Tort/Injury Litigation

Florida’s Third District Court of Appeal (in Miami) recently reaffirmed that making a mistake in one’s bankruptcy filings is not necessarily fatal. The decision reversing summary judgment in Montes v. Mastec North America, Inc., No. 3D12-2622, was released on February 12, 2014. Bushell Appellate Law, P.A. represented the appellant.

Mr. Montes was injured in an accident that occurred at his workplace. He hired a law firm to investigate whether he might be able to bring a personal injury lawsuit to recover for his injuries, and if so, to file suit.

Several months later, while the PI law firm was still investigating a potential lawsuit, Mr. Montes hired a different law firm to file a petition for Chapter 13 bankruptcy relief. The bankruptcy petition filed by the bankruptcy law firm on Mr. Montes’ behalf did not disclose that he had potential claims arising from his accident. The bankruptcy court approved a Chapter 13 plan for Mr. Montes, with which he was required to comply in order to obtain a bankruptcy discharge.

About a year later, Mr. Montes, represented by the PI law firm, sued Mastec (a contractor for DirecTV) for allegedly causing his injuries. Mastec moved for summary judgment based on judicial estoppel, a doctrine that prohibits a litigant from taking a position that directly contradicts a position he/she/it took in a prior case, if the litigant was successful in the first case and certain other conditions are satisfied.

Mastec asserted that because Mr. Montes did not disclose his potential injury claim in his bankruptcy case, the doctrine of judicial estoppel prevented him from pursuing the claim. Mr. Montes, whose bankruptcy case remained open, then amended his bankruptcy schedules to disclose the claim against Mastec.

The trial court nonetheless granted summary judgment against Mr. Montes. It agreed with Mastec that allowing Mr. Montes to pursue his claim would make a mockery of the court system because it pursuing the claim would be inconsistent with his bankruptcy filing, which did not acknowledge that he had such a claim.

In an opinion authored by Judge Salter (joined by Judge Lagoa and Judge Fernandez), the 3rd DCA reversed. While Mastec argued that the Florida Supreme Court’s holding in Blumberg v. USAA Casualty Insurance Co., 790 So. 2d 1061 (Fla. 2001), had relaxed the requirements for judicial estoppel and precluded the lawsuit, the court found Blumberg distinguishable. The court also rejected Mastec’s argument that certain federal decisions supported the application of judicial estoppel, noting that federal standards for judicial estoppel are different than the standards under Florida law. 

The court relied primarily on a recent Fourth DCA opinion, which found judicial estoppel inapplicable in a similar context. It found persuasive the fact that no lawsuit had been filed at the time that Mr. Montes originally filed his bankruptcy disclosures, such that he could be excused for failing to recognize that he should list on his schedules a potential claim that remained speculative at the time. And the fact that Mr. Montes amended his bankruptcy schedules meant that his creditors were not defrauded and could share in the benefits of any recovery he might obtain in the lawsuit.  

Florida’s acupuncture physicians and massage therapists recently learned that they are (again) ineligible to be paid PIP benefits for treating automobile accident victims. Chiropractors learned that PIP coverage of their services has (again) been curtailed as well. But the changes may be temporary. 

They resulted from a loss suffered by acupuncture physicians, massage therapists, and chiropractors in their court battle against implementation of the 2012 PIP Act amendments to Florida’s No-Fault insurance law, a/k/a PIP. Among other things, the 2012 PIP Act excludes acupuncture and massage therapy from PIP, and limits coverage of chiropractic treatment. Those provisions of the 2012 PIP Act had been put on hold due to a preliminary injunction entered by the Leon County Circuit Court.  

The First District Court of Appeal set aside the preliminary injunction in its October 23, 2013 decision in McCarty v. Myers. But in appellate court decisions, as in many areas of life, the devil is often in the details. And the 1st DCA’s reasoning for overturning the injunction left room for acupuncture physicians, massage therapists, and chiropractors (and their patients) to be optimistic that their efforts to prevent the amendments from being implemented may eventually be successful.

Why? Because the decision came down to who was suing, not the merits of the claims. The litigation was brought by a group of practitioners who have banded together and hired attorneys to sue to block the 2012 PIP Act from going into effect.

Named as plaintiffs were three providers: an acupuncture physician, a chiropractic physician, and a massage therapist. Also named as a plaintiff was “Jane Doe,” who apparently is not a real person, but a fictitious person who was supposed to be a representive of “all those citizens of Florida that are, were, or will be injured as a result of a motor vehicle collision that were also required to purchase $10,000 . . . of PIP insurance coverage but may actually only receive no or $2,500 . . . in benefits.” 

Under the doctrine of “standing,” a person or entity can sue only to seek relief for an injury that he/she/it suffered. Conversely, a person lacks standing to bring a legal claim to enforce the rights of others or of the general public.

The provider plaintiffs asserted that the 2012 PIP Act violated several provisions of the Florida Constitution. In entering the injunction, the trial court seized on one of those asserted constitutional violations, finding that there was a significant possibility that the 2012 PIP Act was unconstitutional for denying to persons injured in accidents the constitutional right of access to courts.   

The problem with entering an injunction based on that claim, according to the 1st DCA, was not that the claim itself lacked merit, but that that the plaintiffs did not have standing to bring it. The plaintiffs were providers, not accident victims, so they were not injured by the asserted denial of access to courts. Even if they may have been injured in a different way, i.e., by losing revenue, the providers did not claim that they themselves had been denied access to courts, so they did not have standing to sue on that claim, or to obtain an injunction based on it — at least not “[w]ithout a showing of an actual denial of access to courts in a specific factual context…”

In a footnote, the court cast doubt on whether the providers could sue under a limited exception to general standing rules, in which a third party may have standing to remedy the rights of a person who is unable to pursue his/her own rights. But the court did not address whether the providers could sue as assignees of accident victims, as providers have done in other contexts–it is common for providers to have their patients assign their insurance benefits to the provider–apparently because the plaintiffs did not claim to have standing as assignees. 

The 1st DCA left open several options for the plaintiffs to continue to pursue their efforts to block implementation of the 2012 PIP Act. Chief among them would be to join as additional plaintiffs some injured patients who have had PIP coverage of acupunture, massage therapy, and chiropractic care denied due to the 2012 PIP Act, i.e., plaintiffs that suffered the asserted injury of being denied access to the courts. Barring that, it may be a viable option for the providers to continue as the only plaintiffs, but as assignees of their patients.

Either way, it seems likely that the providers will be able to find a way to overcome the issue of standing, and ultimately to obtain another injunction. Of course, it is possible that 1st DCA would reverse on the merits if a new injunction is entered and appealed. But its October 23, 2013 decision gives no indication that the court views the claims as unmeritorious.   

People make mistakes. Even lawyers. Even judges. We are all human after all, and to be human is to be fallible. In the pressure-packed environment of a trial or hearing, the probability that a mistake will be made is even greater.

Part of the job of an appellate lawyer is to comb through the record of what happened in the trial court, and with the benefit of a fresh perspective, find the errors, and explain to the appellate court what errors the trial judge made. But that is not the end of the story. Not even close. If it was, one would expect every appeal to result in reversal. The reality is otherwise.

Why? There are a host of reasons–ranging from the failure of the side that lost to preserve the issue (by making the argument to the trial judge) to the deference given to the trial judge in making certain decisions that he or she is in a better position to make–and there isn’t nearly enough space here to get into all of them.

The Harmless Error Doctrine

One of the most significant factors–at least when the decision being appealed was reached after a full-blown trial–is the doctrine of harmless error. It has been the subject of recent debate, and the Supreme Court of Florida is poised to set down the definitive word on the issue some time after it resumes its opinion cycle after the summer hiatus.

Harmless error, in a nutshell, is the idea that sometimes a trial judge’s ruling, even though incorrect, was too insignificant in the context of all of the trial evidence the jury saw to have impacted their decision. The doctrine exists because the law recognizes that trials are a tremendous ordeal and after so much effort by the parties, the trial judge, and the jury members, the results should not lightly be tossed aside.

After the two sides and the judge have spent so much time preparing for and conducting the trial, and the members of the jury have sacrificed their time to listen and deliberate and reach a decision, appellate courts are understandably hesitant to undo the result. On the other hand, the law is the law, and litigants have the right and expectation that the law will be applied correctly in their cases, whether or not that may cause inconvenience.

“Harmless error” is where appellate courts draw the line. In Florida, there is actually a statute that prohibits courts from reversing unless “in the opinion of the court to which application is made, after an examination of the entire case it shall appear that the error complained of has resulted in a miscarriage of justice.”

Drawing Lines 

But it is a lot easier to say that an error will not result in reversal when it is harmless than it is to figure out when an error was, in fact, harmless. How does the court know whether there has been “a miscarriage of justice”? Judges do not have the option of calling the jurors and asking them whether their decision would have been different if they had not heard testimony they should not have been allowed to hear, or if they had seen evidence they should have been allowed to see.

So appellate courts have created tests to be used as a substitute. Most recently, the Fourth District Court of Appeal of Florida (4th DCA), sitting en banc, wrestled with what test to use in its late 2011 decision in Special v. Baux, 79 So. 3d 755 (Fla. 4th DCA 2011) (en banc).

The court began by observing that prior decisions of the Supreme Court of Florida and District Courts of Appeal of Florida reflect two ways of looking at whether there was a “miscarriage of justice.”

One approach asks whether the result would have been the same if the error had not been made. That is, looking at all of the evidence, if the jury had seen what it was supposed to see, would it have reached the same decision anyway? If so, the error is harmless. If not, a new trial is required. The 4th DCA called this test a results-oriented approach.

The second approach looked at whether the error had “an adverse effect upon the jury’s verdict.” In other words it asks whether the error “contributed to the verdict.” Was the wrongfully admitted or excluded evidence something that played a part in the jury’s decision? The 4th DCA called this approach an “effect on the fact-finder” test.

Prior 4th DCA decisions had used the results-oriented approach, and every other District Court of Appeal had also adopted some variation of the results-oriented test. Nonetheless, in Special, the 4th DCA declared that approach to be inconsistent with Florida Supreme Court precedent, and that it improperly requires the appellate court to weigh the evidence, which is not the role of an appellate court.

In its place, the Fourth DCA became the first Florida District Court of Appeal to expressly adopt the “effect on the fact-finder approach.” The rule in civil cases, it said, should be that an error is harmless only if it is more likely than not that the error did not contribute to the verdict.

Are There Really Two Approaches? 

I am not convinced that the case law reflects two different approaches so much as two ways of describing the same approach. In my view, when prior cases describe harmless in two different ways, they are doing nothing more than describing the same coin from two opposite sides. Language in prior cases describing the harmless error test as asking whether the error “affected the verdict” may be stating nothing more than the other side of the question of of whether the verdict (i.e., the “result”) would have been different if not for the error.

If they are two approaches, the only difference between the two tests that I can think of is that under the “effect on the fact-finder” approach, an error can be harmful if it is something that the jury likely would have considered in the jury roorm, even if without the error, the jury would have reached exactly the same verdict relying on the other evidence in the case. 

A Better Test?  

I have a hard time understanding why the 4th DCA unanimously endorsed the “effect on the fact-finder” approach. How can there ever be “a miscarriage of justice” when the jury would have reached the same verdict? 

I understand the 4th DCA’s concerns about appellate courts re-weighing the evidence. The first thing any appellate attorney learns is that one should never make an argument that asks the appeals court to weigh the evidence to conclude that the jury reached the wrong verdict.

But examining the trial evidence seems unavoidable in performing a harmless error analysis regardless of the approach. That is particularly true in Florida, where the harmless error statute requires that harmless error be determined based on “an examination of the entire case.” Determining whether the error likely had an effect on the jury does not avoid that problem because one cannot determine how important evidence is without looking at its context.

I also understand the 4th DCA’s goal of enhancing predictability by creating a test that is intended to be less vague and to leave less room for arbitrariness. But I do not see how speculating about whether the jury considered particular evidence is any less vague than speculating about what result the jury would have reached if not for the error.

The 4th DCA also seems to have been concerned that its prior harmless error test was too stringent, i.e., that it made it too difficult to obtain a reversal. I have not done a statistical analysis, but I read almost every opinion issued by every DCA and the Florida Supreme Court. In my observation, which is informed but admittedly unscientific, the 4th DCA had as high a reversal rate before Special as any DCA in Florida.

So however its test was nominally described, I am not sure it was any more stringent in practice than the standards used by other DCAs. In my estimation, the 4th DCA’s ultimate formulation of the test, that an error will only be found to be harmless when the beneficiary of the error shows that is “more likely than not that the error did not contribute to the judgment” throws the balance too far in favor of reversal.

Under this test, I would expect that very few errors will be found to be harmless, and reversal will become increasingly common. As I said at the outset, there are errors in every trial. There is some evidence of this happening already. No doubt that is a good thing for parties that lose at trial. For parties that obtain favorable jury verdicts, not so much.

We Should Not Have to Wait Long for Clarification 

The real impact of the rule set down in Special has yet to be determined. The 4th DCA certified to the Supreme Court of Florida the question of what harmless error standard should be used in civil cases as a question of great public importance and the Supreme Court has taken up the issue. Briefing is complete, and the Supreme Court heard oral argument in April. It is now ripe for a ruling.

So we should not have too wait long to know how likely it will be that future mistakes, which will surely be made, will result in a new trial. 

In the past few years, the strangest things have started appearing in appellate decisions: images. That has been seen as so revolutionary that it has been widely covered in the legal press, with 7th Circuit opinions authored by Judge Richard Posner (as is often the case) drawing the most attention. The question is: why are judges now inserting images into their opinions?

The answer may be that astute judges are responding to the changing environment in which their opinions are being read. Appellate court opinions have been accessible online for years, and they are now more commonly read on “screens” — computers, iPads/tablets, and smartphones — than in books. And studies have shown that we read differently when looking at a screen than when looking at printed text on paper.

For example, here’s how scientists say our eyes track the data on a webpage:

Notice the concentration of red on the left hand border of the page created by the eye searching down the page for its structure. Note also how the eye tends to skip around.

Astute legal writers — especially appellate lawyers — would be wise to take note of how different the reading experience is on a screen, and to take it into account when drafting court submissions. That point was persuasively made during a presentation at the Florida Conference of District Court of Appeal Judges last fall (which I and other members of the Florida Bar’s Appellate Practice Section were fortunate enough to attend).

Judges (and their clerks) are increasingly reading appellate briefs and other court submissions on computer screens, and when travelling, on iPads, Kindles and other e-readers, or on smartphones. (An informal survey during another presentation at the conference revealed Florida appellate judges to be tech-savvy and partial to iPhones and iPads, although Android phones were also represented).

The trend toward screen-reading will only increase now that e-filing is replacing paper filing.

In order for an appellate brief or any piece of legal writing to be persuasive, it must command the reader’s attention. And to get and keep a reader’s attention when he or she is reading on a screen, attorneys need to adopt the format of their documents to fit the environment.

How? In much the same way as one makes a webpage easy to read and engaging. Here are some suggestions:

  • Add spacing — Text is easier to read when it is surrounded by white space. Increase margins.  Large block paragraphs extending from margin to margin are a relic of book reading. They are difficult to digest when read on a screen, particularly when read on a Kindle or similar e-reader.
  • Shorten the paragraphs. Not only do shorter paragraphs make the document more palatable to the eye (and increase white space), but they also account for the attention span issues that have been engendered by the digital age.
  • Use headings more liberally. Effective headings are alot like soundbites — they grab the reader’s attention and drive home the point quickly before that attention is lost. Hopefully, they also encourage the reader to continue to read and pay attention.
  • Insert document bookmarks. If you’ve opened a .pdf of a recent Florida Supreme Court opinion, you may have noticed a menu bar on the left hand side mapping out the sections of the opinion. Document bookmarks help the reader to get a feel for the overall structure of the document. They also help the reader to easily navigate between sections and arguments. When the reader must scroll up and down the screen to find sections, a traditional table of contents is a much less helpful roadmap than a bookmarks bar, where the reader can click right on the section he or she is looking for.

And finally there’s the most radical idea: illustration with images. This practice is the most obvious concession to the effect the internet and it remains relatively unorthodox and somewhat controversial. So a fair amount of tact and judgment is needed.

But when used appropriately, tactfully, and sparingly, images can be highly effective. (If the picture is worth 1000 words, it can also help to make the brief shorter, which judges always appreciate). If nothing else, images command attention. Just ask Judge Posner. 

As I mentioned in my last post, the Florida Supreme Court’s decision to approve the Florida Senate’s amended redistricting plan wasn’t the only late April 2012 decision to bring a measure of closure to unsettled legal issues. The stars seem to have aligned such that our state appellate courts as well the U.S. Court of Appeals for the 11th Circuit all released decisions in late April bringing a measure of closure on prominent, unsettled issues.

First, in Geico General Insurance Co. v. Virtual Imaging Services, Inc. (a/a/o Maria Tirado), No. 3D11-581,the 3rd DCA went a long way toward finding closure on the hotly contested issue of whether PIP insurers can take advantage of the reimbursement rate caps provided in the 2008 amendments to Florida’s No Fault/Personal Injury Protection Law if their policies don’t expressly state that the caps will be used. That issue, on which the 4th DCA had the first word among Florida appellate courts in its 2011 decision in Kingsway Amigo Insurance Company v. Ocean Health, Inc., has pre-occupied PIP lawyers ever since. I’ve also written multiple posts about it, including this one, this one, and this one.

In its Tirado decision, the Third District did a tremendous favor for opponents of the rule set down in Kingway Amigo (PIP insurers and their lawyers chief among them) by certifying the issue as a question of great public imporance. You may recall that the lack of an express and direct conflict among the District Courts of Appeal on the issue has prevented the Florida Supreme Court from stepping in end the controversy.

But now the issue has been certified as a question of great public importance, the Florida Supreme Court can exercise jurisdiction to review Tirado even without a conflict among the DCAs. If the Supreme Court chooses to do so, as the ultimate arbiter of Florida law, it can bring closure to this ongoing PIP battle. I’m guessing that it will.

Second, in the parallel cases of Calder Race Course, Inc. v. Florida Department of Business and Professional Regulation, West Flagler Associates, Ltd. v. Fla. DBPR, and Florida Gaming Centers, Inc. v. Fla. DBPR, the Florida Supreme Court brought closure on the issue of whether the legislature validly exercised its Constitutional authority in enacting 2009 legislation that allowed Hialeah Race Track to operate slot machines. That legislative enactment had been challenged by the three Miami-Dade facilities that were already licensed to operate slot machines prior to the legislation, as discussed in this post. On the same day as its redistricting decision was released, the Supreme Court declined to exercise its discretionary jurisdiction over the competitors’ appeal from the 1st DCA’s decision upholding Hialeah Race Track’s authorization to operate slot machines.

Third, the 11th Circuit released its long awaited decision in FTC v. Watson Pharmaceuticals, Inc., (a/k/a In re: Androgel Antitrust Litigation) addressing the prominent antitrust/patent/health care law issue of the validity of so-called “reverse payment” or “pay for delay” settlements between pharmaceutical patent holders (i.e. name brand drug makers) and competing drug makers seeking to market generic alternatives. The FTC and the Antitrust Division of the DOJ, in addition to certain academics have fretted for years about such arrangements, and their effects on drug prices…

Continue Reading April Showers Bring Closure On Unsettled Legal Issues Too

Arbitration is thought to be a way to resolve disputes more quickly and without the burdens of litigation and appeals in court proceedings. More than 10 years ago, assisted living facilities and nursing homes in Florida began including arbitration agreements among the admissions documents new residents are required to sign. But judging from the seemingly endless litigation over their enforceability, these arbitration agreements have done anything but streamline litigation against such facilities.

Early versions of their agreements not only sought to prevent litigation through the court system, but also to preclude residents from taking advantage of some of the remedies available under the Florida Nursing Home Residents Rights Act, Florida Statutes § 400.01 et seq., and the Florida Assisted Living Facilities Act, Florida Statutes § 429.01 et seq., by including punitive damages waivers and caps on non-economic damages. But appellate courts have generally found such waivers unenforceable – particularly with regard to punitive damages. E.g., Romano v. Manor Care, Inc., 861 So. 2d 59 (Fla. 4th DCA 2004); Alterra Healthcare Corp. v. Estate of Linton, 953 So. 2d 574 (Fla. 1st DCA 2007).

Nonetheless, senior facilities apparently continue to believe arbitration offers advantages to them over litigating in the court system, and they continue to require residents to sign arbitration agreements. Perhaps for the same reasons, lawyers for injured residents continue to believe that proceeding in arbitration disadvantages their clients, and continue to challenge enforcement.

A decision by the Florida Supreme Court in one of those challenges, Laizure v. Avante at Leesburg, No. 10-2132, which is expected soon, could have potentially major ramifications.  The main issue in Laizure is whether a resident’s agreement to arbitrate claims is binding on his/her estate when the estate brings a wrongful death claim against the facility.

In October 2010, the 5th DCA ruled that an estate’s  wrongful death claim is derivative of care given to and injuries suffered by the resident, so the resident’s agreement to arbitrate is binding on his/her estate.  But the court certified the issue to the Florida Supreme Court as a question of Great Public Importance, and the Supreme Court agreed to hear the case.  The petitioners also argue that the arbitration agreement is unconscionable.

In the meantime, Florida’ District Courts of Appeal continue to confront challenges to arbitration agreements on other bases.  Three decisions in such cases were handed down last week, with mixed results.

Successful Challenges to Signatory Authority

Both the Second and Fourth District Courts of Appeal ruled in favor of plaintiffs who challenged the ability of the signer to bind other parties.

In Estate of Irons v. Arcadia Healthcare, L.C., No. 2D10-5712 (Fla. 2d DCA Aug. 5, 2011), the 2nd DCA refused to enforce an arbitration agreement because a nursing home resident’s daughter, who signed the arbitration agreement on her behalf, lacked authorization to enter into the agreement. The court concluded that the power of attorney (PoA) through which the resident appointed her daughter as her “healthcare surrogate” did not authorize her daughter to bind her to an arbitration agreement.

Although the PoA authorized her daughter “to make all health care decisions” for the resident, the resident remained “liable for signing admission or treatment papers for my health care, as I alone shall be responsible for such costs.” The 2nd DCA noted that courts must strictly construe the language of a PoA, and that a person’s attorney-in-fact can’t bind him/her to an arbitration agreement unless the PoA confers that power on the appointed person.

The PoA, the court explained, granted powers that related exclusively to healthcare decisions, not managing the resident’s property or legal claims. “We can say that the POA authorized Mrs. Springer to make health care decisions for her mother. The language of the POA, however, supports no conclusion that Mrs. Irons intended to authorize her daughter to act for her in matters related to her property rights or potential litigation with health care providers.” As such, she lacked the ability to sign the arbitration agreement on her mother’s behalf.

The Fourth District in LePisto v. Senior Lifestyle Newport L.P., No. 4D10-16 (Fla. 4th DCA Aug. 3, 2011) also refused to enforce an arbitration agreement based on a relative’s inability to represent the resident’s interests in signing the agreement. But in LePisto, the defect stemmed from the structure of the agreement rather than from limitations in a PoA.

In that case, in the admissions agreement (to which the arbitration agreement was an addendum), the resident’s wife “agree[d] to act as the ‘Financially Responsible Party’ and/or…the ‘Resident’s Representative.’” But she signed the arbitration agreement in the space designated for the “Financially Responsible Party” only, not the space designated for the “Resident’s Representative.”

Thus, the 4th DCA concluded, she agreed to arbitration only on her own behalf in her capacity as the “Financially Responsible Party.” Because she didn’t sign in her capacity as her husband’s representative, he wasn’t bound by the arbitration agreement. As such, the assisted living facility could not compel him to arbitrate claims relating to injuries he suffered while a resident.

An Attempt to Void for Unconscionability Falls Short

In FL–Carrollwood Care, LLC v. Gordon, No. 2D10–5751 (Fla. 2d DCA Aug. 5, 2011), however, the 2nd DCA found an arbitration agreement was not unconscionable, and enforced it over the objection of the estate of a former resident. The court rejected the contention that the arbitration agreement’s silence as to punitive damages meant that it precluded such damages, so it wasn’t unconscionable on that basis.

Although the agreement limited noneconomic damages to $250,000 and limited the resident’s ability to obtain discovery, the court questioned whether those limitations alone could render the agreement unconscionable. It noted however, that they did not preclude enforcement of the agreement, because an arbitrator could sever those portions of the agreement if it deemed them unconscionable.


What do these decisions mean for Laizure?  Probably very little.  Prior to Carrollwood, I didn’t think the petitioners’ unconscionability argument was likely to prevail, especially after the U.S. Supreme Court’s Concepcion decision (which I’ve covered previously) gave state courts good reasons to hesitate before declaring arbitration agreements to be unconscionable.  The 2nd DCA’s decision is in line with that thinking.

Perhaps the other two decisions might give hope to the petitioners, in expressing judicial hesitance to allow a representative to bind others to an arbitration agreement.  But the question in Laizure is more about the nature of a wrongful death cause of action than anything.   And just how the Florida Supreme Court will understand that cause of action remains to be seen.

However the Court rules, though, I expect that senior living facilities will continue to require residents to sign arbitration agreements, and that residents (and their families) will continue to contest those agreements enforceability.

It’s hard to confuse the First District Court of Appeal of Florida (in Tallahassee) with its namesake in California. It’s even harder to confuse with that court’s San Francisco neighbor, the U.S. Court of Appeals for the Ninth Circuit.  The 9th Circuit has a reputation (deserved or not) for issuing controversial decisions on hot button issues – often to the displeasure of the U.S. Supreme Court.

The 1st DCA (of Florida) has no such reputation. So some might be surprised by the outcome of two recent worker’ compensation appeals (the 1st DCA has jurisdiction over all workers’ compensation appeals). In recent weeks, the 1st DCA has handed down decisions in two separate cases affirming the right of immigrants working in the U.S. illegally to receive workers’ comp benefits.

In the first of those decisions, HDV Construction Systems, Inc. v. Aragon, No. 1D10–6401 (handed down on June 28, 2011), the 1st DCA held that an employer was on the hook for permanent total disability (PTD) benefits for an unauthorized worker because it knew or should have known that he could not work legally in the U.S., but continued to employ him anyway until he was permanently injured.

In the second, Garcia-Lopez v. Affordable Plumbing/Vinings Insurance Company, No. 1D10–4949 (issued on July 18, 2011), the 1st DCA required an employer to cover workers’ comp benefits for a Mexican immigrant (employed through a third party with knowledge of his status) who was underage in addition to lacking authorization to work in the U.S., rejecting the argument that he could only be compensated for lost income if he proved that he reported his income to the IRS.

What happened?  Has the ideological outlook of San Francisco overtaken Tallahassee?! I don’t think so, as I’ll explain below.

Continue Reading Illegal Immigrant Workers’ Comp Claimants Win 2 Rounds in the 1st DCA

Long before foreclosure lawsuits flooded Florida court dockets, chief judges here and throughout the country were fretting over how to deal with the even more daunting “asbestos-litigation crisis” [Amchem Products, Inc. v. Windsor, 521 U.S. 591, 597 (1997)]  That ongoing and seemingly endless litigation has been flooding the courts since the 1960s and in the words of Justice Souter, “defies customary judicial administration.” Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999).

Other mass torts (a/k/a toxic torts) have come and gone, but asbestos litigation – the first of the species – lives on. As long as it does, so will legislative and judicial efforts to control, limit, or end asbestos litigation.

Joining several other states, the Florida Legislature passed legislation aimed at curbing asbestos litigation in 2005. Asbestos plaintiff lawyers, who had lobbied hard against the legislation’s passage, challenged it in court almost immediately.

On Friday, July 8, 2011, the Florida Supreme issued its long awaited decision in several of those challenges, American Optical Corporation v. Spiewak, Nos. 08-1616, 08-1640, 08-1617, & 08-1639.  The Court declared the law to be unconstitutional as applied to anyone whose claims had “accrued,” but had not gone to trial, prior to July 1, 2005.

The decision allows a group of plaintiffs to sue who could not have sued under the legislation.  The question is how large that group might be.  According to Adolfo Pesquera’s article in the DBR, some are suggesting that this decision will “open the floodgates.” But I have serious doubts about that.

As I read the decision, it won’t affect anyone who wasn’t diagnosed before the asbestos reform law went into effect on July 1, 2005. According to the Court, if you were diagnosed before that date, it was unconstitutional for the legislation to deprive you of your right to sue, because your claim had already accrued. 

But when your claim accrued, the statute of limitations started running on your claims. The statute of limitations is 4 years. It’s been almost 6 years since July 1, 2005. So if you didn’t haven’t filed suit already, it would seem to be too late now to do so.

So I’m not sure that any new suits can be filed.  And if other plaintiffs did file suit, their cases would presumably have been dismissed long ago under the auspices of the reform law.  Unless they were stayed pending the Court’s decision in American Optical, it would too late to revive most of them now.

A more detailed analysis of the backdrop of the case and the court’s analysis follows.


Continue Reading Florida Supreme Court Restricts Reach of Asbestos Litigation Reform Law

Real electronic filing may finally make its way to Florida courts in the not-too-distant future.  But before that happens, the Florida Supreme Court wants to make sure that there isn’t too much private information in court filings for the public to access.

On June 30, 2011, the Court adopted sweeping new rules about what information can and can’t be put in the court file.  Florida litigators who want to avoid the sanctions that can be imposed for violating the new rules shouldn’t wait too long to become familiar with them — they are going into effect on October 1, 2011.

For the time being, the privacy rules don’t affect criminal cases, for the most part, but they affect all civil cases.  And the reprieve in criminal cases isn’t likely to last very long.

Here is a breakdown of the Rule changes you need to know:

Florida Rule of Judicial Administration 2.425

Rule of Judicial Administration 2.425, which was added by the Court’s June 30, 2011 Amendments, contains the overarching principles. So if you learn that Rule (and remember to apply it in whatever context you find yourself) you’ll be most of the way there. But one caution: Rule 2.425 only states a default rule — it gives way to conflicting Rules, statutes, and orders.

This chart spells out the types of information that are subject to Rule 2.425:

Restricted Info:     Can include in a filing?           Exceptions:

Child’s Name           Initials only                        Orders re: time-sharing, parental
                                                                   responsibility, or child support. 
                                                                   Any document re: child’s ownership of real property.
Birthdates               Year only                           Any party’s full birthdate in writ of attachment
                                                                   or notice to payor. Child’s full birthdate when
                                                                   necessary for jurisdiction.
Social Sec. #s              No                               General exceptions
Bank Account #s           No                               General exceptions
Credit/Debit Card #       No                               General exceptions
Charge Account #          No                               General exceptions
Drivers License #          Last 4 digits only            General exceptions
Passport #                   Last 4 digits only            General exceptions
Taxpayer ID #              Last 4 digits only            General exceptions
Employee ID #             Last 4 digits only            General exceptions
Phone #                      Last 4 digits only            General exceptions
Insurance Policy #         Last 4 digits only            General exceptions
Loan #                        Last 4 digits only            General exceptions
Patient/health care #      Last 4 digits only            General exceptions
Customer Accont #        Last 4 digits only            General exceptions
Email address               Truncated                      General exceptions
User name                   Truncated                      General exceptions
Password                     Truncated                      General exceptions
PIN #s                        Truncated                      General exceptions
Other sensitive info:      Truncated as per court order

General Exceptions:

  • Statute, Rule or Order authorizes the inclusion of the information in a filing
  • Account number is necessary to identify property at issue in a case.
  • Information that is “relevant and material to an issue before the court.” [!!! This looks to me like an exception that you could drive a truck through.  It’ll be interesting to see how courts interpret it.]
  • Records in an administrative, agency, appellate, or review proceeding.
  • Information used by the clerk or the court for file and case management purposes.
  • Criminal cases are temporarily exempt.
  • Traffic court cases are temporarily exempt.
  • Small claims cases are temporarily exempt.

A Few Other Notes:

What effect does Rule 2.425 have on parties’ ability to obtain a protective order?  According to the Rule itself, none.  But I’d be surprised if judges’ opinions on what information should be kept private were not influenced by the views of the Supreme Court as expressed in Rule 2.425.

The Rule also claims that it “does not affect the application of constitutional provisions, statutes, or rules of court regarding confidential information or access to public information.”  I’m not sure how that could be so, but again, we’ll see how courts interpret that subsection.

The Court is also amending quite a few other Rules to accomodate Rule 2.425.  Changes are being made to the Rules of Civil Procedure, particularly with regard to filing discovery documents, the Family Law Rules of Procedure, the Rules of Appellate Procedure, Probate Rules, and to a lesser extent, Criminal Procedure and Small Claims Rules, as well as several forms.

The amendments to those rules and forms are listed below. 

Continue Reading A Primer on the New Privacy Rules for Florida Court Filings

It must be a trial lawyer’s worst nightmare. You’re in the middle of the trial you spent months preparing for. Your opening went well. Your witnesses are doing great. You can see that your client’s case is resonating with the jury. Your clients are looking hopeful. Opposing counsel isn’t.

You’re about to rest your case-in-chief. You ask the court for a recess so you can make sure opposing counsel has agreed to necessary stipulations, and that you’ve covered all of your bases. Opposing counsel moves for a directed verdict.

You’re suing a state hospital, and opposing counsel refers the court to Florida Statutes Section 768.28, the state’s limited waiver of sovereign immunity. You go through the statute in your mind. Subsection (6) – did I give written notice to the defendant and the DFS within 3 years of the time the claim accrued? Yes. Did I wait 6 months before filing the complaint? Yes.

Then you come to Subsection (7). Did I serve the complaint on the defendant? Yes, of course. Did I serve a copy of the complaint on the DFS? Uh-oh.

You call your office to arrange to get a copy of the complaint served on the DFS immediately. But is it too late? You feel your stomach tighten. You see visions of your clients’ files being flushed down the toilet. You can almost hear the judge granting a directed verdict. You wonder how much the defendant’s bill of costs will be. You imagine yourself telling your clients that you’ve lost. You hope they won’t cry. You hope they won’t sue you.

Okay, breathe. If you’ve gotten this far, you might just be able to keep going.

Yes, that’s right. In a case then known as Acanda v. Public Health Trust of Miami-Dade County, a Miami-Dade County Circuit Judge reserved judgment, then denied, a motion for directed verdict, even though the DFS wasn’t served until mid-trial. The jury found for the plaintiff. The 3rd DCA affirmed.

And in Public Health Trust of Miami-Dade County v. Acanda, No. SC10-302 (released June 23, 2011), the Florida Supreme Court (per Justice LaBarga) upheld the jury’s verdict. Why?

The Analysis:

The Supreme Court’s reasoning was threefold.

First, the Court agreed with the 5th DCA’s conclusion in Turner v. Gallagher, 640 So.2d 120, 122 (Fla. 5th DCA 1994), that unlike pre-suit notice under Subsection 768.28(6), service under Subsection (7) is not a “condition precedent” to bringing suit, and it doesn’t require that service be made at a particular time. So the plaintiff satisfied Subsection (7) when she served the DFS mid-trial, whether or not she did so before resting her case-in-chief.

Second, the Court held lack of service on the DFS under Subsection (7) is an affirmative defense, rather than an element on which the plaintiff bears the burden of proof. It reasoned that even the notice requirements of Subsection (6), which are conditions precedent to suit, aren’t “elements of the cause of action.” So the Subsection (7) service requirements, which aren’t conditions precedent, surely can’t be elements of the cause of action. As such, a directed verdict can’t be granted based on a failure to prove service on the DFS in the case-in-chief.

Third, the Court took issue with how the defendant attempted to allege noncompliance with Subsection (7) within the affirmance defense of failure to state a cause of action. To properly raise the issue, “such noncompliance must be pled with specificity and particularity.”

Rather than covertly stating the defense as “a ‘gotcha’ tactic,” the Court explained, it should be spelled out, and raised by pre-trial motion. The Court roundly condemned what it saw as the defendant’s “practice of trial by surprise,” in failing to allege this affirmative defense in sufficient detail as to put the plaintiff on notice that it related to service under Subsection (7).

Some Observations:

  1. The Court’s concern with vague pleading of affirmative defenses makes sense.  But how far does it go?  It’s fairly common for defendants to plead defenses generally.  Was the Court rejecting that practice generally in favor pleading defenses “with specificity and particularity”?
  2. It’s unclear what compelled the second part of the Court’s reasoning.  Extrapolating from Subsection (6), the Court concludes that service on the DFS isn’t an element of the cause of action, so the plaintiff can’t bear the burden of proof on it.  But in Levine v. Dade-County Schoolboard, 442 So.2d 210 (Fla. 1983) the Court held that the plaintiff does bear the burden of proof as to compliance with Subsection (6) even though it’s explicitly not an element of the cause of action.  And while lack of service in general is a defense, Florida Rule of Civil Procedure 1.140, the plaintiff still bears the burden of proving service.  See Re-employment Servs., Ltd. v. National Loan Acquisitions Co., 969 So. 2d 467 (5th DCA 2007).  Why not deal with service under Subsection (7) in the same manner?