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By Debra P. Klauber, Esq.
FLORIDA SUPREME COURT APPROVES PROPOSED CONSTITUTIONAL AMENDMENT WHICH WOULD ALLOW ALL REGISTERED VOTERS TO VOTE IN PRIMARIES FOR STATE LEGISLATURE, GOVERNOR, AND CABINET, REGARDLESS OF POLITICAL PARTY AFFILIATION.
The Florida Attorney General petitioned the Florida Supreme Court for an advisory opinion as to the validity of the petition designed to amend the Florida Constitution. The majority of the court concluded that the petition complied with Florida law, particularly the single-subject requirements, agreed that the ballot summary provided fair notice of the subject matter, and approved the initiative for placement on the ballot.
APPELLATE COURT HOLDS THAT NO AUTHORITY EXISTS UNDER SECTION 57.105 TO ALLOW A COURT TO AWARD NOT ONLY REASONABLE ATTORNEYS’ FEES INCURRED, BUT ADDITIONAL PUNITIVE AMOUNT.
Safeco Ins. Co. v. Heikka, 45 Fla. L. Weekly D4858-2971 (Fla. 4th DCA March 4, 2020).
In this case the plaintiff’s attorney successfully recovered for the reasonable attorneys’ fees incurred in litigating an insurer’s declaratory judgment action where the trial court awarded the fees pursuant to section 57.105 of the Florida Statutes. When the trial court subsequently awarded the plaintiff additional fees for a punitive amount, the appellate court reversed. The Fourth District concluded that the application of the lodestar method adequately computed the “reasonable attorney’s fees” under the statute and compensated the plaintiff as contemplated by the statute.
APPELLATE COURT AFFIRMS TRIAL COURT DECISION NOT TO GIVE SPOLIATION INFERENCE IN SLIP AND FALL CASE.
Pena v. Bi-Lo Holdings, LLC, 45 Fla. L. Weekly D506, 3D19-0581 (Fla. 3d DCA March 4, 2020).
The plaintiff was injured in a slip-and-fall at a supermarket when she fell on uncooked rice. She took pictures of an employee sweeping up the grains of rice and, days after the incident, asked the defendant to preserve all video surveillance in the store. During discovery in the case, it was determined that the closed-circuit recording system did not capture the area where the fall occurred, and that the store discarded or misplaced the bag of rice. In response to the store’s motion for summary judgment, the plaintiff asked the trial court to allow an adverse inference since the store had failed to direct its surveillance at the scene of the fall and because the rice bag and inspection logs were unavailable, and the employee sweeping the rice could not be identified. The trial court found, and the appellate court agreed, that while the store was obligated to maintain the surveillance video, it could not be sanctioned for “the failure to create evidence.” Similarly, the trial court found, and the appellate court agreed, that even though the bag of rice was not available, its condition was readily observable and its loss or destruction did not impact the plaintiff’s ability, or inability, to prove her case. Likewise, neither court was persuaded that the inability to identify the employee who was involved was somehow nefarious.
APPELLATE COURT REITERATES THE HIGH THRESHOLDS SET FORTH BY THE FLORIDA SUPREME COURT FOR ALLOWING A NEW TRIAL BASED ON COUNSEL’S COMMENTS IN CLOSING ARGUMENT.
Robinson v. Polk County School Board, 45 Fla. L. Weekly D561, 2D19-421 (Fla. 2d DCA March 11, 2020).
When improper comments made in closing argument are not objected to contemporaneously, but are later the basis for a new trial motion, the applicable standard requires the trial court to determine whether the comments constitute fundamental error. In evaluating whether a new trial is appropriate, the trial court must evaluate whether the comments were in fact improper, whether they caused harm that calls into question the validity of the trial itself, whether the harm was incurable, and whether the comments and conduct damaged the fairness of the trial itself. The trial court’s failure to apply this stringent standard set forth by the Florida Supreme Court years ago warranted a reversal of the order granting a new trial.
DISTRICT COURT OF APPEAL REAFFIRMS THAT THE OBLIGATION TO FILE A PRIVILEGE LOG DOES NOT ARISE UNTIL AFTER THE COURT HAS RULED ON THE PARTY’S NON-PRIVILEGE DISCOVERY OBJECTIONS.
In this suit between a homeowner and insurance carrier who denied coverage for a hurricane water damage claim, the plaintiff requested photographs of the property that were taken by the insurance company’s investigator. The insurance company objected to the request by arguing that the documents were protected by the work product doctrine and because it included information that was not properly discoverable in a first-party property insurance claim. The trial court overruled the objection simply because the insurance carrier had not provided a privilege log. The appellate court accepted certiorari review and reiterated the Florida courts’ determination that the obligation to file a privilege log does not arise until the information is determined to be discoverable — which is after the trial court has ruled on the non-privileged objections. The appellate court found that the trial court should have first ruled on the overbreadth objection to the disclosure of the photographs and allowed the carrier a reasonable amount of time in which to file its privilege log thereafter.