Florida Legal Update July-August 2014

Randall: Survival of Loss of Consortium Claim
Valladares: Non-liability for Reporting Criminal Activity
Maddox: Court To Specify Scope of Psychological Exam
Barber: Limited Jurisdiction in UM Case

Conflict Remains Between the Fifth DCA and the Third DCA as to Whether a Loss of Consortium Claim Survives the Death of the Allegedly Injured Spouse.

The Fifth District Court of Appeals recently re-affirmed its position that a spouse’s loss of consortium claim survives the death of the injured spouse and, again, certified a conflict with the Third District Court of Appeals to the Florida Supreme Court. See Randall v. Walt Disney World Co., et al., 39 Fla. L. Weekly D1316a (Fla. 5th DCA 2014). In Randall, the allegedly injured party died during the pendency of his lawsuit in which he alleged suffering personal injuries while riding on a Walt Disney World roller coaster. Following his death, his wife, who served as personal representative to her husband’s estate, failed to move to substitute herself in that capacity as the plaintiff as required by Florida Rule of Civil Procedure 1.260. Therefore, due to her failure to substitute, the trial court properly dismissed her deceased husband’s claims against Disney. Concurrently, the court dismissed her loss of consortium claim.

Appellant Randall then appealed the dismissal of her loss of consortium claim to the Fifth District which had previously held that a “wife’s cause of action for loss-of-consortium, while derived from the personal injury to the husband, survives the death of her husband-patient whose own personal injury did not survive his death.” Id. citing Taylor v. Orlando Clinic, 555 So.2d 876 (Fla. 5th DCA 1989), disapproved on other grounds, Capone v. Phillip Morris USA, Inc., 116 So.3d 363 (Fla. 2013). In deciding Randall, the 5th DCA noted that the Florida Supreme Court’s decision in Capone, which overturned part of the 5th DCA’s ruling in Taylor, “neither addressed whether a loss-of-consortium claim survives the death nor mentioned the conflict between” the 5th DCA and the 3rd DCA.

Due to the Supreme Court’s declination to settle the conflict between the districts, the 5th DCA reaffirmed its “holding in Taylor that a loss of consortium claim survives the death of a deceased spouse” and reversed the trial court’s dismissal of the appellant’s loss-of-consortium claim. Additionally, the 5th DCA maintained the preexisting conflict with the 3rd DCA. Presently, the conflict still exists and whether a loss-of-consortium claim survives the death of a deceased spouse remains to be settled via future litigation.

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Simple Negligence is Not Enough to Hold Someone Liable for Reporting Suspected Criminal Activity.

The Third District Court of Appeals recently held that “a person cannot be liable for simple negligence when contacting the police to report suspected criminal activity.” Bank of America Corp. v. Valladares, 39 Fla. L. Weekly D1390a (Fla. 3d DCA 2014). In 2008, Mr. Valladares alleged that he visited a branch of Bank of America to cash a check. Therein, a bank teller mistook him for a bank robber and contacted the police who responded to the scene. Upon arrival, the police ordered everyone face down on the floor and Mr. Valladares suffered injury when he failed to respond to a command quickly enough and was allegedly kicked. After a trial, the jury found that Bank of America acted negligently and awarded damages to Mr. Valladares.

On appeal, the Third District reversed the jury’s award in favor of Mr. Valladares. “…[I]t should come as no surprise that Florida law in many different contexts recognizes that a person who reports a suspected crime to the police has a qualified privilege: the person making the report cannot be liable if the report is based upon a good faith mistake. In other words, the person making the mistake cannot be liable unless she acted maliciously.” Id. “A person calling the police to report a possible crime is not liable for a good faith mistake even if the individual reported suffers personal injuries at the hands of the police. Calling the police to report a crime rises to the level of a tort only if the reporter acts maliciously, meaning the reporter either knows the report is false or recklessly disregards whether the report is false.” Id. This ruling is important to ensure that people do not have to worry about potential liability should they make a good-faith effort to alert the authorities about a suspected crime.
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Fifth DCA Requires That Particular Psychological Examinations Be Included in Requests for Examination in Personal Injury Cases.

The Fifth DCA recently issued an opinion which appears to give judges additional control over which forms of testing a medical expert may utilize in a compulsory medical examination. In Maddox v. Bullard, 39 Fla. L. Weekly D1438a (Fla. 5th DCA 2014), Petitioner Maddox sought a writ of certiorari after the trial court ordered her to undergo psychological testing since she was claiming mental anguish from a dog bite. The trial court granted Defendant Bullard’s Request for Examination and denied Plaintiff Maddox’s motion for protective order.

In the trial judge’s order, he specified the time and place of the examination as well as the examiner. However, “[a]lthough Maddox’s counsel asked the trial court to define the boundaries of the psychologist’s examination, the trial court declined to do so.” Id. The 5th DCA held that this violated Rule 1.350(a)(1)(B) as “[t]he trial court’s order does not specify the manner, conditions, or scope of the examination, thereby, in effect, giving the psychologist “carte blanche” to perform any type, and all manner, of psychological inquiry, testing, and analysis on Maddox for up to four continuous hours.” Id. “Without knowing the particular examinations that the psychologist planned to conduct, the trial court should not have granted Bullard’s request.” Id. In conclusion, the 5th DCA granted the writ insofar as it ordered that the trial court specify the manner, conditions, and scope of the psychological examination.

This decision seemingly complicates the usage of compulsory medical examinations in the State of Florida. For example, counsel may now need to include a listing of all potential tests the examiner intends to administer. If the medical examiner deviates from an “approved” test, Plaintiff’s counsel could then move to terminate the examination which could lead to delays and additional litigation expenses. Additionally, the ruling opens the door to allowing a trial judge to veto certain medical examinations and testing while allowing others.
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Fifth DCA Holds that Trial Court Jurisdiction is Limited to Entering a Judgment of Policy Limits in an Underlying Case Seeking Uninsured Motorist Benefits

The Fifth District Court of Appeals recently heard an appeal on writ of certiorari stemming from a case seeking uninsured motorist benefits. GEICO Casualty Company v. Barber, 39 Fla. L. Weekly D1727a (Fla. 5th DCA 2014). After Mr. Barber filed suit against his insurer, GEICO, seeking uninsured motorist benefits related to a motor vehicle accident, GEICO initially responded that his damages were less than the available policy limits. Id. However, after Mr. Barber underwent surgery related to the motor vehicle accident, GEICO filed a Proposal for Settlement in the amount of Mr. Barber’s policy limits followed by a Notice of Confession of Judgment and Motion for Entry of Confessed Judgment. Id.

In response, Mr. Barber then sought to file an amended complaint alleging a claim for bad faith and seeking a declaratory judgment to apportion liability and determine the total amount of his damages. Id. The trial court granted GEICO’s Motion entering a final judgment on its confession of judgment as to the available uninsured benefits. Id. Additionally, the trial court denied Mr. Barber’s motion to bring a claim for bad faith as such a claim was not ripe. Id. However, the trial court permitted Mr. Barber to file an amended complaint seeking declaratory relief. Id.

In response to Mr. Barber’s amended complaint seeking declaratory judgment, GEICO filed a writ of certiorari arguing that “after it confessed to judgment, the court lacked jurisdiction to take any action other than the enter judgment in the amount of the UM policy limits in favor of Barber.” Id. “Where no dispute exists as to the policy limits or available coverage and such limits are made known to the insured, the amount of the judgment against the insurer may not exceed the policy limits.” Id. citing Safeco Insurance Co. v. Fridman, 117 So.3d 16, 19-20 (Fla. 5th DCA 2013). When one party agrees to the entry of a judgment against it in the amount of policy limits, the issues between the parties, as framed by the pleadings, become moot as the trial court cannot provide any further substantive relief. Id. While recognizing that Mr. Barber is not precluded from bringing a separate bad faith action, the Fifth District granted the writ of certiorari and held that the trial court should have merely entered the confessed judgment in his favor, reserving jurisdiction to award costs, prejudgment interest, and, if authorized by law, reasonable attorney’s fees.
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