News Room

News Room

Tort Update

June 17, 2015

Dear Ladies and Gentlemen:

We would like to share with you some recent opinions from the Florida District Courts of Appeal and the Florida Supreme Court that may be of interest to you.

In Miley v. Nash[1], the Second District Court of Appeals found that a proposal for settlement was not invalid but rather sufficiently clear to allow the Plaintiff to make a determination of whether to accept the proposal even though not all claims asserted and sought to be discharged were specifically articulated.

In Chase v. Horace Mann Ins. Co., the Supreme Court held that initial as well as subsequent named insureds must be given an opportunity to select/reject UM coverage.

In Hurtoda v. Desouza [2], the Fourth District Court of Appeals affirmed that the current test for “harmless error” requires the beneficiary of the error to prove that the error complained of did not contribute to the verdict.

In Cynthia Cook v. Bay Area Renaissance Festival of Largo, Inc.[3], the Second District Court of Appeals found that in a premise liability action, the foreseeability of a possible injury resulting from an open and obvious danger was a question for a jury precluding summary judgment.

Miley v. Nash, 40 Fla. Law Weekly D991 (Fla. 2nd DCA April 29, 2015)


Martha Nash was involved in a motor vehicle accident with a vehicle driven by Kyle Miley and owned by Glenn Miley. Nash and her husband, Garfield Nash, sued Kyle and Glenn for the injuries she suffered in an automobile accident, and for her husband’s loss of consortium. Kyle served a proposal for settlement on the Plaintiffs. The proposal required Ms. Nash to dismiss both, Kyle and Glenn, from the lawsuit. The proposal stated it was an attempt to resolve “all claims and causes of action giving rise to the lawsuit” brought by Ms. Nash. The proposal did not mention the consortium claim. The Plaintiffs obtained a verdict in an amount 25% less than the proposal. Following the jury verdict, the Mileys moved for attorney’s fees under Florida Statute Section 768.79. The trial court denied the Miley’s motion, finding the proposal was deficient for failing to specifically identify the claim or claims it was attempting to resolve, failing to specifically address the pending loss of consortium, failing to state with particularity the relevant conditions, and failing to specifically state the amount in terms of the proposal attributable to each party.


The Second District reversed the trial court’s ruling on attorney’s fees. It found that the proposal “clearly announced” it was targeted to address any and all claims resulting from the accident brought by Ms. Nash against the defendant, Kyle. Thus, the court concluded, the language of the proposal was clearly only meant to resolve the bodily injury claims brought by Ms. Nash and not the loss of consortium brought by her husband.

The court stated that while it may have been more specific to refer directly to the language used in the complaint to identify the claims that were being resolved, the language used by Kyle in the proposal, “did not contain a level ambiguity that would render [Ms. Nash] unable to make an informed decision without needing clarification.” Unlike cases where the proposal was ambiguous, because it failed to clarify which of the outstanding claims would be extinguished by a proposed release, in this case, Ms. Nash had no other pending claims at the time of the proposal. The court also explained that the proposal did not need to address all claims relevant to the litigation, Kyle was only required to address what claims he was “attempting to resolve.” As the consortium claim was the husband’s separate and distinct claim, even though related, it was not affected by the proposal for settlement. Finally, the relevant conditions to the proposal sufficiently described the exact amount that the driver would pay, and the exact claims the proposal would resolve. Therefore, the proposal was sufficiently clear to allow Ms. Nash to make a determination as to her claims and she was then responsible for Kyle’s attorney’s fees when she recovered 25% less than the proposal offered.

Chase v. Horace Mann Ins. Co., 158 So. 3d 514 (Fla. 2015)


Allison Chase, individually and as personal representative of the estate of her father, Richard Chase, brought an action against her automobile insurer, asserting that waivers signed by Richard rejecting higher levels of uninsured motorist (UM) coverage did not apply to her, because she became the sole named insured under the policy and did not elect lower limits of UM coverage. In 2001, Richard obtained an auto policy providing $100,000/$300,000 in liability coverage and elected $25,000/$50,000 in UM coverage. Richard was the only named insured but Allison was listed as an additional driver. The policy remained in effect until 2004 when the insurer removed Richard as the sole named insured and listed Allison as the sole named insured and listed new vehicle owned by Allison (Richard was listed as an additional driver). At the same time, the insurer issued a new policy to Richard and presented him with new UM rejection forms. Allison was never presented with UM rejection forms for her policy. In July 2007, Richard and Allison were involved in a serious auto accident that resulted in Richard’s death. Allison filed suit against Horace and claimed that she was entitled to UM benefits equal to her liability limits because she never signed a UM rejection form. The trial court granted partial summary judgment to Allison regarding her available UM limits.


The First District Court of Appeals agreed with the insurer and stated that the policy issued to Allison was renewed, extended, changed, superseded, or replaced; hence, Richard’s rejection of UM benefits was binding on Allison.

The Florida Supreme Court took on the case and stated that although Allison’s policy retained the same liability limits as her father’s previous policy this was considered a new policy and the insurer was required to obtain a UM waiver from Allison. The Court explained that because Allison was never a named insured until the transfer of her father’s policy to her she never had the opportunity to select UM benefits. The insurer was required to give Allison the opportunity to select UM limits when she became a named insured, but did not. Therefore, the limits selected by Richard were not binding on Allison and she was entitled to UM benefits equal to her liability limits.

Hurtado v. Desouza, Case No. 4D12-1817, 4d13-1469 (Fla. 4th DCA April 15, 2015)


This action involved a relatively minor accident. Desouza was stopped at a red light when he was rear-ended by a vehicle driven by Yeinson and owned by Viviana. Just prior to trial, Hurtado admitted liability. Only the extent of Desouza’s damages were at issue at the trial.

During opening statements, Desouza’s counsel made remarks regarding mental anguish, Hurtado’s refusal to apologize after the accident, and failure to check on him after the accident. Hurtado’s counsel objected to all such remarks and moved for a new trial. The trial court issued a directed verdict for any claim regarding mental anguish and stated that it would issue a curative instruction to the jury prior to deliberation on the other remarks. During the trial, Desouza’s counsel introduced evidence about Desouza’s financial struggles, losing his home in foreclosure, and stopping treatment because he could not afford it. Again Hurtado’s counsel objected and moved for a new trial, but was denied. Desouza’s injuries were contested and it was shown by Hurtado’s counsel that he had complained of similar injuries and received treatment for said injuries the year prior to the accident. Nonetheless, the jury reached a verdict in favor of Desouza for $1,002,238.17. Hurtado appealed said.


The Fourth District Court of Appeals first affirmed the trial court’s decision, but on re-hearing reversed. The court found that due to the new standard for reviewing harmless error Hurtado was entitled to a new trial. The court explained that in Special v. West Boca Medical Center, the Florida Supreme Court held that when reviewing harmless error “the beneficiary of the error was [now] required to prove that there is no reasonable possibility that the error complained of contributed to the verdict.” 39 Fla. L. Weekly S676 (Fla. Nov. 13, 2014). In this case, the Court pointed out that there was a large amount of information that was presented that had no place in the relevant trial such as: mention of Desouza’s mental stress, his financial difficulties unrelated to the subject accident, and mention of Hurtado’s refusal to apologize or admit liability until right before trial. The court explained that the accident in question was minor and Desouza’s injuries were contested with proof of previous medical complains for the same injuries. Based on this evidence, Desouza could not prove that the improperly admitted testimony did not reasonably contribute to the over one-million dollar award to Desouza. Therefore, a new trial on damages was ordered.

Cynthia Cook v. Bay Area Renaissance Festival of Largo, Inc., Case Number: 2D14-2392 (Fla. 2d DCA May 8, 2015).


Cynthia Cook attended a Renaissance Fair hosted by Bay Area. Upon arrival, Cook was instructed to park in an overflow parking lot by festival volunteers. She was then allegedly instructed to use an unpaved walkway on a patch of city owned land to travel between the festival grounds and the parking lot. While leaving the festival and crossing the unpaved walkway, Cook tripped over an exposed pipe and cut her foot. Following said incident, Cook filed suit accusing Bay Area of failure to keep the unpaved walkway in a safe condition. Bay Area filed a Motion for Summary Judgment arguing that there was no proof that it had control over the subject premises were Cook was injured. The trial court granted the motion and dismissed Cook’s claim; Cook then appealed.


The Second District Court of Appeals reversed the trial court’s order granting summary judgement. The court explained that there was evidence that Bay Area was using the over flow parking lot, that it directed patrons to use the path, and removed the pipe after the accident. Hence, whether they exercised significant control over the property to establish liability is a question for the jury to resolve not the court. Bay Area then argued that the alleged hazard was “open and obvious” and hence Cook’s claim was barred as a matter of law. However, the Court explained that even if a hazard was “open and obvious,” as alleged by Bay Area, a jury could still find liability if they find that Bay Area should have anticipated the possibility of injury resulting from the hazard. The issue of such foreseeability was a question for the jury and not the Court, therefore summary judgment was reversed.

Very truly yours,



[1] This opinion has not been released for publication in the permanent law reports and is subject to revision or withdrawal.

[2] This opinion has not been released for publication in the permanent law reports and is subject to revision or withdrawal.

[3] This opinion has not been released for publication in the permanent law reports and is subject to revision or withdrawal. Mike Gartner Jersey