ARBITRATION: AN AGREEMENT TO ARBITRATE MAY NOT EXPAND THE SCOPE OF JUDICIAL REVIEW CONTEMPLATED BY THE REVISED FLORIDA ARBITRATION CODE: THE TRIAL COURT MUST DECIDE IN THE FIRST INSTANCE WHETHER AN UNENFORCEABLE PROVISION SEEKING TO EXPAND THE SCOPE OF JUDICIAL REVIEW IS  SEVERABLE OR INTEGRAL TO THE AGREEMENT TO ARBITRATE

National Millwork, Inc. v. ANF Group, Inc., ___ So. 3d ___, 43 Fla. L. Weekly D2207 (Fla. 4th DCA September 26, 2018)
 

“The Revised Florida Arbitration Code governs the confirmation, vacation, modification or correction, and appeal of an arbitration award.”  An arbitration agreement may not “expand the scope of judicial review.” As a result, a provision in the arbitration agreement in the present case that sought to expand the scope of judicial review was unenforceable.  The appellate court remanded for a determination whether the unenforceable portion of the agreement was severable or “integral to the agreement to arbitrate.”

SPOLIATION OF EVIDENCE: A THIRD PARTY SPOLIATION OF EVIDENCE CLAIM DOES NOT ACCRUE UNTIL THE UNDERLYING PERSONAL INJURY CASE HAS BEEN LITIGATED

Amerisure Insurance Company v. Rodriguez, ___ So. 3d ___, 43 Fla. L. Weekly D2225 (Fla. 3d DCA September 26, 2018)
 

The plaintiff alleged that his personal injury case against a third party tortfeasor was compromised because his employer and its worker’s compensation carrier negligently lost or destroyed a videotape of his accident.  The plaintiff added the employer and insurer as defendants in his personal injury case against the tortfeasor. The employer and insurer objected to an order setting a simultaneous trial of the plaintiff’s personal injury and spoliation of evidence claims.  The trial court overruled the objection and ordered the employer and insurer to provide discovery on the spoliation claim. The Third District Court of Appeal granted the insurer’s petition for certiorari and quashed the trial court’s orders because the plaintiff’s spoliation claim was premature, and requiring a party to provide discovery and go to trial on a premature claim would result in irreparable harm.  The Third District explained the difference between first and third party spoliation of evidence claims. A first party claim arises when the tortfeasor in the personal injury case loses or destroys relevant evidence. A third party claim arises when someone other than the tortfeasor in the personal injury case loses or destroys relevant evidence. An independent cause of action does not exist for first party spoliation of evidence: the remedy consists of the imposition of sanctions and presumptions in the personal injury case.  An independent cause of action for third party spoliation of evidence does exist, but it does not accrue until the personal injury case has been resolved and the issue of prejudice can be determined. And, “[g]enerally, a cause of action cannot be maintained and tried before it accrues.” In two prior opinions, the Third District “indicated that products liability claims and third-party spoliation claims concerning the allegedly defective products could be tried together.” The court did not decide whether its two earlier decisions should be overruled or confined to product liability cases.

WRONGFUL DEATH: AN ORDER APPOINTING PERSONAL REPRESENTATIVE RELATED BACK TO THE FILING OF THE COMPLAINT

Lindor v. Florida East Coast Railway, LLC, ___ So. 3d ___, 43 Fla. L. Weekly D2228 (Fla. 3d DCA September 26, 2018)
 

A teenage girl went to live with her aunt and uncle after her mother was struck and killed by a freight train. A complaint for wrongful death, filed two days before the statute of limitations expired, named the aunt and uncle as co-personal representatives of the estate.  Two and one-half years later, the defendant moved to dismiss the complaint as a sham pleading after discovering that the aunt and uncle had never been appointed as personal representatives. The trial court granted the motion and dismissed the action without prejudice, although the uncle was appointed as personal representative the day before the hearing.  The Third District Court of Appeal reversed. The trial court should have substituted the uncle as the sole plaintiff, and substitution should relate back to the filing of the original complaint because (1) the original complaint was timely and provided the defendant with fair notice of the legal claim and allegations against it, (2) an identity of interests existed between the original and substituted plaintiffs, (3) the amendment did not prejudice the defendant, and (4) the amendment did  not create a new cause of action.

DAMAGES: A PLAINTIFF WHO FAILS TO PRODUCE SUFFICIENT EVIDENCE ON THE PROPER MEASURE OF DAMAGES IS NOT ENTITLED TO A NEW TRIAL

Levy v. Ben-Shmuel, ___ So. 3d ___, 43 Fla. L. Weekly D2229 (Fla. 3d DCA September 26, 2018)
 

The plaintiff sued the defendant for conversion and prevailed at a bench trial.  On appeal, the plaintiff conceded that “he failed to establish the correct measure of damages” at trial.  The Third District Court of Appeal held that the plaintiff was not entitled to a new trial on damages and remanded for the entry of judgment for the defendant.  “[A] party who fails to establish the correct measure of damages at trial is not entitled, on reversal and remand, to a new trial on damages.”

DANGEROUS INSTRUMENTALITY RULE:  A FRONT END LOADER IS A DANGEROUS INSTRUMENTALITY

Newton v. Caterpillar Financial Services Corporation, ___ So. 3d ___, 43 Fla. L. Weekly S415 (Fla. September 27, 2018)
 

The Florida Supreme Court held that front end loaders are  dangerous instrumentalities as a matter of law. “[L]oaders, [as] farm tractors and forklifts, are motor vehicles for the purpose of the dangerous instrumentality doctrine.”  “Loaders are heavy pieces of construction equipment weighing thousands of pounds. Loaders can move heavy loads across streets and unimproved surfaces. Multi-terrain loaders have tank-style treads designed for use on unimproved surfaces.  Some loaders, [as] the one in this case, can be converted from treads to tires. Attached to their front ends, loaders have buckets in which heavy items can be lifted above the height of the average person. The bucket can obstruct operator visibility because loaders are operated from within cages in their centers.”  The plaintiff’s status as an independent contractor was not an obstacle to application of the dangerous instrumentality rule. “The doctrine has not treated construction workers as separate from the general public when injured in a public place.” In this case, the plaintiff was injured on a public street. Justices Pariente, Lewis, and Labarga concurred in Justice Quince’s majority opinion.  Justices Canady and Polston concurred in Justice Lawson’s dissenting opinion.

TORTS: PERSONAL INJURIES: CAUSATION: THE TRIAL COURT ERRED BY ENTERING SUMMARY JUDGMENT FOR THE PLAINTIFF ON THE ISSUE OF CAUSATION BECAUSE OF OVERWHELMING EVIDENCE OF PREEXISTING CONDITIONS

State Farm Mutual Automobile Insurance Company v. Ferranti, ___ So. 3d ___, 43 Fla. L. Weekly D2233 (Fla. 5th DCA September 28, 2018)
 

The trial court, in an action for uninsured motorist benefits, entered summary judgment for the plaintiff on the issue of causation.  The Fifth District Court of Appeal reversed because of “overwhelming evidence of preexisting conditions which directly related to the issue of causation.”  The insurer admitted a departure from the standard of care but contested causation and damages. The plaintiff claimed that he injured his neck, lower back, and hip, but he also injured his lower back in a motor vehicle accident six years earlier and was still taking pain medication when the accident in suit occurred.  Before trial, the plaintiff dropped his claim for damages related to his lower back, and the trial court excluded evidence of the plaintiff’s lower back injuries. The Fifth District held this evidence would be admissible on retrial. “[The plaintiff’s] injuries and complaints were virtually identical to those suffered and compensated in the prior accident.  A preexisting condition similar to that suffered in a later accident is relevant to the jury’s determination of a plaintiff’s claim of permanency and for pain and suffering.”

DAMAGES: ADEQUACY: THE TRIAL COURT ERRED BY GRANTING ADDITUR BECAUSE THE EVIDENCE WAS CONFLICTING

Pogue v. Garib, ___ So. 3d ___, 43 Fla. L. Weekly D2248 (Fla. 4th DCA October 3, 2018)
 

The plaintiff was struck from the rear in stop and go traffic on I-95.  Her airbag did not deploy, she did not report pain or injuries at the scene, and she did not seek immediate medical attention.  She received conservative treatment from a chiropractor for neck and back pain, but had “no injections, pain medication or surgery.”  She did not have any complaints of pain, numbness, or weakness six months after the accident. By the time of trial, she could do everything she did before but only slower.  Although her doctor testified at trial that she would need surgery, “he previously recommended only injections.” The defense medical doctor testified that her condition was degenerative, the accident did not result in permanent injury, and future treatment was unnecessary.  The jury found that the plaintiff did sustain a permanent injury and awarded $11,767 for past medical expenses, $9,000 for future medical expenses, and $0 for past and future pain and suffering. After the trial court instructed the jury that it must award something for pain and suffering, the jury awarded $500 for past pain and suffering and $500 for future pain and suffering.  A successor judge granted a new trial on damages only after the defendant rejected an additur of of $20,000. The Fourth District Court of Appeal reversed and remanded for reinstatement of the verdict. “Because the evidence was conflicting, the successor judge erred in granting an additur. . . . The successor judge was not permitted to ‘sit as a seventh juror,’ and had no record basis to conclude the jury could not have reached its verdict based on the evidence.”

PROPOSAL FOR SETTLEMENT: A PROPOSAL FOR SETTLEMENT FROM ONE PLAINTIFF TO TWO DEFENDANTS WAS INVALID BECAUSE IT DID NOT GIVE EACH DEFENDANT THE OPPORTUNITY TO ENTER INTO AN INDIVIDUAL SETTLEMENT

Atlantic Civil, Inc. v. Swift, ___ So. 3d ___, 43 Fla. L. Weekly D2253 (Fla. 3d DCA October 3, 2018)
 

The plaintiff served one proposal for settlement on two defendants.  The amount of the proposal was $50,000, apportioned $25,000 to each defendant, but the proposal required “mutual acceptance of the offer and joint action in accordance with its terms” by (1) failing to “state how much either party would be required to pay to settle [the plaintiff’s] claim on his or its own,” (2) requiring the defendants to execute a general release, “ and (3) stating that the proposal “shall be deemed rejected unless Defendants accept it.”  The proposal was invalid because it did not provide each defendant with the opportunity to make an independent evaluation of the proposal and enter into an individual settlement.

FRAUD ON THE COURT: THE TRIAL COURT ERRED BY DISMISSING THE PLAINTIFF’S CASE FOR FRAUD ON THE COURT WITHOUT CONDUCTING AN EVIDENTIARY HEARING TO PROVIDE THE PLAINTIFF WITH AN OPPORTUNITY TO REFUTE THE DEFENDANT’S ALLEGATIONS OF FRAUD

Robinson v. Safepoint Insurance Company, ___ So. 3d ___, 43 Fla. L. Weekly D2258 (Fla. 3d DCA October 3, 2018)
 

The defendant denied the plaintiffs’ insurance claim based on an alleged water leak.  The wife testified that she contacted a restoration services company days after the water damage occurred, but telephone records showed that she contacted the company ten days before the alleged leak occurred, and a work authorization was signed on the day of the alleged leak.  The defendant moved to dismiss for fraud on the court. The trial court denied the plaintiffs’ request for an evidentiary hearing, granted the motion, and dismissed the complaint with prejudice. The Third District Court of appeal reversed. The trial court erred by granting the motion based on unauthenticated telephone records, an unauthenticated work order, and without an evidentiary hearing to provide the plaintiffs with “the opportunity to refute [the defendant’s] submissions or explain any inconsistencies/and or omissions.”

PROPOSAL FOR SETTLEMENT: IDENTICAL PROPOSALS FOR SETTLEMENT FROM THE PLAINTIFF TO TWO DEFENDANTS WERE NOT AMBIGUOUS

Allen v. Nunez, ___ So. 3d ___, 43 Fla. L. Weekly S421 (Fla. October 4, 2018)
 

The plaintiff served identical proposals for settlement on the defendants, the tortfeasor and his father, the owner of the vehicle the tortfeasor was operating when he drove into the plaintiff unoccupied and lawfully parked truck.  The plaintiff sought damages for the cost of repairs, loss of use, and diminution in value. The plaintiff served identical proposals for settlement on each defendant. Each proposal stated that (1) it was made by the plaintiff to the particular defendant upon whom it was served, (2) all claims against the defendant would be settled in exchange for $20,000, and (3) the proposal was “inclusive of all damages claimed by Plaintiff . . ., including all claims for interest, costs, and expenses and any claims for attorney’s fees.”  The plaintiff prevailed at trial and recovered final judgment for $29,785.97. The trial court also awarded $343,590 in attorney’s and legal assistant fees based on the proposals for settlement. The Fifth District Court of Appeal reversed on the theory that the proposals were ambiguous because they stated they were inclusive of all damages claimed by the plaintiff. According to the Fifth District, this language made it unclear whether acceptance by one defendant would result in the discharge of all claims against both defendants. The Florida Supreme Court accused the Fifth District of “nitpicking” and quashed its decision.  The “only reasonable interpretation” when each proposal was read in its “entirety” was that the plaintiff offered to settle his claims against only the defendant to whom the proposal was made. The court found there was no “legitimate question” whether one defendant’s acceptance would have discharged the other. Justices Pariente, Quince, and Labarga concurred in Justice Lewis’s majority opinion. Justice Pariente wrote a separate concurring opinion. Justices Canady and Lawson concurred in Justice Polston’s dissenting opinion.

UNINSURED MOTORIST COVERAGE: A DAUGHTER WHO LIVED WITH HER MOTHER WAS NOT ENTITLED TO UNINSURED MOTORIST COVERAGE UNDER HER MOTHER’S POLICY FOR INJURIES SUFFERED IN AN ACCIDENT WHILE DRIVING HER OWN VEHICLE

State Farm Automobile Insurance Company v. Lyde, ___ So. 3d ___, 43 Fla. L. Weekly D2267 (Fla. 2d DCA October 5, 2018)
 

A mother and daughter lived together.  Each owned her own vehicle, and each vehicle was insured by State Farm.  The mother was the only named insured under her policy. Both the mother and daughter were named insureds under the daughter’s policy.  The mother’s policy provided $100,000 in UM (uninsured motorist) coverage. The daughter’s policy provided $25,000 in UM coverage. The daughter was involved in an accident with an uninsured motorist while driving her own car.  State Farm offered to pay $25,000 in UM coverage under the daughter’s policy, but the daughter contended that she was entitled to $100,000 in UM coverage under her mother’s policy. The daughter sued State Farm for declaratory judgment and breach of contract.  The parties filed cross motions for summary judgment. The trial court granted the daughter’s motion, denied State Farm’s motion, and entered final summary judgment for the daughter. The Second District Court of Appeal reversed. Although the daughter was insured as a resident relative under her mother’s policy, the policy contained an exclusion for bodily injury sustained while occupying a vehicle owned by a resident relative if it is not your car.  The daughter was occupying her vehicle when the accident occurred. The daughter’s vehicle was a vehicle owned by the mother’s resident relative that was not the mother’s car. As a result, the daughter was not entitled to uninsured motorist coverage under her mother’s policy. This limitation conformed with the Uninsured Motorist Statute. Another policy provision providing that the highest limit under one policy was the maximum limit that could be paid when other uninsured motor vehicle coverage applies did not come into play because other uninsured motor vehicle coverage did not apply.  The only policy providing uninsured motor vehicle coverage was the daughter’s policy. A coordination of benefits was unnecessary. Although the court held that the trial court erred by granting the daughter’s motion for summary judgment, it refused to hold that the trial court erred by denying State Farm’s motion for summary judgment because State Farm’s motion relied upon a rejection form that was not included in the record. The court “simply remand[ed] for further proceedings consistent with [its] opinion.”

APPEALS: AN ORDER STRIKING A DEMAND FOR JURY TRIAL IS A NONAPPEALABLE NONFINAL ORDER

Ruffenach v. Ocwen Loan Services, LLC, ___ So. 3d ___, 43 Fla. L. Weekly D2266 (Fla. 5th DCA October 5, 2018)
 

An order striking a demand for jury trial is a nonappealable, nonfinal order.  It is not reviewable by certiorari or mandamus. “Mandamus was designed to compel the performance of a specific, imperative ministerial duty, not to review allegedly erroneous judicial decisions.”  In this case, the trial court construed the waiver of jury trial in a written contract. If the petitioner loses in the trial court, he may challenge the trial court’s interpretation of the jury trial waiver in an appeal from final judgment.

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