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FLORIDA JUSTICE REFORM INSTITUTE AMICUS CASES


Sanchez v. Security First Insurance Co., No. 3D22-1109 (Fla. 3d DCA Mar. 6, 2024)

In Sanchez, the Third District Court of Appeal affirmed dismissal of a complaint for failure to comply with section 627.70152, Florida Statutes—a statute made effective July 1, 2021, which requires an insurance claimant to provide a notice of intent to initiate litigation to the Department of Financial Services (“DFS”) prior to filing suit.

In August 2021—after section 627.70152 went into effect—Sanchez filed suit against her insurer, Security First Insurance Company (“Security First”), alleging breach of her insurance contract. Sanchez did not notify DFS before filing suit in accordance with the statute. Consequently, Security First moved to dismiss the complaint for failure to comply with the statute. The trial court granted the motion, over arguments that the statute should not apply because it impermissibly impacted an insurance policy in effect before section 627.70152 became law.

On appeal, the Florida Justice Reform Institute wrote an amicus brief in support of Security First, arguing that the Court should effectuate legislative intent and apply section 627.70152 as written—i.e., to require presuit notice for any lawsuit filed on or after the statute’s effective date of July 1, 2021—and affirm the trial court’s order.

The Third District agreed and issued a short affirmance, citing its own prior decision, Cantens v. Certain Underwriters at Lloyd’s London, No. 3D22-0917 (Fla. 3d DCA Feb. 14, 2024), as holding that section 627.70152 is procedural in nature and applies to all insurance policies, regardless of the date of inception. In a special concurrence, Judge Scales wrote that the Court was bound to affirm based on its decision in Cantens, but he disagreed with Cantens as he believes the statute imposes new substantive burdens on policyholders and should not apply to preexisting insurance policies.

The Florida Justice Reform Institute was represented by William W. Large and Kara Rockenbach Link of Link & Rockenbach, P.A.

3rd DCA

11th Circuit Court of Appeals

Drazen v. Pinto, Case No. 21-10199 (11th Cir. July 24, 2023)

            In Drazen v. Pinto, the Eleventh Circuit ruled that a single unsolicited text message sent in violation of the Telephone Consumer Protection Act (“TCPA”) caused sufficient injury to confer standing to sue in federal court.

This case began when Drazen filed a complaint against GoDaddy.com in federal court, alleging that GoDaddy had violated the TCPA when it called and texted Drazen solely to market its services and products through a prohibited automatic telephone dialing system. Drazen’s case was consolidated with similar cases and treated as a class action. After negotiating with GoDaddy, the plaintiffs submitted a proposed class settlement agreement to the district court which would define the class, in relevant part, as “[a]ll persons within the United States who received a call or text message to his or her cellular telephone from Defendant from November 4, 2014 through December 31, 2016.” When a question was raised as to the standing of class members who received only one unwanted message, the district court determined that only the named plaintiffs must have standing and approved the class and proposed settlement. A class member objected and appealed.

            On appeal, a panel of the Eleventh Circuit initially reversed because the class definition was defective, observing that, under prior precedent, “a single unwanted text message is not sufficient to meet the concrete injury requirement for standing. So, the class definition cannot stand to the extent that it allows standing for individuals who received a single text message from GoDaddy.” The Eleventh Circuit subsequently vacated the panel’s decision and ordered rehearing en banc, requesting specific briefing on the following issue: Does the receipt of a single unwanted text message constitute a concrete injury sufficient to confer Article III standing under the TCPA?

            The Florida Justice Reform Institute submitted an amicus curiae brief for consideration during the en banc rehearing. In its brief, the Institute argued that receipt of a single unwanted text message was not enough to confer standing, as such a bare statutory violation lacks a close relationship to the harm required to find standing to sue under similar torts. For example, under the comparable, common-law tort of intrusion upon seclusion, there is no liability for one, two, or three phone calls.

            Unfortunately, the Eleventh Circuit disagreed, ruling that a single unwanted text message is enough to create concrete injury and standing to sue under the TCPA. The Court was also swayed by the fact that every other circuit court of appeals to have considered the question had reached a similar result.

The Institute was represented by William W. Large and Jason Gonzalez, Jessica Slatten and Amber Stoner Nunnally of Shutts & Bowen LLP.

Parrish v. State Farm Florida Insurance Co., Case No. SC21-172 (Fla. Feb. 9, 2023)

            In Parrish, the Florida Supreme Court confirmed that a public adjuster who has a contingency interest in an insured’s appraisal award or who represents an insured in an appraisal process may not serve as a “disinterested appraiser” under an insurance policy’s appraisal provision.

In the underlying case, Parrish submitted a claim to State Farm for damages to his house caused by Hurricane Irma and retained a public adjusting company to represent his interests regarding the claim.  The public adjusting company also received a contingency interest in the outcome of the claim.  After the adjusting company provided a loss amount that State Farm disputed, the parties proceeded to appraisal as outlined in the policy.  Parrish attempted to designate the president and namesake of the adjusting company as the “disinterested appraiser” to oversee that process.  State Farm objected.  The Second District Court of Appeal held that the appraiser selected by Parrish was not a “disinterested appraiser” under the policy’s appraisal provision. 

            On review at the Florida Supreme Court, the Florida Justice Reform Institute submitted an amicus brief in support of State Farm, arguing that to the extent older, purportedly “conflicting” decisions might support a holding that such an interested appraiser could serve, such decisions relied on outdated authorities and failed to recognize the current legal landscape where Florida’s property insurance crisis has worsened and related litigation has steadily climbed.

            The Florida Supreme Court affirmed, looking to the plain language of State Farm’s policy to confirm that a “disinterested” party is one who does not have a pecuniary interest in the manner at hand.  In line with the Institute’s arguments, the Court also rejected Parrish’s contention that older district court of appeal decisions should change the result.  Thus, because the proposed appraiser undoubtedly had a pecuniary interest, he could not serve as a “disinterested” appraiser.

The Institute was represented by William W. Large and Jason Gonzalez, Elise Engle and Amber Stoner Nunnally of Shutts & Bowen LLP. 

Florida Supreme Court

5th DCA

Coates v. R.J. Reynolds Tobacco Co., Case No. SC21-175 (Fla. Jan. 5, 2023)

In Coates, the Florida Supreme Court held that a trial court in a wrongful death action abuses its discretion by denying remittitur of a punitive damages award that does not bear a reasonable relation to the damages proved and the injuries suffered by the statutory beneficiaries. 

In the underlying case, an estate brought a wrongful death action against R.J. Reynolds Tobacco Co., alleging that the decedent died as a result of lung cancer caused by smoking cigarettes.  The jury found R.J. Reynolds liable on a strict liability claim and awarded $150,000 in compensatory damages against R.J. Reynolds.  The jury’s verdict specified that the compensatory damages were to compensate the decedent’s children for the loss of parental companionship, instruction, and guidance, and for their mental pain and suffering as a result of their mother's lung cancer and death.  However, the jury also awarded the plaintiff $16 million in punitive damages.  R.J. Reynolds filed a motion for new trial or remittitur to reduce the damages award, arguing that the punitive damages award was excessive, which the trial court denied.  On appeal, the Fifth District reversed the punitive damages award as excessive under both Florida and federal law. 

The Florida Justice Reform Institute, in an amicus brief joined by the U.S. Chamber of Commerce and the American Tort Reform Association, argued to the Florida Supreme Court that a punitive damages award that is 106.7 times a substantial compensatory damages award is excessive and facially unlawful.

The Florida Supreme Court agreed, finding that the trial court abused its discretion in denying remittitur because no reasonable trial court could have concluded that a $16 million punitive damages award bears a reasonable relation to a $150,000 compensatory damages award.

Accordingly, the Court approved the Fifth District's decision reversing the punitive damages award. 

The Institute was represented by William W. Large and Joseph H. Lang, Jr., of Carlton Fields, P.A.

Dial v. Calusa Palms Master Association, Inc., 337 So. 3d 1229 (Fla. 2022)

In Dial, the Florida Supreme Court confirmed that the holding in Joerg v. State Farm Mutual Automobile Insurance Co., 176 So. 3d 1247 (Fla. 2015)—which prohibited the introduction of evidence of Medicare benefits in a personal injury case for consideration of future medical expenses—does not apply to past medical expenses.

In this slip and fall case, the trial court had granted a motion in limine that precluded Dial from introducing as evidence the gross amount of her past medical expenses and limited her to introducing only the discounted amounts paid by Medicare.  Dial argued on appeal that Joerg allowed her to admit the full amount of her past medical expenses as evidence.  The Second District Court of Appeal affirmed, finding that Joerg applied only to future Medicare benefits.

The Florida Justice Reform Institute, along with the Florida Trucking Association, Florida Chamber of Commerce, and American Property Casualty Insurance Association, submitted an amici curiae brief in support of the respondent-defendant.  The amici argued that the Florida Supreme Court should approve the Second District’s decision because it maximizes transparency in medical billing practices, comports with longstanding principles as to the purpose of compensatory damages, and enhances the truth-finding function of trials. 

The Florida Supreme Court approved the Second District’s decision.  The Court emphasized that Joerg, “precluding the admission of evidence of a plaintiff’s eligibility for future Medicare benefits, dealt with only future medical expenses.”  Thus, the Court reasoned simply, “Joerg has no application to the past medical expenses issue in the present case.”

The Institute was represented by Edward G. Guedes of Weiss Serota Helfman Cole & Bierman, P.L.

Florida Supreme Court

Florida Supreme Court

R.J. Reynolds Tobacco Co. v. Prentice, 338 So. 3d 831 (Fla. 2022)

In R.J. Reynolds Tobacco Co. v. Prentice, Case No. SC20-291 (Fla. Mar. 17, 2022), the Florida Supreme Court resolved a district court split over what proof is required to prevail on the reliance element of fraudulent concealment and conspiracy claims made against defendant tobacco companies in Engle progeny suits.  In the underlying case, John Price got chronic obstructive pulmonary disease after smoking multiple packs of R.J. Reynolds cigarettes a day for most of his adult life.  Price sued R.J. Reynolds on various theories; after Price’s death, Linda Prentice maintained the lawsuit as a wrongful death action.  After Prentice won at trial, R.J. Reynolds appealed to the First District regarding a jury instruction given about the reliance element of Prentice’s claims.  The First District agreed with R.J. Reynolds that the jury instruction given was prejudicial error because neither the jury instruction nor any other instruction informed the jury of the need to find that Price had actually relied on a statement made by the defendant.  Prentice invoked the Florida Supreme Court’s discretionary jurisdiction on the basis of a conflict between the First, Second, Third, and Fourth Districts regarding whether reliance on a statement by the defendant tobacco company is necessary to prevail on Engle progeny claims.

The Institute filed an amicus curiae brief in support of R.J. Reynolds in the Florida Supreme Court, and also took the opportunity to challenge the preclusive effect applied by the Court to certain Engle findings.

The Florida Supreme Court sided with R.J. Reynolds without endorsing prior decisions giving preclusive effect to Engle findings.  Specifically, the Court held that an Engle progeny plaintiff must prove reliance on a statement that was made by an Engle defendant (for a concealment claim) or co-conspirator (for a conspiracy claim) and that concealed or omitted information about the health effects or addictiveness of smoking cigarettes.

The Institute was represented by William W. Large and Christine R. Davis and Joseph H. Lang, Jr., of Carlton Fields, P.A.

Tampa Elec. Co. v. Gansner, 327 So. 3d 1281 (Fla. 2d DCA 2021)

This case concerned workers’ compensation immunity.  Gansner and Carter were employees of Zachry Industrial, with whom Tampa Electric Co. had contracted to provide maintenance work at a power station.  The underlying suit stemmed from an accident that occurred at the power station in which Gansner and Carter were injured; both sued Tampa Electric for their injuries.  Tampa Electric argued it was entitled to workers’ compensation immunity and filed a motion for summary judgment on this defense and others.  Tampa Electric argued that it was the “statutory employer” of Gansner and Carter pursuant to section 440.10(1)(b), Florida Statutes, and as such, their exclusive remedy was workers’ compensation benefits that they had received from their employer, Zachry Industrial. 

The trial court denied the motion.  The Second District Court of Appeal initially affirmed on the basis that Tampa Electric did not contractually sublet a part of its work to Zachry Industrial within the meaning of section 440.10(1)(b) and thus was not a “statutory employer” entitled to workers’ compensation immunity.  The appellate court rejected Tampa Electric’s arguments that that it had an obligation to its customers to maintain its electrical generating equipment pursuant to its tariff and that it sublet that obligation to Zachry Industrial.

Tampa Electric moved for rehearing and the Florida Justice Reform Institute filed an amicus curiae brief in support of that request.  The Institute argued that the plain language of the “statutory employer” provision extended to these circumstances.

The Second District granted rehearing and reversed, substituting its prior opinion with one that agreed with Tampa Electric and the Institute.  It held that Tampa Electric had an implicit contractual obligation to maintain its equipment under its tariff because maintaining that equipment is essential to its fulfillment of its explicit obligation to supply electricity.  Therefore, when Tampa Electric subcontracted maintenance work to Zachry Industrial, it sublet to Zachry Industrial this implied obligation and Tampa Electric was thus a “statutory employer” entitled to workers’ compensation immunity.

FJRI represented by Tiffany Roddenberry of Holland & Knight, LLP and William W. Large.

2d DCA

Florida Supreme Court

Dodgen v. Grijalva, 331 So. 3d 679 (Fla. 2021)

In Dodgen, a defendant in an automobile negligence case was ordered to provide information regarding the relationship between his experts and non-parties.  The trial court authorized the discovery, and the Fourth District affirmed and certified a question of great public importance about whether the protections against such discovery when propounded on plaintiffs’ experts offered in Worley v. Central Florida Young Men’s Christian Association, 228 So. 3d 18 (Fla. 2017), should be extended to defendants.

In an amicus brief joined by the Chamber of Commerce of the United States of America, the Institute argued that Worley has created an untenable situation in which lower courts are treating plaintiffs and defendants differently when it comes to who may engage in financial bias discovery, undermining the fundamental fairness of the civil justice system.  The amici asked the Court to correct the errant ruling in Worley or at least limit its scope. 

Unfortunately, the Florida Supreme Court declined to take up that opportunity, finding that the ruling under review did not depart from “clearly established law” as the “plaintiffs-only” Worley decision was not applicable to these facts.

The Institute was represented by William W. Large and Jason Gonzalez and Amber Stoner Nunnally of Shutts & Bowen LLP. 

Younkin v. Blackwelder, 331 So. 3d 686 (Fla. 2021)

In Younkin, a defendant in an automobile negligence case was ordered to provide information regarding the relationship between his experts and non-parties, including the defendant’s law firm and the defendant’s insurer.  The trial court authorized the discovery, even though under Worley v. Central Florida Young Men’s Christian Association, 228 So. 3d 18 (Fla. 2017), similar discovery may not be obtained from a plaintiff.  The Fifth District Court of Appeal held that the discovery was permissible, but certified a question of great public importance to the Florida Supreme Court: whether Worley should apply to preclude a defense law firm from having to disclose its financial relationship with experts. 

In an amicus brief joined by the Chamber of Commerce of the United States of America, the Institute argued that Worley has created an untenable situation in which lower courts are treating plaintiffs and defendants differently when it comes to who may engage in financial bias discovery, undermining the fundamental fairness of the civil justice system.  The amici asked the Court to correct the errant ruling in Worley or at least limit its scope. 

Unfortunately, the Florida Supreme Court declined to take up that opportunity, finding that the ruling under review did not depart from “clearly established law” as the “plaintiffs-only” Worley decision was not applicable to these facts.

The Institute was represented by William W. Large and Jason Gonzalez and Amber Stoner Nunnally of Shutts & Bowen LLP. 

Gavel

Florida Supreme Courtroom

Suzuki Motor Corp. v. Winckler, No. SC19-1998, 2021 WL 3778726 (Fla. Aug. 26, 2021)

Suzuki concerned the “apex doctrine”—a doctrine that traditionally protects high-ranking employees and officials from burdensome and harassing discovery.  Here, the plaintiff claimed that the brakes on his Suzuki motorcycle failed, causing him to crash.  Four months after the accident, Suzuki Motor Corp. issued a recall on the brakes at issue.  The plaintiff filed a products liability suit against Suzuki.  In the course of discovery, the plaintiff sought a “letter rogatory”—essentially, a request to take a foreign deposition—from the trial court in order to take the deposition of the Chairman of the Board of Suzuki in Japan, on the claimed basis that the Chairman “possesses unique knowledge about specific facts relevant to [the] allegations.”  Suzuki pushed back, arguing that under the apex doctrine, its top-level corporate manager should not be subject to examination on such issues.  The First District Court of Appeal held that the apex doctrine did not apply, as the doctrine is only clearly established as applying in the government context to high-ranking government officials.

On review to the Florida Supreme Court, the Institute and the Chamber of Commerce of the United States of America authored an amicus brief in support of Suzuki, arguing that the failure to extend the apex doctrine to high-level corporate managers authorizes the use of discovery to harass defendants and force them into settling meritless cases. 

On August 26, 2021, the Court agreed that the apex doctrine should extend to the corporate context, and addressed the problem outlined in Suzuki through a change to the Florida Rules of Civil Procedure themselves—so that the Court would not be “constrained by the limited scope of . . . review” afforded in Suzuki and could adopt clear guidelines for the apex doctrine.  The change takes place immediately and applies in pending cases.  See In re: Amend. to Fla. R. Civ. P., No. SC21-929 (Fla. Aug. 26, 2021).

The Institute was represented by William W. Large and Jason Gonzalez and Amber Stoner Nunnally of Shutts & Bowen LLP. 

Peoples Gas Sys. v. Posen Constr., Inc., 322 So. 3d 604 (Fla. 2021)

Peoples Gas System concerns the interpretation and application of the Florida Underground Facility Damage Prevention and Safety Act (the “Act”).  The Act creates a system to provide member-operators (including, for example, utilities like Peoples Gas System (“PGS”)) with advance notice of excavation activity in areas where such work could impact underground facilities.  Posen Construction’s employee excavated an area that was not properly marked as required under the Act, rupturing PGS’s natural gas pipeline.  Posen’s employee filed a personal injury action related to the injuries he sustained, and PGS sought to recover the money it paid to settle that matter as “losses” recoverable under the Act.  A federal district court dismissed PGS’s action, and PGS appealed to the U.S. Court of Appeals for the Eleventh Circuit, which in turn certified the following question to the Florida Supreme Court: Does a member-operator have a cause of action under the Act to recover damages (or obtain indemnification) from an excavator for payments to a third party for personal injuries related to the excavator’s alleged violation of the statute?

The Institute submitted an amicus brief in support of PGS to the Florida Supreme Court, as the plain and unambiguous terms of the Act permit recovery of damages or indemnification against excavators whose violations of the Act result in losses.  The Institute argued that denying a plaintiff member-operator, such as PGS, its statutory right to recover the losses it suffered because of an excavation accident caused by the excavator would improperly render provisions of the Act meaningless.

On June 10, 2021, the Court issued an opinion in which it disagreed with the Institute and PGS, ultimately ruling that the statute creates a standalone cause of action sounding in negligence (and not a statutory indemnification action along the lines advocated by PGS and the Institute).  The Court also outlined a framework for considering and resolving the claim, but left it to the federal court to apply that framework.

In a dissent joined by Justice Labarga, Justice Polston stated that he would have answered the narrow certification question in the affirmative, based on the plain language and meaning of the Act.

The Institute was represented by William W. Large and Frank A. Shepherd of GrayRobinson, P.A. 

Florida Supreme Court

Florida Supreme Court

In re Amends. to Fla. R. Civ. P. 1.510, 317 So. 3d 72 (Fla. 2021)

On April 29, 2021, the Florida Supreme Court formally adopted the summary judgment standard applicable in the federal courts and in the supermajority of states—a standard that will improve the fairness and efficiency of Florida’s civil justice system, relieve parties from the expense and burdens of meritless litigation, and save the work of juries for cases where there are real factual disputes that need resolution.

The decision follows a late December 2020 order in which the Court signaled its intent to adopt the federal standard.  As part of that order, the Court solicited public comment from interested parties on the proposed adoption, including whether and to what extent the federal procedural rule on summary judgment should be incorporated into the Florida rule.  The Florida Justice Reform Institute submitted a public comment supportive of the adoption of the federal standard.

With the benefit of those public comments and oral argument, the Court elected to adopt the entire text of the federal rule, Federal Rule of Civil Procedure 56, with some modest exceptions for timing-related issues.  The Court’s goal in adopting the majority of the federal procedural rule was to ensure the federal standard “take[s] root” in Florida and to “provide greater certainty and eliminate unproductive speculation and litigation over differences between [the federal and state] rules.”  The Court also helpfully mandated that trial courts elaborate upon the decision to grant or deny summary judgment, which will provide useful guidance to the parties and, if necessary, allow for appellate review. 

FJRI represented by William W. Large.

Gil v. Winn-Dixie Stores, Inc., 993 F.3d 1266 (11th Cir. 2021)

The U.S. Court of Appeals for the Eleventh Circuit confirmed that absent amendment of the law, Title III of the Americans with Disabilities Act (“ADA”) does not apply to businesses’ websites.

In Gil, a visually-impaired customer brought suit against Winn-Dixie Stores, Inc. under Title III of the ADA, challenging the fact that the grocery store chain’s website was incompatible with his screen-reading software that enabled him to read websites.  After a bench trial, a federal district court ruled in the plaintiff’s favor.  On appeal, the Florida Justice Reform Institute filed an amicus curiae brief in support of Winn-Dixie, arguing that the ADA’s plain language does not extend its requirements to businesses’ websites.  The Eleventh Circuit agreed, ruling that it was up to Congress to expand the ADA to encompass businesses’ websites as places of public accommodation within the meaning of Title III of the act.

FJRI represented by Carol C. Lumpkin and Stephanie N. Moot of K&L Gates LLP.

11th Circuit Court of Appeals

Gavel

In re Amends. to Fla. R. Jud. Admin. 2.140, 317 So. 3d 1050 (Fla. 2021)

The procedural rules applied by Florida courts—like the summary judgment rule—have serious consequences for case outcomes.  Previously, rule changes were subject to a lengthy process, typically occurring only once every three years.  In this rules case, the Florida Supreme Court sought comment on a proposal to amend the rulemaking process to allow the Florida Bar’s rules committees to propose and the Court to adopt procedural rule changes in a more efficient, timely manner.  The Court’s proposed amendments would largely do away with the ponderous, three-year-cycle review process and allow the Bar’s rule committees to propose changes to the Court whenever deemed necessary.  The Institute submitted a public comment in support of these changes.  On January 28, 2021, the Court formally adopted the streamlined process.

FJRI represented by George Meros of Shutts & Bowen LLP and William W. Large.

Wilsonart, LLC v. Lopez, 308 So. 3d 961 (Fla. 2020)

In Wilsonart, the Florida Supreme Court signaled its intent to adopt the federal summary judgment standard—a standard which will vastly improve the fairness and efficiency of Florida’s civil justice system. 

In the underlying case, the plaintiff, a decedent’s estate, sued defendant Wilsonart alleging that the defendant’s truck driver caused the crash which killed the decedent.  Wilsonart, however, successfully moved for summary judgment on the basis of clear video evidence taken by the truck’s dashboard camera which showed that Wilsonart’s driver was not at fault.  In opposition, the estate produced eyewitness testimony that contradicted the video.  On appeal, the Fifth District Court of Appeal said it was compelled by Florida’s current standard to reverse the grant of summary judgment to Wilsonart given the existence of the nonmovant’s “conflicting evidence.”  The Florida Supreme Court agreed to hear the case.

At the Florida Supreme Court, the Florida Justice Reform Institute together with the Florida Trucking Association (“FTA”) wrote an amicus brief in which they argued that the Court should adopt the federal summary judgment standard which does not authorize a trial court to ignore clear, objective evidence in evaluating summary judgment.  The Florida Supreme Court agreed with the Institute and the FTA, holding that Florida should adopt the federal summary judgment standard.  The Court, however, elected to make that change through a prospective rule amendment taking effect on May 1, 2021.  See In re Amends. to Fla. R. Civ. P. 1.510, No. SC20-1490 (Fla. Dec. 31, 2020). 

FJRI represented by William W. Large and Edward G. Guedes and Eric S. Kay of Weiss Serota Helfman Cole & Bierman, P.L. 

Courtroom

Florida Supreme Court

Lieupo v. Simon’s Trucking, Inc., 286 So. 3d 143 (Fla. 2019)

In Lieupo, the plaintiff, a tow truck driver, sued after he was injured while responding to an accident involving a vehicle owned by Simon’s Trucking that had spilled battery acid onto a highway.  The plaintiff filed his complaint under section 376.313(3), Florida Statutes, which imposes strict liability for the discharge of certain types of pollutants.  A jury returned a verdict of $5.2 million for the plaintiff, including $4 million for past and future pain and suffering.  As amicus, the Institute argued that section 376.313(3) does not authorize a strict liability cause of action for personal injury damages, as under the Florida Supreme Court’s prior precedent, the statute provided only for recovery of damages for loss of property or destruction of the environment and natural resources.  The Florida Supreme Court disagreed, receding from its prior precedent and holding that the statute permitted the recovery of personal injury damages.

 

FJRI represented by Frank A. Shepard of GrayRobinson, P.A. and William W. Large.

Poole v. DeFranko, 290 So. 3d 552 (Fla. 3d DCA 2019)

In Poole, the defendant doctor sought to have the medical malpractice noneconomic damages awarded against him reduced in conformance with the limitations imposed by sections 766.207 and 766.209, Florida Statutes. The trial court, however, ruled that these provisions were unconstitutional as violating equal protection, citing the Florida Supreme Court’s decisions in Estate of McCall v. United States, 134 So. 3d 894 (Fla. 2014), and North Broward Hospital District v. Kalitan, 219 So. 3d 49 (Fla. 2017).

As amicus, the Institute argued that these noneconomic damages caps were in fact constitutional, as the Florida Legislature had both a rational and legitimate purpose for implementing the caps, and the trial court had erroneously relied on McCall and Kalitan in finding otherwise.

The Third DCA agreed with the Institute and noted its appreciation for the Institute’s amicus brief in a footnote.  The Third DCA recognized that sections 766.207 and 766.209 are not subject to the holdings of McCall or Kalitan, and the noneconomic damages caps in sections 766.207 and 766.209 do not violate equal protection.

 

FJRI represented by Mark K. Delegal of Holland & Knight, LLP and William W. Large.

Florida Supreme Court

Court

Progressive Select Ins. Co. v. Florida Hosp. Med. Ctr., 260 So. 3d 219 (Fla. 2018)

In Progressive, the Court considered the proper method of applying a personal injury protection (“PIP”) insurance policy deductible to a medical provider’s bill for hospital emergency services and care. A Progressive insured received treatment at the plaintiff hospital following an automobile accident. The hospital submitted a payment to Progressive which applied the deduction to the patient’s bill prior to the statutorily mandated reduction of fees. Progressive adjusted these charges by subtracting the deductible after applying the statutory reimbursement limitation of 75 percent of a hospitals usual and customary charges. The Hospital brought suit to recover the $200 difference between the calculation methods. While ongoing, the Fourth DCA issued an opinion, Care Wellness, which supported Progressive’s methodology. The county court granted summary judgment to the Hospital, and the circuit court affirmed. The Fifth DCA declined to exercise second-tier review, believing that using Progressive’s methodology would render the requirement that the deductible be applied to all expenses and losses meaningless.

The Florida Justice Reform Institute filed an amicus curiae brief in support of Progressive, arguing that the Fifth DCA’s decision negated the statutory protection from excessive medical charges for PIP insureds with deductibles. Furthermore, the Institute argued that the district court’s interpretation frustrated the purpose of the legislature’s stated goal of regulating the amounts providers can charge for services covered by PIP, and instead incentivizes providers to charge more than a reasonable amount for their services so as to maximize recovery.

The Florida Supreme Court, however, found for the hospital’s methodology. The Court reasoned that a plain reading of the statutory provision made clear that the deductible is to be subtracted from the medical provider’s charges prior to the reimbursement limitation being applied. As such, the Court disapproved the Fourth Circuit’s decision in Care Wellness and approved Progressive.

FJRI represented by Peter Valeta of Cozen O'Connor and William W. Large.

DeLisle v. Crane, 258 So. 3d 1219 (Fla. 2018)

In DeLisle, the defendants challenged the admissibility of the plaintiff’s proposed expert testimony regarding causation in a mesothelioma case.  The trial court ruled that the proposed expert testimony was admissible.  On appeal, the Fourth District Court of Appeal held that the trial court failed to properly exercise its gatekeeping function under the Daubert standard for admission of expert testimony.  DeLisle sought review of the Fourth District’s decision by the Florida Supreme Court, and for the first time directly challenged the constitutionality of the 2013 statutory amendments which replaced the more lenient Frye standard governing the admission of expert testimony with the Daubert standard, which applies in most jurisdictions including the federal courts.

The Florida Justice Reform Institute filed an amicus curiae brief arguing that the supreme court should discharge jurisdiction because the Fourth District’s decision did not expressly and directly conflict with a prior decision on the same question of law. 

In a 4-3 decision, the Florida Supreme Court held that the statutory amendments instituting the Daubert standard unconstitutionally encroach upon the court’s authority to set court rules, reaffirming application of the Frye standard in Florida.  In a dissent joined by Justices Polston and Lawson, Chief Justice Canady agreed with the Institute that jurisdiction had been improvidently granted.

FJRI represented by George N. Meros, Jr. and Andy Bardos of GrayRobinson, P.A. and William W. Large.

General Court

3rd DCA

Ocean Harbor Casualty Insurance v. MSPA Claims 1, 261 So.3d 637 (Fla. 3d DCA Sept. 26, 2018)

Plaintiff MSPA, on behalf of a class of Medicare Advantage Organizations (“MAOs”), filed a class action against personal injury protection (“PIP”) insurer Ocean Harbor Casualty Insurance Company, arguing that the MAOs were entitled to recover double damages for unpaid PIP benefits under the Medicare Secondary Payer Act. 

On appeal, the Florida Justice Reform Institute filed an amicus curiae brief in support of Ocean Harbor, arguing that the Third District should overturn the class action certification.  In certifying the MAO class, the Institute said, the trial court had failed to rigorously apply Florida’s class action certification requirements which are necessary to protect defendants’ due process rights.

The Third District agreed that class certification was inappropriate, and reversed and remanded.  The Third District found that MSPA’s burden of proof to establish Ocean Harbor’s liability “will necessarily devolve into a series of mini-trials,” foreclosing a finding that class issues predominate over individual ones and thus precluding class treatment. 

FJRI represented by Suzanne Youmans Labrit of Shutts & Bowen LLP and William W. Large.

Harvey v. GEICO General Insurance Co., 259 So. 3d 1 (Fla. 2018)

After an insured caused another’s death in a car accident, insurer GEICO tried to settle the matter by providing the decedent’s estate with a check for the insured’s full policy limits.  The estate, however, rejected the check and argued that GEICO should have facilitated obtaining a statement from the insured, which might have indicated the insured’s assets.  The estate received a multimillion dollar wrongful death judgment against the insured.  The insured then sued GEICO for acting in bad faith, arguing that had the estate known about the insured’s limited assets, the estate might have settled for the policy limits.  The Fourth District reversed a $9.2 million bad faith judgment against GEICO, concluding that even if GEICO had acted deficiently, that did not cause the excess judgment against the insured. 

Before the Florida Supreme Court, the Florida Justice Reform Institute as amicus curiae argued that the Court should discharge jurisdiction because the Fourth District’s decision did not expressly and directly conflict with a prior decision on the same question of law.

The Florida Supreme Court, however, reversed the Fourth District, finding there was competent, substantial evidence to support the jury’s finding of bad faith, and observing that the Fourth District had “misstated” the law on bad faith.  Chief Justice Canady and Justice Polston dissented, writing in separate opinions that the Florida Supreme Court lacked jurisdiction to hear the case, agreeing with the argument made by the Institute. 

FJRI represented Rodolfo Sorondo, Jr. of Holland and Knight LLP and William W. Large.

Gavel

General Court

Odom v. R.J. Reynolds Tobacco Co., 254 So. 3d 268 (Fla. 2018)

After a parent died from lung cancer, her financially independent adult child sued a cigarette manufacturer and obtained $4.5 million in noneconomic damages under Florida’s wrongful death statute.  The Fourth District Court of Appeal held that the trial court abused its discretion in denying the manufacturer’s motion for a new trial or reduction in damages.

The Florida Justice Reform Institute filed an amicus curiae brief in the Florida Supreme Court, arguing the Court should discharge jurisdiction because the Fourth District’s decision did not expressly and directly conflict with a prior decision on the same question of law.

However, in a 5-2 decision, the Florida Supreme Court reversed the Fourth District and found that the trial court did not abuse its discretion in denying the motion for a new trial and the motion for remittitur. The Court also found that the Fourth District erred in capping the amount of noneconomic damages which may be awarded to a financially independent adult child for a parent’s wrongful death.  Justice Polston, joined by Chief Justice Canady, dissented, and agreed with the Institute’s argument that the Florida Supreme Court should not have accepted jurisdiction of the case.  

FJRI represented by Jason Gonzalez and Amber Stoner of Shutts & Bowen LLP and William W. Large

Simon’s Trucking, Inc. v. Lieupo, 244 So. 3d 370 (Fla. 1st DCA 2018) 

The plaintiff, a tow truck driver, sued after he suffered injury in responding to an accident involving a vehicle owned by Simon’s Trucking that had spilled battery acid onto a highway.  The plaintiff filed his complaint under section 376.313(3), Florida Statutes, which imposes strict liability for the discharge of certain types of pollutants.  A jury returned a verdict of $5.2 million for the plaintiff, including $4 million for past and future pain and suffering.  As amicus, the Institute argued that section 376.313(3) does not authorize a strict liability cause of action for personal injury damages, as the overall purpose of the statutory chapter in which section 376.313(3) is found is to prevent and mitigate the pollution of Florida’s coastal and inland waters.  The First District Court of Appeal agreed that section 376.313(3) does not permit recovery for personal injury, but certified a question of great public importance and asked the Florida Supreme Court to clarify the issue.

FJRI represented by Frank A. Shepard of Gray Robinson.

Simon's Trucking

Gavel

In State Farm Mutual Automobile Insurance Co. v. Care Wellness Center, LLC, , 240 So. 3d 22 (Fla. 4th DCA 2018), overruled by Progressive Select Ins. Co. v. Florida Hosp. Med. Ctr., 260 So. 3d 219 (Fla. 2018) the Fourth District Court of Appeal resolved an ongoing dispute regarding whether personal injury protection (“PIP”) insurers are to apply policy deductibles to the medical provider’s total billed charges or only after that billed amount is adjusted based on the fee schedule set forth in section 627.739, Florida Statutes.  Agreeing with the Institute’s arguments as amicus, the Fourth District ruled that an insurer must reduce the provider’s charges to the statutorily-approved fee schedule before applying the deductible.  The Fourth District reasoned that such a result is demanded by the plain language of the statute and is also consistent with the traditional law concerning insurance deductibles, which are intended to apply only to amounts actually payable under the insurance policy.  Amounts which exceed the “reasonable” value of medical services as determined by the statutory fee schedule are not amounts payable under the policy.

FJRI represented by Peter J. Valeta of
Cozen O’Connor. 

Weaver v. Myers, 229 So. 3d 1118 (Fla. 2017)

In 2013, the Florida Legislature amended the medical malpractice presuit statute to authorize informal, ex parte interviews between a prospective defendant and a medical malpractice claimant’s treating physician.  In Weaver, a medical malpractice claimant challenged the constitutionality of these amendments. 

In proceedings before the Florida Supreme Court, the Institute submitted an amicus brief in support of the 2013 amendments’ constitutionality, observing that the amendments were critical to allow a prospective medical malpractice defendant to gain valuable information about the claim prior to suit.  This in turn encourages the early and inexpensive resolution of meritorious medical malpractice claims.  The Institute also argued that, because the Legislature created the physician-patient privilege in the first place, it is authorized to define the contours of that privilege through the medical malpractice presuit statute.

In a 4-3 decision, the Florida Supreme Court struck the 2013 amendments and held that the amendments violated the constitutional rights to privacy and access to courts.  In a dissent joined by Justices Lawson and Polston, Justice Canady observed that the majority’s decision was difficult to reconcile with numerous prior decisions in which the issue of ex parte interviews of treating physicians in medical malpractice cases arose and yet the Court recognized that the underlying confidentiality right—i.e., physician/patient confidentiality—was created by the Legislature. 

FJRI represented by Mark K. Delegal and Tiffany A. Roddenbury of Holland & Knight LLP, and William W. Large.

Weaver v. Myers


Court Room

Northrop Grumman Sys. Corp. v. Britt, 241 So. 3d 208 (Fla. 3d DCA 2017)

In Britt, a plaintiff brought suit against a number of defendants, arguing that simply visiting the defendants’ facilities caused his mesothelioma.  The plaintiff’s critical expert witness was a doctor who espoused that any asbestos exposure experienced by the plaintiff at the defendants’ facilities was sufficient to establish causation.  The trial court refused to exclude the expert’s testimony, and the defendants appealed to the Third District Court of Appeal.

The Institute, along with the Coalition for Litigation Justice (“Coalition”), wrote an amicus brief in support of the defendants, arguing that the court should establish a requirement of dose assessment for any expert supporting asbestos causation.  Under the plaintiff’s expert’s theory, there was no need to identify the amount of asbestos exposure as any amount of asbestos exposure should be deemed causative of the plaintiff’s injury.  But as the Institute and Coalition explained, asbestos like any other toxin requires some level of overall dose to produce disease.  For this reason, most courts in other jurisdictions have required some form of scientific dose estimate before an expert can opine on causation.  And these courts categorically reject the “any exposure” theory.

The Third District disagreed and affirmed the trial court, finding the trial court’s admission of the expert’s testimony was not an abuse of discretion. 

FJRI represented by William L. Anderson of Crowell & Moring, LLP and Frank Cruz-Alvarez of Shook, Hardy & Bacon, LLP.


N. Broward Hosp. Dist. v. Kalitan, 219 So. 3d 49 (Fla. 2017)

Kalitan concerned the constitutionality of the per-claimant noneconomic damages caps in personal injury medical malpractice cases contained in section 766.118, Florida Statutes.  The Fourth District reversed the trial court and held that the caps were unconstitutional under the Equal Protection Clause of the Florida Constitution.  In the resulting proceedings before the Florida Supreme Court, the Florida Justice Reform Institute argued that the caps are constitutional, and that any decision that a per-claimant statutory damages cap violates equal protection would tie the hands of the Legislature and render the constitutionality of other damages caps uncertain.

Courthouse

 The Florida Supreme Court disagreed, finding that its prior decision in Estate of McCall v. United States, 134 So. 3d 894 (Fla. 2014)—in which the Court held that the caps on wrongful death noneconomic damages violate equal protection—required the Court to hold that the caps in personal injury cases also violate equal protection.  The Court reasoned that the caps on personal injury noneconomic damages are “arbitrary” and do not bear a rational relationship to the Legislature’s stated interest in addressing the medical malpractice crisis, if a crisis ever existed.

In a dissent joined by Justices Canady and Lawson, Justice Polston wrote that the majority had again disregarded prior precedent regarding the rational basis standard, just as it had in McCall.  Justice Polston recounted the specific findings made by the Legislature in enacting the damages caps, and observed that the “majority just discards and ignores all of the Legislature’s work and fact-finding.  . . . For a majority of this Court to decide that a [medical malpractice] crisis no longer exists, if it ever existed, so it can essentially change a statute and policy it dislikes, improperly interjects the judiciary into a legislative function.” 

FJRI represented by Mark K. Delegal and Tiffany A. Roddenbury of Holland & Knight LLP, and William W. Large.

Law Books and Gavel

Worley v. Cent. Fla. Young Men’s Christian Ass’n, 228 So. 3d 18 (Fla. 2017)

Worley concerned discovery related to a treating doctor’s relationship with a plaintiff’s firm.  As amicus curiae, the Florida Justice Reform Institute argued that discovery regarding this relationship is critical, especially when plaintiffs are treated under letters of protection and their medical bills appear to be grossly inflated. 

If the plaintiff’s attorney referred the plaintiff to the treating physician, and the treating physician will also testify as the plaintiff’s purported expert, the inherent bias of the physician’s opinions and potential for inflated or fraudulent billing should be exposed. The Florida Supreme Court disagreed, holding instead that the attorney-client privilege protects a party from being required to disclose whether his attorney referred the party to the treating physician, finding that the issue “implicates” a confidential “communication” between the attorney and client. 

FJRI represented by Katherine E. Giddings, David Spector and Diane G. DeWolf of Akerman LLP, and William W. Large.


Sells v. CSX Transp. Inc., 214 So. 3d 1232 (Fla. 2017)

In Sells, a railroad employee died from cardiac arrest on a remote railroad worksite.  The employee’s widow argued that the railroad, CSX Transportation, Inc., negligently failed to anticipate and provide the employee with medical care.  The trial court granted a directed verdict in favor of CSX.  The First District Court of Appeal affirmed, holding that under the Federal Employers’ Liability Act (“FELA”), CSX had no pre-emergency duty to take preventive actions in anticipation of non-work-related medical emergencies. 

Legal Documents

However, the question before the Court—whether a railroad has a duty under FELA to anticipate and plan for non-work-related medical emergencies suffered by on-duty employees—had not been addressed by any other appellate court in Florida.  The Court initially accepted jurisdiction.  In an amicus brief, the Florida Justice Reform Institute argued that jurisdiction had been improvidently granted, as there was no express and direct conflict.  The Florida Supreme Court agreed, and after oral argument discharged jurisdiction of the case. The estate asked the Florida Supreme Court to take jurisdiction of the case, arguing that the First District’s decision conflicted with other Florida appellate court decisions construing similar duties of care.

FJRI represented by Mark K. Delegal and Tiffany A. Roddenbury of Holland & Knight LLP, and William W. Large.


Scales

Westphal v. City of St. Petersburg, 194 So. 3d 311 (Fla. 2016)

Westphal involved a challenge to the constitutionality of Florida’s workers’ compensation scheme.  The underlying issue was whether a workers’ compensation claimant who remains totally disabled at the end of the period of eligibility for temporary total disability benefits is effectively at maximum medical improvement and thus eligible to bring a permanent total disability claim.  The en banc First District Court of Appeal reversed a prior panel’s decision declaring Florida’s limit for temporary total disability benefits unconstitutional.

Rehearing the case en banc, the court upheld the limit in section 440.15, Florida Statutes, and determined that a worker who exhausted his temporary total disability benefits has reached maximum medical improvement and is therefore eligible to apply for permanent and total benefits.  Despite this seemingly favorable result to the workers’ compensation claimant, the claimant used the opportunity to appeal to the Florida Supreme Court to argue about the constitutionality of the statute.  In conjunction with numerous other amici, the Florida Justice Reform Institute filed a brief in support of the scheme’s constitutionality.  In spite of those efforts, the Florida Supreme Court held that the statute ending disability benefits prior to a worker attaining maximum medical improvement was unconstitutional as a denial of the right of access to courts.

FJRI represented by William H. Rogner


Castellanos v. Next Door Co., 192 So. 3d 431 (Fla. 2016)

This case concerned the constitutionality of the statutory formula for calculating the attorney’s fee award for a prevailing claimant in a workers’ compensation case.  The First District Court of Appeal rejected the claimant’s arguments that the statutory formula runs afoul of the constitutional principles of equal protection, due process, and access to the courts.  On appeal to the Florida Supreme Court, the Florida Justice Reform Institute filed an amicus curiae brief in which it argued that the attorney fee formula does not violate the constitution and instead promotes the objective of providing an efficient system of delivering benefits to injured workers that can be maintained at a reasonable cost to employers. 

Courtroom

However, the Florida Supreme Court disagreed, and held that the statutory formula violated due process because it created an “irrebuttable presumption” that precludes any consideration of whether the fee award is “reasonable.”  In dissent, Justice Canady said that the majority had ignored that the statutory formula embodies a legislative policy determination that there should be a reasonable relationship between the value of the benefits obtained in litigating a workers’ compensation claim and the amount of attorney’s fees the employer/carrier is required to pay to the claimant. 

FJRI represented by Mark K. Delegal and Matthew H. Mears of Holland & Knight LLP, and William W. Large.


Court Room

Stahl v. Hialeah Hosp., 191 So. 3d 883 (Fla. 2016)

This was an appeal from a First District Court of Appeal decision rejecting a petitioner’s challenges to amendments to the workers’ compensation law that: (1) added a $10 copay to medical visits after a claimant attains maximum medical improvement; and (2) eliminated permanent partial disability benefits.  On appeal to the Florida Supreme Court, the Florida Justice Reform Institute argued that the district court of appeal lacked jurisdiction to consider the constitutionality of the challenged statutes, and consequently the Florida Supreme Court should not entertain review.  The petitioner had failed to litigate his constitutional claims and failed to establish he had standing to raise them.  After hearing oral argument, the Court agreed with the Institute’s view, discharging jurisdiction and dismissing review.

FJRI represented by Katherine E. Giddings and Diane G. DeWolf of Akerman LLP, and William W. Large.


Fla. Dep’t of Transp. v. Schwefringhaus, 188 So. 3d 840 (Fla. 2016)

In this case, CSX Transportation (“CSX”) settled a negligence action brought by plaintiffs who were injured in an accident at a railroad crossing.  Following settlement with the plaintiffs, the trial court entered a judgment requiring the Florida Department of Transportation (“FDOT”) to indemnify CSX pursuant to a crossing agreement which had allowed the state to construct and maintain a road over CSX’s tracks.  FDOT defended on the basis of sovereign immunity, despite the clear language of the indemnity provision in the crossing agreement with CSX and despite accepting the benefits of that agreement for nearly 80 years. 

Gavel and Scales

The Second District Court of Appeal agreed with CSX, but certified the issue to the Florida Supreme Court as presenting a question of great public importance.  The Florida Justice Reform Institute wrote an amicus curiae brief in support of CSX, contending that FDOT should be bound by the agreement and that, in any event, FDOT was estopped from now repudiating its express promise to indemnify CSX for FDOT’s own negligence.  The Florida Supreme Court agreed that FDOT was bound to the indemnity agreement.  The Court held that FDOT’s predecessor was authorized to enter into the crossing agreement including the indemnity provision, and consequently, FDOT could not invoke sovereign immunity to defeat its obligations under the crossing agreement.  The Court also explicitly acknowledged the Institute’s participation as amicus curiae in support of CSX in the written opinion.

FJRI represented by Stephen H. Grimes and Matthew H. Mears of Holland & Knight LLP, and William W. Large.


Florida Supreme Court

Joerg v. State Farm Mut. Auto. Ins. Co., 176 So. 3d 1247 (Fla. 2015)

Joerg presented the question of what evidence a jury should be allowed to consider when determining the future health care expenses of a disabled Medicare beneficiary.  The trial court excluded from the jury all evidence about future health care expenses except for the projected “sticker price” (the full amount billed) for the services.  On appeal to the Florida Supreme Court, the Florida Justice Reform Institute argued that limiting the jury to evidence of the amount billed by providers would violate settled principles of compensatory damages, in that the “sticker price” is often much greater than the amount Medicare allows as payment in full for medical services and thus does not represent the loss the injured plaintiff actually incurs. 

Unfortunately, the Florida Supreme Court disagreed, holding that evidence of eligibility for future benefits, including from Medicare, Medicaid, and other social legislation, is inadmissible as collateral sources.

FJRI represented by Mark K. Delegal and Matthew H. Mears of Holland & Knight LLP, and William W. Large.



Weaver v. Myers, 170 So. 3d 873 (Fla. 1st DCA 2015), overruled by Weaver v. Myers, 229 So.3d 1118 (Fla. 2017)

In Weaver, a plaintiff lodged constitutional challenges to 2013 amendments to the medical malpractice presuit notice statute, specifically amendments (1) allowing for ex parte interviews between potential defendants and the potential claimant’s treating health care providers, and (2) requiring the potential claimant to sign a waiver of federal privacy protection for certain medical information prior to initiating a medical malpractice suit.  The Florida Justice Reform Institute and the Florida Medical Association filed a joint amicus curiae brief, arguing that these provisions promote the statute’s overall objective of encouraging the settlement of meritorious medical malpractice claims without resort to litigation, and that these provisions do not violate the constitution.  The First District Court of Appeal rejected all the plaintiff’s arguments and upheld the amendments.  The Florida Supreme Court overruled the First DCA upon review.

FJRI represented by Mark K. Delegal and Stephen H. Grimes of Holland & Knight LLP, and William W. Large.

Gavel and Book


State of Florida v. Fla. Workers’ Advocates, 167 So. 3d 500 (Fla. 3d DCA 2015) 

In this case several advocacy groups exploited an ordinary workers’ compensation case to advance a challenge to the exclusive remedy provision of Florida’s Workers’ Compensation Law.  The Florida Justice Reform Institute, in conjunction with the Florida Chamber of Commerce, filed an amicus curiae brief in support of upholding the provision.  The Third District Court of Appeal reversed the trial court’s decision that the law was unconstitutional.  When the defendant employer dismissed its affirmative defense of workers’ compensation immunity, the court held, the workers’ compensation law issues were removed from the case and the challenge to the constitutionality of the provision of the workers’ compensation law became moot. The advocacy groups sought review by the Florida Supreme Court, which the Court denied.  Consequently, the Third District's decision was allowed to stand. 

FJRI represented by Katherine E. Giddings, Kristen M. Fiore, and Gerald B. Cope, Jr. of Akerman LLP, and William W. Large.


Legal Services

Murphy v. Dulay, 768 F.3d 1360 (11th Cir. 2014)

This case involved a federal preemption challenge to the Florida statute requiring that a potential medical malpractice plaintiff execute a written authorization form as a prerequisite to filing suit.  That authorization form allows the prospective defendant to obtain documents and conduct ex parte interviews of the prospective plaintiff’s medical providers on matters related to the medical malpractice claim.  On appeal to the U.S. Court of Appeals for the Eleventh Circuit, the Florida Justice Reform Institute submitted an amicus brief in which it argued that the presuit authorization form requirement is not contrary to or preempted by the Health Insurance Portability and Accountability Act (“HIPAA”).  The Eleventh Circuit agreed, finding that the Florida statute is entirely consistent with HIPAA and that HIPAA authorizations do not need to be signed voluntarily to be valid.

FJRI represented by Gigi Rollini of Messer Caparello, P.A. and William W. Large.


Morales v. Zenith Ins. Co., 152 So. 3d 557 (Fla. 2014)

The case tested Florida’s workers’ compensation exclusive remedy provision which immunizes an employer and its employees from tort liability for covered, work-related injuries.  A worker’s estate sued the worker’s employer for wrongful death after securing an approved settlement for workers’ compensation death benefits.  When the insurer refused to pay the $9.5 million wrongful death judgment, the estate filed an action in state court, claiming that the insurer had breached its insurance policy with the employer.  The insurer removed the case to federal court and sought summary judgment on numerous bases, including that the estate had elected workers’ compensation benefits as its exclusive remedy and the insurance policy itself excluded coverage of such a tort judgment.  A federal appellate court certified questions of unsettled Florida law to the Florida Supreme Court.  The Florida Justice Reform Institute and the Florida Chamber of Commerce filed an amicus curiae brief in support of the insurer, arguing that permitting the estate to recover the wrongful death judgment would defeat the purpose of the workers’ compensation system and encourage non-meritorious civil suits by injured employees.  The Florida Supreme Court held that the workers’ compensation exclusion in the policy excluded coverage of the estate’s tort judgment against the employer, and that the estate had elected workers’ compensation benefits as its exclusive remedy.

FJRI represented by Katherine E. Giddings and Nancy Mason Wallace of Akerman LLP, and William W. Large.


Estate of McCall v. United States, 134 So. 3d 894 (Fla. 2014)

In this case the Florida Supreme Court was called upon to decide whether the statutory cap on noneconomic damages in medical malpractice claims violated the equal protection clause of the Florida constitution.  The Florida Justice Reform Institute filed an amicus brief in support of upholding the statutory cap as constitutional under equal protection, which demands only a rational basis for the cap.  Here, that rational basis was to address the medical malpractice insurance crisis based on findings that medical malpractice liability insurance premiums had skyrocketed as the result of increased payments to claimants in medical malpractice lawsuits.  The Florida Supreme Court rephrased the question as whether the statutory cap on wrongful death noneconomic damages violates the right to equal protection, which the Court answered in the affirmative, concluding that no medical malpractice crisis exists to justify the differential treatment of medical malpractice plaintiffs.

FJRI represented by William W. Large.

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State v. Barati, 150 So. 3d 810 (Fla. 1st DCA 2014)

The issue before the First District Court of Appeal in Barati was whether the State of Florida, through the state’s Attorney General, has the authority to dismiss a False Claims Act (“FCA”) lawsuit the State deems frivolous without the relator’s consent.  The relator filed a motion to strike the Attorney General’s notice of dismissal, arguing that the Attorney General only has the power to dismiss whistleblower suits where she has intervened.  The Florida Justice Reform Institute filed an amicus curiae brief supporting the State’s authority to voluntarily dismiss frivolous suits brought in the name of the State.  Ultimately the First District Court of Appeal decided that it could not rule on whether the State has the authority to unilaterally dismiss a FCA suit because the trial court had not ruled on its jurisdiction to consider the case in the first instance.

FJRI represented by William W. Large, and John T. Boese and Kayla Stachniak Kaplan of Fried, Frank, Harris, Shriver & Jacobson, LLP.


Library and Computer

Franks v. Bowers, 116 So. 3d 1240 (Fla. 2013)

In Franks, the estate of a patient filed a lawsuit against a physician and medical practice for alleged medical malpractice resulting in the patient’s death.  The physician and medical malpractice moved to compel arbitration based on the financial agreement the patient signed prior to his surgery.  The estate alleged that the financial agreement was void under the public policy enunciated in Florida’s medical malpractice law, as the agreement did not provide the same remedies as provided by the law. 

The Florida Justice Reform Institute, in conjunction with the Florida Medical Association and the Florida Osteopathic Medical Association, filed an amicus curiae brief arguing that nothing in the law prohibits voluntary agreements outside the statutory framework to arbitrate disputes or to impose limits on damages.  Unfortunately, the Florida Supreme Court disagreed, and held that the damages clause of the arbitration provision violates the public policy evinced in the medical malpractice law and could not be enforced because the agreement did not include the law’s “substantial incentives” for claimants to submit to arbitration.

FJRI represented by Cynthia S. Tunnicliff and Gerald Don Nelson Bryant IV of Pennington, Moore, Wilkinson, Bell, and Dunbar, P.A.



Nuñez v. GEICO Gen. Ins. Co., 117 So. 3d 388 (Fla. 2013)

On questions of unsettled Florida law certified by a federal appellate court, the Florida Supreme Court was asked to decide whether an insurer can require an insured to attend an examination under oath (an “EUO”) as a condition precedent to recovery of personal injury protection (“PIP”) benefits.  The Florida Justice Reform Institute wrote an amicus brief arguing that the legislative history of section 627.736, Florida Statutes, evinced a clear intent to permit insurers to require just that.  The Florida Supreme Court held that EUO conditions are invalid under the law that existed prior to January 1, 2013, but acknowledged that the statute had been amended to allow insurers to require EUOs as a prerequisite to receiving PIP benefits going forward.

FJRI represented by Cynthia S. Tunnicliff and Gerald Don Nelson Bryant IV of Pennington, Moore, Wilkinson, Bell, and Dunbar, P.A.

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GEICO Gen. Ins. Co. v. Virtual Imaging Servs., 141 So. 3d 147 (Fla. 2013)

In this case the Florida Supreme Court was tasked with deciding whether the fee schedules set forth in section  627.736(5)(a), Florida Statutes, authorize an insurer to limit reimbursements for medical services rendered to an insured without giving notice in the insurance policy of the insurer’s election to use the schedules for calculating reimbursements.  As amicus curiae, the Florida Justice Reform Institute argued that the intent of the Legislature’s enactment of a comprehensive fee schedule was to definitively cap reimbursement of reasonable medical expenses—not to establish an alternative reimbursement methodology.  Despite the Legislature’s clear intent, the Florida Supreme Court held that an insurer must explicitly notice its election to use the schedules for calculating reimbursements in the policy because the personal injury protection benefits statute permits but does not require the insurer to use the fee schedules for calculating reimbursements.

FJRI represented by Cynthia S. Tunnicliff and Gerald Don Nelson Bryant IV of Pennington, Moore, Wilkinson, Bell, and Dunbar, P.A.


Scales

Goheagan v. Am. Vehicle Ins. Co., 107 So. 3d 433 (Fla. 4th DCA 2012), review denied, 130 So. 3d 1275 (Fla. 2013)

In Goheagan, the Fourth District Court of Appeal examined a bad faith claim alleging that an insurer had failed to protect its insured from an excess judgment by not making a timely offer of settlement to the party injured by the insured.  The insurer defended on the basis that, during the relevant time, the injured party was in a coma, and despite many attempts to obtain essential information to make an offer of settlement, the injured party’s family would not provide the injured party’s attorney’s name or the information necessary to make the offer of settlement.  Consequently it was unclear to whom the insurer should make an offer of settlement. 

The trial court granted summary judgment to the insurer.  On appeal, the Florida Justice Reform Institute appeared as amicus curiae in support of the insurer, arguing that these facts do not give rise to bad faith given the challenging circumstances the insurer faced and the insurer’s formidable efforts to make a timely offer of settlement.  In spite of these efforts, the Fourth District Court of Appeal held that there was a disputed issue of fact regarding whether the insurer committed bad faith, precluding summary judgment.

FJRI represented by George N. Meros, Jr. and Andy V. Bardos of GrayRobinson, P.A.


Gessa v. Manor Care of Fla., Inc., 86 So. 3d 484 (Fla. 2011)

In Gessa, a nursing home resident challenged her agreement with the nursing home which compelled arbitration, capped noneconomic damages at $250,000, and waived punitive damages.  The Florida Justice Reform Institute and the Florida Medical Association appeared as amici in support of the nursing home, and argued that public policy favors both arbitration and the limitation of remedies through arbitration agreements as a more effective and less costly means of dispute resolution.  Despite the strong public policy in favor of arbitration, the Florida Supreme Court found that the limitation of liability provisions were unconscionable, holding that any arbitration agreement that diminishes the statutory remedies afforded to a nursing home resident is unenforceable as against public policy.

FJRI represented by Cynthia S. Tunnicliff and Ashley P. Mayer of Pennington, Moore, Wilkinson, Bell, and Dunbar, P.A.


Perera v. U.S. Fid. & Guar. Co., 35 So. 3d 893 (Fla. 2010)

In Perera, the issue was whether a cause of action for third-party bad faith is stated against an indemnity insurer when the insurer’s actions did not cause the damages to the insured and the insured faced no liability in excess of the insured’s policy limits.  In conjunction with the U.S. Chamber of Commerce, the Florida Justice Reform Institute filed an amicus curiae brief urging the Florida Supreme Court to not extend the cause of action for bad faith to insureds who suffer no actual damages through an excess verdict.  The Florida Supreme Court agreed, holding that a bad faith claim against an insurer requires a causal connection between the alleged bad faith and the exposure of the insured to liability in excess of the insured’s policy limit.

FJRI represented by George N. Meros, Jr. and Andy V. Bardos of GrayRobinson, P.A., and Robin S. Conrad.

Florida Supreme Court


Weingrad v. Miles, 29 So. 3d 406 (Fla. 3d DCA 2010), overruled by Miles v. Weingrad, 164 So. 3d 1208 (Fla. 2015)

The plaintiff contended that the statutory cap on noneconomic damages could not apply retroactively to her medical malpractice claim, which resulted from an alleged incident that occurred a few months before the statutory cap’s effective date.  The Florida Justice Reform Institute filed an amicus curiae brief in support of the retroactive application of the statutory cap.  Here, the Third District Court of Appeal agreed with the defendant doctor and FJRI, holding that the statutory cap barred part of the plaintiff’s claim.  The plaintiff had no vested right to a particular damage award and thus suffered no due process violation with retroactive application of the statutory cap to her cause of action.  However, the Florida Supreme Court held in a subsequent, related appeal that the cap on noneconomic damages cannot be applied retroactively.

FJRI represented by William W. Large.


Gavel

Raphael v. Schechter, 18 So. 3d 1152 (Fla. 4th DCA 2009)

In Raphael a patient fought the retroactive application of the statutory cap on noneconomic damages to his medical malpractice claim arising from an incident that occurred before the cap’s effective date.  The Florida Justice Reform Institute filed an amicus curiae brief in support of retroactive application of the statutory cap. The Fourth District Court of Appeal held that the statutory cap on noneconomic damages in medical malpractice cases did not apply retroactively to the patient’s action because the action had “accrued” prior to the effective date of the statute.

FJRI represented by William W. Large.


BDO Seidman, LLP v. Banco Espirito Santo Int’l, Ltd., 998 So. 2d 1 (Fla. 3d DCA), review denied, 996 So. 2d 211 (Fla. 2008)

When a trial court allowed a judgment debtor to post a $50 million bond to stay execution of a judgment as permitted by section 45.045, Florida Statutes, the judgment creditor challenged the entry of a stay, arguing that the statute unconstitutionally infringed upon the Florida Supreme Court’s rulemaking authority over procedural matters.  The Florida Justice Reform Institute filed an amicus curiae brief in support of the statute’s constitutionality, contending that the bond cap appropriately limited the amount required to secure a stay in order to protect the right to appeal.  The Third District Court of Appeal agreed.  Rather than an impermissible intrusion into the practice and procedure of the judiciary, the court found that section 45.045 concerned substantive rights to property and to appeal.

FJRI represented by William W. Large.


Murray v. Mariner Health/ACE USA, 994 So. 2d 1051 (Fla. 2008)

This case concerned whether Florida’s Workers’ Compensation Law sets forth the sole standard for determining a claimant’s attorney’s fees in workers’ compensation cases, or whether courts may still use the criteria set forth in case law for determining a “reasonable attorney’s fee.”  The Florida Justice Reform Institute and several other amici filed an amicus brief in which they argued that the intent was to wholly replace the discretionary “reasonable attorney’s fee” standard in order to curb the unsustainable growth in workers’ compensation litigation.  The Florida Supreme Court disagreed, holding that the claimant is entitled to a “reasonable attorney’s fee” as defined in case law.  In reaction to this case, the Florida Legislature amended the statute to remove any ambiguity that it was intended to replace the standard found in case law.

FJRI represented by George N. Meros, Jr. and Andy V. Bardos of GrayRobinson, P.A.

Legal Documents