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The Week in Torts – Cases from the Week of March 5, 2021
A Double Blow
FLORIDA LAW WEEKLY
VOLUME 46, NUMBER 9
CASES FROM THE WEEK MARCH 5, 2021
COURT CLARIFIES THE MEANING OF THE PHRASE “FINAL JUDGMENT” IN A WRONGFUL DEATH CASE
Hamblen v. Pilot Travel Ctrs., LLC, 46 Fla. L. Weekly D469 (Fla. 1st DCA February 26, 2021):
Addressing an issue of first impression, the court examined what “final judgment” means in the context of §768.24 of the Wrongful Death Act.
After a woman died leaving one statutory survivor, the jury awarded the survivor $5,000,000 in pain and suffering damages (ultimately reduced by the comparative negligence of non-parties).
The defendant moved for a new trial. Unfortunately, while that motion was pending, the survivor died.
The defendant then moved for relief from judgment, arguing that the award to the survivor for mental pain and suffering should be reduced to “$0,” because §768.24 states that a survivor’s death before final judgment shall limit the survivor’s recovery to “lost support and services to the date of his or her death.” However, because there was no claim for such lost support and services, the defendant argued the court had to vacate the pain and suffering judgment.
In examining at what point “final judgment” occurred, the court explained that the legislature has defined the term twice in statutory law, leaving the term undefined in other places.
In §§111.071(2) and 501.203(1), for example, the legislature defined final judgment to occur after the exhaustion of appellate remedies. In other contexts, final judgment was intended to mean judgment entered by the trial court without regard for post-judgment motions or appeals (§§45.031(1), 55.01, 77.081(2), 702.10(1)).
There is no definition of the term in the wrongful death statute. The plain language of §768.24 states that “a survivor’s death before judgment shall limit the survivor’s recovery.”
The court explained that the express inclusion of abatement in other portions of the Wrongful Death Act makes its absence regarding the timing of judgment even more conspicuous.
In following prior precedent, the court concluded that the term “final judgment” in §768.24 means the moment the trial court’s judgment becomes final; i.e., when the trial court’s judicial labor comes to an end. Because the survivor here died while the motion for new trial was pending, he died before final judgment, and the judgment was properly reduced to “$0”.
ERROR TO FIND DEFENDANT’S PROPOSAL FOR SETTLEMENT AMBIGUOUS BASED ON THE WORD “ASSIGNS” FOUND IN THE STANDARD RELEASE
American Integrity Insurance Co. of Florida v. Branford, 46 Fla. L. Weekly D424 (Fla. 4th DCA February 24, 2021):
The defendant insurer denied coverage for water damage, and the plaintiff sued for breach of contract seeking $58,000.00 in damages.
The defendant served a proposal for settlement for $1,000.00. In the release attached to the proposal, the insured was required to include the usual categories of releases (agents, heirs, spouses, successors, assigns, etc.) as part of the release.
The plaintiff lost the underlying case on summary judgment. However, because there was an “assignee” in the case, the plaintiff argued that the proposal was ambiguous, because there was no carve out for the assignee.
The defendant argued that the word “assigns” in the release did not make the proposal ambiguous, because such terms and classifications of persons do not necessarily expand a proposal for settlement to third parties, and the release — when read as a whole — was clearly restricted to the claims in the case.
Relying on its prior authority in Costco v. Llanio-Gonzalez, 213 So.3d 944 (Fla. 4th DCA 2017), which found broad release language to be clear and unambiguous, the court found the terms of the proposal were similarly clear and unambiguous.
The court then found that the only reasonable interpretation of the proposal was an offer of $1,000.00 to the plaintiff to settle her case, and the accompanying release would prevent the plaintiff from seeking any other damages from the defendant relating to the water loss.
The court found the plaintiff was “nitpicking,” and that when read as a whole, the proposal contained no ambiguity that could reasonably affect the plaintiff offeree’s decision on whether to accept it.
DISMISSAL WITH PREJUDICE FOR FAILURE TO FILE AN AMENDED COMPLAINT BY THE SPECIFIED DEADLINE WAS AN ABUSE IN DISCRETION, WHEN THE AGREED ORDER DID NOT CONTAIN ANY LANGUAGE ADVISING PLAINTIFF THAT FAILURE TO TIMELY AMEND WOULD RESULT IN DISMISSAL
Gonzalez v. Ferco Motors Corp., 46 Fla. L. Weekly D453 (Fla. 3rd DCA February 24, 2021):
After an agreed order advising that plaintiff could timely amend his complaint by a certain date, the plaintiff failed to meet that date. The trial court then dismissed the case with prejudice.
Once a court has dismissed a complaint with leave to amend, it cannot subsequently dismiss with prejudice for an untimely amendment unless (1) separate notice is given to plaintiff of the hearing of the motion to dismiss with prejudice; or (2) the order dismissing the complaint with leave to amend specifically provides that failure to amend within the stated time will result in dismissal without further notice.
Here, the trial court entered dismissal the same day the motion was filed without affording the plaintiff an opportunity to respond. Because dismissal with prejudice for failure to file an amended complaint is an extreme sanction which cannot generally be justified absent findings consistent with Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1993), the appellate court reversed the dismissal.
BECAUSE THE PRE-SUIT DEMAND LETTER WAS INSUFFICIENT PURSUANT TO §627.736(10), THE INSURED WAS NOT ENTITLED TO RECOVER TRANSPORTATION COSTS AGAINST HIS PIP INSURER
Rivera v. State Farm, 46 Fla. L. Weekly D447 (Fla. 3rd DCA February 24, 2021):
The PIP statute requires reimbursement of transportation costs incurred in connection with medical treatment that is reasonably and medically necessary. The insured sought to recover PIP benefits for transportation costs for 16 treatment dates at Kendall Chiropractic, but State Farm said it never received any bills from that entity for services rendered to the plaintiff. Plaintiff’s counsel then wrote a letter to State Farm advising of the 16 treatments, where they were, and the mileage.
The letter failed to list the treatment dates or the total dollar amount for each trip, or the address of Kendall Chiropractic. The letter also mistakenly stated that the plaintiff traveled to a chiropractic office that had a different name than the one where the plaintiff was actually treated.
State Farm ended up paying some of the mileage, but plaintiff sued for the $2.59 he claimed State Farm still owed him. State Farm defended by arguing that the pre-suit demand letter for the alleged transportation benefits failed to comply with §627.736(10).
The court concluded that the pre-suit letter was deficient. It then ruled that when a party fails to comply with pre-suit notice requirements, summary judgment is the proper remedy (affirming the one entered for State Farm).