Another case in the Florida’s court system ended in favor of the Palmetto Hospital and the hospital’s contracted cleaning company by way of entry of a final summary judgment in favor of the defendants. This was because of the considerable burden placed on the plaintiff in Florida that the plaintiff must show some evidence that the defendant “knew or should have known” that there was a foreign substance on the floor. Most of us have been at the emergency room for a friend of family member and we have actually seen how busy the emergency room can be. There are paramedics, nurses, doctors, staff and patients and their family waiting or walking about. I personally have never seen any maintenance being done to the floors while in the walkways or halls of the emergency room but I was not present in the present case. In the Palmetto case, the Plaintiff saw someone in a uniform spraying what smelled like “pine sol” on a gurney and wiping down the gurney. She attempted to avoid the dark grey spot on the floor of the hallway but slipped and fell while she was walking through the hospital’s emergency room. She later sued. The appellate court cited the well settled law in Florida that the Plaintiff must plead and demonstrate evidence of the following: “A negligence claim has four elements: (1) a duty by defendant to conform to a certain standard of conduct; (2) a breach by defendant of that duty; (3) a causal connection between the breach and injury to plaintiff; and (4) loss or damage to plaintiff.” Wilson-Greene v. City of Miami, No. 3D14-3094, slip op. at 4 (Fla. 3d DCA Jan. 25, 2017) (citing Bartsch v. Costello, 170 So. 3d 83, 86 (Fla. 4th DCA 2015)). It is undisputed that the Plaintiff was a business invitee on the hospital premises and, therefore, the hospital owed her a duty to exercise reasonable care to maintain their premises in a safe condition. Pembroke Lakes Mall Ltd. v. McGruder, 137 So. 3d 418, 423 (Fla. 4th DCA 2014). However, where a business invitee slips and falls on a “transitory substance” in a business establishment as occurred here, proof of the breach element of the claim against an owner of the establishment is statutorily constrained by section 768.0755 of the Florida Statutes (2013). In her deposition, the Plaintiff asserted that the substance smelled like a cleaning product similar to “Pine Sol,” she did not know how long the substance had been on the floor, and she thought that “because [the man’s] uniform was kind of gray, dark gray, [she assumed] that he was an EMS.” The Hospital further asserted that it employed reasonable measures to maintain its emergency department in a reasonably safe condition by having its own security personnel police the emergency room area on a regular basis to correct any dangerous condition, and by employing Hospital Housekeeping Systems, which assigned two housekeepers to the emergency department twenty-four hours per day, seven days per week. What might have made a difference in the outcome would have been if the record contained more documentation regarding the cleaning schedules, cleaning logs or employee testimony concerning the extent to which the Hospital’s security personnel or Hospital Housekeeping Systems performed their assigned and contractual tasks. Nevertheless, on this record, the trial court granted summary judgment in favor of the Hospital and Hospital Housekeeping Systems, Inc. Certainly, had the plaintiff taken pictures of the floor, the gurney, and of the man using the spray bottle, this might have permitted her lawyer to conduct more discovery that may have helped her discovery admissible evidence. It is normal to be in shock and embarrassed at the time of the incident and not focused anything else but the pain.
WHEN A CRIMINAL CASE OR CIVIL CASE IS DISMISSED, CAN THE STATE OR THE PERSON WHO BROUGHT THE UNSUCCESSFUL CIVIL ACTION BE SUED FOR MALICOUS PROSECTION?
The answer to this question is maybe. The law is always case specific and governed by whether the specific elements of the “cause of action” exist. Florida has long recognized cause of action for “malicious prosecution.” See Tatum Bros. Real Estate & Inv. Co. v. Watson, 109 So. 623, 626 (Fla. 1926).
To prevail in a malicious prosecution action, this Court has explained that a plaintiff must establish the following elements:
(1) an original criminal or civil judicial proceeding against the present plaintiff was commenced or continued;
(2) the present defendant was the legal cause of the original proceeding against the present plaintiff as the defendant in the original proceeding;
(3) the termination of the original proceeding constituted a bona fide termination of that proceeding in favor of the present plaintiff;
(4) there was an absence of probable cause for the original proceeding;
(5) there was malice on the part of the present defendant; and (6) the plaintiff suffered damage as a result of the original proceeding. Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352, 1355 (Fla. 1994).
Specifically, the first element of a claim for malicious prosecution is that “an original criminal or civil judicial proceeding against the present plaintiff was commenced or continued.” Id. (emphasis added). Certainly, the filing of a lawsuit and the joining of a party defendant is the commencement of a judicial proceeding against that party as delineated in Alamo. Thus, when a party is added by the Plaintiff who proves to be unsuccessful in the case against the added Defendant, then the Defendant that is added and prevails may have a right to bring a lawsuit against the losing plaintiff in a separate independent claim for “malicious prosecution.”
The Supreme Court of Florida has clearly stated that the “litigation privilege” does not apply to bar a cause of action for “malicious prosecution.” The Florida Supreme Court stated:
“therefore, “malicious prosecution could never be established if causing the commencement or continuation of an original proceeding against the plaintiff were afforded absolute immunity under the litigation privilege.” Id. at 1207. See RICHARD DEBRINCAT, et al., Petitioners, vs. STEPHEN FISCHER, Respondent. Supreme Court of Florida. Case No. SC15-1477. February 9, 2017.
The Florida Supreme Court stated that “this Court has never held that the litigation privilege protects a litigant from a claim of malicious prosecution. And other district courts have recognized that the litigation privilege does not act as a bar to a malicious prosecution claim. See Olson v. Johnson, 961 So. 2d 356, 360-61 (Fla. 2d DCA 2007); Wright v. Yurko, 446 So. 2d 1162, 1164-65 (Fla. 5th DCA 1984).
if you prevailed in any state sponsored litigation or if you have been dismissed from any lawsuit, you should speak to a lawyer regarding whether there was any probable cause to have included you in any prosecution or civil litigation.
FLORIDA HOMEOWNERS MAY BENEFIT FROM CONCURRENT CAUSE DOCTRINE WHEN THE SPECIFIC CAUSE OF THE LOSS IS DISPUTED
Water intrusion occurs in so many condominiums and homes in Florida rendering the home uninhabitable. The homeowner’s insurance companies, adjusters, lawyers and experts seldom agree on what the source of the water is. Determining the source of the water can be very difficult to isolate in many cases.
Experts will examine the property for months and additional experts retained while the homeowner is inconvenienced or even required to move from the property while the dispute goes through the court system.
In one Florida case the home was purchased in April 2005, when it was four years old. [American Home Assurance Company (AHAC)] provided homeowners insurance as of the date of the purchase. The policy, which insured against “all risks,” was issued through a private client group and was referred to as a manuscript policy. The house and other permanent structures were insured for over $8,000,000. The policy also provided additional coverage for loss of use of the home.
Shortly after the owner bought the residence, water began to intrude during rainstorms. Major water leaks were reported to property manager as early as May 31, 2005. She prepared a list of problems: leaks in the main house at the foyer, the living room, dining room, piano room, exercise room, master bathroom, and upstairs bathroom. By June 22, 2005, the property manager advised the owner of these leaks in writing. It became clear that the house suffered from major design and construction defects. After an August rain, paint along the windows just fell off the wall. In October 2005, Hurricane Wilma struck Naples and further damaged the residence.
The owner did not report the water intrusion and other damages to AHAC until December 30, 2005. AHAC investigated the claim, and in April 2006 it denied coverage for most of the claimed losses.
The residence could not be repaired and was eventually demolished. In January 2007, The homeowner filed suit against a number of defendants, including the sellers of the property, the architect who designed the residence, and the construction company that built it. He alleged that the home had been negligently designed and constructed and that the sellers had fraudulently failed to disclose the defects in the property. The homeowner eventually amended his complaint in November 2009, adding AHAC as a defendant and seeking a declaration that the policy provided coverage for his damages. After the homeowner settled his claims against a majority of all other defendants, the trial proceeded only on his declaratory action against AHAC. The jurors found in favor of homeowner and the court eventually entered judgment against AHAC.
On appeal, the Second District found that “[t]here is no dispute in this case that there was more than one cause of the loss, including defective construction, rain, and wind.” Id. at 197. However, the court disagreed with the trial court’s application of Wallach, 527 So. 2d 1386, and, in fact, disagreed with the Third District’s “determination that the concurrent causation doctrine should be applied in a case involving multiple perils and a first-party insurance policy.” Sebo, 141 So. 3d at 198. The court reversed and remanded for a new trial, “in which the causation of homeowner’s loss is examined under the efficient proximate cause theory.”
The issue presented is whether coverage exists under homeowner’s all-risk policy when multiple perils combined to create a loss and at least one of the perils is excluded by the terms of the policy.
To answer this question, this Court must determine the proper theory of recovery to apply, which is a pure question of law.
Additionally, the policy at issue in this case is an all-risk policy. We have stated that “[a]lthough the term ‘all-risk’ is afforded a broad, comprehensive meaning, an ‘all-risk’ policy is not an ‘all loss’ policy, and this does not extend coverage for every conceivable loss.” Id. at 1086 (citation omitted). Insurance contracts are construed in accordance with the plain language of the policy. Id. (citing Auto-Owners Ins. Co. v. Anderson, 756 So. 2d 29, 33 (Fla. 2000).
However, if the language is susceptible to more than one reasonable interpretation and is therefore ambiguous, the policy will be strictly construed against the insurer and in favor of the insured. Id. “[A]mbiguous ‘exclusionary clauses are construed even more strictly against the insurer than coverage clauses.’ ” Id. (quoting Anderson, 756 So. 2d at 34). In short, in all-risk policies such as the one held by the homeowner construction is governed by the language of the exclusionary provisions.
We are confronted with determining the appropriate theory of recovery to apply when two or more perils converge to cause a loss and at least one of the perils is excluded from an insurance policy. When addressing this question, courts have developed competing theories on how to determine coverage: the efficient proximate cause and concurring cause doctrines.
To begin our analysis, we first explain these doctrines. Then we discuss the Second District’s decision below. We conclude that when independent perils converge and no single cause can be considered the sole or proximate cause, it is appropriate to apply the concurring cause doctrine. Accordingly, we quash the decision below.
Efficient Proximate Cause (EPC)
The EPC provides that where there is a concurrence of different perils, the efficient cause — the one that set the other in motion — is the cause to which the loss is attributable. Sabella v. Nat’l Union Fire Ins. Co., 377 P.2d 889, 892 (Cal. 1963); Fire Ass’n of Phila. v. Evansville Brewing Ass’n, 75 So. 196 (Fla. 1917).
We applied the EPC in Evansville Brewing, where the coverage at issue provided under an all-loss fire policy excluded loss caused by an explosion. We explained, “[w]hile the insurer is not liable for a loss caused by an explosion which was not produced by a preceding fire, yet if the explosion is caused by fire during its progress in the building, the fire is the proximate cause of the loss, the explosion being a mere incident of the fire, and the insurer is liable.” Evansville Brewing, 75 So. at 198. In Evansville Brewing, we contemplated a chain of events where one peril directly led to a subsequent peril. In finding that coverage existed under the policy, we drew the distinction between a covered peril setting into motion an uncovered peril and an uncovered peril setting into motion a covered peril. Coverage exists for the former but not the latter.
The EPC was explained by the California Supreme Court1 in Sabella, where it reasoned, “ ‘in determining whether a loss is within an exception in a policy, where there is a concurrence of different causes, the efficient cause — the one that sets others in motion — is the cause to which the loss is to be attributed, though the other causes may follow it, and operate more immediately in producing the disaster.’ ” Sabella, 377 P.2d at 895 (quoting 6 George J. Couch, Cyclopedia of Insurance Law § 1466, at 5303-04 (1930)). The California Supreme Court thus reasoned that a covered peril that convenes with an uncovered peril may still provide for coverage under a policy when the covered peril triggered the events that eventually led to the loss.
Concurrent Cause Doctrine (CCD)
The CCD provides that coverage may exist where an insured risk constitutes a concurrent cause of the loss even when it is not the prime or efficient cause. See Wallach, 527 So. 2d 1386; State Farm Mut. Auto. Ins. Co. v. Partridge, 514 P.2d 123, 133 (Cal. 1973). The CCD originated with the California Supreme Court’s decision in Partridge, where the court was presented with “a somewhat novel question of insurance coverage: when two negligent acts of an insured — one auto-related and the other non-auto-related — constitute concurrent causes of an accident, is the insured covered under both his homeowner’s policy and his automobile liability policy, or is coverage limited to the automobile policy?” Id. at 124-25. The insured, Wayne Partridge, owned a .357 Magnum pistol and had filed the trigger mechanism to create “hair trigger action.” Id. at 125.
Partridge was driving two friends, Vanida Neilson and Ray Albertson, in his insured Ford Bronco when he spotted a jack rabbit. In pursuit of the rabbit, he drove the Bronco off the road and hit a bump, causing the pistol to discharge. A bullet entered Neilson’s arm, penetrated her spinal cord, and left her paralyzed. Neilson filed an action against Partridge and entered into settlement discussions with State Farm. This dispute arose because the parties did not agree whether recovery was available from both the homeowner’s and automobile policies. The homeowner’s policy contained an exclusion for bodily injury arising out of the use of any motor vehicle. State Farm relied on this exclusionary language to argue that only the automobile policy provided coverage for the injuries. Specifically, State Farm argued that the language of the policies was intended to be mutually exclusive and not provide for overlapping coverage.
The California Supreme Court disagreed. First, the court noted that exclusionary clauses are more strictly construed than coverage clauses. Next, the court reasoned that an insured risk combined with an excluded risk to produce the ultimate injury and determined “that coverage under a liability insurance policy is equally available to an insured whenever an insured risk constitutes simply a concurrent proximate cause of the injuries.” Id. at 130 (applying the rationale of Brooks v. Metro. Life Ins. Co., 163 P.2d 689 (Cal. 1945)). Thus, because neither peril could have created the loss alone but instead combined to create the loss, the California Supreme Court could not identify the prime, moving, or efficient cause in order to determine coverage, and pronounced a new doctrine.
The CCD was first applied in Florida in Wallach, where the Third District considered the coverage available to the Rosenbergs after Wallach’s sea wall collapsed and led to a portion of the Rosenbergs’ sea wall crumbling. 527 So. 2d 1386.
The Rosenbergs filed suit against Wallach, claiming that he had breached his duty to maintain his premises. They also filed a claim under their all-risk homeowner’s policy, which was denied because the policy contained an exclusion for loss resulting from earth movement or water damage. On appeal, the insurance company argued “that where concurrent causes join to produce a loss and one of the causes is a risk excluded under the policy, then no coverage is available to the insured.”
The Third District rejected that theory and adopted “what we think is a better view — that the jury may find coverage where an insured risk constitutes a concurrent cause of the loss even where ‘the insured risk [is] not . . . the prime or efficient cause of the accident.’ ” Id. at 1387 (quoting 11 Ronald A. Anderson, Couch on Insurance 2d § 44:268, at 417 (rev. ed. 1982)). Further, the Third District noted that the California Supreme Court found the efficient cause language of Sabella “to be of little assistance in cases where both causes of the harm are independent of each other.” Id. at 1388 (“We agree with the California court that the efficient cause language set forth in Sabella and cited by [Phelps] offers little analytical support where it can be said that but for the joinder of two independent causes the loss would not have occurred.” (citing Partridge, 514 P.2d at 130 n.10)). Accordingly, the Third District held that “[w]here weather perils combine with human negligence to cause a loss, it seems logical and reasonable to find the loss covered by an all-risk policy even if one of the causes is excluded from coverage.” Id. (citing Safeco Ins. Co. v. Guyton, 692 F.2d 551 (9th Cir. 1982)). Wallach has continued to be applied in Florida courts until the Second District’s decision in Sebo. We accepted jurisdiction based on the conflict between Wallach and Sebo.
After determining that there was “no dispute in this case that there was more than one cause of the loss, including defective construction, rain, and wind,” the Second District noted below that the parties had filed cross-motions for summary judgment, in which the homeowner had asserted that AHAC was required to cover all losses under the concurrent cause doctrine. Sebo, 141 So. 3d at 197.
Then, the court expressed its disagreement with Wallach’s application to cases involving multiple perils and a first-party insurance policy. Id. at 198. Relying on the California Supreme Court’s clarification in Garvey v. State Farm Fire & Cas. Co., 770 P.2d 704 (Cal. 1989), the Second District reasoned that “a covered peril can usually be found somewhere in the chain of causation, and to apply the concurrent causation analysis would effectively nullify all exclusions in an all-risk policy.” Sebo, 141 So. 3d at 201 (citing Garvey, 770 P. 2d at 705). Accordingly, the Second District reversed and remanded the case for a new trial.
To determine whether coverage exists under Sebo’s policy, we begin with the language of the policy. It is undisputed that Sebo’s all-risk policy included the following exclusion:The following exclusions apply to the Part II-PROPERTY section of your policy. . . .
- Faulty, Inadequate or Defective Planning We do not cover any loss caused by faulty, inadequate or defective:
- Planning, zoning, development, surveying, siting;
- Design, specifications, workmanship, repair, construction, renovation, remodeling, grading, compaction;
- Materials used in repair, construction, renovation or remodeling; or
- Maintenance;of part or all of any property whether on or off the residence.Policy, Part II — Property, D. Exclusions, 8., Page 8.
- Also, not in dispute is that the rainwater and hurricane winds combined with the defective construction to cause the damage to Sebo’s property. As in Partridge, there is no reasonable way to distinguish the proximate cause of Sebo’s property loss — the rain and construction defects acted in concert to create the destruction of Sebo’s home. As such, it would not be feasible to apply the EPC doctrine because no efficient cause can be determined. As stated in Wallach, “[w]here weather perils combine with human negligence to cause a loss, it seems logical and reasonable to find the loss covered by an all-risk policy even if one of the causes is excluded from coverage.” Wallach, 527 So. 2d at 1388. Furthermore, we disagree with the Second District’s statement that the CCD nullifies all exclusionary language and note that AHAC explicitly wrote other sections of Sebo’s policy to avoid applying the CCD. Because AHAC did not explicitly avoid applying the CCD, we find that the plain language of the policy does not preclude recovery in this case.
Last, AHAC argues that the trial court erred by prohibiting the introduction of the amount of the settlements Sebo received in connection with this case. The trial court excluded evidence of the settlements based on this Court’s decision in Saleeby v. Rocky Elson Construction, Inc., 3 So. 3d 1078 (Fla. 2009). The Second District did not rule on this issue because “it is not completely clear whether this is a valued policy law case.” Sebo, 141 So. 3d at 203. The court therefore left this question to be resolved at retrial, noting that the 2005 version of the statute applied. Id. We disagree with the trial court’s determination that Saleeby precluded AHAC from presenting the settlement amounts to offset the judgment.
Saleeby held that section 768.041, Florida Statutes, which bars disclosure to the jury of settlement or dismissal of a joint tortfeasor, and section 90.408, which bars the disclosure of evidence of an offer to compromise to prove liability, are clear and unambiguous. We held that “[n]o evidence of settlement is admissible at trial on the issue of liability.” Saleeby, 3 So. 3d at 1083. Nothing in our decision affects the ability of a trial court to consider the amount of settlements as a post-judgment offset. We remand for reconsideration of this issue.
For the foregoing reasons, we quash the Second District’s opinion below and remand for further proceedings consistent with this opinion.
1We mention California caselaw because Florida courts have looked to California decisions on insurance matters involving the EPC.
2We note that the abrogation of the CCD was not properly before the Second District to consider. AHAC never specifically argued that the CCD should be abrogated and replaced with the EPC in Florida trial or in its brief on appeal to the Second District. In its order granting partial summary judgment for Sebo, the trial court found that “Florida recognizes the Doctrine of Concurrent Causation” and that the doctrine “applies to all-risk policies.” The trial court further found that the causes of loss “are not ‘dependent’ as that term is understood under” the doctrine. After this adverse ruling, it does not appear that AHAC raised the issue again. Likewise, the focus of AHAC’s argument on appeal to the Second District was the improper application of the CCD based on the dependent nature of the perils. Accordingly, the argument was not preserved, and the Second District improperly decided an issue that was not raised.
_________________
(POLSTON, J., dissenting.) As the majority explains in footnote 2, the issue decided by the Second District and then by this Court, whether to apply the efficient proximate cause doctrine instead of the concurring cause doctrine, was not raised by the parties before the trial court or the Second District. Accordingly, the Second District should not have decided this issue. See Pagan v. State, 29 So. 3d 938, 957 (Fla. 2009) (stating that the “purpose of an appellate brief is to present arguments in support of the points on appeal” and failing to do so will mean that such claims are “deemed to have been waived” (quoting Duest v. Dugger, 555 So. 2d 849, 852 (Fla.1990))); City of Miami v. Steckloff, 111 So. 2d 446, 447 (Fla. 1959) (“An assigned error will be deemed to have been abandoned when it is completely omitted from the [appellate] briefs.”); see also Robertson v. State, 829 So. 2d 901, 906 (Fla. 2002) (“[G]enerally, if a claim is not raised in the trial court, it will not be considered on appeal.” (quoting Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 644 (Fla. 1999))). Therefore, I would quash and remand for the Second District to consider the issue raised by the parties, and I would not reach the merits of the issue decided by this Court.
I respectfully dissent.
WE ALL GET THEM IN THE MAIL AND NO ONE READS THEM UNTIL THERE IS A LEGAL DISPUTE——–INSURANCE POLICY ENDORSEMENTS
Let’s face it, the insurance agent or sales representative tell us all what he is trained to advise us as to what events or occurrences are covered by the policy he is selling. We do not really for sure until there is dispute between you and the insurance company.
Only then do you read the policy and sometimes understand the language. Most of the time, you have a lawyer read it and then he gives you his interpretation and his or her opinion of the policy language. Then we get in front of the Judge and the Judge can interpret the language differently as well.
We all just don’t have time to read a policy sent to us in the mail and just file it away. We are all just too busy with life. The problem is what the agent tells you and what is in the policy can be two entirely different things.
The first time most of us read our insurance policy is when there is a “denial of benefits” or a “denial of coverage”; or a claim made against you. Well, here is the breaking news. The language of the endorsements that were sent to you will control over the plain wording of the policy. The endorsements, generally take away coverage or further limit the coverage in a policy but there are other subjects that are altered by endorsements.
One Florida case, involved a person making an uninsured motorist claim. A lawsuit was filed in the in the county were the rear-end collision occurred. The lawyers for the insurance company filed a written “endorsement” which was mailed to the insured sometime after the policy was issued.
The endorsement contained a mandatory forum selection clause for bringing any suit for UM benefits in Pennsylvania and not were the collision occurred. At first, the trial court denied the motion to transfer the lawsuit from his court to another county, but the appellate court reversed.
The document read as follows: “Pennsylvania Auto Amendatory Endorsement”:The following endorsement changes your policy. Please read this document carefully and keep it with your policy.. . . .
- In Part 3, Uninsured Motorists Insurance and Underinsured Motorists Insurance, the following changes are made: . . . .
- In Uninsured Motorists Insurance, the If We Cannot Agree provision is replaced by the following:
- If We Cannot Agree
- If the insured person and we do not agree on that person’s right to receive damages or on the amount, then upon mutual consent, the disagreement will be settled by arbitration. Unless you and we agree otherwise, arbitration will take place in the county in which your address shown on the Policy Declarations is located. If the insured person and we do not agree to arbitrate, then the disagreement will be resolved in a court of competent jurisdiction. Any and all lawsuits related in any way to this coverage shall be brought, heard, and decided in the county in which your address shown on the Policy Declarations is located.
Allstate lawyers’ asserted that Monroe County, Florida was an improper venue for the claimant’s UM claim and that, based on the claimant’s address listed on his Policy Declarations page, the Endorsement’s forum selection clause required the claim bring suit in Allegheny County, Pennsylvania.
In response at the hearing, claimant argued that “it would be judicially uneconomical” to litigate his UM claim in Pennsylvania while continuing to litigate his negligence claim against the sheriff’s office in Florida claimant further argued that because the Endorsement conflicted with the venue clause in the Policy, the provision which provided greater coverage prevailed.
At the hearing on the Motion to Dismiss, the trial court agreed with claimant and specifically ruled “that in order for the endorsement to change the policy the way you [Allstate’s counsel] are suggesting, it would have had to have referenced the general provision, as well. And it did not do that. And so it leaves the general provision in the policy intact, and it provides language which conflicts with that.” In its subsequent written order, the trial court denied the motion “for the reasons stated in the record.”
ENDORSEMENTS PREVAIL OVER GENERAL INSURANCE POLICY
Under Florida law, an insurance policy is treated like a contract, and therefore ordinary contract principles govern the interpretation and construction of such policy. See Certain Interested Underwriters at Lloyd’s London v. Pitu, Inc., 95 So. 3d 290 (Fla. 3d DCA 2012). In denying Allstate’s Motion to Dismiss, the trial court specifically found that the general venue provisions of the Policy prevailed over the forum selection clause contained in the Endorsement. We find that the trial court erred in its finding.
The law in Florida is clear that to the extent an endorsement is inconsistent with the body of the policy, the endorsement controls. See Family Care Ctr., P.A. v. Truck Ins. Exch., 875 So. 2d 750, 752 (Fla. 4th DCA 2004) (“Even if there were an ambiguity between the endorsement and the body of the policy, the endorsement, which is clear, controls.”); Fireman’s Fund Ins. Co. v. Levine & Partners, P.A., 848 So. 2d 1186, 1187 (Fla. 3d DCA 2003) (finding that “the terms of an endorsement such as the one sued upon control over anything purportedly to the contrary in any other insuring agreement”); Steuart Petroleum Co., Inc. v. Certain Underwriters at Lloyd’s London, 696 So. 2d 376, 379 (Fla. 1st DCA 1997) (finding that “to the extent an endorsement is inconsistent with the body of the policy, the endorsement controls”).
Here, the Endorsement modifies and amends the insurance contract with respect to forum selection. Specifically, the Endorsement states that “[a]ny and all lawsuits related in any way to this coverage shall be brought, heard, and decided in the county in which your address shown on the Policy Declarations is located.” (emphasis in original). Moreover, “[e]ven if there were an ambiguity between the endorsement and the body of the policy, the endorsement, which is clear, controls.” Family Care Ctr., 875 So. 2d at 752. Accordingly, we find that the trial court erred in finding that the Policy’s endorsement language did not control.
- MANDATORY VS. PERMISSIVE FORUM SELECTION CLAUSES
Our analysis, however, does not end with the finding that the Endorsement’s language controls, as we must consider whether the Endorsement’s forum selection clause is mandatory or permissive. Whether a forum selection clause is mandatory or permissive depends on language indicating exclusivity. See Sonus-USA, Inc. v. Thomas W. Lyons, Inc., 966 So. 2d 992, 993 (Fla. 5th DCA 2007). If the forum selection clause states that any litigation must or shall be initiated in a specified forum, the clause is mandatory. Absent such language, the clause is permissive.
The Endorsement’s forum selection clause states: “Any and all lawsuits related in any way to this coverage shall be brought, heard, and decided in the county in which your address shown on the Policy Declarations is located.” (
Because the clause at issue specifically provides that litigation “shall be brought, heard, and decided” in a specified forum (in this case, the county for the address shown on claimant’s Policy Declarations page), we find that the clause is mandatory. See Golden Palm Hosp. Inc. v. Stearns Bank Nat’l Ass’n, 874 So. 2d 1231, 1237 (Fla. 5th DCA 2004) (finding that use of the word “shall” in the documents is “indicative of a mandatory provision rather than one that is permissive”).
Absent a showing that a mandatory forum selection clause is unreasonable or unjust, a trial court must enforce the clause. See Manrique v. Fabbri, 493 So. 2d 437, 440 (Fla. 1986); see also Farmers Group, Inc. v. Madio & Co., Inc., 869 So. 2d 581, 582 (Fla. 4th DCA 2004).
It is not enough to show that litigation in the forum would result in additional expense or inconvenience. Instead, a party challenging a mandatory forum selection clause as unreasonable or unjust must establish that trial of this case outside of Florida would be so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court. See Manrique, 493 So. 2d at 440 n.4; see also Farmers, 869 So. 2d at 583.
Here, the trial court made no finding that the Endorsement’s mandatory forum selection clause was unreasonable or unjust. Nor could it have made such a finding, as the claimant neither argued below that the Endorsement’s clause was unreasonable or unjust, nor presented any evidence to that effect. Instead, claimant argued below that “it would be judicially uneconomical” to have him litigate his UM claim in Pennsylvania while litigating his negligence claim against the Sherriff’s office in Florida.
Absent findings or record evidence establishing unreasonableness or unjustness of the forum selection clause, we cannot find that the clause at issue is invalid. See Taurus Stornoway Invs., LLC v. Kerley, 38 So. 3d 840, 843 (Fla. 1st DCA 2010) (finding forum selection clause valid absent any argument or record evidence establishing an unreasonable or unjust result).
DID THE ACTIONS OF THE WRONGDOER INCREASE THE RISK OF INJURY OR HARM TO THE CLAIMANT OR CONTROL THE SITUATION – THE UNDERTAKER DOCTRINE MAY APPLY
Florida recognizes that when person assumes to undertake a task, like directing traffic at an intersection, the person attempting to do so, has to do so properly. It is not an excuse that the person never had directed traffic before but was just trying to do a good deed. Stated differently, if because of the acts or omissions of the person directing traffic, causes a collision, the person who assumed the task, assumed a duty of reasonable care to perform the tasks responsibly and safely, where there was otherwise no existing duty to act.
For example, the Florida Good Samaritan Law protects people who may accidently harm someone when attempting to come to their rescue in a situation of peril. The Good Samaritan law immunizes such persons from suit except in very limited circumstances.
One of the factors the Court will consider is if there is a “special relationship” between the persons involved in the incident. For example, if you are a 911 operator and someone calls you for help and the 911 operator advises the person not to render aid to the helpless person but to wait for EMS to arrive, can the person who suffers harm for the delay in treatment, seek compensation from the 911 operator?
To establish a special relationship, the claimant is required to plead facts sufficient to show, if proven:
1) an express promise or assurance of assistance;
2) justifiable reliance on the promise or assurance of assistance; and,
3) harm suffered because of the reliance upon the express promise or assurance of assistance. Pierre v. Jenne, 795 So. 2d 1062, 1063 (Fla. 4th DCA 2001). The failure to plead such facts and offer evidence to support those facts, will be fatal to the claimant’s application of the undertaker’s doctrine to the facts.
The undertaker’s doctrine applies when government agents engage an injured party, and then either control a situation and increase the risk of harm to the injured party or induce third parties — who would have otherwise rendered aid — to forebear from doing so, thereby placing the injured party in a greater “zone of risk.” Wallace v. Dean, 3 So. 3d 1035, 1045 (Fla. 2009).
For example, in St. George v. City of Deerfield Beach, 568 So. 2d 931 (Fla. 4th DCA 1990), the ex-wife called 911 to report that her ex-husband was drunk, creating a disturbance and refusing to seek medical care for a bleeding mouth. Paramedics responded, but the ex-husband refused examination or treatment. About twenty minutes after the paramedics departed, the ex-wife again called 911, saying her ex-husband’s condition had worsened and that he had threatened to kill her. The 911 operator mishandled the call and failed to dispatch police or paramedics. The ex-husband died shortly thereafter from gastrointestinal hemorrhaging. The Fourth District found these facts sufficient, if proven, to create a special relationship based on the negligence of the 911 operator in failing to dispatch emergency personnel after assuring decedent’s ex-wife that help was on the way. In the present case, the 911 operator did provide the promised help, apparently without delay.
Certainly, a lawyer can argue that the actions of the person on the telephone in directing a homeowner or other person to act or not act, is increasing the risk of harm or controlling the situation. If you have questions, about an outcome where you were injured after being told what to do by a company representative while on the telephone, you may have a cause of action if the undertaker doctrine applies.
FLORIDA STATUTE LIMITING THE AMOUNT OF MONEY THAT CAN BE AWARDED FOR PAIN AND SUFFERING IS RULED UNCONSTITUTIONAL
This case arose from the alleged negligence of several health care providers in connection with the obstetrical care and treatment involving a premature birth. Upon birth, the child had severe neurological impairments which the parents alleged were caused by the negligence of her physicians, the hospital and the hospital’s employees. The hospital contended that neither it nor its employees were negligent. The child will require 24-hour care for the rest of the child’s life.
It was alleged that the health care providers treating the infant also failed to transfer the child to a Level III facility equipped to handle a premature birth of less than 33 weeks’ gestational age. The child was born at 26 weeks’ gestational age.
The child has severe neurological impairments that render the child physically unable to do basic things; the child will be fully dependent on others for the rest of the child’s life and will need 24-hour care. The parents alleged that the child’s neurological impairments were caused by the negligence of her physicians, hospital and hospital employees. The hospital contended that neither it nor its employees were negligent.
The jury determined that the total damages in the amount of $13,550,000, including $1,250,000, in noneconomic damages, and that the child suffered total damages in the amount of $9,637,134, including $4,000,000 in noneconomic damages.
After trial, the hospital filed a motion to reduce jury verdict pursuant to section 766.118(3), Florida Statutes (2010), claiming that the hospital’s liability for noneconomic damages should be limited to $1.5 million.
In denying the hospital’s request to apply the statutory cap for noneconomic damages provided for in section 766.118(3), the trial court relied on North Broward Hospital v. Kalitan, 174 So. 3d 403 (Fla. 4th DCA 2015), review granted, No. SC15-1858.
On appeal, the hospital contends that the statute is constitutional and that the Fourth District in Kalitan improperly extended the supreme court’s holding in Estate of McCall v. United States, 134 So. 3d 894 (Fla. 2014), to personal injury medical malpractice cases. The claimant’s lawyers respond that the trial court properly applied Kalitan, which in turn properly extended McCall to personal injury cases.
The issue before the Court was whether the cap created by F.S.766.118 is unconstitutional under Florida’s equal protection clause.
In such circumstances, medical malpractice claimants do not receive the same rights to full compensation because of arbitrarily diminished compensation for legally cognizable claims.
Further, the statutory cap on wrongful death noneconomic damages does not bear a rational relationship to the stated purpose that the cap is purported to address, the alleged medical malpractice insurance crisis in Florida. id. at 901,919-20.
The court reasoned that the statutory cap “irrationally impacts circumstances which have multiple claimants/survivors differently and far less favorably than circumstances in which there is a single claimant/survivor” because “under section 766.118, the greater the number of survivors and the more devastating their losses are, the less likely they are to be fully compensated for those losses.” Id. at 901-02 at 921.
However, in Kalitan, 174 So. 3d at 404, the Fourth District considered whether, in light of McCall, “the caps on noneconomic damage awards in personal injury medical malpractice cases are similarly unconstitutional.” (Emphasis added.) Recognizing that “section 766.118 applies to both personal injury and wrongful death actions,” the court went on to conclude that “the section 766.118 caps are unconstitutional not only in wrongful death actions [ ] but also in personal injury suits as they violate equal protection.” 174 So. 3d at 411.
The court reasoned that there is no real distinction between the situation in that case — a single claimant in a personal injury case who suffers noneconomic damages in excess of the caps — and the situation in McCall — multiple claimants in a wrongful death case.
The court concluded that under section 776.118, “injured parties with noneconomic damages in excess of the caps are not fully compensated.” Kalitan, 174 So. 3d at 411.
It is likely that the Florida Supreme Court will ultimately rule on this issue, but for today, there is support for an interpretation of the law that all claimants who have been injured because of the acts and omissions of a health care provider, an average person or by powerful corporate entities, all will be required to pay the full measure of damages, harms and losses that are determined by a jury to have been suffered by the consumer.
PARTIES TO A LAWSUIT ARE SUBJECT TO SANCTIONS BY THE JUDGE FOR MISCONDUCT WHICH CAN BE CIVIL CONTEMPT OR CRIMINAL CONTEMPT —–TAKE IT SERIOUSLY
Every party to a lawsuit and their lawyers who are before the Court representing the parties, are all subject to certain rules of procedure and customs governing judicial decorum in every courtroom in the country.
If the Court sees a party recklessly act in a manner that suggest a violation of these rules, the Court will cite the violator with a charge of “civil contempt” and conduct a separate hearing regarding the charges.
If the Court feels that the party’s conduct is “intentional” the Court can charge the violator with “criminal contempt and conduct a separate hearing regarding the charges.
Contempt is defined as “[a]n act which is calculated to embarrass, hinder, or obstruct a court in the administration of justice, or which is calculated to lessen its authority or dignity.” Garcia v. Pinellas Cty., 483 So. 2d 443, 444 (Fla. 2d DCA 1986) (quoting Thomson v. State, 398 So. 2d 514, 517 (Fla. 2d DCA 1981)).
A court employs its power of criminal contempt “to vindicate the authority of the court or to punish for an intentional violation of an order of the court.” Parisi v. Broward Cty., 769 So. 2d 359, 364 (Fla. 2000) (quoting Bowen v. Bowen, 471 So. 2d 1274, 1277 (Fla. 1985)).
Accordingly, when an alleged criminal contempt is based upon the violation of a court order, the contemnor’s intent to violate the order is a necessary element of the offense. Id.; see also Roberts v. Bonati, 133 So. 3d 1212, 1216 (Fla. 2d DCA 2014).
“Intent, absent a statement thereof or an admission by the accused . . . must be inferred from the acts of the accused and the surrounding circumstances.” Garcia, 483 So. 2d at 444-45 (alteration in original) (quoting Thomson, 398 So. 2d at 517).
To support a finding of contempt, an individual’s intent to disobey the court’s order must be proved beyond a reasonable doubt. Smith v. State, 954 So. 2d 1191, 1194 (Fla. 3d DCA 2007); see also Parisi, 769 So. 2d at 364.
Moreover, “[f]or a person to be held in contempt of a court order, the language of the order must be clear and precise, and the behavior of the person must clearly violate the order.” Reder v. Miller, 102 So. 3d 742, 743 (Fla. 2d DCA 2012) (quoting Paul v. Johnson, 604 So. 2d 883, 884 (Fla. 5th DCA 1992)). A trial court cannot make a finding of contempt for violation of a court order based upon its intent in issuing the order when the court’s “intent was not plainly expressed in the written order.” Id. (quoting Minda v. Ponce, 918 So. 2d 417, 421 (Fla. 2d DCA 2006)). In other words, a finding of contempt for violating a court order cannot be based upon something the order does not say. Id.; see also Menke v. Wendell, 188 So. 3d 869, 871 (Fla. 2d DCA 2015).
The Florida law recognizes that a judgment of contempt will not be overturned unless the trial court either abused its discretion or departed so substantially from the law that fundamental error occurred. See DeMello[v. Buckman], 914 So. 2d [1090,] 1093 [(Fla. 4th DCA 2005)]. However, a trial court’s discretion is limited by rules, statutes, and case law, and a trial court abuses its discretion when its ruling is based on an erroneous view of the law. See McDuffie v. State, 970 So. 2d 312, 326 (Fla. 2007).Reder, 102 So. 3d at 744. In addition, a judgment of contempt must be supported by competent, substantial evidence in the record. See Pearson v. Pearson, 932 So. 2d 601, 602 (Fla. 2d DCA 2006); see also Smith, 954 So. 2d at 1194.
If you don’t know how to dress, act, address the court, then make an effort to go to the county courthouse website in the county where you will be appearing and read the rules, polices and guidelines of what is expected of you while you are there as a party, witness or juror. It may be very helpful to you to know what is going to be expected.
Otherwise, you may be hiring your own lawyer to represent you regarding a charge of civil or criminal contempt.
PROOF THAT STORE EMPLOYEES FAILED TO FOLLOW THE STORE’S OWN SAFETY POLICIES IS NOT PER SE A BREACH OF THE STANDARD OF CARE OWED TO THE CUSTOMER
Slip and fall records of one local big box store reflect that one particular store has at least 25 customers slip and fall on average each month. The number could be dramatically higher but those are the only customers that reported the incident. Some complained of physical injuries. Some customers may have been too embarrassed that they fell and never reported the fall or the circumstances surrounding the incident.
The lawyer for the customer can often find that the employees of a particular store failed to follow the safety guidelines and policies that the store had established to promote safety. Proving that the employees and supervisors all violated the written rules of daily operation is not evidence per se of a breach of the standard of care that the property owner or store operator owes to the customers.
The store has a duty to maintain the premises in a reasonably safe condition and to warn the customers of those conditions which are not open and obvious. Standing alone, proof that the employees did not follow the rules, is not a basis for a finding of fault.
In one Florida case, a customer slipped and fell on water on a rainy day at this store. It was undisputed that it was raining at the time of the fall.
The Wal-Mart safety team leader testified that shortly after the fall that the customer acknowledged, “It’s my fault. I shouldn’t have been running in the rain.” There also existed a surveillance video of the area where the fall occurred showing two fans and a large yellow warning cone marking the area of the wet floor where the fall occurred.
After 1 hour of deliberations, the jury answered the question “was there negligence on the part of WAL-MART STORES, INC. which was a legal cause of injury to the customer in the negative.
The trial judge ordered a new trial for the customer and the Defendant, Wal-Mart appealed. In the order granting the motion for new trial, the court found that “the evidence presented to the jury during trial clearly demonstrated that the customer’s injuries were the result of [Wal-Mart’s] failure to follow its own safety policies and procedures.” Thus, the trial court equated the standard of care with compliance with internal policies and procedures, effectively determining that a breach of policies and procedures is a per se breach of the standard of care.
The appellate court reversed. “[A] party’s internal rule does not itself fix the legal standard of care in a negligence action . . . .” Mayo v. Publix Super Mkts., Inc., 686 So. 2d 801, 802 (Fla. 4th DCA 1997); see also Pollock v. Fla. Dep’t of Highway Patrol, 882 So. 2d 928, 937 (Fla. 2004).
(“While a written policy or manual may be instructive in determining whether the alleged tortfeasor acted negligently in fulfilling an independently established duty of care, it does not itself establish such a legal duty vis-a-vis individual members of the public.”); Dominguez v. Publix Super Mkts., Inc., 187 So. 3d 892, 895 (Fla. 3d DCA 2016), reh’g denied (Mar. 28, 2016).
(“[I]nternal safety policies do not themselves establish the standard of care owed to the plaintiff.”); Steinberg v. Lomenick, 531 So. 2d 199, 200 (Fla. 3d DCA 1988).
“[T]he existence of an internal rule does not itself fix the standard of care.”). Internal policies and procedures may be admissible if they are relevant to the standard of care, Mayo, 686 So. 2d at 802; however, “evidence that the rule was violated is not evidence of negligence unless and until the jury finds . . . that the internal rule represents the standard of care,” Steinberg, 531 So. 2d at 201 (second emphasis added).1 The trial court’s elevation of the alleged violation of internal policies and procedures to the status of a legal duty necessitates reversal of the order granting the customer a new trial.
POSTING COMMENTS ON SOCIAL MEDIA CONTRARY TO COURT’S INSTRUCTIONS IS NOT ALWAYS PREJUDICIAL TO WARRANT NEW TRIAL
If you serve as a juror in any courtroom in this country, you are likely to hear a Judge advise the jury panel members that the jurors are not to communicate about the case until jury deliberation begin.
Further, in this age of electronic communication, the Court will stress again that just as the jurors must not talk about this case face-to-face, the jurors must not talk about this case by using an electronic device. Do not send or accept any messages related to this case or your jury service. Do not discuss this case or ask for advice by any means at all, including posting information on an Internet website, chatroom, or blog.
In one Florida case, after a verdict was returned in favor of the Plaintiff, a challenge was made by the Plaintiff that the verdict was insufficient regarding the damages awarded. In seeking a new trial, the Plaintiff’s counsel alleged that one of the jurors had violated the Court’s instructions and therefore Plaintiff was entitled to a new trial.
The offending actions of the juror posting a series of tweets on his Twitter1 account during the days of jury selection and trial, which included the following:
- I got picked as a juror. . .I hate this s— I’m so pissed, I even half assed all my answers and I dressed terrible.
- Being a juror isn’t bad, people I’m working with are pretty cool. But I still hate the fact that I have to be here all day.
- Everyone is so money hungry that they’ll do anything for it.
After conducting two hearings, the trial court granted the motion for juror interview.
The Court asked about the juror’s tweet that he “half assed” his answers. The juror replied that he was “kind of confused” by what Plaintiff’s counsel was saying during jury selection. The juror elaborated: “Because, like, I got nervous so when he was asking me questions I didn’t really know what to say so all my questions were all mumble jumbled and then that’s pretty much what I meant by it.” And finally, the trial court asked the juror whether he was referring to the trial when he tweeted, “Everyone is so money hungry that they will do anything for it”? The juror responded:
No, ma’am, I was not. I was actually tweeting about the fact that we got into an accident, me and my father, May 2, and then my dad got the court order during the trial case, and that’s when I woke up after my nap he told me about it.
After conducting what would be the fourth post-trial hearing on this case, the trial court denied Plaintiff’s motion and declined to take any action against the juror.
Thereafter, the trial court entered a final judgment in favor of Plaintiff for $27,535.17 from which this appeal was taken.
The appellate court stated that although no Florida court has directly addressed the issue of juror misconduct arising from the use of social media during a trial, in United States v. Fumo, 655 F.3d 288 (3d Cir. 2011), the Third Circuit held that the trial court did not abuse its discretion in denying the defendant’s motion for a new trial on the basis of a juror’s comments about the trial on Facebook and Twitter.
The trial court questioned the juror and determined that, although in violation of the court’s instruction not to discuss the case outside the jury room, the comments were “nothing more than harmless ramblings having no prejudicial effect.” Id. at 298-99. The trial court found that the comments “raised no specific facts dealing with the trial,” and that nothing in the comments “indicated any disposition toward anyone involved in the suit.” Id. at 306.
In this appellate district the trial court’s decision to deny the Plaintiff a new trial was sustained.
DO YOU WAIVE YOUR RIGHT TO A JURY TRIAL WHEN YOU ARE INJURED ON THE LEASED PROEPRTY AND YOU FILE A PREMISES LIABILITY LAWSUIT AGAINST THE OWNER OR LANDLORD WHEN YOUR APARTMENT LEASE CONTAINS A JURY TRIAL WAIVER
If your apartment lease contains multiple pages, multiple sections, multiple paragraphs and small print, you better get a lawyer’s opinion as to whether a jury trial waiver in your apartment lease will apply to you if you are injured on the property or injured by someone on the property. More likely than not, the waiver was intended to apply the issues such as right to your deposit back, eviction, right to hold over and the terms within the contemplation of the lease agreement. The waiver was not intended to apply to any other event which arises out of tort law violations.
Let’s face it, you find arbitration clauses and waiver of jury trial language in most agreements from medical care, amusement parks, to professional sports contracts. The purpose is to “limit the cost of litigation and to take away the big risk that a jury of citizens in your own community may award” for damages.
Often, the issue of is the waiver of the jury trial in an apartment lease agreement applicable in the ordinary reading of the contract to apply to the issues of rent and the terms of the lease. If you are injured or attacked on the property, the defense lawyers defending the insurance company, attach the lease you signed and claim that you really were intending to “waive your right to a jury trial” in your premises liability claim when you signed the apartment lease “even though the event that injured you was not contemplated or had occurred.” Really?
Now let’s look at a local case everyone read about involving a Tampa Bay Buccaneers’ football player that contracted MRSA and sued for damages in a premises lability case alleging that One Buc Place was negligently maintained.
As expected, the defense lawyers moved to dismiss the lawsuit on the basis that the NFL and the players’ collective bargaining contract (CBA). The case was removed by the NFL to the federal district court where Judge Moody, determined that the arbitration clause in the agreement, had “nothing to do with the claims of the Plaintiff that One Buc facility was negligently maintained.” The court stated that there “was no nexus between the contract entered into by the NFL and the plaintiff, as a member of the collective bargaining contract.”
Utilizing this argument, an apartment lease that contains a waiver of the Plaintiff’s right to a jury trial that was entered into several years or several months before any event occurred which injured Plaintiff, could not have been “contemplated to have been intended to be covered by the terms of the apartment lease.”
The right of trial by jury is guaranteed to all persons by the United States Constitution and the Florida Constitution as well.