFF ESTABLISHED A REASONABLE BASIS FOR RECOVERY OF PUNITIVE DAMAGES.
Florida Hospital Medicine Services v. Newsholme, 44 Fla. L. Weekly D171 (Fla. 4th DCA September 5, 2018):
Plaintiff underwent knee replacement surgery and was allegedly misdiagnosed with pulmonary embolisms after the surgery and given an excessive amount of anticoagulants which caused him to suffer a stroke and intracerebral hemorrhage. The plaintiffs contended that his mistreatment was the result of a hospital policy preventing doctors from working overlapping shifts to allow for coordination of treatment.
Plaintiffs moved to amend their complaint to add a claim for punitive damages. They alleged that the defendants knowingly condoned, ratified or consented to the grossly negligent conduct of the physician group (with which they had settled).
Plaintiffs submitted an extensive written proffer. The defendant responded that the plaintiffs’ proffer failed to support and even contradicted their allegations concerning the relationship between the defendants and the former defendant doctor group that had settled.
The trial judge believed she was bound to take plaintiffs’ allegations as true analogizing the reasonable basis for recovery to that analysis as to whether a claimant has stated a cause of action from the Bridgestone v. Holmes case. The court then recited plaintiffs’ allegations that the group was defendant’s agent and that the defendants had exercised complete control over that group, knowingly condoning, ratifying and consenting to the settling group’s actions.
The defendant argued that the proffered evidence was insufficient. Still, the court ruled that plaintiffs had made a reasonable showing to support an amendment for punitive damages.
In the second case involving punitive damage proffers reported this week, the court again said that certiorari jurisdiction lies to review whether a trial court has complied with the procedural requirements of section 768.72(1). That statute provides that there is no claim for punitive damages allowed, unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for such discovery.
The court referenced its decision in Bistline v. Rogers where the court held that section 768.72(1) requires the trial court to act as a “gatekeeper,” and preclude a claim for punitive damages when there is no reasonable evidentiary basis.
The Fourth District noted how it had stated in Bistline that the trial court there had also misconstrued Holmes as applying the wrong legal standard to the plaintiff’s motion. The procedural protection of this statute requires more than mere allegations. There must be an evidentiary showing required by section 768.72. Trial courts must adequately consider whether the proffer itself is sufficient to establish a reasonable evidentiary basis for recovery of punitive damages, and may not simply accept plaintiffs’ allegations as true, as may occur on determining whether the complaint states a cause of action.
As the trial court failed to comply with the procedural requirements of the statute, and because the harm of being subjected to impermissible punitive damages cannot be remedied by an appeal, the court granted the petition and quashed the order on review.