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The Week in Torts – Cases from the Week of July 5, 2019
I Have A Lien!
FLORIDA LAW WEEKLY
VOLUME 44, NUMBER 27
CASES FROM THE WEEK OF JULY 5, 2019
INSURER NEGLIGENT FOR FAILING TO PROTECT FORMER LAW FIRM’S CHARGING LIEN.
Geico General Insurance Co. v. Steinger, Iscoe & Greene, 44 Fla. L. Weekly D1656 (Fla. 3rd DCA June 26, 2019):
An injured victim filed a claim against a Geico insured and hired Steinger, Iscoe & Greene to represent her. Plaintiff discharged Steinger, Iscoe & Greene and hired a second firm to continue negotiating with Geico. Shortly thereafter, the firm sent a notice and claim of attorneys charging lien to Geico, the plaintiff, and to the new law firm, to protect its right to quantum meruit fees.
The charging lien requested that no settlement disbursement be made by any defendant or insurer until the lien was resolved. The charging lien also requested that the firm’s name appear on the checks from any defendant or insurer to the claimant. It was undisputed that Geico received notice of this charging lien, and even sent the second law firm a letter memorializing the lien.
Eventually, Geico agreed to settle the claim for $175,000.00 and mailed a copy of the settlement to the second law firm. Geico’s cover letter to the second law firm directed that firm to hold the settlement check in its escrow account until the plaintiff returned the executed release document. None of that happened.
Geico sent the settlement check to the second law firm, Litigation Law, and did not include Steinger, Iscoe & Greene as a payee. The second firm then disbursed the settlement funds without notice to any of the parties, and without the plaintiff executing the release.
Several months after the funds had been disbursed, Litigation Law engaged in negotiations with Steinger, Iscoe & Greene hoping to resolve the charging lien. When those negotiations failed, Steinger, Iscoe & Greene filed an action seeking recovery of its fees, ultimately dismissing all parties but Geico.
At the end of a bench trial, the trial court found that Geico was negligent, and held it jointly and severally liable for the charging lien entering a final judgment in favor of Steinger, Iscoe & Greene for $50,000.00.
Charging liens are equitable rights to secure costs and fees due to an attorney for services in the judgment or recovery in a particular suit. To perfect a charging lien, the lienor-attorney need only demonstrate he or she provided the parties to the litigation with timely notice of the lien.
In this case, there was no dispute about timely filing of a lien. The lien was chargeable to any person at the time of the notice of intent to claim the lien on money or property.
As the paying party, Geico had an affirmative duty to notify the law firm of the settlement to protect its lien interest in the settlement proceeds. The court affirmed the order finding Geico negligent and liable for the lien.
FOURTH DISTRICT DENIES CERT ON ORDER REQUIRING DEFENDANT TO PROVIDE DISCOVERY BETWEEN AN INSURER AND DEFENDANT’S EXPERT BASED ON WORLEY—COURT CERTIFIES QUESTION AS ONE OF GREAT PUBLIC IMPORTANCE.
Dodgen v. Grijalva, 44 Fla. L. Weekly D1617 (Fla. 4th DCA June 26, 2019):
The circuit court compelled discovery regarding work between the defendant’s insurance company and his expert witnesses. Worley, which held that the financial relationship between a plaintiff’s law firm and plaintiff’s treating physicians was not discoverable, found that such discovery would have a chilling effect on doctors who would want to treat patients who could end up in litigation. The court explained that Worley does not by its terms apply to defendants.
That said, the court certified a question of great public importance to the Florida Supreme Court anyway to avoid its concerns about disparate and possible unfair treatment of defendants under Worley.
CONFIDENTIALITY ORDER NOT ALWAYS ENOUGH.
Stok v. Turnberry 12G, 44 Fla. L. Weekly D1658 (Fla. 3rd DCA June 26, 2019):
The trial court overruled a party’s objection to producing the medical records of third parties based upon having required a confidentiality order. Without the trial court establishing a method to review and determine which of the materials, if any, were so privileged, the order reflected a departure from the essential requirements of law.
NO ABUSE OF DISCRETION IN THE TRIAL COURT DENYING PLAINTIFF’S MOTION FOR CONTINUANCE OF AN EVIDENTIARY HEARING.
Leal v. Benitez, 44 Fla. L. Weekly D1667 (Fla. 3rd DCA June 26, 2019):
The granting or denying of a motion for continuance is within the discretion of the trial judge, and a gross or flagrant abuse of the discretion must be demonstrated by the complaining party before the appellate court will substitute its judgment for that of the trial judge.
In addition to the requirements imposed under Rule1.460, a party seeking a motion for continuance due to the unavailability of a witness must show: (1) prior due diligence to obtain the witness’s presence; (2) that substantially favorable testimony would have been forthcoming; (3) that the witness was available and willing to testify and; (4) that the denial of the continuance would cause material prejudice. Failing that showing in this case, the court affirmed the trial court’s denial.
TO PRESERVE THE TRIAL COURT’S PURPORTED ERROR IN GRANTING A REQUEST TO STRIKE A JUROR FOR CAUSE, THE OPPOSING PARTY MUST OBJECT AGAIN BEFORE THE JURY IS SWORN.
Keith v. State, 44 Fla. L. Weekly D1697 (Fla. 1st DCA June 28, 2019).