DAMAGES: THE FIRST DISTRICT COURT OF APPEAL EXPLAINS THE DIFFERENCE BETWEEN GENERAL, SPECIAL, AND CONSEQUENTIAL DAMAGES

Keystone Airpark Authority v. Pipeline Contractors, Inc., ___ So. 3d ___, 43 Fla. L. Weekly D2601 (Fla. 1st DCA November 27, 2018)
 

The plaintiff, a governmental entity, hired a contractor to construct improvements to an airport and hired an engineer to oversee the work.  The improvements deteriorated prematurely because they were constructed from defective materials. The plaintiff sued the contractor and the engineer.  The trial court entered summary judgment for the engineer because the contract precluded the recovery of consequential damages. The First District Court of Appeal affirmed.  General damages flow naturally from a wrongful act or omission. They are the type of damages anyone would be expected to suffer under the circumstances. Special damages are unique to the party suffering the harm and may not be recovered unless the wrongdoer was on notice they could occur.  Although the damages suffered by the plaintiff in this case were not special because they “would be expected to occur to other parties in similar circumstances,” the damages were consequential, rather than general, because they arose from the plaintiff’s relationship with a third party, the contractor.  The court certified as a question of great public importance to the Florida Supreme Court whether the plaintiff’s damages were general, special, or consequential. The court held that the public policy would not prohibit sophisticated partes “from negotiating a contract that limits liability for consequential damages.”  Judge Lewis concurred in Judge Wolf’s majority opinion. Judge Rowe agreed with the categorization of the plaintiff’s damages but dissented from the decision to certify the question.

ATTORNEY’S FEES: THE AMOUNT OF ATTORNEY’S FEES COULD NOT BE BASED ON BILLING RECORDS THAT WERE PROVIDED TO THE COURT BUT NOT ADMITTED IN EVIDENCE

Pansky v. Pansky, ___ So. 3d ___, 43 Fla. L. Weekly D2639 (Fla. 4th DCA November 28, 2018)
 

The trial court awarded attorney’s fees as a sanction under Section 57.105, Florida Statutes.  The Fourth District Court of Appeal reversed because the amount of fees was “based exclusively on argument of counsel.”  Although the court was provided with a copy of billing records, the records were not competent evidence because they were not admitted in evidence.  The court refused to affirm based on the lack of a contemporaneous objection because “in the absence of a stipulation, unsworn statements by the attorneys cannot be the basis for factual findings by the trial court.”

JOINT AND SEVERAL LIABILITY: THE 2011 VERSION OF THE COMPARATIVE FAULT STATUTE, WHICH ELIMINATED JOINT AND SEVERAL LIABILITY, IS RETROACTIVE

Brown & Brown, Inc. v. Gelsomino, ___ So. 3d ___, 43 Fla. L. Weekly D2642 (Fla. 4th DCA November 28, 2018)
 

The plaintiff was injured on the job in a car accident in 2002.  His employer’s insurer denied coverage because the insurance policy was issued to the wrong entity.  The plaintiff sued his employer’s insurance broker for negligence in 2004. In 2014, a jury found that the broker was 35% negligent, and the plaintiff was 5% negligent.  In 1986, the Florida legislature began to modify the common law doctrine of joint and several liability. The 1999 version of the comparative fault statute was in effect when the accident occurred.  Under that version of the statute, the plaintiff could recover 95% of his damages from the broker. The 2006 version of the statute eliminated joint and several liability, but it was not retroactive.  The 2011 version of the statute reaffirmed the elimination of joint and several liability, and it was retroactive. Under that version of the statute, the plaintiff could recover only 35% of his damages from the broker.  The trial court applied the 1999 version of the statute. The Fourth District Court of Appeal reversed. Retroactive application of the 2011 version of the statute was not unconstitutional: “[The plaintiff] had only an expectation with . . . regard to the damage-allocation model in place at the time of accrual, not a protected right.”

MOTIONS IN LIMINE: THE THIRD DISTRICT COURT OF APPEAL CRITICIZED THE POLICYHOLDERS’ LAWYER FOR BLATANTLY DISREGARDING THE TRIAL COURT’S RULING ON THE POLICYHOLDERS’ MOTION IN LIMINE BUT AFFIRMED THE DENIAL OF THE INSURER’S MOTION FOR MISTRIAL

Citizens Property Insurance Corporation v. Ballester, ___ So. 3d ___, 43 Fla. L. Weekly D2657 (Fla. 3d DCA November 29, 2018)
 

The plaintiffs alleged that their home was damaged when the marijuana grow house across the street exploded.  Both the plaintiffs’ home and the grow house were covered by the same insurer. The plaintiffs sued the insurer for breach of contract after it denied their claim.  Before trial, the plaintiffs filed a motion in limine to admit a letter from the insurer to one of the plaintiffs’ neighbors. The letter denied that the property damage arising from the explosion was caused by the negligence of its insured.  The plaintiffs wanted to use the letter to show that the insurer admitted that the explosion caused property damage. Although the trial court denied the motion, plaintiff’s counsel asked a witness whether the insurer previously took the position that the damage to the plaintiffs’ home was the result of the explosion.  The trial court denied the insurer’s motion for mistrial. The Third District Court of Appeal affirmed based on its conclusion that the trial court did not abuse its discretion, but the court was “troubled by Plaintiffs’ counsel’s blatant disregard of a court order, and [wrote] to remind counsel that as an officer of the court, it is a lawyer’s duty . . . among other things [to] ‘demonstrate respect for the legal system and for those who serve it’ and to ‘uphold legal process.’”

JURY INSTRUCTIONS: THE TRIAL COURT ABUSED ITS DISCRETION BY REFUSING TO INSTRUCT THE JURY ON THE DEFENDANTS’ THEORY OF THE CASE

Araj v. Renfro, ___ So. 3d ___, 43 Fla. L. Weekly D2674 (Fla. 5th DCA November 30, 2018)
 

The plaintiff was injured while driving a scooter on a limited access facility causeway with a speed limit of 55 miles per hour and a normal traffic flow of 55 to 65 miles per hour.  The scooter had a top speed of 31.7 miles per hour, “which it could not reach [while] ascending inclines, as it was at the time of the accident,” when it “was travelling at approximately 28.7 miles per hour.  The trial court refused the defendants’ request for a jury instruction, based on Section 316.003(34) and 316.091(2), Florida Statutes, that nobody may operate a vehicle upon a limited access facility if the vehicle, because of “its design or condition is incompatible with the safe and expedient movement of traffic.”  Instead, the trial court granted the plaintiff’s request for a jury instruction, based on Section 316.183(5), Florida Statutes, that nobody may “drive a motor vehicle at such slow speed as to impede or block the normal and reasonable movement of traffic.” The jury returned a $6 million verdict for the plaintiff. The Fifth District Court of Appeal reversed and remanded for a new trial.  The trial court abused its discretion by failing to give the defendants’ requested jury instruction “because it constituted a correct statement of law, was supported by the evidence, and addressed their theory of the case that [the plaintiff] was not lawfully driving at the time of the accident because the [causeway] was a limited access facility and the scooter was incompatible with the safe and expedient movement of traffic.  This error was highlighted during closing arguments when [plaintiff’s] counsel argued that ‘[the plaintiff] was entitled to be [on the causeway] like any other motorist.’ [The court rejected] the argument that because the jury allocated twenty-five percent fault to [the plaintiff], any error was harmless. [The court could not] conclude that the degree of fault allocated by the jury for driving too slowly would have been the same if the jury instead found that [the plaintiff] was driving on a road on which he was legally prohibited to ride the scooter.”

THIRD PARTY BAD FAITH: THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA DENIES PROGRESSIVE’S MOTION FOR SUMMARY JUDGMENT IN A THIRD PARTY BAD FAITH CASE

Mosley v. Progressive American Insurance Company, Case Number 14-cv-62850-Bloom/Valle (S.D. Fla. November 25, 2018)
 

The following events resulted in a third party insurance bad faith claim:  

The boy’s guardians sued Progressive for bad faith.  Progressive moved for summary judgment. Judge Beth Bloom of the United States District Court for the Southern District of Florida denied the motion.  Progressive never explained to the insured in writing the ramifications of failing to provide the financial affidavit before the deadline expired; Progressive merely provided its insured with a copy of the letter from the boy’s lawyer requesting the affidavit.  The lawyer’s letter did not advise the insured of the probable outcome of the case, “warn of the possibility of an excess judgment, or advise the [insured] of the steps he might take to avoid [an excess judgment].” Although Progressive spoke to its insured several times over the telephone, it never explained in writing “in any discernible detail the gravity of the situation [the insured] was facing.”  Although the insured’s assertion of sovereignty may be a factor to consider, the focus in a bad faith case is on the actions “of the insurer in fulfilling its obligations to the insured.” “[T]he nature and extent of the conversations between [the adjuster] and [the insured] that Progressive relie[d] upon were in dispute.” The adjuster’s contemporaneous notes of her conversations with the insured were “directly contradicted by other evidence in the record.”  The court rejected Progressive’s contention that it should disregard the insured’s deposition testimony because it was self-serving: The United States Court of Appeals for the Eleventh Circuit has held although self-serving testimony may be unreliable because it is the product of “collusion between the insured and the injured party,” it usually will “create a genuine issue of material fact sufficient to defeat the insurer’s motion for summary judgment.” Based upon the record, Judge Bloom was unable to conclude as a matter of law that Progressive “satisfied its duty of good faith.”

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