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News Room

In Non-Conveniens Inquiry Presumption in Favor of Plaintiff’s Choice * No Liability for Property Manager for Independent Contractor Absent Oversight of Project * Reversible Error Where Dismissed Defendant on Verdict Form

August 19, 2013


Dear Ladies and Gentlemen:

The Florida Supreme Court and the Florida District Courts of Appeal have recently issued several opinions that may of interest to you.

In Shahla M. Rabie Cortez v. Palace Resorts, Inc., the Florida Supreme Court held that in the forum non conveniens inquiry, Florida courts should always consider public interest factors and in cases involving a non-Florida plaintiff, except where the plaintiff is from another country, presumption in favor of the plaintiff’s initial choice of Florida forum is always entitled to great deference.

 In Capone v. Philip Morris USA, Inc., the Florida Supreme Court held that where cause of death may be disputed, provision of Wrongful Death Act, stating that personal injury action pending at time of decedent’s death from the underlying injury shall abate results in case being suspended until personal representative of decedent’s estate is added as party to pending action and receives reasonable opportunity to amend complaint to state damages sought under a wrongful death claim or to state alternative claims for survival damages and wrongful death.

In Sterling Financial & Management, Inc. v.  Mariusz Gitenis, the Fourth District Court of Appeal held that property manager’s general participation and oversight of project without active participation or exercise of control in subcontractor’s work did not subject property manager company to liability for independent contractor’s injuries.

In Holmes v. Area Glass, Inc., the First District Court of Appeal held that inclusion of dismissed defendant in caption on verdict form was reversible error because it allowed jury to improperly infer that Plaintiff had settled with dismissed defendant in violation of Section 768.041, Florida Statutes (2012).

I.     Shahla M. Rabie Cortez v. Palace Resorts, Inc., SC11–1908, 2013 WL 3068147 (Fla. June 20, 2013).


This matter involved a lawsuit filed in Miami-Dade County circuit court by a California resident against three Florida corporations with their operational, managerial and marketing headquarters in Miami, Florida alleging negligent vacation packaging in connection with a purported sexual assault by a male masseur at the hotel where she was vacationing in Cancun, Mexico. The Florida corporations moved to dismiss the Plaintiff’s Complaint based on the doctrine of forum non conveniens, arguing that Mexico, the place where the alleged assault occurred, would be a more convenient forum for litigating the case. The trial court granted the motion to dismiss finding that the Plaintiff’s allegations occurred entirely in Mexico and that the Plaintiff’s choice of forum was given less deference because she was a California resident with no apparent contacts with Florida.[1]

The Third District Court of Appeal upheld the trial court’s dismissal of the Plaintiff’s lawsuit on forum non conveniens grounds based on the test set forth by the Florida Supreme Court in Kinney System, Inc. v. Continental Insurance Co.[2]The appellate court reasoned that because the events occurred in Mexico, Mexico would be a more convenient forum to litigate the action.  The appellate court noted that Plaintiff was not entitled to a strong presumption in favor of Florida as her initial forum choice because she was an out-of-state resident with little to no contacts in Florida.

 The Plaintiff sought review of the Third District Court of Appeal’s ruling alleging that the appellate court erred in applying the Kinney factors and failed to properly acknowledge the strong presumption of deference required by Kinney against disturbing her choice of forum.


First, the Court noted that the forum non conveniens doctrine comes into play only if the plaintiff has first obtained personal jurisdiction over the defendants in Florida by effecting service of process.  The Court then clarified the test to be applied by Florida trial courts considering forum non conveniens:

The court must:

1.     Establish whether an adequate alternative forum exists which possesses jurisdiction over the whole case;

 2.     Consider all relevant factors of private interest, weighing in the balance a strong presumption against disturbing the plaintiff’s choice of forum;

 3.     If a balance of private interests is in equilibrium or near equilibrium, determine whether or not factors of public interest tip the balance in favor of the alternate forum; and

 4.     If the balance favors the alternate forum, ensure that plaintiffs can reinstate their suit in the alternate forum without undue inconvenience or prejudice.

With respect to the inquiry of whether an alternative forum exists, the trial court must consider availability and adequacy.  Availability deals with the plaintiff’s ability to effect service of process upon the defendant.  The court indicated that most defendants desiring to move to another forum agree to accept service of process and even waive any defense of the statute of limitations.  As to adequacy, although the alternate forum does not have to be equivalent with the chosen forum, it must offer at least some relief and not be grossly inefficient or given to extreme levels of partiality.

Private factors include access to evidence, access to witnesses, enforcement of judgments and the practicalities and expenses associated with the lawsuit. In the weighing of private factors, the trial court should always remember that a strong presumption favors the plaintiff’s choice of forum and that presumption can only be defeated if the disadvantages to the defendant’s private interests are of sufficient weight to overcome the presumption if favor of the plaintiff’s choice of forum.

If after weighing the relative advantages and disadvantages the court finds that there is an equilibrium the court must then weigh the public interest factors, which involves consideration of whether the subject matter has a general nexus with the forum sufficient to justify the forum’s commitment of judicial time and resources to it.

The Court went a step further from Kinney adopting SME Racks, Inc. v. Sistemas Mecanicos Para Electronica, S.A.,[3] as part of the test stating that public interest factors should always be considered as part of the analysis irrespective of whether there is a balance among the private interests of the parties.

Lastly, the court must ensure that the alternative forum is open and available to provide relief to the plaintiff as well as ensure that the moving party stipulates to treating the action in the new forum as though it had been filed in that forum on the date it was filed in Florida.

After clarifying the application of the Kinney factors, the Court went on to discuss the presumption in favor of the plaintiff’s choice of forum noting that Kinney did not limit the presumption to Florida plaintiffs or indicated that the presumption would be eviscerated if the plaintiff was not a Florida resident. The Court noted that before denying a United States Citizen access to the courts of this country, courts should be thoroughly convinced that material injustice is manifest to the moving defendant.   The presumption in favor of the plaintiff’s choice of forum is at its strongest when the plaintiffs are citizens, residents or corporations of the United States.  Thus, the Court emphasized that “in cases involving a non-Florida plaintiff, except where the plaintiff is from another country, the presumption in favor of the plaintiff’s initial choice of forum is always entitled to great deference.  Additionally, where the plaintiff is a citizen or resident of the United States and the alternative forum is a foreign country, the defendant’s burden to overcome is especially high.” Id.

With respect to the facts of the case before the Court, the Court indicated that the Third District Court of Appeal erred in two respects.  First, not affording Plaintiff the strong presumption in favor of her choice of forum given that there were no strong countervailing interests that tipped the balance in favor of the Florida Defendants. Second, the appellate court erred in ignoring that although the assault occurred in Mexico, the negligent conduct alleged by the Plaintiff, occurred in Miami, Florida. The Court reasoned that in this case, the Plaintiff’s choice of forum benefited the Florida Defendants given that they operated their vacation package businesses from Miami, handled, investigated and responded to all customer complaints from Miami, Florida and marketed their businesses from Miami, Florida.

Moreover, the Court explained that the analysis of Florida’s interests to a given case is key to the inquiry and noted that in the case before the Court, Florida had an interest in ensuring that harmful actions originating in Florida, which may violate duties imposed by Florida law, are properly addressed in Florida courts.

Lastly, the Court pointed out that forcing the Plaintiff to litigate her action in Mexico would result in no remedy at all for her given that courts in Mexico did not recognize the Plaintiff’s claim of negligent vacation packaging.

Accordingly, the Court quashed the Third District Court of Appeal’s decision.

II.     Capone v. Philip Morris USA, Inc., 116 So. 3d 363 (Fla. 2013).


Plaintiff, a smoker, brought a personal injury action against Defendant tobacco company. After his death, his wife moved to amend the complaint and to substitute herself, as personal representative of estate, as party plaintiff.  The Defendant tobacco company moved to dismiss on the ground that Florida Wrongful Death Act prohibits conversion of a personal injury action into a wrongful death action when the injuries to a party plaintiff result in his or her death. The Defendant relied upon section 768.20, Florida Statutes (2008), which provides that “when a personal injury to the decedent results in death, no action for the personal injury shall survive, and any such action pending at the time of death, shall abate.  The Defendant also cited to Taylor v. Orlando Clinic[4] as requiring her to file a new action for wrongful death separate from the pending action for personal injury.  After initially vacating the dismissal on wife’s motion for reconsideration, the circuit, Miami-Dade County, granted Defendant’s motion to vacate the order vacating the dismissal.

The wife appealed to the Third District Court of Appeal seeking review of the dismissal. The Third District Court of Appeal affirmed the dismissal holding that based upon section 768.20, the original personal injury action filed by the Plaintiff and his wife could not be amended after Plaintiff’s death to include a wrongful death claim.


The Florida Supreme Court granted review on the basis that the case expressly and directly conflicted with Niemi v. Brown & Williamson Tobacco Corp.,[5] in which the Second District Court of Appeal held that a personal injury action can be amended after the death of a party plaintiff to add a wrongful death claim and, further, that the personal representative of the decedent’s estate may be substituted as a party in the pending action.  The Second District explained that pursuant to section 768.20, a personal injury action only “abates” if it is first determined that the personal injury resulted in the plaintiff’s death.  In Niemi, the Second District also noted that, where the decedent’s cause of death is not agreed upon by the parties, the personal representative of an estate may need to plead both a personal injury action and an alternative wrongful death action.

The Supreme Court reiterated the purpose of the Wrongful Death Act to “shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer” and concluded that an interpretation of the term abate that would create additional procedural hurdles is inconsistent with the purpose of the Wrongful Death Act.  The Court explained that an interpretation of the term abate that would require a personal representative to file a new, independent wrongful death action would add meaningless technicalities add additional costs, expenses, labor and would delay a determination of responsibilities thus allowing tortfeasors to evade liability for an extended period of time.

The Court held that to give effect to the stated purposes of the Wrongful Death Act, the word abate in section 768.20 must be interpreted in a manner that facilitates not complicates the initiation and progression of a wrongful death action on behalf of a decedent’s survivors when the injured party plaintiff in a personal injury action dies.  Accordingly, the Court held that when a personal injury action “abates” pursuant to section 768.20, the case is suspended until the personal representative of the decedent’s estate is added as a party to the pending action and receives a reasonable opportunity to amend the complaint to state the damages sought under a wrongful death claim or to state both a claim for survival damages and, in the alternative, wrongful death where the cause of the decedent’s death may be disputed by the parties.

The Court noted that its holding was consistent with Florida Rule of Civil Procedure 1.190(e) and 1.210(a).  Thus, the Court held that the circuit court was correct when it vacated its order of dismissal and allowed the wife to amend her complaint and substitute herself as a party in her capacity as personal representative of her husband’s estate.   The Court quashed the Third District Court of Appeal’s decision, approved Niemi and disapproved of the Taylor decision cited by the Defendant to the extent it was inconsistent with its opinion.

III.     Sterling Financial & Management, Inc. v.  Mariusz Gitenis,  4D11-2583, 2013 WL 2420446 (Fla. 4th DCA June 5, 2013).


This matter arose out of a personal injury action asserted by a subcontractor’s independent contractor, who fell after a ladder slipped while he was working on property owner’s project to convert apartments to condominiums, against the property manager. At trial, Plaintiff prevailed against the management company on the theory that the management company directed and controlled the manner in which the Plaintiff performed his work. Defendant Property manager appealed to the Fourth District Court of Appeal.


The appellate court noted that the general rule is that “‘one who hires an independent contractor is not liable for injuries sustained by that contractor’s employees in performing their work.’ ” Morales v. Weil, 44 So.3d 173, 176 (Fla. 4th DCA 2010).  An exception to this general rule exists where the employer of an independent contractor actively participates in or interferes with the job “‘to the extent that he directly influences the manner in which the work is performed.’” Id.  The Court reasons that the party who exercises control of the work is in the best position to prevent the harms that occur therefrom.

The Court explained that the requisite control necessary to subject an employer to liability must be more than merely exercising a general right to recommend a safe manner for the independent contractor’s employees to perform their work. The Court indicated that to prove the requisite control over an independent contractor in the absence of a written contract, the plaintiff must establish actual facts demonstrating the exercise of extensive control before the accident causing injury.

According to the Court, it is not enough that the employer reserves the right to stop or resume the work, to inspect the progress or to receive reports, or to make suggestions or recommendations that may or may not be followed.  “There must be such a retention of right of supervision that the contractor is not entirely free to do the work in his own way.”  The Court emphasized that the key inquiry is whether the independent contractor is controlled “‘as to his methods of work, or as to operative detail.’” Morales, 44 So.3d at 176.

The Court found that in the case at bar, there was insufficient basis to find that the management company exercised control over the way that the subcontractor hired the plaintiff independent contractor or the way that the subcontractor instructed the plaintiff to access the roof.  The management company’s role was to assist, facilitate, and coordinate the types of jobs to be completed without telling the contractors how to do the jobs.  As with any other construction project, it was the general contractor’s obligation to hire subcontractors, oversee the work performed by them and maintain the safety of the project.  The Court pointed out that none of the representatives of the management company ever communicated with the plaintiff, who spoke only Polish. None of the representatives of the management company ever told the workers of the subcontractor how to get on the roof, where to stand on the roof, what tools to use, or what safety equipment to either use or not use to perform the jobs that they were assigned by the subcontractor.

Further, the subcontractor was in charge of the ladder and how it was used and thus had the responsibility of preventing the risk.  The Court reasoned that on the facts of the case, to place liability on the management company would open the door to liability for every Florida property owner hiring an independent contractor who negligently uses his own tools.

The Court reversed the final judgment in favor of the plaintiff independent contractor and remanded the case to the circuit court for entry of a directed verdict in favor of the management company.

IV.       Holmes v. Area Glass, Inc., 1D12-2739, 2013 WL 3853225 (Fla. 1st DCA July 26, 2013).


This matter involved a negligence action brought by the owners of a vehicle against their automobile insurer and an automobile glass repair shop, alleging that glass repair shop negligently installed a windshield and that their insurer was negligent in failing to properly inspect repair shop before hiring it. The plaintiffs settled their claims against repair shop and the circuit court, Walton County entered judgment on jury verdict in favor of the insurer. Vehicle owners appealed.

Plaintiffs alleged that they contacted State Farm to report a damaged windshield and State Farm directed them to use Area Glass for repairs.  They claimed that Area Glass negligently and improperly replaced the windshield which allowed water to leak inside the vehicle resulting in mold and mildew exposure to Mr. Holmes.  Plaintiffs claimed that the actions of Area Glass and State Farm resulted in physical injury to Mr. Holmes, loss of use and value of the car, and loss of consortium to Mrs. Holmes.

In October 2010, Plaintiffs voluntarily dismissed Area Glass from the lawsuit. In advance of trial in April 2012, Plaintiffs submitted their proposed verdict form which did not include Area Glass in the caption.  State Farm objected to the changing of the caption pointing to Trawick’s Florida Practice and Altamonte Hitch & Trailer Service, Inc. v. U–Haul Co. of Eastern Florida,[6] for the proposition that “the names of the parties in the caption are never changed even when all original parties have ceased to be parties.”  State Farm asserted that it was concerned that without Area Glass in the caption, the jury would believe that State Farm was Area Glass’ insurer, that Area Glass was somehow under insured or that State Farm would be “on the hook” for Area Glass’ negligence.

The trial court left Area Glass in the caption of the verdict form.  During jury deliberations, the jury returned the question: “Why is Area Glass listed as a defendant on the top of the verdict form?” Plaintiffs in turn, asked the court to answer that the only defendant in the case was State Farm.  The court instead chose to tell the jury that it could not answer the question and that they should “look to the testimony and the evidence that was presented and draw conclusions from that.” A few minutes later the jury returned a verdict in State Farm’s favor. Thereafter, Plaintiffs filed a motion for new trial based on the inclusion of Area Glass in the caption because they argued it allowed the jury to infer that Plaintiffs had settled with Area Glass, which was an inference the jury should not have been encouraged to make. The trial court denied the motion without explanation.


The First District Court of Appeal pointed to Section 768.041, Florida Statutes (2012), which prohibits the admission at trial of any evidence of settlement or dismissal of a defendant. Specifically, “the fact of such a release or covenant not to sue, or that any defendant has been dismissed by order of the court shall not be made known to the jury.”  The Court noted that even references to settlement during voir dire or arguments requires a new trial.  “Disclosure of the fact of settlement or dismissal is prohibited regardless of whether it is presented to the jury through evidence or through some other means.”

The Court stated that there is no rule that the caption listed on the verdict form must be identical to the caption used on all the pleadings.  The Court found that the trial court violated section 768.041 by including Area Glass on the verdict form when the defendant had been apparently dismissed from the case.  Moreover, the Court noted that given the court’s answer to the jury and the speed with which they returned a verdict after the court’s answer, it was apparent that the caption influenced the verdict.

The Court explained that State Farm’s fears that the jury would assume that it was Area Glass’ insurer could have been resolved with proper jury education.

The appellate court reversed the final judgment and remanded the case for a new trial.

We hope you find the above cases helpful and insightful.  Should you have any questions with respect to the foregoing, please do not hesitate to contact the undersigned at your earliest convenience.

Very truly yours,



[1] The trial Judge was Judge Gerald D. Hubbart.

[2] 674 So. 2d 86 (Fla. 1996).

[3] 382 F. 3d 1097, 1100 n. 5 (11th Cir. 2004).

[4] 555 So. 2d 876 (Fla. 5th DCA 1989).

[5] 862 So. 2d 31 (Fla. 2d DCA 2003).

[6] 498 So.2d 1346 (Fla. 5th DCA 1986).

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