Parents Not Liable For Acts Of Mentally Ill Adult * Post Verdict Juror Interview Where Concealment Is Alleged * Denial of Auto Theft Claim Where Insured Paid Lienholder May Allow For Recovery of Attorney Fees * Where Vehicle Is Consigned – Defendant Liability May Not Be Limited
October 20, 2014
Dear Ladies and Gentlemen:
This month we would like to share with you some recent opinions from the Florida District Courts of Appeal that may be of interest to you.
In Knight et. al. v. Merhige et. al., the Fourth District Court of Appeals held that the Defendants owed no legal duty to their family members to protect them from the Defendants’ adult emancipated son.
In Pembroke Lakes Mall Ltd. v. McGruder, the Fourth District Court of Appeals held that the trial court did not err in its determination that section 768.0755, Florida Statutes (2010), does not apply retroactively. However, the trial court did err by (1) not allowing post-verdict juror interviews once it was discovered that jurors failed to disclose prior involvement in litigation, and (2) by failing to find the Defendants jointly and severally liable for the Plaintiff’s damages.
In Do v. GEICO General Ins. Co., the Third District Court of Appeals held that an insured was entitled to attorney’s fees for a breach of contract claim when the insurer failed to pay an automobile theft claim, but paid the vehicle lienholder.
In Youngblood v. Villanueva, the Second District Court of Appeals held that the trial court erred in limiting the Defendant’s liability as to noneconomic damages when the Defendant consigned his vehicle to a party who caused an accident.
I. Knight et. al. v. Merhige et. al., 133 So. 3d 1140 (Fla. 4th DCA 2014).
FACTS AND PROCEDURAL HISTORY
At a family gathering on Thanksgiving, Defendants, Mr. and Mrs. Merhige, invited their 35 year old son, Paul, despite his well-documented history of violence against certain family members. The son, whom they supported financially, had a history of violence and mental illness. At one point in the evening, Paul left the gathering and returned brandishing a gun, killing four and seriously wounding a fifth. The Plaintiffs as personal representatives of the estates of the decedents and individually, filed suit alleged negligence against the Defendants for the actions of their adult son.
A criminal prosecution was resolved by plea bargain. Plaintiffs alleged that Defendants under the “undertaker’s doctrine” assumed liability for the actions of a third party. Alternatively, Plaintiffs alleged that Defendants created a “foreseeable zone of risk.” Plaintiffs posited that the special relationship between the Defendants and their adult son allowed the Defendants to control the son’s actions. Specifically, Defendants could have refrained from inviting their son to the family gathering.
Furthermore, relying on McCain v. Fla. Power Corp., 899 So. 2d 1105 (Fla. 1992) Plaintiffs argued the issue of legal duty under Florida tort law is solely determined by whether a defendant’s conduct foreseeably created a broader zone of risk that poses a general harm to others, untethered to any consideration of a special relationship or control.
After the filing of the amended complaints, the circuit court, upon proper motion, dismissed the complaints with prejudice, finding the Defendants had no legal duty to control the actions of their emancipated son. Plaintiffs then appealed.
APPELLATE COURTS DECISION
The Fourth District Court of Appeals held that public policy militates for a finding of no legal duty even assuming that foreseeability analysis leads to the conclusion that the shootings were a foreseeable result of the Defendants’ conduct. Here, the essence of the negligence claim is that the Defendants invited their troubled son to a family gathering. According to the court, family members with psychological or behavioral problems are a common occurrence in Florida and elsewhere and families should be encouraged to include troubled family members. A holding that the Defendants owed a legal duty to their family members would discourage families from including troubled members for fear of civil liability.
The court concluded by noting that allowing a claim to go forward would result in a policy that pushed those most in need of family support into the realm of governmental and charitable social services. Based on the all too common unhappy results of such service networks it was held that “[d]ifficult and tragic cases such as this should not set the standard for the entire universe of family interaction.” The Defendants’ son is currently serving life in prison without a chance for parole.
II. Pembroke Lakes Mall Ltd. v. McGruder, 137 So. 3d 418 (Fla. 4th DCA 2014).
FACTS AND PROCEDURAL HISTORY
In 2008 Plaintiff, June McGruder, was injured at the Defendant’s, Pembroke Lake Malls Limited, mall after she slipped and fell on a transient substance. Ms. McGruder sued the Mall as well as its sub-contractor cleaning agency, Millard Mall Services LLC, in 2010 for negligence in failing to warn about a dangerous condition on the property. The case proceeded to trial in 2011 and Ms. McGruder was awarded a favorable verdict of $269,049.50. The jury assigned fifty percent of liability to the Mall and fifty percent to the sub-contractor cleaning service.
Prior to trial, the Mall moved for a determination that section 768.0755, Florida Statutes (2010), applied retroactively and would be the operative statute for trial. The most significant change between the sections concerned prior notice of a dangerous condition. The older statute expressly stated actual or constructive notice was not “a required element of proof to this claim.” The court denied the motion, and determined that the statute in effect at the time of the accident, section 768.0710, Florida Statutes (2008), would apply in the trial.
During voire dire the trial court asked each prospective juror if they or any family members ever participated in a lawsuit as a party, witness or in some other capacity. Four prospective jurors who eventually served on the jury answered they had not participated in a lawsuit. It was later shown that the jurors may have been less than candid in this regard. The Mall moved for a right to conduct juror interviews given the jurors’ failure to disclose pertinent information. The trial court denied the its post-verdict motion without a hearing.
Ms. McGruder moved to have the Mall and its sub-contractor cleaning service held jointly and severally liable given the non-delegable duty of maintaining the property, but the trial court denied said motion.
The Mall appealed on the grounds that the trial court erred in denying their motion and post-verdict juror interviews. The Ms. McGruder then filed a cross-appeal regarding the trial court’s decision to not hold the Mall and cleaning service jointly and severally liable.
On appeal, the Fourth District Court of Appeals (1) ordered that the jurors be interviewed and the trial court must determine if a new trial is proper and (2) despite the jury apportioning liability, the Defendant owner was directly liable to the Plaintiff for the entirety of the jury verdict.
APPELLATE COURTS DECISION
Relying on Fla. Ins. Guar. Ass’n. v. Devon Neighborhood Ass’n. the Fourth District Court of Appeals held that in order for a statute to apply retroactively first the court must find legislative intent to apply the statute retroactively and then find that such an application does not violate constitutional principles of due process. Such a process however, is not necessary when a statute is purely procedural and not substantive. The court certified its disagreement with the Third District Court of Appeals over whether the statute was procedural or substantive, finding that it was substantive in nature. The court then went on to find that there was no clear legislative intent to apply the statute retroactively; and that furthermore such a practice would abolish a host of claims in a manner inconsistent with the Florida Constitution.
Regarding the post-verdict juror interviews, the court held that the trial court had erred in denying the Defendants’ motion for post-verdict juror interviews. The court relied on a three part test requiring the moving party show the existence of concealed material information, the fact that the information was concealed during jury questioning and that the failure to disclose was not the fault of the complaining party. Noting that the jurors’ concealment was in all but one case material, and that the issues had been discussed during jury questioning by the complaining party the court held that the trial court erred in not allowing post-verdict juror interviews to determine if the non-disclosure warranted a new trial.
Finally, the court discussed Plaintiff’s cross-appeal to determine that Defendant Pembroke Lakes was jointly and severally liable for the damages sustained by plaintiff. Section 768.0710 imposes a non-delegable duty of care on business owners to maintain their premises in a reasonably safe condition for invitees. When an owner owes a non-delegable duty of care to a plaintiff who obtains a verdict assigning negligence to the owner and a party contracted by the owner, the owner is jointly and severally liable for the negligence attributed to the contracted party. Despite the jury apportioning liability, the Defendant owner was directly liable to the Plaintiff for the entirety of the jury verdict.
III. Do v. GEICO General Ins. Co., 137 So. 3d 1039 (Fla. 3d DCA 2014).
FACTS AND PROCEDURAL HISTORY
On May 21, 2007, a law enforcement park ranger noticed a partially submerged Audi A8 in a canal in Loxahatchee National Wildlife Refuge. The leased Audi was later revealed to belong to Mr. Do, who had reported the vehicle stolen. Mr. Do reported the theft to his auto insurer, GEICO.
On October 23, 2007, Mr. Do filed a complaint against Geico for breach of contract after Geico denied coverage of the car under the auspices that Mr. Do was complicit in the theft of his own vehicle. On September 24, 2008, Geico tendered payment to the lienholder of the leased vehicle in the amount of the value of the vehicle pre-loss, plus sales tax less the Mr. Do’s deductible. Upon learning of the Geico’s payment the Mr. Do filed a motion for attorney’s fees arguing that pursuant to Wollard v. Lloyd’s & Cos. of Lloyd’s, 439 So. 2d 217 (Fla. 1983) payments by the Geico constituted a confession of judgment which under 627.428, Florida Statutes (2008) would entitle him to attorney’s fees. Geico argued among other things that it had actually paid for the vehicle to preserve it as evidence in its own claims against Mr. Do. Subsequently the trial court held a hearing on the Mr. Do’s motion for attorney’s fees and denied the motion. On June 13, 2011, Geico and Mr. Do filed motions to dismiss the case for lack of prosecution. The trial court entered an order granting both motions on July 13, 2011.
On July 15, 2011, Mr. Do filed a renewed motion for attorney’s fees and costs, asserting that under section 627.428 he was entitled to fees for prosecuting his claim, and for defending the now dismissed counterclaims. The trial court denied the motion and an appeal ensued.
The Third District Court of Appeals held that Mr. Do was entitled to attorney’s fees and costs relating to the bringing of a claim and that Geico’s actions in paying the lienholder constituted a confession of judgment. The court also held that Mr. Do was not entitled under the statute to costs and attorney’s fees relating to defending against claims brought by Geico as counter-claims.
APPELLATE COURT’S DECISION
The appellate court noted that the issue of awarding attorney’s fees under section 627.428 had been litigated and was well settled in the State of Florida. The section was intended to discourage insurers from contesting valid claims and to reimburse successful insureds when they are compelled to bring suit to enforce their insurance contracts. To that end, the Florida Supreme Court held in Wollard that although the statute requires “rendition of a judgment” if an insurer pays the policy proceeds after the suit has been filed but before a judgment has been rendered the payment is the functional equivalent of a rendition of a judgment and the insured is entitled to attorney’s fees. Wollard stood for the proposition that an insurance company cannot escape its duty to pay attorney’s fees by paying the policy after a suit has ensued. As such, the Appellant was properly entitled to the attorney’s fees and costs spent in the process of litigating his own claim against the Appellee.
The court then turned to the issue of whether Mr. Do was entitled to attorney’s fees under the statute for the cost of defending the counterclaims brought against him by Geico. The court found that such a claim for fees was without merit. On July 13, 2011 the trial court had dismissed the action for lack of prosecution and this was not considered a decision on the merits. As such Appellant had never received any rendition of judgment on the claims and was not entitled to fees under the statute.
In reversing in part and affirming in part the court held that because Geico’s payment of the claim to the vehicle lienholder following the filing of suit was the functional equivalent of a confession of judgment in Mr. Do favor the trial court erred in denying attorney’s fees. Mr. Do however was not entitled to fees for the defense of counter-claims brought by the Geico given the absence of a rendition of judgment on the matter.
IV. Youngblood v. Villanueva, 141 So. 3d 600 (Fla. 2d DCA 2014).
FACTS AND PROCEDURAL HISTORY
The Estate of Eduardo Villanueva, filed a wrongful death action against Extreme Auto Sales, Maria Vega, Teddy Aponte, Fisher Auto Sales, T. Patton Youngblood and his ex-wife Angela Youngblood for damages sustained in a fatal automobile accident. Youngblood had consigned his uninsured vehicle to Teddy Aponte of Extreme Auto Sales with instruction to sell the vehicle. Aponte was driving the car for his own personal use at the time of the accident. Youngblood contended that this act constituted a theft or conversion which exempted him from liability.
Prior to trial, the Estate reached settlements with all of the Defendants except Youngblood. The total amount of pre-trial settlements was $78,000.00 and the Estate received a PIP benefit in the amount of $5,000.00.
At trial the jury awarded the Estate $9,043.75 in economic damages for funeral and cemetery expenses and $190,000.00 in non-economic damages for the pain and suffering sustained by Rosalina Villanueva as a result of her husband’s death. Youngblood thereafter sought a setoff of the pretrial settlement amounts against the overall verdict of $199,043.75. The trial court determined that the non-economic damages portion of the $78,000.00 pretrial settlement was $74,462.00 which the trial court deducted from the $190,000.00 jury award for non-economic damages. The trial court then capped damages pursuant to Florida Statute 324.021(9)(b)(3). The trial court then reduced the $9,043.75 in economic damages by the amount of the economic damages portion of the pretrial settlement and further reduced it pursuant to the PIP payment for a total amount of $505.75 in economic damages.
The trial court based its decision to cap non-economic damages on section 324.021(9)(b)(3) which provides:
The owner who is a natural person and loans a motor vehicle to any permissive user shall be liable for the operation of the vehicle or the acts of the operator in connection therewith only up to $100,000 per person and up to $300,000 per incident for bodily injury and up to $50,000 for property damage. If the permissive user of the motor vehicle is uninsured or has any insurance with limits less than $500,000 combined property damage and bodily injury liability, the owner shall be liable for up to an additional $500,000 in economic damages only arising out of the use of the motor vehicle. The additional specified liability of the owner for economic damages shall be reduced by amounts actually recovered from the permissive user and from any insurance or self-insurance covering the permissive user. Nothing in this subparagraph shall be construed to affect the liability of the owner for his or her own negligence.
The trial court found that although there was not a direct loan from the vehicle owner to the vehicle operator Youngblood was still liable for the acts of Aponte under the dangerous instrumentality doctrine and therefore in their opinion the statute still applied.
Youngblood then appealed the judgment and the Estate entered a cross-appeal regarding the trial court’s decision to set off and cap damages. On appeal, the Second District Court of Appeals reversed and remanded for further proceedings the issue of damages holding that the trial court improperly applied Florida Statute section 324.021(9)(b)(3) and that the set off of non-economic damages was improper pursuant to Florida Statute sections 46.015 and 768.041.
APPELLATE COURT’S DECISION
The Appellate court stated that in order to determine if a set off is proper the court would first have to determine if there was a loan either directly or indirectly. Relying on Ortiz v. Regalado, 113 So. 3d 57 (Fla. 2d DCA 2013), the court held that Youngblood’s actions did not constitute a loan. In Ortiz, the court noted that the word loan was not defined in the statute. The court relied on the definition of “loan” in another section of Florida Statutes, 265.565(2)(b) which defined it as property “not accompanied by a transfer of title to the property or accompanied by evidence that the lender intended to retain title to the property and to return to take physical possession of the property in the future.” Youngblood did not transfer title and he did not intend to retake possession thus the scenario does not constitute a loan. Therefore, 324.021(9)(b)(3) is not applicable and the trial court erred in applying a cap to noneconomic damages.
Further the trial court erred in setting off the settlement amounts received from the other defendants against the noneconomic damage award pursuant to sections 46.015 and 768.041.The Florida Supreme Court specifically held in Wells v. Tallahassee Memorial Reg. Med. Center, Inc., that sections 46.015 and 768.041 do not apply to noneconomic damages. 659 So. 2d 249, 253 (Fla. 1995).
The court reversed the portion of the judgment capping damages and setting off the settlement amounts against the noneconomic damages award.
Very truly yours,