Tort & Client Update Recent Impactful Florida Decisions
July 29, 2020
Re: Tort & Coverage Client Update
Recent Impactful Florida Decisions
We hope this Client Update finds you in good health and positive spirits. As we enter the next phase of life under COVID-19, Atkinson, P.A. remains dedicated and available to advise, address, and support your legal concerns.
While the current pandemic caused a delay of proceedings at the onset, courts have adapted remarkably fast and oral arguments continue to be conducted remotely. In fact, Miami-Dade’s 11th Judicial Circuit of Florida was the first of five judicial circuits in the state to hold a jury trial this month. Jurors were selected via Zoom, attorneys made opening statements wearing protective masks, and the trial was streamed on YouTube. The civil suit, stemming from a home insurance dispute, gave a glimpse of how the justice system hopes to adapt to the new socially distant normal as coronavirus cases surge in Florida.
We will continue to keep you appraised of new issues emerging in the insurance industry and look forward to sharing time with you as we navigate this new normal together. Below are recent, impactful Florida decisions concerning tort and coverage claims, we felt may be of interest.
In Valenty v. Saraiva, 292 So. 3d 50 (Fla. 2d DCA 2020), the 2nd DCA found that for a defendant to be liable on a motor vehicle accident negligence claim, the mere occurrence of accident does not give rise to an inference of negligence. The court recognized that a driver behaves negligently when he or she suddenly changes lanes, unless that sudden lane change is made necessary by a sudden emergency. However, for a defendant to be liable on a negligence claim, of course, there must be both negligence and causation. Specifically, the jury must find that either the motorist did something that a reasonably careful person would not have done, or he failed to do something that a reasonably careful person would have done in similar circumstances. The undisputed fact that a defendant motorist’s lane change resulted in a collision does not by itself make it undisputed that the defendant motorist’s lane change entailed a failure to exercise reasonable care.
In Brannick v. Pinellas Cty., 292 So. 3d 1244 (Fla. 2d DCA 2020), the 2nd DCA found that in in moving for summary judgment, defendants in negligence actions do not meet their burden merely by showing that the plaintiff is not sure what caused his or her damage. The facts must be so crystallized that nothing remains in dispute.
In Fredrick v. Dolgencorp, LLC, 45 Fla. L. Weekly D1259 (Fla. 2d DCA May 27, 2020), the 2nd DCA agreed with the trial court’s conclusion that the store did not breach its duty to maintain its premises in a reasonably safe condition because it did not have sufficient time to do so in the 51 seconds between the spill and the customer’s fall. However, the 2nd DCA reversed the trial court’s grant of summary judgment in favor of the store on the issue of its duty to warn the customer because the deposition testimony of the store manager and the employee contradicted the trial court’s finding that the store did not have sufficient opportunity to warn of the dangerous condition and created a disputed issue of material fact. The court left undecided the issue of whether the patch of laundry detergent constituted an open and obvious condition.
In Avatar Property & Casualty Ins. Co. v. Simmons, 45 Fla. L. Weekly D1429 (Fla. 5th DCA June 12, 2020), the 5th DCA held that there is no claims file privilege. It is not enough for an insurance company to claim that certain documents are protected by the work-product doctrine merely because such documents belong to the carrier’s claim file. The carrier must prove that the document was prepared in anticipation of litigation; it may, for example, file a supporting affidavit.
In First Ins. Co. v. Phillips, 45 Fla. L. Weekly D1426b (Fla. 5th DCA June 12, 2020), the 5th DCA agreed that trial courts have the power to determine factual issues under the declaratory judgment act, and it was error to dismiss the complaint when the insurer invoked the trial court’s declaratory jurisdiction to make a factual determination of whether the insured’s claimed damages occurred prior to the inception of the policy.
In Liberty Mutual Ins. Co. & Liberty Mutual Fire Ins. Co. v. Wolfson, 45 Fla. L. Weekly D1508 (Fla. 14th DCA June 24, 2020), the 4th DCA held that “similar law” under Fla. Stat. 627.727(1) encompasses Fla. Stat. 627.727 itself because this statute is a legislatively-enacted coverage, just as workers’ compensation or personal injury protection benefits are legislatively-enacted coverages. Based on this determination, the 4th DCA concluded that, pursuant to Fla. Stat. 627.727, the benefits provided under an UM policy cannot duplicate benefits already paid to an insured under another UM policy.
Valenty v. Saraiva, 292 So. 3d 50 (Fla. 2d DCA 2020)
In Valenty, a car driven by Michael Valenty collided with a motorcycle ridden by Wilson Saraiva, when Valenty made a lane change from the right to the left lane of traffic. Saraiva sued Valenty for negligence, and during the trial, the jury returned an unexpected verdict in favor of Valenty. Saraiva moved for a new trial, which the trial court granted on the basis that the jury’s verdict with respect to Valenty’s liability was against the manifest weight of the evidence. However, in reaching that conclusion, the trial court incorrectly reasoned that Valenty’s fault in the accident was undisputed. Valenty appealed to the Second District Court of Appeals arguing that his fault in the accident was in dispute and that the jury could find that he was not liable.
During trial, the evidence about the circumstances leading up to the accident came through the testimony of Saraiva, the testimony of an accident reconstruction expert he retained, and the testimony of Valenty. Saraiva’s testified that he was riding his motorcycle at a consistent speed of five miles per hour below the speed limit alongside Valenty’s car when Valenty’s car unexpectedly moved into the left lane. Saraiva stated that he tried to swerve left to avoid it, but was unable to get out of the way in time and was struck and injured.
Valenty’s testified that he was driving behind a slow-moving vehicle in the right lane and at the same time, that there was an SUV not too far behind him in the left lane. Valenty explained that he wanted to pass the slow-moving vehicle in front of him and that he checked his rear-view mirror and looked over his left shoulder and saw that the SUV was too close for him to change lanes and pass, so he turned on his blinker and sped up to make room to pass. He testified that checked his rear-view mirror and looked over his shoulder again, and this time the SUV was far enough behind him for him to pass and he did not see any other vehicles. Upon changing lanes Valenty’s vehicle collided with Saravoia’s motorcycle.
Valenty argued that because he checked twice and did not see the motorcycle either time, Saraiva must have been behind the SUV just before Valenty started changing lanes and that Saraiva must have tried to speed around the SUV and get back into the left lane at the same time Valenty was changing lanes and that it was Saraiva’s unsafe maneuver caused the accident.
During the direct examination of Saraiva’s accident reconstruction expert, the expert opined that Saraiva was driving safely and that Valenty changed into the left lane without seeing Saraiva. However, he also stated Valenty’s “intention appeared to be safe, but . . . he failed to recognize the motorcycle.” And during cross- examination, he testified that motorists often encounter difficulties in seeing motorcycles that they do not encounter in seeing cars, especially at night. The expert further acknowledged that Valenty’s theory that Saraiva made a fast and unsafe passing maneuver around the white SUV was unlikely, but possible given the evidence.
The case was then submitted to the jury that found there was no negligence on the part of Defendant, Valenty, which was a legal cause of damage to Saraiva. Saraiva filed a motion for a new trial in which he argued that improper and inflammatory comments by defense counsel during closing arguments prejudiced him and that the trial court should have granted a directed verdict on causation. At the hearing on the motion, the trial court sua sponte ruled the jury’s verdict was against the manifest weight of the evidence, explaining that:
“[It] just never entered my mind when I was sitting there waiting for that jury to come back that I was going to hear” a defense verdict. The trial court stated that “it is certainly as surprising a verdict as I think I’ve ever gotten” because “I mean, the guy pulled over in his lane, hit him, hit him in the blind side of his car,” it was “dark,” and Mr. Valenty “admitted he was speeding up to get in front of a slow driver in front of him.”
Valenty appealed that his liability was in dispute contrary to the trial court’s ruling. The 2nd DCA correctly reviewed the trial record and explained that the “deference the law grants a trial court granting a motion for new trial based on the manifest weight of the evidence does not, however, grant it a license to operate” as a super-juror by disregarding a jury’s verdict simply because the judge would have rendered a different one had it been the judge’s choice to make.” Meyers, 251 So. 3d at 999 (citing Brown v. Estate of Stuckey, 749 So. 2d 490, 495 (Fla. 1999); Phar-Mor of Fla., Inc. v. Steuernagel, 550 So. 2d 548, 550 (Fla. 2d DCA 1989)).”
The 2nd DCA explained that, here, the trial record did not show that Valenty failed to use reasonable care when changing lanes and further opined that the jury could believe Valenty’s statements about his actions when he made the change of lanes, and that lane change was not sudden and therefore not negligent. Ultimately, the 2nd DCA concluded that the trial court abused its discretion because its reason for granting a new trial is not supported by the record. The 2nd DCA reversed the trial court’s order granting a new trial and remanded with instructions for the trial court to reinstate the jury’s verdict.
Brannick v. Pinellas Cty., 292 So. 3d 1244 (Fla. 2d DCA 2020)
In Brannick, Brannick sought to recover damages for injuries he sustained from losing control of his bicycle and falling into a drainage ditch at an intersection owned and maintained by Pinellas County. Brannick alleged that the County had actual or constructive notice of an unsafe and dangerous condition in the shoulder area, negligently maintained the premises, and failed to warn the dangerous condition. According to the Brannick’s expert, the shoulder area of the intersection lacked an adequate clear zone and recovery slope for bicyclists to retain or regain control of their bicycles, and the pavement of the shoulder area was cracked, deteriorating and hazardous. The expert also testified that the slope at the edge of the pavement was unreasonably dangerous and far steeper than the slope was required by uniform minimum standards.
During Brannick’s deposition, Brannick testified that he could not remember the details of the incident and stated:
Q. Okay. So you’re heading west on 142nd approaching the intersection. There’s a car stopped northbound on 52nd?
Q. Okay. What happened next?
A. I wanted to proceed south on 62nd street. I was unsure of what the car wanted to do, so I stayed on the shoulder. I tried to stay on the shoulder of the road and go around the corner. My memory — I pretty much blacked out after that. My memory has stopped, because I got hit. Of how I got struck, I don’t remember what happened after that.
His next memory of the incident is waking up, hours later, inside the drainage ditch. In response, the County filed a Motion for Summary Judgment based on causation supported by Brannick’s testimony in his deposition that he was traveling in the direction of the alleged dangerous condition, but his memory of the incident ends before reaching the condition. At the summary judgment hearing, the County argued it was entitled to summary judgment because Brannick cannot remember what caused his damages.
The 2nd DCA opined that in determining whether to enter summary judgment in a negligence action, “the question [before the court] is not whether the plaintiff has evidence to prove her case at a given point in the litigation or has personal knowledge of facts establishing the defendant’s negligence.” Fiedler, 971 So. 2d at 258. In moving for summary judgment, defendants in negligence actions do not meet their burden “merely by showing that the plaintiff is not sure what caused her damages.” Id.
Therefore, the Court stated there was a question of fact as to whether Brannick fell into the ditch or was struck by a car causing him to fall into the ditch. Therefore, as causation remained unresolved and summary judgment was improper.
Fredrick v. Dolgencorp, LLC, 45 Fla. L. Weekly D1259 (Fla. 2d DCA May 27, 2020)
In Fredrick, Respondents, the trial court granted of summary judgment in favor of the store (“Dollar General”) with respect to its duty to maintain the premises in a slip and fall case, where laundry detergent was spilled in a store. Fredrick (Plaintiff) appealed the trial court’s ruling and argued for reversal of the summary judgment award. However, the 2nd DCA rejected Fredrick’s request for reversal and instead ruled there were genuine issues of material fact regarding Dollar General’s duty to warn Fredrick of the dangers posed by the spilled laundry detergent.
The pertinent timeline of events: A customer dropped a bottle of laundry detergent near the checkout counter in a Dollar General store, causing the detergent to spill on the floor. At the time of the spill, the store manager and another employee were working behind the counter. However, as soon as the store manager noticed the spill, he left the counter to retrieve cleaning supplies, but the manager did not alert the other employee to the spill. Approximately forty-one seconds after the spill, Fredrick entered the store. As he was walking past the counter, fifty-one seconds after the spill, Fredrick stepped on the detergent and fell to the ground, sustaining injuries. The store manager returned to the location of the spill with cleaning supplies, thirty-two seconds after Fredrick’s fall and eighty-three seconds after the spill occurred.
Fredrick filed a complaint against Dollar General, alleging that the store breached its duty of care to Fredrick by failing to maintain the property in a reasonably safe condition and failing to warn Fredrick of the unreasonably dangerous condition posed by the detergent.
Dollar General then moved for final summary judgment and argued that despite its actual knowledge of the spill, that the one minute between the spill and Fredrick’s fall constituted insufficient time for it to remedy the spill as a matter of law. It also argued that the store manager acted reasonably in immediately retrieving cleaning supplies.
In response, Fredrick filed depositions of the store manager and the other employee working at the time closets to the spill. The employee stated she was not notified of the spill. The employee also explained they have access to sandwich boards that warn customers of wet floors and they are located behind the counters.
Due to the deposition testimony, the 2nd DCA ruled that the trial court did not err in finding that Dollar General did not breach its duty to maintain the premises in a reasonably safe condition. Instead, it reversed the trial court’s finding that Dollar General did not breach its duty to warn Fredrick of the dangerous condition.
Avatar Property & Casualty Ins. Co. v. Simmons, 45 Fla. L. Weekly D1429 (Fla. 5th DCA June 12, 2020)
In Avatar, the insured sued his homeowner’s carrier for breach of contract. During discovery, the insured requested 1) any and all videos and photographs in the carrier’s possession related to the insured’s claim in their native digital formal and 2) the complete underwriting file with regard to the carrier’s issuance of insurance on the subject risk and all renewals. The carrier objected on the grounds of work-product doctrine and that the requests called for documents from the carrier’s claim file or documents related to the carrier’s internal claim handling procedures. The issues were narrowed, and discussion turned to limited production of certain photographs.
The trial court gave the carrier multiple opportunities to explain why the photographs at issue were protected by the work-product doctrine. Each time, the carrier asserted a categorial privilege, arguing, for example, the photographs were part of the claims file, and that was work product. The trial court entered an ordering requiring the carrier to produce the photographs and reports in native digital format. The carrier filed a petition for certiorari arguing that the order departed from essential requirements of law by compelling disclosure of privileged, irrelevant materials from the carrier’s claim and underwriting files, and by failing to make the necessary supporting findings.
On Appeal, the 5th DCA explained that departure from the essential requirements of law is more than mere legal error and instead occurs when “there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.” The 5th DCA further explained that, under the work-product doctrine, documents prepared by or on behalf of a party in anticipation of litigation are not discoverable, and that the party asserting the privilege has the burden to prove such a privilege should apply. Further, a party generally cannot carry this burden with a bare assertion that a specific document is held within its claim file.
Here, the basis of the carrier’s objections was work product privilege, but the carrier never attempted to demonstrate that the photographs at issue were prepared in anticipation of litigation. Moreover, the carrier did not attempt to establish the basis for its objection with documentation evidence, such as a supporting affidavit. Instead, the carrier only asserted a categorical “claims file” or “underwriting file” privilege. The 5th DCA held that there is no claims file privilege. Thus, since the carrier’s claim file objection served as the only basis for its work-product objection, the court held that the carrier failed to demonstrate a departure from the essential requirements of the law. The petition for certiorari was denied.
Sec. First Ins. Co. v. Phillips, 45 Fla. L. Weekly D1426b (Fla. 5th DCA June 12, 2020)
In Phillips, the insured reported that her house sustained damages arising from ground cover collapse. Her policy precluded coverage for any damages which occurred prior to the inception of the policy. After investigating the claim, Security First concluded that the damage predated and pre-existed the insured’s insurance policy and filed its action for declaratory relief. The insured moved to dismiss the complaint, alleging that Security First needed to assert its contention that the damage predated the insurance policy as an affirmative defense.
The trial court ultimately found that the complaint was inappropriate in the context of a declaratory action, reasoning that this case was about whether the alleged damage occurred before or after the insured purchased the policy, and that it was not simply a matter of policy interpretation. Agreeing that Security First could raise its argument that the damage preexisted the insurance policy as an affirmative defense, the trial court dismissed the complaint with prejudice. The insurer appealed.
On appeal, the 5th DCA explained that to be entitled to declaratory relief, a complaint must allege that:  there is a bona fide dispute between the parties,  that the moving party has a justiciable question as to the existence or non-existence of some right, status, immunity, power or privilege, or as to some fact upon which the existence of such right, status, immunity, power or privilege does or may depend,  that plaintiff is in doubt as to the right, status, immunity, power or privilege, and  that there is a bona fide, actual, present need for the declaration.
Here, a bona fide controversy existed between the parties. Because the insurance policy would permit Security First to deny coverage if the ground coverage damage happened before the inception of the insurance policy, there was a genuine dispute between the parties, and Security First presented a justiciable question as to the existence of its right to deny coverage under the insurance policy.
The 5th DCA agreed with Security First’s argument that the trial court had the power to determine factual issues under the declaratory judgment act. The 5th DCA explained that the Florida Supreme Court concluded that Florida’s declaratory judgment statute authorizes declaratory judgments as to factual issues dealing with an insurer’s obligation to defend or indemnify. Higgins v. State Farm Fire & Cas. Co., 894 So. 2d 5, 12 (Fla. 2004). Accordingly, Security First appropriately invoked the declaratory jurisdiction of the trial court in asking it to make a factual determination with respect to whether the ground damage occurred before the inception of Security First’s insurance policy, and therefore, it was error to dismiss its complaint.
Liberty Mutual Ins. Co. & Liberty Mutual Fire Ins. Co. v. Wolfson, 45 Fla. L. Weekly D1508 (Fla. 14th DCA June 24, 2020)
In Wolfson, the insured Plaintiff had UM benefits under three UM policies. The Plaintiff settled with one of his UM carriers, Nationwide, for $100,000. The Plaintiff also settled with the uninsured motorist and the uninsured motorist’s liability carrier (AIG) for $480,667.50. However, the Plaintiff’s other two UM carrier, Liberty Mutual Ins. Co. and Liberty Mutual Fire Ins. Co. did not pay the claim and the Plaintiff sued both insurers for breach of contract. The jury awarded the Plaintiff $1,579,629 in damages.
The insurers filed a motion to set off from the verdict the amount of settlements which duplicated any part of the verdict and set the motion for evidentiary hearing. At the hearing, a Nationwide representative testified that it had settled the Plaintiff’s UM claim for $100,000. The Plaintiff did not dispute that the $100,000 duplicated the jury determined UM benefits; instead, he argued that the insurers were not entitled to set off the $100,000 because no Florida statute expressly authorized one UM carrier to obtain set-off for duplicate benefits paid any another UM carrier.
At the hearing, the Plaintiff testified that the AIG settlement release’ sole purpose was to settle his wife’s unpled loss of consortium claim, not his claim for his injuries and lost earnings. The trial court denied the insurers’ motion for set off. After the insurers’ motion for reconsideration was denied, the insureds’ appealed.
On appeal, the insurers cited the AIG release’s plain language to argue that the trial court erred in finding that AIG settlement’s purpose was to settle the insured’s wife’s unpled consortium claim. The insurers also argued that the trial court erred in not setting off the undisputedly duplicated UM benefits from the UM jury verdict against the insurers.
With respect to the AIG settlement, the court explained that because a release is a contract, it must be interpreted according to principles of contract law. Here, the AIG settlement release clearly and unambiguously stated it was only for the insured’s benefit. The release did not mention the Plaintiff’s wife and the language relating to “parental and filial consortium claims” within the release was not related to any unpled spousal loss of consortium claim as a matter of law. The definition of Releasor under the release included “any relative of;” however, because the release was for the benefit of the Plaintiff, such language referred to those persons, besides the insured, who may release the insured’s claims on his behalf, not a person who had pursued and released their own claims. Thus, the definition of Releasor did not include a spousal loss of consortium claim either.
The 4th DCA further explained that even if the insured Plaintiff and his wife had privately agreed to unilaterally apportion the AIG settlement among themselves, the trial court was bound to ignore such a private unilateral apportionment when the AIG settlement release failed to expressly apportion the proceeds between them.
With respect to the Nationwide settlement, the 4th DCA concluded that Plaintiff’s argument that “no Florida statute expressly authorized one UM carrier to obtain a set-off for duplicate benefit by another UM carrier” lacked merit. Fla. Stat. 627.727(1) which requires motor vehicle liability insurance policies to also provide uninsured and underinsured motor vehicle coverage states, in pertinent part:
The coverage described under this section shall be over and above, but shall not duplicate, the benefits available to an insured under any workers’ compensation law, personal injury protection benefits, disability benefits law, or similar law; under any automobile medical expense coverage; under any motor vehicle liability insurance coverage; or from the owner or operator of the uninsured motor vehicle or any other person or organization jointly or severally liable together with such owner or operator for the accident; and such coverage shall cover the difference, if any, between the sum of such benefits and the damages sustained, up to the maximum amount of such coverage provided under this section.
Although Fla. Stat. 627.727(1) did not define “similar law” or expressly refer to “any uninsured or underinsured motorist law,” the 4th DCA considered “similar law” to encompass Fla. Stat. 627.727 itself because Fla. Stat. 627.727 is a legislatively-enacted coverage, just as workers’ compensation law, personal injury protection benefits, and disability benefits law are legislatively-enacted coverages. Therefore, pursuant to Fla. Stat. 627.727, the 4th DCA concluded that that benefits provided under an UM policy cannot duplicate benefits already paid to an insured under another UM policy. Applying this conclusion, the $100,000 Nationwide UM benefits must be set off from the jury verdict.
The 4th DCA distinguished the present matter from the State Farm Mutual Auto Ins. Co. v. Vega, 753 So. 2d 738 (Fla. 3d DCA 2000) case. In Vega, the plaintiff was insured for UM benefits by State Farm and health care benefits by Guardian through his employer. State Farm moved to set off from the verdict Guardian’s payment of plaintiff’s medical expenses. However, the 3d DCA held that Guardian’s health insurance benefits were payable pursuant to its private contract with the plaintiff and not payable pursuant to any legislatively enacted “similar law” as contemplated by Fla. Stat. 627.727(1). Here, unlike the Guardian health benefits paid pursuant to a private contract in Vega, the $100,000 Nationwide UM benefits were payable pursuant to a legislatively enacted “similar law,” that is, Fla. Stat. 627.727(1) itself.
The 4th DCA reversed the trial court’s denial of the insurers’ motion for set off. The case was remanded for the trial court to enter an order granting the insurers’ motion to set off from the $1,579,629 jury verdict the $480,667.50 AIG settlement and the $100,000 Nationwide settlement. The insured’s final judgment would be for $998,961.50.
Atkinson, P.A. is committed to providing you with sound guidance, representation, and defense in response to these complex legal issues and we will continue to monitor noteworthy cases.
Our office continues to remain open and all of our attorneys remain fully available to assist you. As needs arise, continue to contact us via telephone or e-mail. Should you need immediate assistant, please feel free to contact our partners directly.
Very truly yours,
JOHN BOND ATKINSON
TIFFANY A. BUSTAMANTE