The Week in Torts – Cases from the Week of March 8, 2019

Discover It, But Protect It

FLORIDA LAW WEEKLY
VOLUME 44, NUMBER 10
CASES FROM THE WEEK OF MARCH 8, 2019

“NON-MATERIAL” AMENDMENTS TO COMPLAINTS DO NOT RENDER EARLIER OFFERS OF JUDGMENT AMBIGUOUS.

Steak ’n Shake Operations v. Davis, 44 Fla. L. Weekly D569 (Fla. 1^st DCA February 27, 2019):

The trial court originally denied a victorious plaintiff his attorney’s fees, finding his proposal for settlement was unenforceable in light of the fact that it had been served prior to plaintiff having amended his complaint.

The appellate court rejected the argument, and concluded that the non-material amendment to the complaint did not render the earlier offer either ambiguous or unenforceable. The court reversed, and ordered fees for the plaintiff.

INTERNAL COST STRUCTURE OF MEDICAL PROVIDER’S BILLING CONSTITUTES A TRADE SECRET–TRIAL COURT ERRED IN FAILING TO GRANT PROVIDER’S REQUEST FOR CONFIDENTIALITY PROTECTION FOR TRADE SECRET OF PROPRIETARY INFORMATION, BUT DID NOT ERR IN REFUSING TO IMPOSE CONFIDENTIALITY RESTRICTIONS ON INFORMATION REGARDING AMOUNTS PAID TO NON-PARTY MEDICAL PROVIDERS FOR SERVICES RENDERED TO THE PLAINTIFF.

Lake Worth Surgical Center v. Gates, 44 Fla. L. Weekly D572 (Fla. 4^th DCA February 27, 2019):

The defendants in this automobile accident case served the Lake Worth Surgical Center with a non-party subpoena requesting billing information that included (1) two examples of reimbursement rates it had received from insurance carriers for each service provided to the plaintiff (without having to name the carriers); (2) the approximate percentage over the last three years of the petitioner’s practice that treated patients involving personal injury litigation or presuit claims; and (3) the amounts collected for services unrelated to the underlying litigation that the surgical center had previously provided to the plaintiff on two different dates.

The surgery center objected to the request for examples of reimbursement rates from unnamed insurers, arguing that those rates and the make-up of the center’s patients were trade secret, and contending that the insurance company could share information with other clients, which would disadvantage the surgery center in negotiating contracts with insurers.

The trial court also required the surgery center to disclose the amount it was paid for the services provided to the plaintiff for surgery for an unrelated slip and fall, the amount paid for services provided to the plaintiff for another surgery related to the slip and fall, the approximate percentage of the surgery center’s practice for the last three years that had treated patients involving presuit claims or personal injury litigation, and two examples of contracted reimbursement rates with unnamed insurance companies for the surgery plaintiff received for the injury being litigated.

While it is true that internal cost structure information constitutes a trade secret, the court observed that not all business information falls within the privilege, especially the price for a single transaction such as the amount received for a previous service to a litigant.

Applying the statutory definition and case law defining “trade secret,” the court concluded that the trial judge properly declined to impose its confidentiality restrictions on information regarding the amounts paid for services rendered to the plaintiff on two different dates, or the approximate percentage of petitioner’s practice of treating patients who are involved in presuit claims or personal injury litigation over a three year period, especially because the surgery center did not present any evidence to support a finding that the percentage of the practice information was somehow trade secret.

The court also concluded, however, that the trial court erred in failing to grant the surgery center’s request for confidentiality protection for information regarding the two examples of contracted reimbursement rates by private health carriers, because that is trade secret or proprietary information. The court then remanded for the trial court to stay discovery until the parties had an opportunity to negotiate a confidentiality agreement on that issue.

TRIAL COURT ABUSED DISCRETION IN DISMISSING CASE AS SANCTION FOR DISCOVERY VIOLATIONS–PLAINTIFFS NOT FORMALLY ADVISED THAT ISSUE WOULD BE HEARD, AND RECORD DEVOID OF ANY EVIDENCE REFLECTING WILLFUL DISREGARD OF COURT’S ORDERS.

Brito v. Southern Fidelity Property & Cas., 44 Fla. L. Weekly D592 (Fla. 3^rd DCA February 27, 2019):

The insurance company defendant served a lengthy motion containing allegations of fraud, misconduct, uncharged criminal activity, discovery misconduct, etc. on the eve of a pre-scheduled, non-evidentiary status conference. The motion referenced previous judicial findings of wrongdoing not reflected in the record. Substitute counsel appeared for the plaintiffs at the status conference, citing a schedule conflict for the counsel of record.

The plaintiffs were not formally advised that the sanctions motion would be heard at the status conference, and thus were effectively divested of their opportunity to refute the unverified contentions set forth in the motion. The court also noted that the record was devoid of any evidence reflecting willful disregard of an order of court or deliberate and contumacious disregard of the court’s authority which further compelled reversal.

TRIAL COURT ERRONEOUSLY APPLIED SECTION 768.36 (DRUG AND ALCOHOL DEFENSE) TO COMPLETELY BAR PLAINTIFF’S RECOVERY WHERE JURY DID NOT FIND THAT PLAINTIFF’S FAULT WAS A RESULT OF ALCOHOL AS THE STATUTE REQUIRES.

Kempton v. McComb, 44 Fla. L. Weekly D611 (Fla. 5^th DCA March 1, 2019):

After a jury trial in an accident where the plaintiff was riding his motorcycle and was hit by a car, the plaintiff appealed based on the jury’s verdict finding that he was 55% negligent and defendant 45% negligent. The trial court then applied section 768.36 (the drug and alcohol defense) to completely bar the recovery by the plaintiff.

The plaintiff argued that the trial court erred in applying the statute because the jury’s verdict did not indicate as required by subsection (2)(b) whether the plaintiff was more than 50% at fault “as a result of the influence of an alcoholic beverage.”

The court explained that section 768.36 creates a drug and alcohol defense that completely bars a plaintiff’s recovery. To prove the defense, the trier of fact is required to find that at the time the plaintiff was injured, that the plaintiff was either under the influence of alcohol or drugs to the extent that his or her normal faculties were impaired or that plaintiff had a blood or breath alcohol of .08% or higher and, as a result of the influence of such beverage or drug, the plaintiff was more than 50% at fault for his or her own harm.

In this case, the jury’s verdict found that the plaintiff was more than 50% at fault and that the blood alcohol level was .08% or higher but the jury did not find that the plaintiff’s fault was as a result of an alcoholic beverage as required by subsection (2)(b).

If a party wants to rely on section 768.36 as a defense, the jury must make all of the statute’s required factual determinations. The verdict form in this case did not give the jury an opportunity to do so and as a result, the trial court erroneously applied section 768.36 to completely bar the plaintiff’s recovery. The court reversed and remanded for entry of final judgment in accordance with the jury’s apportionment of fault.

TRIAL COURT ABUSED DISCRETION BY REFUSING TO EXCUSE A JUROR FOR CAUSE WHO EXPRESSED AN OPINION THAT SMOKING WAS A MATTER OF PERSONAL CHOICE AND INDICATED THAT THE ESTATE WOULD BE STARTING AT A DISADVANTAGE BECAUSE OF THAT OPINION–ERROR COMPOUNDED WHEN TRIAL COURT FAILED TO FOLLOW ITS OWN PROCEDURE BY PERMITTING THE DEFENDANT TO BACKSTRIKE THE JUROR OUT OF TURN, PLACING THE OBJECTIONABLE JUROR ON THE PANEL AND WRONGFULLY REQUIRING PLAINTIFF TO EXHAUST PEREMPTORY CHALLENGES.

Pearson v. Philip Morris USA, 44 Fla. L. Weekly D614 (Fla. 2^nd DCA March 1, 2019):

During voir dire, plaintiff’s counsel asked the venire if when they heard that the decedent had smoked cigarettes until he got sick and ultimately died, and the case is about his family suing the tobacco company, how many of them expressed disbelief about that. A number of the jurors responded affirmatively to the question.

When one particular juror expressed his opinion that the estate would begin “in the red” and many questions would need to be answered for the estate “to move,” the juror further stated he believed smoking was a choice and not something that a person really could be pushed into. He also said while he thought he could keep an open mind and hear the evidence, the estate would have an uphill argument to make.

The trial court granted a number of cause challenges to prospective jurors but denied the cause challenge on this particular juror. The court then turned to the peremptory challenges.

The estate used one peremptory challenge initially and then the panel was agreed upon subject to back strikes. Although the estate’s counsel clearly exercised the first alternate challenge, he sought to clarify the identity of the first alternate juror. Plaintiff’s counsel mistakenly believed that someone other than the first alternate was the first alternate, and while the estate’s counsel was attempting to resolve the identity of the first alternate, the tobacco company’s attorney was permitted to backstrike a panel member out of turn which resulted in the alternate being seated on the jury and negating the estate’s first alternate strike.

After plaintiff used all of its peremptory strikes, counsel requested another cause challenge or another peremptory, which were denied.

The court reminded us that close cases involving challenges to the impartiality of potential jurors should be resolved in favor of excusing the juror, rather than leaving a doubt as to impartiality. In this case, the first juror should have been excused for cause and it was an abuse of discretion in failing to excuse that juror, which wrongfully forced the plaintiff to exhaust its peremptory challenges. The court reversed for a new trial.

ERROR TO ENTER SUMMARY JUDGMENT IN FAVOR OF INSURER ON BAD FAITH CLAIM ON 60-DAY CURE–TIME ACTUALLY BEGINS TO RUN WHEN THE CIVIL REMEDY NOTICE IS ELECTRONICALLY FILED WITH THE DEPARTMENT OF FINANCIAL SERVICES–BECAUSE INSURER DID NOT MAIL SETTLEMENT PAYMENT TO INSURED’S COUNSEL WITHIN 60 DAYS OF ELECTRONIC FILING, THE INSURED WAS ENTITLED TO PURSUE BAD FAITH ACTION.

Harper v. Geico, 44 Fla. L. Weekly D618 (Fla. 2^nd DCA March 1, 2019):

When plaintiff’s UM carrier refused to pay benefits under her UM policy, she electronically filed a civil remedy notice (CRN) with the Department of Financial Services on December 18, 2013 and mailed a copy to Geico the same day. Geico stated it received the mailed copy on December 26, 2013.

Over a month later, on February 3, 2014, Geico agreed to pay plaintiff her UM policy limits of $10,000. On that date, Geico indicated it would send payment and a release under separate cover and it mailed the settlement check to its own attorneys on February 10, 2014. However, the check and release were not mailed to plaintiff’s counsel until February 21, 2014, 65 days after the CRN was electronically filed and mailed to Geico.

The trial court granted summary judgment for Geico, finding that because it did not receive the CRN until December 26^th and payment was made within 60 days of that date, it was entitled to summary judgment.

The appellate court reversed. It said that Geico and the trial court wanted to ignore the plain language of section 624.155(3)(d), and hold instead that the 60-day cure period begins when the insurer actually receives the CRN which contravenes the actual language requiring the 60 days to begin running when the insured files the CRN.

Because Geico failed to pay the plaintiff’s claim within 60 days of the date the CRN was electronically filed with the department, plaintiff was entitled to pursue her bad faith action against Geico and summary judgment in favor of Geico was reversed as improper.