Last weeks Florida legal newsFulgencio Law
The First District reversed the trial court’s sua sponte Judgment Not Withstanding the Verdict (“JNOV”) against a plaintiff on his claim for lost wages under the sword-and-shield doctrine (i.e., the prohibition of taking a position supported by privileged communications and asserting the privilege as a shield to discovery about the position taken). Because the court’s role is to adjudicate a case by ruling on issues raised by the parties, not to litigate the case by raising issues for them, the trial court erred in raising the doctrine sua sponte.
- Accident Report Privilege / Anderson v. Mitchell, 2D18-2864(April 5, 2019)
The Second District ruled that the “accident report privilege,” as found in section 316.066(4), Florida Statutes (2017), is not a true privilege protecting against disclosure of statements made for purposes of completing a crash report. Instead, the statute creates a law of admissibility precluding use of the statements at trial. Statements made by individuals for purposes of completing a crash report are thus discoverable.
The Fourth District held that because defendants had agreed to entry of a consent judgment, they were precluded from raising due process challenges to events that had occurred before they consented to the judgment. The Fourth District also held the trial court erred in vacating the consent judgment on grounds that the judgment was based on a statute subsequently declared unconstitutional; such judgments are merely voidable, rather than void.
Plaintiff’s pre-suit expert, who specialized in plastic surgery, offered opinions regarding orthopedic surgeon’s medical care. This opinion violated sections 766.203, 776.202(6), and 766.012(5)(a), Florida Statutes (2014), which require a written medical expert opinion from a specialist in the same specialty. On rehearing, the Fifth District quashed the trial court’s order denying defendants’ motion to dismiss, with instructions to the trial court to rule on the plaintiff’s argument that the “same specialty” requirement is unconstitutional. As part of its ruling, the Fifth District instructed the trial court to first address whether the plaintiff notified the State of its constitutional challenge.
The Fifth District followed Wheaton v. Wheaton, 261 So. 3d 1236 (Fla. 2019), to reverse the denial of attorney’s fees under a proposal for settlement for failure to comply with e-mail service. Because the plain language of section 768.79 and rule 1.442 do not require service by e-mail, the e-mail service provisions of rule 2.516 do not apply.
The Fifth District reversed an award of attorney’s fees under rule 1.380(c), finding that a good-faith controversy existed as to the subject of the plaintiff’s request for admission. To award fees in that instance would improperly transform rule 1.380(c) into a prevailing-party fee provision, rather than a sanction for unjustified denials.
Plaintiff sued after suffering a fall during at an assisted living facility. Defendants filed a motion to compel arbitration. The parties stipulated to limited discovery regarding arbitration. However, at a deposition of the plaintiff’s daughter, defense counsel asked questions on the merits. The Fifth District affirmed the trial court’s ruling that, by engaging in merits discovery, the defendants took actions inconsistent with the right to arbitrate and thus waived arbitration.