The Week in Torts – Cases from the Week of May 10, 2019

Impact Rule Still Alive And Well

FLORIDA LAW WEEKLY
VOLUME 44, NUMBER 19
CASES FROM THE WEEK OF May 10, 2019

A PLAINTIFF CANNOT SEEK EMOTIONAL DISTRESS DAMAGES WHEN THERE IS NO CONNECTION BETWEEN THE EMOTIONAL SUFFERING AND A PHYSICAL IMPACT –CASE WHERE A PLAINTIFF PAID FOR LEGAL WORK THAT WAS NEVER PERFORMED AND SUFFERED MENTAL ANGUISH AND EMOTIONAL DISTRESS, DID NOT FIT WITHIN A RECOGNIZED EXCEPTION TO THE IMPACT RULE.

Reid v. Daley, 44 Fla. L. Weekly D1209 (Fla. 1st DCA May 6, 2019):

A prisoner in the state corrections system filed a civil suit alleging he was a victim of fraud, deceit, dishonesty, and misrepresentation on the part of his post-conviction attorney. He sued the lawyer for monies he paid for work that was never done, as well as for mental anguish and emotional damages.

The trial court properly dismissed the complaint, first because the $4500.00 being sought did not meet the circuit court jurisdictional requirement.

Also, though, the complaint did not state a cause of action for emotional damages because the impact rule requires that before a plaintiff can recover damages for emotional distress caused by the negligence of another, the emotional distress suffered must flow from physical injuries sustained in an impact. While there is a very narrow class of cases to which the impact rule does not apply, (where foreseeable harm is predominately emotional in nature) the impact rule does not apply. Still, this was not one of those cases.

Here, the plaintiff did not allege that his mental anguish flowed from any physical injury or impact, and although he alleged that the defendant’s conduct caused him anger, humiliation, embarrassment and hypertension, that distress is the kind of intangible mental injury which is inadequate to overcome the impact rule. Without a connection between the alleged emotional suffering and any physical impact, the plaintiff cannot seek emotional distress damages without an exception to the impact rule (which did not exist in this case).

PREJUDGMENT INTEREST MAY ONLY BE INCLUDED UP TO THE TIME OF THE OFFER THEN COMPUTING THE THRESHOLD AMOUNT OF A FINAL JUDGMENT FOR PROPOSAL FOR SETTLEMENT PURPOSES.

Petri Positive Pest Control v. CCM Condominium Association, 44 Fla. L. Weekly D1135 (Fla. 4^th DCA May 1, 2019):

In this case involving the computation of the final judgment amount for triggering fees pursuant to a proposal for settlement, the Fourth District explained that if it were writing on a clean slate, it would interpret the plain meaning of “judgment obtained” in section 768.79, to include prejudgment interest through the date of judgment.

However, as the Florida Supreme Court held in White v. Steak & Ale, 816 So. 2d 546 (Fla. 2002), the amount of a plaintiff’s total recovery as included in its proposal amount, are fees, costs and prejudgment interest, but only those amounts which have accrued until the date of the offer of judgment. In this case, the difference in the calculation of the prejudgment interest meant the difference between plaintiffs having triggered the right to attorney’s fees, versus having falling short of that.

Because the Fourth District felt constrained by the law, it ruled that the plaintiff was not entitled to attorney’s fees pursuant to its proposal for settlement. However, the court did certify conflict with two cases which have computed prejudgment interest until the time of judgment, and also certified the question about the point at which prejudgment interest gets calculated until to the Florida Supreme Court.

COURTS LACKS JURISDICTION TO REVIEW NON-FINAL ORDER DENYING MOTION FOR LEAVE TO FILE AMENDED ANSWER AND AFFIRMATIVE DEFENSES.

Thomas Machinery v. Ainsworth International, 44 Fla. L. Weekly D1159 (Fla. 3^rd DCA May 1, 2019):

Because the trial court’s ruling denying a defendant’s leave to amend its pleadings is reviewable on plenary appeal, the appellate court has no jurisdiction to review such an order on petition for writ of certiorari.

ERROR TO FIND DEFENDANT NOT ENTITLED TO ATTORNEY’S FEES BECAUSE DEFENDANT’S PROPOSAL FOR SETTLEMENT FAILED TO ADDRESS PUNITIVE DAMAGES IN CASE, WHERE PUNITIVE DAMAGES WERE NOT PLED BY THE PLAINTIFFS.

Brunson v. Ashley, 44 Fla. L. Weekly D1167 (Fla. 1^st DCA May 2, 2019):

The trial court ruled that defendant was not entitled to attorney’s fees based on the fact that her proposal for settlement failed to address the issue punitive damages.

However, the appellate court decided that because there was no right to punitive damages (and no claim for them), the court found that said shortcoming in the proposal was immaterial, and held the proposal was valid, entitling defendant to her attorney’s fees.