May 1, 2019
This month we would like to share with you some recent opinions of the Florida District Courts of Appeals which may be of interest to you.
In Steven Paul Anderson v. Mary Mitchell, 2019 WL 1496258 (Fla. 2nd DCA April 5, 2019), the Second District Court of Appeal denied Anderson’s petition for certiorari, holding that the trial court did not depart from the essential elements of the law by ruling that statements made by the Andersons for the purpose of completing a crash report were not privileged, but discoverable pursuant to Florida Statute § 316.066(4). This case clarifies that statements that may be inadmissible at trial can still be subject to disclosure in pretrial discovery.
In Shamrock-Shamrock, Inc. v. Tracey Remark, 2019 WL 1868175 (Fla. 5th DCA Apr. 26, 2019), the Fifth District Court of Appeal affirmed the trial court’s final summary judgment in favor of Tracey Remark, holding that Florida law does not impose a duty on nonparties to litigation to preserve evidence based solely on the foreseeability of litigation.
In Conti v. Auchter, 2019 WL 1212357 (Fla. 5th DCA Mar. 15, 2019), the Fifth District Court of Appeal reversed the trial court’s decision, and held that allocation of attorney’s fees are not feasible when loss-of-consortium claims are inextricably intertwined with a plaintiff’s personal injury claim.The court refused to make a blanket rule that loss-of-consortium claims are always inextricably intertwined, but instead reasoned that Conti successfully defeated the loss-of-consortium claim because Conti challenged the plaintiff’s permanent injury by presenting both legal arguments and expert testimony, which established that the claims in the case were inextricably intertwined.
Steven Paul Anderson v. Mary Mitchell, 2019 WL 1496258 (Fla. 2nd DCA April 5, 2019)
Facts and Procedural History
Mary Mitchell filed a complaint against Steven Anderson alleging that Anderson negligently operated his motor vehicle, when he struck Mitchell on a cross walk. During the depositions of Anderson, his wife, and the investigating officers, counsel for the defense objected to questions pertaining to Anderson and his wife’s statements made to the police at the scene of the accident for the purpose of creating the crash report. The defense counsel refused to allow his clients to answer, and argued that the statements were protected from discovery pursuant to the “accident report privilege” in Florida Statute § 316.066(4). The Circuit Court in Lee County submitted an order compelling the witnesses to take additional depositions and answer the questions surrounding the Anderson’s statements to the police at the accident scene.
Appellate Court Decision
On appeal, Anderson alleged that the trial court was incorrect in ruling that the accident report privilege in Fla. Stat. § 316.066(4) does not preclude the discovery of statements made to officers at the scene of the accident. Pursuant to the Florida Rules of Civil Procedure, parties are entitled to:
[D]iscovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action… It is not ground for objection that information sought will be admissible at the trial if the information sought appears reasonably calculated to the discovery of admissible evidence.
Fla. R. Civ. P. 1.280(b)(1). The court reasoned that information that is “inadmissible” is discoverable, while information that is “privileged” is not. The Second District Court of Appeals was faced with the issue of whether Anderson’s statements to the police protected under Fla. Stat. § 316.066(4) were privileged or inadmissible. Fla. Stat. § 316.066(4) states:
Except as specified in this subsection, each crash report made by a person involved in a crash and any statement made by such person to a law enforcement officer for the purpose of completing a crash report required by this section shall be without prejudice to the individual so reporting. Such report or statement may not be used as evidence in any trial, civil or criminal….
(emphasis added). Based on a plain reading of the statute, the court reasoned that the only limitation on the information is that it may not be used at trial. There is no reference that the information is precluded from disclosure. The court compared Florida statutes pertaining to privileges with statutes pertaining to admissibility. For example, the statute on attorney-client privilege provides, “[a] client has a privilege to refuse to disclose, and to prevent any other person from disclosing, the contents of confidential communications when such other person learned of the communications because they were made in the rendition of legal services to the client.” Fla. Stat. § 90.502(2)(emphasis added). While the statute pertaining to evidence of settlement negotiations “is inadmissible to prove liability or absence of liability for the claim or its value.” Fla. Stat. § 90.408(emphasis added).
Anderson also argued that the Second District’s plain language interpretation of Fla. Stat. § 316.066(4) conflicts with its legislative history. The court disagreed with Anderson’s reasoning, and noted that the legislature substantially amended the statute in 1989 by deleting the term “privilege”, the language making the information confidential, and the language prohibiting its disclosure outside of the department. The staff analysis notes for that year even provide, “to make it clear that statements made to an officer by a person involved in an accident shall not be admissible in court but shall otherwise be public record.” Based on this evidence, the court reasoned that the legislature clearly intended to change the statute from a privilege statute, to an admissibility statute.
The court concluded that the trial court did not depart from the essential requirements of the law by ruling that the Andersons’ statements to the police for the purpose of creating the crash report are discoverable because the current Fla. Stat. § 316.066(4) does not create a privilege precluding the disclosure of statements, it is a law of admissibility that precludes the statements from being used at trial.
Shamrock-Shamrock, Inc. v. Tracey Remark, 2019 WL 1868175 (Fla. 5th DCA Apr. 26, 2019)
Facts and Procedural History
This case arises out of Shamrocks lawsuit against the City of Daytona Beach and its Planning Board for intentionally disapproving Shamrock’s request to rezone and develop a hotel and marina, alleging that the denial was for the City’s own gain. Remark was never a party to the action, but was a member of the Planning Board at the time the City denied Shamrock’s request. During the course of litigation, Shamrock served several notices to Remark to take her deposition. However, only the sixth request for a deposition included a duces tecum request for documents to be produced at the deposition.
Remark’s deposition was taken on April 20, 2012. During her deposition, Remark mentioned that she obtained a new computer and destroyed her old computer in December 2011, which was after she received the first deposition notice, but prior to receiving the duces tecum request. Remark did not preserve any documents, records, or emails from her old computer, nor did she inform anyone before destroying it.
In response, Shamrock filed a two-count complaint against Remark, alleging that Remark either intentionally or negligently destroyed her computer in bad faith. Both parties filed motions for summary judgment regarding whether Remark had a duty to preserve evidence because she had notice of the litigation and Shamrock. The trial court granted Remark’s motion for summary judgment, and reasoned that there was no genuine issue of material fact that Remark had a duty to preserve the evidence.
Appellate Court Decision
To establish a spoliation cause of action, the plaintiff must prove each of the following six elements: (1) existence of a potential civil action, (2) a legal or contractual duty to preserve evidence which is relevant to the potential civil action, (3) destruction of that evidence, (4) significant impairment in the ability to prove the lawsuit, (5) a causal relationship between the evidence destruction and the inability to prove the lawsuit, and (6) damages. Gayer v. Fine Line Constr. & Elec., Inc., 970 So. 2d 424, 426 (Fla. 4th DCA 2007) Cont’l Ins. Co. v. Herman, 576 So. 2d 313, 315 (Fla. 3d DCA 1990) (citation omitted)(emphasis added). This appeal only involved the second element, whether Remark had a legal or contractual duty to preserve evidence which is relevant to the potential civil action.
Florida law has stated that a duty may arise in a third-party spoliation matter based on the existence of a contract, statute, or properly served discovery request. See, e.g., Gayer, 970 So. 2d at 426. However, the court noted that Florida courts have not imposed a duty on a third party to preserve evidence based on foreseeability, or even knowledge, of the litigation. The court was then required to determine whether a third party should have a duty to preserve evidence if they have knowledge of the case. The court looked to other jurisdiction’s view, and determined that jurisdictions that permit an independent tort action for third-party spoliation generally decline to recognize a broad, common law duty to preserve evidence. Holmes v. Amerex Rent–A–Car, 710 A.2d 846 (D.C. 1998); Koplin v. Rosel Well Perforators, Inc., 734 P.2d 1177, 1179 (Kan. 1987); Coleman v. Eddy Potash, Inc., 905 P.2d 185, 191 (N.M. 1995), overruled on other grounds by Delgado v. Phelps Dodge Chiro, Inc., 34 P. 3d 1148 (N.M. 2001); Hannah v. Heeter, 584 S.E.2d 560, 568 (W. Va. 2003); Andersen v. Mack Trucks, Inc., 793 N.E.2d 962, 966 (Ill. App. Ct. 2003).
The court also noted that courts have recognized the importance of ensuring that spoliation does not improperly impair a litigant’s rights. However, similar to other jurisdictions, litigants in Florida can request a third party to produce evidence in responses to a subpoena duces tecum.
Here, there was no statute, contract, or discovery request that would have imposed a duty on Remark to preserve the records on her computer. The Fifth District Court of Appeal declined a broad ruling, and held that knowledge, by itself, should not give rise to a duty to safeguard the evidence in anticipation. The court therefore affirmed the trial court’s summary judgment in favor of Remark.
Conti v. Auchter, 2019 WL 1212357 (Fla. 5th DCA Mar. 15, 2019)
Facts and Procedural History
This Fifth District Court of Appeals matter arose from a personal injury action in which James Auchter sued Jessica Conti after he was rear-ended in his truck by her car. Auchter sought lower back damages, and his wife, Ashlee Auchter, sued for loss-of consortium. Both parties served proposals for settlements, and both were rejected by their respective parties. The jury concluded that Mr. Auchter did not suffer any permanent injury, and therefore Mrs. Auchter was not awarded any damages for her loss-of-consortium claim.
Conti moved for attorney’s fees in connection with the rejected proposal for settlement. Conti argued that Mr. Auchter’s injuries were inextricably intertwined with Mrs. Auchter’s loss-of-consortium claim. The trial court disagreed.
Appellate Court Decision
Claims are inextricably intertwined when a determination of the issues in one action would necessarily be dispositive of the issues raised in the other. Effective Teleservices, Inc. v. Smith, 132 So.3d 335, 339 (Fla. 4th DCA 2014). Even though loss-of-consortium claims are a separate cause of action, their derivative nature supports the conclusion that the instant claims are inextricably intertwined. The court reasoned that when a defendant successfully defeats a loss-of-consortium claim by proving a lack of permanency of the plaintiff spouse’s injury, then the claims are inextricably intertwined. Boswell v. Shirley’s Pers. Care Servs. of Okeechobee, Inc., 211 So.3d 210, 212 (Fla. 4th DCA 2017); Effective Teleservices, Inc., 132 So.3d at 339.
The courts in Saunders and Blanton refused to make a blanket rule that loss-of-consortium are always inextricably intertwined. Saunders v. Dickens, 103 So.3d 871, 881 (Fla. 4th DCA 2012), decision quashed on other grounds, 151 So.3d 434 (Fla. 2014); Blanton v. Godwin, 98 So.3d 609, 612 (Fla. 2d DCA 2012). The Fifth District Court of Appeals agreed that there should not be a blanket rule that loss-of-consortium claims are always inextricable intertwined. However unlike both Saunders and Blanton, Conti presented both legal arguments and expert testimony that established that the claims in the case were inextricably intertwined by challenging the plaintiff’s permanent injury, and therefore successfully defeated the loss-of-consortium claim.
Very truly yours,
JOHN BOND ATKINSON