Case Law Update

By Jowanna Oates

Workers Compensation

Statute of Limitations

Borneisen v. Home Depot

917 So. 2d 361 (Fla. 1^st DCA 2006)

In 2002, the Claimant filed a petition for benefits for injuries arising from industrial accidents occurring in 1991 and 1992. The JCC denied the Claimant’s petition, finding that the two-year statute of limitations had run and the Employer/Carrier’s continued provision of palliative treatment had not revived the statute of limitations period. Specifically, the JCC found that the Employer/Carrier’s provision of prescription medications constituted palliative instead of remedial treatment. The First District reversed, observing that the JCC based her ruling “upon an erroneous legal distinction between ‘remedial’ and ‘palliative’ treatment.” The Court noted that section 440.19 (1) (b) provided an exception to the two-year statute of limitations if the Employer/Carrier provides remedial care or rehabilitative services, then a claim may be filed within two years after the date of the last remedial attention. The Court observed that remedial has been defined to include palliative care. As such, the Employer/Carrier’s provision of palliative treatment prevented the statute of limitations period from running.

Surveillance Evidence

King v. Auto Supply of Jupiter, Inc.

917 So. 2d 1015 (Fla. 1^st DCA 2006)

The Claimant argued on appeal that the JCC erred by allowing into evidence the testimony of Dr. Jeffery Farber. Dr. Farber initially recommended that the Claimant receive six to seven hours of daily care. However, after reviewing an edited surveillance videotape and report provided at the deposition, Dr. Farber changed his recommendation. Neither the edited surveillance videotape nor the report had been produced to the Claimant’s attorney or formally listed on the pre-trial stipulation. Although the JCC granted the Claimant’s motion to strike the surveillance videotapes and reports based upon the Employer/Carrier’s continuing breach of its discovery obligations, she did permit Dr. Farber’s opinion testimony based upon the surveillance into evidence.

The First District found that Dr. Farber’s opinion testimony was properly admitted into evidence. The Court noted that section 90.704, Florida Statutes permits an expert to give an opinion based on inadmissible evidence, if the expert can reasonably rely on those facts or data. The admission of an expert’s opinion depends upon the trustworthiness of the information used to support the opinion. The Court opined that the exclusion of the surveillance videotapes and reports due to discovery violations had no effect on its trustworthiness or reliability. Additionally, the Court observed that even if the JCC erred in allowing Dr. Farber’s testimony into evidence it would constitute harmless error because the record demonstrated that Dr. Farber’s opinion regarding the Claimant’s need for attendant care was not based solely on the surveillance evidence. Further, the Court noted that the Claimant testified that the activities depicted on the videotape were an accurate description of her activities.

Permanent Total Disability

Royal & Sun Alliance v. Chavez,

920 So. 2d 69 (Fla. 1^st 2006)

The Claimant filed a petition for benefits seeking permanent total disability and permanent total disability supplemental benefits. The First District reversed the JCC’s decision granting PTD benefits observing that since 1994, only a catastrophic injury as defined in section 440.02, Florida Statutes in the absence of conclusive proof of a substantial earning capacity constitute permanent total disability. The Claimant’s injuries did not qualify as a catastrophic injury as defined in section 440.02 (37)(a)-(f). As such, the Claimant was required to show that his injury would qualify him for social security disability benefits. Although evidence was presented regarding the Claimant’s entitlement to such benefits, the JCC’s order did not contain any discussion regarding this issue or any findings or discussion of whether the Claimant had suffered a catastrophic injury. Accordingly, the Court reversed the JCC’s decision and remanded the case for the judge to apply the catastrophic injury test to determine whether the Claimant is entitled to permanent total disability benefits and to make appropriate findings as required by section 440.25 (4)(e), Florida Statutes.

Social Security Release Forms

Canovas v. Sugar Supply, Inc.,

921 So. 2d 26 (Fla. 1^st DCA 2006)

The Claimant was injured in a work-related accident and received permanent total disability benefits. The Employer/Carrier filed a motion to compel the Claimant to execute a Social Security Administration release form which was granted. On appeal, the Claimant argued that the JCC did not have jurisdiction over the dispute because there was no pending petition for benefits. The Claimant also argued that the JCC could not compel him to sign a form that was not referenced in Rule 69L-3.0194(d)(5), Florida Admin. Code. The First District held that the order compelling the Claimant to sign the Social Security release form was proper. The First District observed that the JCC has jurisdiction pursuant to section 440.33 (1) to do all things conformable to law which may be necessary to discharge the duties of his office. The Court also noted that neither section 440.15 (9)(c) nor Rule 69L-3.0194(d)(5) limit the forms a Claimant must sign.

Attorneys’ Fees

Marshall v. City of Miami

920 So. 2d 107 (Fla. 1^st DCA 2006)

The JCC found the Claimant’s attorney was entitled to a fee greater than that which would result from the application of the statutory factors found in Section 440.34 (1). The JCC determined that the Claimant’s attorney was entitled to a fee of $150.00 per hour. On appeal the Claimant argued that the JCC erred in determining the customary hourly rate and it was an error for the JCC to deduct 20 hours from his attorney’s time. The First agreed with the Claimant, finding that the JCC erred in determining the fee customarily charged for legal services was $150.00 per hour when the only evidence presented showed that the customary hourly rate was $275.00 per hour. The Court also found the JCC was in error in deducting 20 unspecified hours claimed by the Claimant’s attorney, as the reductions were not based on competent substantial evidence.

Attorneys’ Fees

Valdes v. Galco Construction

922 So. 2d 252 (Fla. 1^st DCA 2006)

The Claimant was injured in a work related accident on January 15, 1985 and was subsequently accepted as PTD and awarded attendant care. The Employer/Carrier, more than 10 years after it had begun paying benefits, initiated surveillance of the Claimant, took his deposition and forwarded the results to the Division of Insurance Fraud. The Claimant was arrested for insurance fraud. The Employer/Carrier suspended payment of benefits on the day of his arrest and filed a petition for modification seeking to terminate his attendant care benefits. Later, the State Attorney charged the Claimant with a violation of section 440.105, Florida Statutes but before the case was to go to trial, the charges were dismissed.

Subsequently, the Claimant’s workers’ compensation attorney filed a petition seeking the indemnity benefits the Carrier had stopped paying and he also opposed the petition for modification. The Employer/Carrier resumed payment of benefits and paid back benefits along with penalties and interest and conceded liability for a reasonable attorney’s fee prior to the case reaching final hearing. However, the JCC refused to award a fee to the Claimant’s criminal attorney. The First District upheld the JCC’s decision not to award an attorney’s fee to the Claimant’s criminal attorney, because the criminal attorney did not file a petition for benefits in the workers’ compensation proceedings and did not actually secure any workers’ compensation benefits for the Claimant.

However, the Court did find that the judge erred in analyzing whether or not to depart downward from a guideline fee. The Court observed the JCC’s decision raised unfounded concerns about “double dipping” on the basis of a misapprehension of Buena Vista Construction Co. v. Capps, 656 So. 2d 1378 (Fla. 1^st DCA 1995). The Court observed that the Capps decision was distinguishable because this case did not involve a situation where benefits awarded needed only to be collected; instead the very award of benefits was the issue. The Court also found that the JCC erred by proceeding on the assumption that Claimant’s workers’ compensation attorney could not receive fees for work related to the Claimant’s criminal matter. To the extent that the Claimant’s attorney’s hours were reasonably spent in advancing the Claimant’s interest in the workers’ compensation proceeding, such hours were compensable. Accordingly, the Court vacated the amended order on attorney’s fees vacated and remanded with directions.

Hepatitis

Seminole County Government v. Bartlett

31 Fla. L. Weekly D333a (Fla. 1^st DCA Jan. 31, 2006)

The JCC found the Claimant’s hepatitis C condition was compensable although he had failed to submit the affidavit required by Section 112.181 stating that he had not been exposed through the transfer of bodily fluids to any person known to have hepatitis outside of the scope of his employment, had blood transfusion arising out of an accident scope of his employment; engaged in unsafe sexual practices or other high risk behavior; or used intravenous drugs not prescribed by a physician. Additionally, the Claimant testified that he engaged in unprotected sex with approximately 20 women during the relevant time period.

The First District reversed the JCC’s ruling. The Court found the Claimant was not entitled to the statutory presumption of compensability pursuant to Section 112.181 (2), Florida Statutes, because he did not present the required affidavit and the evidence showed he engaged in high risk behavior. The Court also found that the Claimant failed to present clear evidence demonstrating that his hepatitis C is an occupational disease pursuant to section 440.151 (2), Florida Statutes because there was no evidence that his illness was causally related to his employment as a firefighter. The Claimant testified that he did not know whether he had been exposed to individuals who were hepatitis C positive. Additionally, there was no evidence presented at trial showing that firefighters contacted hepatitis more frequently than those in other occupations.

Authorization of Medical Treatment

Hillsborough County School v. Suarez

920 So. 2d 167 (Fla. 1^st DCA 2006)

The First District reversed the JCC’s order granting the Claimant’s request for treatment with an alternative orthopedist because the award did not follow the procedure outlined in Section 440.13 (2)(f), Florida Statutes (2002). Specifically, the JCC erred by permitting the Claimant to select a specific physician without first requesting the Employer/Carrier’s authorization from a list of no fewer than three physicians. In reaching its decision, the Court cited St. Augustine Marine Canvas & Upholstery, Inc. v. Lunsford, 30 Fla. L. Weekly D2853 (Fla. 1^st DCA Dec. 19, 2005); City of Bartow v. Brewer, 896 So. 2d 931 (Fla. 1^st DCA 2005) for the proposition that a judge of compensation claims may not order treatment with a specific doctor unless the Employer/Carrier has failed to promptly provide qualified alternatives upon the Claimant’s request

Enforcement of Settlement Agreements

Calderon v. J. B. Nurseries, Inc.

31 Fla. L. Weekly D392c (Fla. 1^st DCA Feb. 6, 2006)

The Employer/Carrier settled a case with the Claimant during mediation. Subsequently, the Claimant refused to execute the settlement release. Judge of Compensation Claims John P. Thurman found the parties intended to settle the Claimant’s case by the agreement they reached in mediation. The First District affirmed the JCC’s ruling, holding that it was bound by the JCC’s findings. According to the Court, the fact the Claimant, who was represented by counsel, later refused to sign the release made the agreement voidable at the other parties’ election, but not void. The Court observed the Claimant “could not escape the binding effect of the settlement agreement by breaching his obligation to execute a release. The employer and carrier were within their rights simply to overlook his breach, and insist on the other benefits of the bargain they struck in the settlement agreement.”

Judge Ervin dissented from the majority opinion, noting that the case involved an appeal of an order enforcing a mediation agreement for settlement of a case in the amount of $7,500.00 subject to an attorney’s fee of $1,375 and a cash advance to the claimant in the amount of $1,000.00. Judge Ervin argued the agreement was not sufficiently specific and mutually agreeable as to every essential element; as such, he dissented from the majority’s opinion. Judge Ervin observed the Claimant testified that he did not believe the agreement would be binding until he signed additional documents. The Claimant did not speak English and the Claimant attempted to return the $1,000 advance but it was rejected by the Employer/Carrier. The dissent concluded that because there was no meeting of the minds as to an essential term, specifically whether the mediation agreement was an enforceable final agreement, the enforcement order should be reversed.

Temporary Benefits

Seminole County School Board v. Tweedie

922 So. 2d 1011 (Fla. 1^st DCA 2006).

The Claimant sought temporary total disability benefits from July 23, 2004 through August 16, 2004. The Claimant without seeking prior authorization began treating with a chiropractor in August 2004, who placed the Claimant on a no-work status for two weeks. During the chiropractor’s deposition testimony, opposing counsel objected on the grounds that the doctor was not an IME, EMA or authorized treating physician. The Employer/Carrier’s attorney explained she was taking the doctor’s testimony for factual purposes and not for his opinion. The JCC admitted the testimony for factual purposes, but later decided that the doctor was an authorized treating physician. The JCC awarded TTD benefits based upon the fact that the chiropractor had placed the Claimant on a no-work status, because her orthopedic surgeon had never advised the Claimant that she could return to work and because the Claimant testified that she was unable to work. The First District found that the JCC erred in determining that the chiropractor was an authorized treating physician. However, the Court affirmed the lower court’s order, finding that the JCC properly relied upon the fact that the Claimant’s orthopedic physician never advised her to return to work and the Claimant’s testimony that she was unable to return to work during the period at issue.

Fraud

Polston v. Hurricane Island Outward Bound

920 So. 2d 766 (Fla. 1^st DCA 2006)

The Claimant filed a Petition for Benefits which she subsequently voluntarily dismissed. The Employer/Carrier responded to the Petition for Benefits, stating that it did not agree to the dismissal and asked the JCC to determine whether the Claimant knowingly made false, fraudulent or misleading oral or written statements for the purpose of securing workers compensation benefits in violation of Section 440.105 (4)(b), Florida Statutes. The JCC determined that she had no jurisdiction over the case once the Claimant voluntarily dismissed the Petition for Benefits.

The Employer/Carrier then filed a Petition for Benefits requesting a determination pursuant to section 440.09 (4), F.S., of whether the Claimant knowingly made false, fraudulent or misleading oral or written statements for the purpose of securing workers compensation benefits in violation of Section 440.105 (4)(b), Florida Statutes. The Claimant filed a Motion to Dismiss, which was denied. After the final hearing, the JCC entered an order finding that Claimant had violated section 440.105 (4) (b) and was not entitled to compensation or benefits. The First District reversed and remanded the case, finding that the JCC lacked jurisdiction to rule on the defense once the Claimant dismissed the pending Petition for Benefits.

120 Day Rule

Checkers Restaurant. v. Wiethoff,

925 So. 2d 348 (Fla. 1^st DCA 2006)

The Claimant was injured in a work-related accident which resulted in an exacerbation of a preexisting medical condition. The Employer/Carrier immediately provided medical care for the claimant. Although some doctors recommended surgery, several of the claimant’s other doctors placed her at maximum medical improvement and assigned a 0% permanent impairment rating from the accident. Additionally, some of the claimant’s doctors opined that her need for surgery was the preexisting condition and not the industrial accident. The employer/carrier terminated benefits on the grounds that the claimant was no longer entitled to indemnity benefits because she had returned to her pre-accident state.

Subsequently, the Claimant filed three petitions for benefits, including a petition requesting surgery, to which the employer/carrier did not respond. At the final hearing, The JCC found that the Claimant’s work-related injury had resolved, but held that the Employer/Carrier was precluded from denying the requested medical treatment because its actions did not constitute a deemed denial of the benefits. The JCC found the employer/carrier violated the 120 day rule and was prohibited from denying medical care.

On appeal, the First District held that the judge erred by authorizing additional medical care because the 120 day rule only relates to compensability and not entitlement to medical benefits. Chief Judge Charles J. Khan concurred in result, opining that the case could have been simply decided on the basis of Bussey v. Wal-Mart Store # 725, 867 So. 2d 542 (Fla. 1st DCA 2004) and North River Ins. Co., v. Wuelling, 683 So. 2d 1090 (Fla. 1st DCA 1996). Judge Phillip J. Padovano concurred in result as well, but expressed concern that the majority’s opinion will be construed to allow an Employer/Carrier to relitigate causation in a case that does not involve a new claim for benefits.

120 Day Rule

Long John Silver's v. Holcombe,

924 So. 2d 66 (Fla. 1^st DCA 2006)

After receiving a notice of injury, an Employer/Carrier filed a 120-day pay and investigate letter on November 10, 2003. On May 13, 2004 a mediation conference was held on a Petition for Benefits filed on May 5, 2004. The mediation agreement provided that the employer/carrier was to provide the claimant with a specialist for her injuries. However, the agreement provided that compensability was still at issue. A pretrial stipulation completed at the mediation indicated that the 120-day investigation was on-going. The Claimant’s attorney acknowledged receiving the Employer/Carrier’s denial of compensability on June 1, 2004. However, at the final hearing, the JCC found that the Employer/Carrier waived its right to challenge compensability because it failed to timely deny compensability as required by the 120 day rule contained in section 440.20 (4). On appeal, the First District reversed because the Employer/Carrier had not provided compensation or benefits at the time the November 10, 2003 letter was sent to the Claimant. As such, the 120-day rule was not applicable

Vocational Evaluations

Douglas v. Florida Power & Light, Inc.

921 So. 2d 750 (Fla. 1^st DCA 2006).

The Claimant filed a Petition for Benefits seeking permanent total disability benefits from March 30, 2004 to present and continuing. A month before the final hearing, the employer/carrier filed a motion to compel the claimant to submit to a vocational evaluation by its expert. In response to the Employer/Carrier’s motion, the Claimant’s attorney submitted a letter stating that based on the First District’s opinion in Eckert v. Publix Supermarkets, Inc., 783 So. 2d 1187 (Fla. 1^st DCA 2001) only the Division of Workers’ Compensation had the authority to schedule a vocational evaluation. The Claimant appealed the judge of compensation’s order granting the motion to compel. The First District denied the petition for certiorari review. The Court held that the Legislature’s amendment to section 440.15(1)(e)(1) gives an employer/carrier the right to conduction vocational evaluations. Since this amendment is procedural and not substantive, it is applicable to cases involving dates of accident before the effective date of the amendment.

Workers’ Compensation Immunity

Casas v. Siemens Energy & Automation, Inc.,

31 FLW D595a (Fla. 3d DCA Feb. 22, 2006)

The petitioner’s arm was accidentally crushed on September 1, 2000 in a work related accident. The petitioner received workers compensation benefits for his injury and subsequently filed suit against the employer, alleging an intentional tort under the “substantial certainty of injury” exception to workers compensation immunity. The petitioner alleged that he had been inadequately trained; the machine that he worked with was inherently dangerous, often malfunctioned and was in need of safety upgrades; and the employer had actual knowledge that the machine did not have guards in place for safe usage. The employer filed a Motion for Summary Judgment, which the trial court granted.

The Third District Court of Appeal affirmed the trial court’s ruling. The Court found that the intentional tort exception was not applicable in the instant case because there was no evidence of a cover up, deception or concealment of a known danger. The Court also found that there was no evidence supporting the petitioner’s allegations that he was inadequately trained and the machine was inherently dangerous. The majority rejected the dissent’s contention that the petitioner did not receive adequate training, as an experienced supervisor gave detailed testimony which indicated that he had received months’ long training. Further, the Court observed that there was no record evidence supporting the petitioner’s allegation that the employer had actual knowledge that the machine did not have guards as the uncontroverted evidence showed that the machine was equipped with two one-half inch thick Plexiglass guards. The majority observed that the dissent mischaracterized the claimant’s testimony regarding whether he was told that he had to de-power the machine before clearing a jam. There was no evidence presented that indicated that the petitioner was taught that it was safe to clear a jam with his hand without de-powering the machine.

In a lengthy dissent, Chief Judge Gerald B. Cope contended that the Court should reverse the lower court’s decision based upon Lawton v. Alpine Engineered Products, Inc., 498 So. 2d 879 (Fla. 1986), as modified by Turner v. PCR, Inc., 754 So. 2d 683 (Fla. 2000). Chief Judge Cope observed that in Lawton the machine did not have point of operation guards and the operators had not been instructed on the dangers involving the machine; thus, the instant case is similar to Lawton. Since the Court is obligated to accept the petitioner’s testimony as true, Chief Judge Cope felt that it should find that the employer’s training fell far short of what was described in the employer’s depositions.

Hepatitis

Flamily v. City of Orlando,

924 So. 2d 78 (Fla. 1^st DCA 2006)

At issue was whether the JCC properly denied compensability of the Claimant’s Hepatitis C condition. Additionally, the Court was asked to consider whether the JCC had jurisdiction to vacate a 1996 settlement agreement. The Court found that the record supported the JCC’s finding that the claimant failed to meet the requirements of section 440.151 (2), which governs the recovery for occupational disease. The Claimant testified that he did not recall any instances of exposure to anyone infected with Hepatitis C, as such he failed to establish that his disease was contracted during the his employment as a firefighter and the disease was caused by employment conditions characteristic and peculiar to being a firefighter. However, the Court found that the JCC did not have jurisdiction to vacate a 1996 settlement agreement because the statutory changes made to section 440.20 (11)(c) applied retroactively.

Workers’ Compensation Immunity

Bruno v. Destiny Transp., Inc.,

921 So. 2d 836 (Fla. 2d DCA 2006)

A property owner contracted with a general construction contractor to reconstruct concrete walls on its property. The general contractor for the project contracted with a subcontractor who hired workers from another subcontractor, Destiny Transportation. While operating the hose that concrete flowed through, one of Destiny’s employees was injured. The injured worker received workers compensation benefits from the general contractor and then filed a personal injury action against the Destiny and two of his co-workers. Destiny and the two co-workers filed a motion for summary judgment, contending that the suit was barred by workers compensation immunity or alternatively it was barred because the two co-workers were borrowed servants of the general contractor. The trial court granted the motion for summary judgment, finding that workers’ compensation immunity covered Destiny and the two workers. The trial court did not address the issue of whether the two workers were borrowed servants.

The Second District observed that the general contractor was responsible for providing workers compensation benefits for the employees. The Court observed that workers compensation immunity did not extend to the Destiny and the claimant’s two co-workers because Destiny was not responsible for securing workers compensation benefits for the employees of the general contractor.

However, the Court reversed and remanded the case to the lower court because it found that whether the coworkers were borrowed servants of the general contractor created a question of fact which precluded summary judgment. If the workers were indeed borrowed servants of the general contractor, then Destiny and the workers would be immune from suit under the workers’ compensation act. The Court agreed with the claimant that the evidence presented supported conflicting inferences whether a contract for hire (express or implied) existed between the general contractor and Destiny’s two employees so as to make them borrowed servants of the general contractor.

Statute of Limitations

Rice v. Reedy Creek Improvement Dist.,

31 Fla. L. Weekly D 698 (Fla. 1^st DCA March 3, 2006)

The Claimant was injured in industrial accidents on March 18, 2000 and April 3, 2000. The claimant last received treatment and medication for his injury on September 30, 2002. The claimant filed a petition for benefits on September 4, 2003 for the April 3, 2000 accident, which was voluntarily dismissed on March 10, 2004. The claimant subsequently filed a petition for benefits on January 8, 2004 for the April 3, 2000 accident which was dismissed on April 12, 2004. The claimant next filed a petition for benefits on March 12, 2004 for the April 3, 2000 accident. The claimant filed another petition for benefits on March 12, 2004 for the March 18, 2000 accident. The Judge of Compensation Claims W. James Condry dismissed with prejudice the Claimant’s March 12, 2004 petitions for benefits on the grounds that they were barred by the statute of limitations. The First District found that the JCC erred in dismissing the March 12, 2004 petition for benefits for the April 3, 2000 accident because the case was still pending at the time the petition was filed. However, the Court found that the JCC correctly dismissed the petition for the March 18, 2000 accident because it was barred under the statute of limitations.

Carrier “Bad Faith”

Ingraham v. Traveler’s Indemnity Co.,

925 So. 2d 377 (Fla. 3d DCA Mar. 8, 2006)

The petitioner filed a workers’ compensation claim against his employer seeking compensation for vocal laryngitis that he alleged he contracted as a result of his employment, which required him to respond to telephone calls from customers. The Carrier settled the claim in 2002 for $5,000.00 and the next year the petitioner sued the company for bad faith. The Petitioner alleged that the Carrier acted in bad faith by furnishing allegedly contradictory information in denial of claim forms furnished to him, ignoring evidence supporting his claim, and instructing the employer to run revised job applications after his termination for the position formerly held by him which sought applicants with the ability to handle heavy call volume. In the Third District’s previous decision, it affirmed the trial court’s dismissal of petitioner’s claim based upon Inservices v. Aguilera, 837 So. 2d 464 (Fla. 3d DCA 2002). The Florida Supreme Court quashed the Third District’s previous decision and remanded the case back to the court for reconsideration.

The issue on appeal was whether the petitioner had a cause of action against the insurance company under Aguilera v. Inservices, Inc, 905 So. 2d 84 (Fla. 2005). The Third District again affirmed the trial court’s dismissal of the petitioner’s lawsuit with prejudice. The Court found that the allegations raised by the petitioner did not rise to the level of conduct considered in Aguilera.

Workers’ Compensation Immunity

Aravena v. Miami-Dade County,

31 Fla. L. Weekly S205a (Fla. April 6, 2006)

Gregoria Vega worked as part-time elementary crossing guard. On October 4, 2001, the traffic lights were not working properly at the intersection she worked at and two cars veered off the road, killing Vega. Vega’s husband Julio Aravena filed a wrongful death lawsuit against the county. In response to the complaint, the County claimed immunity under section 440.11, Florida Statutes. The County argued the law afforded immunity to co-employees acting in furtherance of the employer business and the unrelated works exception did not apply in this case. The County filed a motion for summary judgment which was denied. The issue of workers’ compensation immunity was never presented to the jury.

On appeal, the Third District reversed the trial court’s order denying the motion for judgment not withstanding the verdict and remanded the case back to the trial court for entry for judgment on behalf of the county based on workers’ compensation immunity. Aravena appealed to the Supreme Court, alleging that the Third District’s opinion in Miami-Dade County v. Aravena, 886 So. 2d 303 (Fla. 3d DCA 2004) expressly and directly conflicted with the Fourth District Court’s opinion in Palm Beach County v. Kelly, 810 So. 2d 560 (Fla. 4th DCA 2002). At issue on appeal was “whether county employees who work at different physical locations for different departments, have different supervisors, and perform different duties and functions in their primary assignments fall within the unrelated works exception to workers’ compensation immunity.”

Chief Justice Barbara Pariente authored the majority opinion. The Supreme Court found that conflict jurisdiction was proper because in Kelly the court found that two coemployees who began their work day at the same general location but worked different jobs at different locations were assigned primarily to unrelated works. The Court observed that there was less of a connection between coemployees in the instant case than those in Kelly. As such, the two cases were irreconcilable and the Supreme Court reversed.

The Court found that the Third District’s decision was inconsistent with its previous decision Taylor, because the court adopted an over broad definition of the co-employees jobs as regulating vehicular and pedestrian traffic.” The Court also found that the Third District’s decision was inconsistent with its recent decision in Lluch v. American Airlines, Inc., 899 So. 2d 1146 (Fla. 3d DCA 2005) where the court adopted a physical location/business purpose test to show that the coemployees were true fellow employees. Here, Vega and the traffic signal repair personnel were not supervised by the same individuals and did not have the same duties. Vega did not know or have any interaction with the employees of the Department of Public and her job did have anything to do with the regulation of lights.

The Court also clarified the unrelated works exception by providing a number of factors for determining whether the unrelated works exception applied: (1) whether the coemployees work at the same location, (2) whether the coemployees must cooperate as a team to accomplish a specific mission; (3) the size of the employer; (4) whether the coemployees have similar job duties, (5) whether the coemployees have the same supervisor; and (6) whether the coemployees work with the same equipment.

The Court observed that until the Legislature further defined the unrelated works exception, courts will continue to struggle with the application.

Justice Kenneth Bell concurred in result only. Justice Bell noted that he agreed with Justice Wells’ observation that the question of what is an “unrelated work” is a question of law, not fact. Additionally, he believes that the Legislature should address “whether it intended the unrelated works exception to result in a county employee receiving from the county both workers’ compensation benefits and common law tort damages for injuries suffered in the same work related accident.” Justice Fred Lewis also concurred in result only, stating that he believes the Court should adopt the analytical parameters that he outlined in Taylor.

Justice Charles Wells dissented. Justice Wells stated that he would approve the Third District’s decision as he believes the Third District followed the Court’s decision in Taylor. Justice Wells denied that by broadening the unrelated works exception “so that many county employees will not be subject to workers’ compensation immunity, the majority subjects counties to many employees collecting both workers compensation benefits and common law damages from counties.” Justice Wells also stated that the Legislature needs to expressly state whether a county employee can collect workers compensation benefits and sue the county for tort damages arising from the same work related accident.

Attendant Care

Industrial Blowpipe & Lumberman’s Mutual Cas. Co. v. Capps,

31 Fla. L. Weekly D908 (Fla. 1st DCA Mar. 29, 2006)

The Claimant was injured in a work related accident in February 1985. The accident was found to be compensable and the employer/carrier provided benefits. The issue on appeal was whether there existed competent substantial to support JCC Thomas G. Portuallo’s award of attendant care performed by the Claimant’s spouse. The Court found that the record contained competent substantial evidence to support the JCC’s award of active and passive attendant care from April 2, 1985, the date of the claimant’s discharge from the hospital to March 17, 1992 the date he was placed at maximum medical improvement (MMI). However, the JCC erred in awarding attendant care after the MMI date. The JCC awarded attendant care benefits after MMI in part because the claimant removed his prosthesis at night and his spouse was “on-call” and available at night to evacuate the claimant from their house in the event of an emergency. The Court found that the “potential emergency” for which the JCC awarded benefits was not related to claimant’s injuries, but the possible need to evacuate the home. The Court found that “such stand-by care is not compensable.”

Patrick v. Palm Beach County School Board,

31 Fla. L. Weekly D929a (Fla. 4th DCA Mar. 29, 2006)

A school teacher was injured by a student with a “propensity for violence.” The teacher’s complaint contained the following allegations, which the school board conceded were true: the child’s file showed that he had multiple personality disorder; the school board knew that the child had been Baker Acted for slamming his mother’s head against the floor and this fact was concealed or misrepresented to place him in the school. The employer filed a motion for summary judgment based upon the defense of workers’ compensation immunity.

The Fourth District found that the trial court erred in granting the school board’s motion for summary judgment based upon the holding of Sierra v. Associated Marine Institutes, Inc., 850 So. 2d 582 (Fla. 2d DCA 2003) in which a camp counselor was murdered by two of the camp’s residents. In Sierra, the Second District reversed an order dismissing the complaint based on workers’ compensation immunity because the facts showed that the two teenagers had violent histories and the murdered employee had not received property training. Thus, based upon the decision in Sierra, the Fourth District found that the school board did not demonstrate that there were no genuine issues of material fact as to whether the employer's behavior satisfied the intentional tort exception.

Workers’ Compensation Immunity

Bourassa v. Busch Entertainment Corp.,

31 Fla. L. Weekly D1011a (Fla. 2d DCA April 7, 2006)

The plaintiff was injured by a lion while working as a zookeeper. After receiving workers’ compensation benefits, the plaintiff sued the employer under the intentional tort exception to workers’ compensation immunity for damages resulting from her injuries. The employer filed a motion for summary judgment, which was granted. On appeal, the First District found that the trial court properly entered summary judgment on behalf of the employer because the employer: did not ignore evidence of prior accidents, injuries or safety hazards; had a training program in place and the claimant was fully trained in the procedure she was to perform; and there was no evidence that the employer concealed any dangers inherent in the procedure for drawing blood from the lion. The Court rejected the plaintiff’s argument that the allegations contained in her expert witness’ affidavit precluded entry of summary judgment. The Court observed that because the affidavit simply contained criticisms of the blood draw procedure and contained a series of recommendations of how the procedure could be made safer, it was legally insufficient to create an issue of material fact so as to prevent the entry of an order granting summary judgment. The dissent argued that there remained a genuine issue of material fact as to whether the employer’s conduct was substantially certain to cause injury or death.

Fraud

Quiroz v. Health Central Hospital and Unisource

31 Fla. Law Weekly D1029a (Fla. 1st DCA April 11, 2006

The Claimant was injured in a work-related accident which was accepted as compensable. Eventually, the Claimant was placed on light duty status and returned to work on March 1, 2004. On the date that the Claimant returned to work, he received a telephone call from his doctor’s office. The Claimant told his employer that he had forgotten about a doctor’s appointment and left the hospital. The Claimant went to his doctor’s office and learned that he did not have a doctor’s appointment. However, the Claimant did not return to work until late March 2, 2004. On the next day, March 3, 2004 the Claimant was informed that he would need a doctor’s note for leaving work early on March 1 and arriving late on March 2, 2004. The Claimant’s file indicated that he would be terminated if he failed to substantiate his absences.

On March 4, 2004 the Claimant visited another doctor complaining of headaches. The Claimant did not advise this doctor that he was receiving medical treatment through workers’ compensation. Although the doctor did not find anything that would prevent the Claimant from working that day, he did indicate in a note that the Claimant was not feeling well on March 1 and March 2, 2004 and was unable to work those days. Subsequently, the Claimant was terminated on March 5, 2004 for dishonesty, willful misrepresentation on work records, lying about sick leave and falsifying his reason for leaving. The Claimant then filed two petitions for benefits asking for temporary partial disability benefits from March 5, 2004 to June 3, 2004 the date maximum medical improvement was achieved. JCC W. James Condry found that the Claimant was barred from receiving benefits under section 440.105 due to fraud.

On appeal, the First District reversed, noting that any misrepresentations made by the Claimant were for not for the purpose of obtaining workers’ compensation benefits but were rather for the purpose of avoiding termination from the hospital.

Enforcement of Settlement Agreements

Fivecoat v. Publix Supermarkets, Inc.,

31 Fla. L. Weekly D1030a (Fla. 1st DCA April 11, 2006)

At a mediation conference a settlement agreement was reached indicating that the Claimant would accept $42,500.00 within 24 hours; an additional $552.20 would be factored into the contract for settlement and a valid contract for settlement existed between the parties. JCC ordered the Claimant to sign the agreement. The First District noted that settlement agreements such as the one entered into in this case at mediation were governed by contract law. A court is to use an objective test in order to determine whether the Claimant accepted the Employer/Carrier’s offer and whether the settlement is enforceable. The Court noted that the evidence showed that the Claimant did not give her attorney “clear and unequivocal authority to accept the settlement proposal.” As such, the JCC could not compel enforcement of the settlement agreement.

Attorneys’ Fees

Byrd v. Moltech Power Systems,

31 Fla. L. Weekly D1031a (Fla. 1st DCA April 11, 2006)

The parties agreed that the amount of attorney’s fees awarded to the Claimant’s attorney would be based upon the hours expended rather than the statutory guideline fee and evidence would be submitted by expert affidavits. The Claimant’s attorney filed a verified petition seeking payment for 332.40 hours and paralegal time of 20.30 hours. The Claimant’s expert found that an hourly fee of $250.00 was reasonable, which resulted in a total fee of $83,100.00. However, the Employer/Carrier’s attorney fee expert opined that the hourly rate and hours claimed by the Claimant’s attorney were excessive. The JCC entered an abbreviated final order awarding the Claimant’s attorney an attorney’s fee of $32,000.00 and a paralegal fee of $435.50 based upon 160 hours of attorney’s time at $200.00 per hour and 6.7 hours of paralegal time at $65.00 per hour. The Claimant filed a motion to vacate the abbreviated final order which was granted. However, in the detailed final order, the JCC further reduced the hours expended by the Claimant’s attorney from 160 to 155 and changed the paralegal hourly rate to $55.00 and provided that no penalties or interest would be assessed if the Employer/Carrier paid the amounts within 30 days from the order.

The JCC’s decision was affirmed on appeal. The Court found that the JCC did not abuse his discretion in considering the records of the Employer/Carrier’s defense counsel because the parties stipulated that the fee award should be determined by multiplying the number of hours reasonably expended by a reasonable hourly rate. Further, the Court found that it was “disingenuous” for the Claimant’s attorney to take the position on appeal that the records of defense counsel were irrelevant, because the Claimants’ attorney initially sought discovery of defense counsel’s records.

The Court also found that the final order was supported by competent substantial evidence and that the JCC sufficiently explained why he placed more weight on the defense’s expert than the Claimant’s expert. The issue regarding whether the JCC erred by giving the Employer/Carrier 30 days to pay the amounts before interest accrued was waived on appeal because this issue was not raised when the abbreviated final order was challenged.

Enforcement of Settlement Agreements

Quinlan v. Ross Stores,

31 Fla. L. Weekly D1131 (Fla. 1^st DCA April 24, 2006)

The deceased claimant’s personal representatives appealed the judge of compensation claims’ order denying her motion to enforce a proposed settlement agreement. The JCC found that an enforceable settlement agreement had not been made because certain express contingencies contained in the agreement where not met by the time the claimant died. On appeal, the First District upheld the JCC’s decision noting that the agreement contained language indicating that the agreement was contingent on approval of the set-aside amount by the Centers for Medicaid and Medicare Services and resolution of any Medicare liens.

120 Day Rule

Citrus County School Board v. Carlucci,

31 Fla. L. Weekly D1221b (Fla. 1^st DCA May 3, 2006)

The Court found that the JCC erred by applying the 120-day pay and investigate provision of section 440.20 (4), Florida Statutes to the Claimant’s request for further benefits under section 440.09 (1)(b), Florida Statutes. The JCC erred because section 440.20 (4) does not prevent an employer/carrier from challenging an injured worker’s entitlement to benefits by alleging that the injuries from the work-related accident were not the major contributing cause of the need for further treatment or surgery. Since the JCC found that the Claimant had reached maximum medical improvement and the work-related accident was not the major contributing cause of the continuing need for treatment, the Claimant was not entitled to further medical benefits.

Medical Causation

Dollar General Corp. v. MacDonald,

31 Fla. L. Weekly D1222a (Fla. 1^st DCA May 3, 2006)

The Claimant was injured in two work-related accidents, one occurring on March 1, 2003 and another occurring on August 13, 2003. Subsequently, the Claimant filed a Petition for Benefits for medical treatment for neck, back, hands and wrist pain based solely on her March 1, 2003 accident. However, the Claimant testified that she did not experience any neck or hand pain until the August 13, 2003 accident. The Claimant underwent an independent medical examination with Dr. Richard Hynes who found that the Claimant suffered from an underlying degenerative disk and she herniated that disk after picking up boxes of tile at work on August 12, 2003. On appeal, the First District Court of appeal reversed the JCC’s order awarding treatment for the Claimant’s March 1, 2003 accident. The Court noted that the only medical evidence presented in the case did not support a conclusion that the Claimant was entitled to treatment for the March 2003 accident. The Court also found that the Claimant and the Employer/Carrier did not try by consent the Claimant’s August injury because both parties jointly stipulated that the accident occurred on March 1, 2003. Additionally, one of the Employer/Carrier’s defenses was that the Claimant’s cervical injury did not arise out of the March accident. Since the record did not contain competent, substantial evidence supporting the award of treatment, the Court reversed the JCC’s order.

Average Weekly Wage

Taylor v. Labor Finders,

31 Fla. L. Weekly D1170 (Fla. 1^st DCA Apr. 28, 2006)

The issue on appeal was whether the JCC abused her discretion by determining that the claimant’s average weekly wage should be based upon a 20 hour work week where it was demonstrated that the claimant worked only 32 hours during his 4 days of employment. The First District found that the JCC erred and the claimant’s average weekly wage should have been based upon his actual wages earned.

Special Disability Trust Fund

Special Disability Trust Fund v. Rescare Home Health Inc/Liberty Mut. Group,

31 Fla. L. Weekly D1253b (Fla. 1^st DCA May 4, 2006)

At issue on appeal was whether JCC Remsynder erred when she: 1.) did not apply the 4-year statute of limitations contained in section 95.11 (3), Florida Statutes to the Employer/Carrier’s claim and 2.) found that the Special Disability Trust Fund (Fund) had waived the statute of limitations. The Claimant was injured on June 16, 1989. The employer/carrier timely filed a notice of claim. A proof claim was filed on March 6, 1996 and a letter was sent the next month by Fund counsel to the Employer/Carrier requesting additional information. The Fund sent a request for a pay history to the Fund on December 20, 1996; the Employer/Carrier did not respond to the request. On September 20, 2000 the Fund sent a letter to the Employer/Carrier requesting that it inform the Fund whether it intended to pursue a claim. The Employer/Carrier did not send a response to the Fund until April 7, 2004. Subsequently, on July 20, 2004, the Fund informed the Employer/Carrier that its claim was barred.

Although the claim was timely filed within the 2-year statute of limitations contained in section 440.49 (2)(g), the Fund argued that the 4 year limitation in section 95.11 (3)(f) which applies to actions based upon “statutory liability” barred the Employer/Carrier’s claim. The Fund argued that this statute prohibited the Employer/Carrier’s claim because it failed to submit all proof needed in support of the claim to the Fund within 4 years. The Court rejected this argument noting that the filing of the notice of claim is the first step in obtaining reimbursement from the Fund. The Court declined to adopt additional statute of limitations for the first step in the reimbursement process because the filing of the proof of claim does not institute a separate cause of action. The Court noted that the first step had never been completed in the case as the entitlement to reimbursement had not been determined prior to the order on appeal. However, the Court did observe that the statute of limitations is applicable to the second step of the process which is the reimbursement request, which is filed after the Fund determines whether the Employer/Carrier is entitled to reimbursement. Accordingly, the Court affirmed the JCC’s decision.

Managed Care

Mack v. Westminster Suncoast Manor,

31 Fla. L. Weekly D1278 (Fla. 1^st DCA May 8, 2006)

The First District affirmed the dismissal of the Claimant’s petitions for benefits because resolution of the petitions continued to be governed by the managed care agreement. Since the Employer/Carrier has not denied the requested treatment but has rather only specified which provider will provide the treatment it has complied with the terms of the managed care agreement.

Judge Ervin filed a dissenting opinion, arguing that JCC’s order was inconsistent because despite finding that the Carrier was estopped from relying on the defense of the claimant’s failure to exhaust the managed care grievance procedure, the JCC dismissed the petitions because she concluded that the managed care procedures were not exhausted because the Carrier’s offer of a specialist complied with the managed care agreement. As such, Judge Ervin would reverse and remand the cases with the direction that the Employer/Carrier be required to treat the petition as a request for service.

Independent Medical Examinations

Miller v. Jupiter Medical Ctr.,

31 Fla. L. Weekly D1279a (Fla. 1^st DCA May 8, 2006)

The Claimant petitioned the court for a writ of certiorari review to review the JCC’s order compelling her to undergo an independent medical examination (IME). The Claimant argued that the JCC departed from the essential requirements of law by permitting the Employer/Carrier to select a physician who practices outside the county the Claimant resides in. The Claimant further argued that the Employer/Carrier’s IME should have been performed by the same physician who previously performed the IME in February 2004.

The First District rejected this argument, noting that the facts of the case supported the JCC’s conclusion that the issue of surgery was a new dispute entitling the Employer/Carrier to select an “IME with the physician of its choice.” Since the Claimant made a new request for surgery following her 2004 IME and the Employer/Carrier disputed the need for surgery, it was entitled to select a new, rather than an alternate, IME physician. The Court also observed that section 440.13 (5) does not contain a limitation regarding the geographical location of an IME.

TORTS AND INSURANCE CASES

Error to Grant New Trial on Issue of Liability

Where No Prejudicial Legal Error Was Present

Carr v. School Bd. of Pasco County,

921 So. 2d 825 (Fla. 2d DCA 2006)

A student was injured while participating in an event at his school. The student sued the school board for negligence and the jury found in favor of the student. The trial judge granted the school board’s motion for a new trial on the grounds that the student presented no evidence that the school board was on actual or constructive notice of the dangerous condition. On appeal, the Second District reversed finding that the trial court applied the wrong standard of law. The Court noted that a judge may grant a new trial on the issue of liability in the absence of juror misconduct “when he or she becomes aware of a specific prejudicial legal error or when he or she finds that the jury's verdict is contrary to the manifest weight of the evidence.” Since the instant case did not involve an injury caused by a transitory object, actual or constructive knowledge of the dangerous condition was irrelevant.

Pharmacist Owes No Duty to Third Party Allegedly

Insured Due to Negligent Medication Instructions

Dent v. Dennis Pharmacy, Inc.

31 Fla. Law Weekly D920c (Fla. 3d DCA Mar. 29, 2006)

Dent sued the defendant for injuries resulting from an automobile collision. The accident at issue occurred when the driver fell asleep at the wheel and collided with Dent’s automobile. Dent alleged that the pharmacy gave negligent advice to a customer regarding a narcotic medication. Specifically, Dent contended that the pharmacy’s placement of a “use caution driving” label on the prescription bottle gave the driver the impression she could drive. Since the pharmacy voluntarily undertook the duty of warning the driver, Dent argued that the pharmacy was liable for her injuries. The trial court granted the pharmacy’s motion to dismiss, finding that the pharmacy owed no duty to Dent.

On appeal, the Court noted that the issue was whether Dent was in privity with the pharmacy or an identifiable third party to whom the pharmacy owed a legal duty. The Court found that there was neither privity between Dent and the pharmacy nor was she a known third party. The Court also found that the voluntary undertaking doctrine did not apply because the Florida law requires pharmacists to provide patient counseling.

Record Activity and Motions to Dismiss for Lack of Prosecution

Wilson v. Salamon,

923 So. 2d 363 (Fla. 2005)

The plaintiff filed a lawsuit against a doctor and medical center for injuries suffered by her daughter at the time of birth. There was no record activity in the case from October 29, 2001 until April 4, 2002 when the court granted the plaintiff’s attorney motion to appear pro hac vice. Subsequently, there was no further activity until the defendant’s filed a motion to dismiss for lack of prosecution on November 4, 2002. The trial court granted the dismissal which was affirmed by the Second District Court of Appeal. However, the Second District certified a question to the Supreme Court asking whether trial court orders that have been entered and filed to resolve properly filed motions should be treated as record activity precluding dismissal under rule 1.420(e) of the Florida Rules of Civil Procedure.

The Supreme Court answered the certified question in the affirmative. The Court held that the plain language of the rule prevented an action from being dismissed where there has been pleadings or orders entered by the court within the past year. The Court receded from its previous decisions to the extent that they could be interpreted to require the trial court to look beyond the record to determine whether activity was merely passive and insufficient to prevent dismissal under the rule.

Corporate Officers May be Individually Liable for Torts Committed

Within the Course and Scope of Their Employment

White v. Walmart Stores, Inc.,

918 So. 2d 357 (Fla. 1^st DCA 2005)

The plaintiff was injured in a slip and fall accident and sued both Wal-Mart and the store manager. The trial court accepted the defendant’s argument that the manager owed no duty to the plaintiff and dismissed the counts of the lawsuit relating to his alleged negligence. On appeal, the First District reversed the trial court’s decision holding that officers or agents of corporations may be individually liable in tort if they commit or participate in a tort, even if their acts are within the course and scope of employment. The Court found that the plaintiff’s allegations met the requirements of section 768.070 because her complaint alleged that the manager was directly responsible for carrying out certain responsibilities, that he negligently failed to do so, and that as a result, she was injured.

Out of State Business Trips and Personal Jurisdiction Over Corporate Officers

Tramel v. D'Angel Bedding Corp.,

917 So. 2d 982 (Fla. 3d DCA 2005)

A manufacturer sued the Chief Financial Officer of an Oklahoma company for tortious interference and theft of corporate opportunity. At issue on appeal was whether the court had long-arm jurisdiction over the CFO. The Court observed that “[i]n order to obtain long-arm jurisdiction, the complaint must allege sufficient jurisdictional facts to bring the action within one of the statutory requirements and the defendant's activities must also constitute sufficient minimum contacts with Florida.” The Court found that the complaint failed to allege sufficient facts establishing minimum contacts with the state, because the CFO’s two trips to Florida and other communications were in his business not individual capacity.

Payment of Insured’s Attorneys’ Fees in Declaratory Action Where Insurer

Settles Underlying Case Against Insurer Within Policy Limits

Basik Exps. & Imps., Inc. v. Preferred Nat'l Ins. Co.,

911 So. 2d 291 (Fla. 4^th DCA 2005)

The insured purchased a commercial general liability insurance policy from the insurer. At some point during the policy’s term, a third party sued the insured for negligence resulting from automobile accident. Although the policy required an insured party to promptly notify the insurer, the insured waited 10 months after the accident to notify the company. The insurer did not decline coverage but instead opted to provide a defense for the insured under a full reservation of rights. However, while the third-party action was still pending, the insured filed a declaratory judgment action against the insurer, seeking a determination of its rights under the policy. The insurer counter-claimed for declaratory relief, which remained unanswered at the time of the dismissal. The insurer settled the third-party claim within its policy limits. Subsequently, the insured then filed a motion for summary judgment on the declaratory judgment action and sought attorney’s fees, contending that the settlement of the third-party claim amounted to a confession of judgment. The trial court denied the motion and dismissed the declaratory action. The trial court’s decision was affirmed by the Fourth District on appeal. The Court noted that when the insurer defended the case under a full reservation of rights and once the case settled the issue of coverage became moot.

Strict Liability of Exclusive Distributor Where

Distributor Never Physically Possessed Product

Rivera v. Baby Trend, Inc.,

914 So. 2d 1102 (Fla. 4^th DCA 2005)

The plaintiff brought a products liability case against a retailer and distributor for injuries suffered due to a defective baby stroller. The stroller was manufactured by a company in China which was not a party to the action. The trial court granted summary judgment in favor of Baby Trend, the exclusive distributor of the stroller, finding that because the company never took control of the stroller in the process of distribution it could not be held strictly liable. The Court noted that although Baby Trend never had actual possession of the stroller, it was the seller of the stroller, marketed the stroller under its name, accepted payment for the item and had some involvement with the design of the stroller. Since Baby Trend was responsible for placing the item in the stream of commerce, the trial court’s decision was reversed.

Improper Closing Argument

Werneck v. Worrall,

918 So. 2d 383 (Fla. 5^th DCA 2006)

At issue was whether the plaintiff’s attorney made improper closing arguments in a wrongful death case. The plaintiff’s attorney made various comments about the defendant’s wealth and other parties that had been dismissed prior to the trial. The plaintiff’s attorney also suggested that an amount for pain and suffering should be based upon the number of trucks owned the defendant multiplied by the salary of a daycare worker. The jury returned a verdict for the plaintiff in the amount requested. The Fifth District reversed, noting that while the trial court gave a curative instructive regarding the improper argument made regarding the defendant’s wealth, this instruction may have given the jury the false impression that profits and assets were a proper matter for consideration. Additionally, the Court found that there was no “logical nexus” between the number of trucks owned by the defendant and the hourly wage of a day care worker in computing the amount of damages for pain and suffering.

Apex Doctrine

Citigroup Inc. v. Holtsberg,

915 So. 2d 1265 (Fla. 4^th DCA 2005)

The plaintiffs, stock holders of a company, filed subpoenas for the depositions of two of the company’s executives. The defendants filed a motion for a protective order to prevent their depositions from taken, arguing that before the plaintiffs can depose the executives they must satisfy the “apex doctrine.” The “apex doctrine” requires the plaintiffs to show that the individuals sought to be deposed have unique or special knowledge of the facts at issue and the plaintiff’ have exhausted less burdensome avenues of obtaining the sought information. The trial court denied the motion for protective order. The Fourth District affirmed, noting that the “apex doctrine” has not been expressly adopted by the Florida Courts. Further, the Fourth District noted a district court could not adopt a doctrine which conflicts with the discovery rules as only the Florida Supreme Court has such authority. However, even if the “apex doctrine” was to apply, the petition for certiorari would still be denied because the defendants’ motion was not accompanied by the official’s affidavits denying knowledge of the relevant facts.