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By Debra P. Klauber, Esq.

FLORIDA SUPREME COURT CLARIFIES NON-FINAL APPEALS OF ORDERS DENYING SOVEREIGN IMMUNITY AND AMENDS APPELLATE RULE.

Florida Highway Patrol v. Jackson, SC18-468, 45 Fla. L. Weekly S32 (Fla. Jan, 23, 2020); In re Amendments to Florida Rule of Appellate Procedure 9.130, SC19-1734, 45 Fla. L. Weekly S36 (Fla. Jan. 23, 2020).

In an effort to clarify which orders denying sovereign immunity are immediately reviewable by way of a non-final appeal, the Florida Supreme Court opted to modify the appellate rule addressing such appeals. Recognizing that the issue of sovereign immunity is not only an immunity from liability, but also an immunity from suit, the Court amended Rule 9.130 to expand the availability of appellate review of non-final orders denying sovereign immunity. The Rule now allows a non-final appeal of orders denying motions that (1) assert entitlement to absolute of qualified immunity in a civil rights claim; (2) assert entitlement to immunity for an individual employee under section 768.28(9) of the Florida Statutes; and (3) assert entitlement to sovereign immunity. Hard stop.

FLORIDA SUPREME COURT MODIFIES APPELLATE RULES TO ADDRESS ISSUES RELATED TO REDACTIONS IN THE RECORD.

In re: Amendments to Florida Rules of Appellate Procedure 9.130 and 9.200, SC19-2011, 45 Fla. L. Weekly S55 (Fla. Jan. 30, 2020).

To address concerns related to redacted records often transmitted to appellate courts, the Florida Supreme Court has modified Rule 9.200. These changes set forth in detail the requirements pertaining to redacted records, explain the requirements for the trial court clerk to follow to submit the redacted record to the appellate court, and also allow for counsel or unrepresented parties to request an unredacted version of the record without a formal notice or request.

SHOULD THE APPELLATE RULES BE MODIFIED TO ALLOW FOR NON-FINAL APPEALS OF ORDERS GRANTING MOTIONS TO AMEND TO ADD PUNITIVE DAMAGES?

Sapp v. Olivares, 4D19-2190, 45 Fla. L. Weekly D81 (Fla. 4th DCA Jan. 8, 2020).

The current rule allows the Florida appellate courts to review, on an interlocutory basis, a trial court order allowing a claim for punitive damages. However, the appellate review is limited to the question of whether the trial court followed the proper procedure. The appellate court cannot address the sufficiency of the evidence or the reasonableness of the trial court’s decision in the non-final appeal. Several appellate courts and individual judges have questioned the efficacy of this practice in modern litigation and suggested an amendment to Rule 9.130 to allow non-final appeals of orders allowing punitive damage claims. It remains to be seen whether the Appellate Court Rules Committee will make a recommendation or the Florida Supreme Court will address these concerns.

EMPLOYER NOT ESTOPPED FROM RAISING WORKERS’ COMPENSATION IMMUNITY AS A DEFENSE TO CIVIL SUIT EVEN WHERE IT DENIED WORKER’S CLAIM WAS COMPENSABLE WORK-RELATED INJURY.

McNair v. Dorsey, 1D18-698, 45 Fla. L. Weekly D194 (Fla. 1st DCA Jan. 22, 2020).

In this case an employee who claimed he was injured on the job filed two petitions for benefits which were denied by his employer. The employer/carrier found that there was no compensable accident that the injury did not occur within the course and scope of his employment. After the employee voluntarily dismissed his workers’ compensation petition and filed a civil negligence claim, the trial court granted summary judgment in favor of the employer, based on workers’ compensation immunity. The employee appealed and the First District affirmed the summary judgment in favor of the employer. The First District explained that the employer was not foreclosed from raising its entitlement to workers’ compensation immunity just because it denied compensability in a related compensation proceeding. Where the accident, if it happened as alleged, clearly occurred in the course and scope of the employee’s employment, it is not inconsistent for the employer to claim that the injury is not compensable under workers’ compensation laws and, at the same time, claim immunity from any civil proceeding. If the accident occurs in the workplace, it places the case within the ambit of workers’ compensation law.

APPELLATE COURT QUESTIONS WHETHER DISCOVERY RELATED TO EXPERT BIAS SHOULD BE THE SAME FOR PLAINTIFFS AND DEFENDANTS.

Barnes v. Sanabria, 5D19-1461, 45 Fla. L. Weekly D135 (Fla. 5th DCA Jan. 17, 2020).

The Fifth District again certified a question to the Florida Supreme Court about what discovery should be permissible with respect to medical experts and their relationships with lawyers, law firms and insurance carriers who are not actually parties to the pending litigation. The certified question was based on what the court found to be a compelling argument that Florida law does not treat personal injury plaintiffs and defendants equally when it comes to compelling disclosure or ongoing or repeated relationships between those providing the medical evaluations and those who represent the parties in litigation.

FLORIDA APPELLATE COURT ADDRESSES QUESTIONS RELATED TO COSTS FOR COPIES OF MEDICAL RECORDS, FINDINGS POTENTIAL FDUPTA VIOLATIONS.

Webber v. Bactes Imaging Solutions, Inc., 2D19-2964, 45 Fla. L. Weekly D125 (Fla. 2d DCA Jan. 15, 2020).

The Florida administrative code recognizes that patient access to medical records is “important and necessary” and that the cost of obtaining such records can be burdensome for both the patients and the providers. The rule, 64B8-10.003, allows practitioners to be reimbursed but sets limits depending on who makes the request (i.e., patients, governmental entities, and “other entities”). This case involved a class action lawsuit in which the plaintiffs/patients asserted that certain medical providers improperly charged lawyers the higher, “other entities” rate for copies even though the requests for records were clearly made for the benefit of the patients. The appellate court agreed that the practice of charging higher rates when a lawyer submits a request for records on behalf of his or her patient is not only a violation of the administrative rule but also an unfair practice under FDUTPA.

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