; Case Law Update
Learning Center
Plans & pricing Sign in
Sign Out
Your Federal Quarterly Tax Payments are due April 15th Get Help Now >>

Case Law Update


  • pg 1
									              W ICKER S MITH O’H ARA M C C OY & F ORD P.A.

                                 JANUARY / FEBRUARY 2012

                       Case Law Update
*Trial Court Did Not Abuse Its Discretion By Excluding Causation Testimony From Patient’s
Standard of Care Expert Witness.

Service By Publication Is Only Permitted When Personal Service Cannot Be Obtained.

*The Baker Act (Ch. 394 Florida Statute) Does Not Create a Duty to Hold a Patient Under
Treatment Until a Trial Court Has Ruled Upon a Pending Petition for Involuntary Placement.

*To Be Considered Medical Negligence, the Injury Must Be a Direct Result of Receiving Medical
Care or Treatment By the Healthcare Provider.

A Settlement Agreement That Does Not Clearly Reserve a Cause of Action Against a Subsequent
Tortfeasor Is Presumed to Cover All Injuries.

Challenge to Medical Expenses Should Be Asserted as
an Affirmative Defense, Not a Counterclaim Against
Plaintiff’s Medical Provider.

Summary of Florida Supreme Court Cases Shotts and

Owner’s Consent to Use Vehicle Cannot Be Vitiated
By Invocation of Third Party Agreements Attempting
to Limit Scope of Who May Operate the Vehicle.

Absent Being Excused By the Court, the Party Must
Appear at Mediation, and a Representative Cannot
Take the Party’s Place.

 * Wicker Smith Case Wins

JANUARY / FEBRUARY 2012                                                            Case Law Update

   Daniel Duss was diagnosed with cerebral palsy shortly after his birth on
   December 3, 2002. In 2003, a lawsuit was filed on his behalf alleging that Duss v. Garcia,
   the obstetrician who delivered him, Martin A. Garcia, M.D., was negligent 37 Fla. L.
   in using a fetal vacuum extractor during the delivery, and his negligence Weekly D106
   caused Daniel to sustain a brain injury, leading to cerebral palsy. When the (Fla. 1st DCA
   case finally made it to trial in August 2010, after earlier ending in a
                                                                                 Jan. 6, 2012)
   mistrial, the plaintiff put on four medical experts—one on standard of
   care and three on causation. The gist of their testimony was that Dr.
   Garcia breached the standard of care by needlessly using the vacuum extractor six times to deliver
   Daniel, and that his actions caused Daniel to suffer an ischemic stroke, which, in turn, caused brain
   injury. The Defendants’ experts testified that Dr. Garcia’s use of the vacuum extractor was within
   the standard of care, that use of the device cannot cause an ischemic stroke, and that Daniel’s
   strokes and brain injury resulted from a placental abnormality. The jury rendered a verdict in favor
   of the Defendants.

   Dr. Barry S. Schifrin, an OB/GYN, was the Appellant’s only expert on standard of care. He
   testified that based on his review of the labor and delivery reports, no circumstances were present to
   make a vacuum-assisted delivery necessary. When the Appellant’s counsel asked Dr. Schifrin for his
   opinion on whether “obstetrical circumstances or conditions existed which could result in ischemic
   injury,” the Appellees’ counsel objected and, after conducting a voir dire, argued that the doctor was
   not qualified to give expert opinion on the cause of Daniel’s neurological injury. The trial court
   sustained the Appellees’ objection.

   “A trial court is to be afforded broad discretion in determining the subject on which an expert may
   testify in a particular trial. The trial court’s decision will only be disregarded if that discretion has
   been abused.” Angrand v. Key, 657 So.2d 1146, 1148 (Fla. 1995). The expert here, Dr. Schifrin, was
   only qualified to testify on the standard of care and on whether Dr. Garcia breached it. Any
   testimony linking breach of the standard of care to Daniel’s neurological injury—ischemic stroke—
   unquestionably would go to causation and, we believe, would exceed the scope of matters on which
   Dr. Schifrin was qualified to give an opinion at trial. Appellant’s pediatric neurologist, Dr. Ronald S.
   Gabriel, testified that vacuum extraction could produce the kind of brain injury Daniel sustained.
   Additionally, Appellant’s expert neonatologist, Dr. Marcus Hermansen, diagnosed Daniel’s ischemic
   stroke as a mechanical injury caused by use of the vacuum extractor. Thus, even if the trial court
   had erred in excluding Dr. Schifrin’s testimony, Appellant suffered no prejudice from the court’s

   Appellee’s theory of the case was that there is no link between strokes in infants and vacuum-
   assisted delivery, and that Daniel’s neurological injury resulted from a placental abnormality. Among
   Appellee’s medical experts were Dr. John Thorp, who testified on standard of care, and Dr. David
   Schwarts, an expert on placental pathology. Dr. Thorp is an OB/GYN specializing in the care of
   mothers and fetuses with medical conditions or risk factors for poor outcomes.
                                                                                   Continued on page 3…

   Continued from page 2…

                                                                                                  Page 2 of 12
JANUARY / FEBRUARY 2012                                                           Case Law Update
   He testified he has published approximately three hundred articles, has written at least eighteen
   textbook chapters on topics within his fields of expertise including “the role of perinatal factors in
   brain disorders,” and lends his expertise in perinatal epidemiology to several medical journals to
   conduct peer-review of articles submitted by others for publication.

   As a rule, a party may not introduce evidence to bolster a witness’ credibility before it has been
   attacked. See, Linn v. Fossum, 946 So.2d 1032, 1039 (Fla. 2006). Appellant cites several cases stating
   that a party may not use authoritative literature to bolster the opinion of an expert witness on direct
   examination, and argues that the trial court allowed Appellees to do so with Dr. Thorp using his
   own publications. See, e.g., id. at 1036; Erwin v. Todd, 699 So.2d 275, 278 (Fla. 5th DCA 1997); Medina
   v. Variety Children’s Hosp., 438 So.2d 138, 139 (Fla. 3d DCA 1983); Tallahassee Mem’l Reg’l Med. Ctr. v.
   Mitchell, 407 So.2d 601, 602 (Fla. 1st DCA 1981); see also §90.706, Fla. Stat. (2010). We conclude,
   notwithstanding the bombastic response, that the question Appellees’ counsel posed was not
   improper bolstering, but rather a fair follow-up to Dr. Thorp’s unchallenged testimony about the
   “huge natural experiment” and lack of evidence linking vacuum assisted delivery to ischemic stroke
   in infants.

   The trial court correctly precluded Appellant’s standard of care expert, Dr. Schifrin, from testifying
   that Dr. Garcia’s alleged breach of the standard of care created circumstances from which brain
   injury to a newborn likely occurs. Such testimony went to causation, and Dr. Schifrin was not
   qualified to give an opinion on that subject. Further, the court did not permit improper bolstering
   of the testimony by Appellees’ experts, Dr. Thorp and Schwartz. Finding no error by the trial court,
   we AFFIRM the final judgment on appeal.

     Estela v.                     SERVICE BY PUBLICATION IS ONLY PERMITTED
     Cavalcanti, 36 Fla.           WHEN PERSONAL SERVICE CANNOT BE OBTAINED.
     L. Weekly D2773               The Plaintiff filed a complaint naming Estela as a Defendant. He
     (Fla. 3d DCA Dec.             made several failed attempts to personally serve Estela at his last
     21, 2011)                     known address. He then filed a motion for leave to serve Estela by
   publication and attached an affidavit of diligent search. Estela made a special appearance and filed a
   motion to quash the Plaintiff’s attempt to serve him by publication, and provided an address in
   Costa Rica. The trial court granted the Plaintiff’s motion for leave to serve by publication.

   The issue on appeal is whether a plaintiff can serve a defendant by publication if the defendant
   provided an out-of-state address where the defendant can be personally served and where there is
   no evidence that the defendant was attempting to evade service.

   The court looked at the language of Fla. Stat. § 49.021 and held that the statute’s plain language
   mandates that service by publication is only permitted when personal service cannot be obtained.
   Therefore, the Plaintiff was obligated to at least attempt to serve Estela at the Costa Rican address
   he provided.

                                                                                                  Page 3 of 12
JANUARY / FEBRUARY 2012                                                           Case Law Update

   INVOLUNTARY PLACEMENT.                   Tuten v. Fariborzian,
                                                                         37 Fla. L. Weekly
   Rebecca Tuten’s husband, James, began receiving outpatient D144 (Fla. 1st DCA
   care at Meridian in September 2007 for depression and suicidal
   ideations. He was voluntarily admitted to Meridian after Jan. 13, 2012)
   attempting suicide in November 2007. After three days, upon his request, he was released with
   medication. Two months later, James again attempted suicide by taking an overdose of psychiatric
   medication. Following a stay in the intensive care unit at a local hospital, he was admitted to
   Meridian on February 5, 2008, and came under the care of appellee, Alexander Fariborzian, a
   psychiatrist. On his third day at Meridian, James requested a discharge, but his request was denied
   by Dr. Fariborzian. On February 8, 2008, on the fourth day of his stay, a Meridian administrator
   filed a petition for involuntary placement and a petition for adjudication of incompetence to consent
   to treatment pursuant to the Baker Act. Both petitions were supported by the opinion of Dr.

   A hearing was eventually scheduled for February 15, 2008. On February 13, James requested his
   release from Meridian and Dr. Fariborzian certified that he was competent to provide consent for
   release. James was released on that date with an order to receive follow-up care. The next day
   James Tuten shot his wife and then fatally shot himself.

   Rebecca Tuten filed an amended complaint for wrongful death asserting negligence against Dr.
   Fariborzian and Meridian. She raised three issues on appeal arguing that: (1) the trial court erred in
   dismissing her amended complaint because, under the Baker Act, chapter 394, Florida Statues, also
   known as the Florida Mental Health Act, Meridian and Dr. Fariborzian had the duty to keep James
   Tuten within the facility until a trial court ruled on the petition for involuntary placement; (2) apart
   from the Baker Act, Meridian and Dr. Fariborzian owed James Tuten a duty of care which was
   breached upon his release; and (3) the trial court erred in refusing to allow a third amendment of her

   The Baker Act (section 394.469, Florida Statutes (2008)), provides that if “[a]t any time a patient is
   found to no longer meet the criteria for involuntary placement,” the facility administrator is required
   to discharge the patient (not under criminal charge), transfer the patient to voluntary status, or place
   an improved patient (not under criminal charge) on convalescent status in a community facility.
   There is no limitation to discharge a patient who no longer warrants involuntary placement. In fact,
   a plain reading of section 394.469 would indicate that a petition could be withdrawn prior to a
   ruling. Grant by a court of a petition for involuntary placement requires proof that the patient meets
   certain criteria established by clear and convincing evidence. Since Dr. Fariborzian, the treating
   physician, concluded that, in his professional opinion, James Tuten could determine for himself
   whether commitment was necessary, there was no proof Meridian or Fariborzian could offer in
   continuing support of a petition for involuntary placement.
                                                                                  Continued on page 5…

   Continued from page 4…

                                                                                                  Page 4 of 12
JANUARY / FEBRUARY 2012                                                            Case Law Update
   As for the argument that a common law duty exists which required Meridian and Dr. Fariborzian to
   keep James Tuten committed against his will, despite the professional opinion of his treating
   physician that Tuten had become competent enough to make his own decision regarding
   commitment, we cannot agree that such a duty exists under the undisputed facts in this case.
   Because the “internal workings of the human mind remain largely mysterious,” to impose a general
   duty on a psychiatrist would require such doctors to have the gift of “clairvoyance.” Garcia v.
   Lifemark Hospitals of Florida, 754 So.2d 48, 49 (Fla. 3d DCA 1999)

   It is significant that the case law establishes there is no duty to warn that a patient may be dangerous,
   even when the patient is involuntarily committed as a result of a Baker Act proceeding. Further, as
   recognized by the Fifth District in Paddock v. Chacko, 522 So.2d 410, 413-15 (Fla. 5th DCA 1988),
   “numerous cases underscore the inability of psychiatric experts to predict, with any degree of
   precision, an individual’s propensity to do violence to himself or others.” Thus, because the future
   behavior of a psychiatric patient is unknowable, under Florida law risk of harm is not foreseeable
   and therefore no duty exists to lessen the risk or protect others from the type of risk which a
   psychiatric patient might pose. As the Florida Supreme Court has explained, the “requirement of
   reasonable, general foresight is the core of the duty element.” McCain v. Fla. Power Corp., 593 So.2d
   500, 503 (Fla. 1992).

   The trial court has wide discretion, pursuant to Florida Rules of Civil Procedure 1.190, on
   procedural matters including requests to amend pleadings. The trial court, in this case, did not abuse
   its discretion, as “the court need not allow an amendment that would be futile.” (citing Thompson v.
   Publix Supermarkets, Inc., 615 So.2d 796, 797 (Fla. 1st DCA 1993). The final order is AFFIRMED.

                                                                                                  Page 5 of 12
JANUARY / FEBRUARY 2012                                                            Case Law Update

   The Plaintiff alleges that nurse Lorenzo Rivera instructed her to move Staff, Inc., 37 Fla.
   from a test bed to a gurney and that the Plaintiff fell while attempting to L. Weekly D174
   move. The complaint alleged negligence on the part of Ms. Rivera in (Fla. 4th DCA Jan.
   failing to exercise reasonable care in assisting the Plaintiff. Based on the 18, 2012)
   Plaintiff’s deposition and Ms. Rivera’s affidavit, it was undisputed that
   the Plaintiff was given contrast dye for a CT scan. During the scan, the Plaintiff began to vomit,
   and once the scan was completed Ms. Rivera was called in to the room by the technician. Ms.
   Rivera, believing the Plaintiff to be suffering an allergic reaction, instructed the Plaintiff to move to
   the gurney. The Plaintiff then fell and was injured.

   The Defendants moved for summary judgment on the basis that the facts demonstrated that the
   Plaintiff’s claims were for medical negligence under Florida Statute chapter 766, and thus barred by
   the 2 year statute of limitations, and further that the Plaintiff had failed to comply with pre-suit
   requirements. To be considered medical negligence, “[t]he injury must be a direct result of receiving
   medical care or treatment by the healthcare provider.” Quintanilla v. Coral Gables Hosp., Inc., 941
   So.2d 468, 469 (Fla. 3d DCA 2006). “The key inquiry…is whether the action aris[es] out
   of…medical…diagnosis, treatment, or care.” Lynn v. Mount Sinai Med. Ctr., Inc., 692 So.2d 1002,
   1003 (Fla. 3d DCA 1997); quoting Fassy v. Crowley, 884 So.2d 359, 364 (Fla. 2nd DCA 2004). The
   trial court correctly determined that the Plaintiff’s complaint was based on negligence attributable to
   the provision of medical care and services. Affirmed.

   Neilinger v. Baptist Hosp. of Miami, Inc., 460 So.2d 564, 566 (Fla. 3d DCA 1984)
   Action arose from the provision of medical care and services where maternity patient slipped and
   fell on pool of amniotic fluid while descending from an examination table under the direction and
   care of hospital employees.

   Indian River Mem’l Hosp., Inc. v. Browne, 44 So.3d 237 (Fla. 4th DCA 2010)
   Action arose from the provision of medical care and services where disoriented 76 year old patient
   was admitted to the ER and fell out of a stretcher. Plaintiff alleged negligence in failing to engage
   and/or properly secure railings, and failing to follow hospital rules and procedures to prevent falls.

   Quintanilla v. Coral Gables Hosp., Inc., 941 So.2d 468 (Fla. 3d DCA 2006)
   Ordinary negligence action based on nurse spilling hot tea on patient.

   Tenet St. Mary’s, Inc. v. Serratore, 869 So.2d 729 (Fla. 4th DCA 2004)
   Ordinary negligence action where hospital employee kicked Plaintiff in an attempt to kick Plaintiff’s
   footrest in order to return Plaintiff’s chair to upright position following dialysis treatment.
                                                 Univ. of Miami
   TO COVER ALL INJURIES.                        v. Francois, 36
                                                                                   Fla. L. Weekly
                                                                                   D2766 (Fla. 3rdof 12
                                                                                              Page 6
                       MIAMI FORT LAUDERDALE WEST PALM BEACH ORLANDO               DCA Dec. 21,
                                                                                 TAMPA NAPLES JACKSONVILLE
JANUARY / FEBRUARY 2012                                                           Case Law Update
   Caroline Francois was admitted to North Shore Medical Center to give birth. Her blood pressure
   was severely elevated. She was under the care of Nurse Martinez, an employee of Medical Staffing
   Network Holdings, Inc. Nurse Martinez failed to treat her spiking blood pressure and, as a result,
   she suffered a brain bleed and was placed on life support.

   Shortly thereafter, Robert Kerns, a coordinator of the University of Miami’s Life Alliance Organ
   Recovery Program, entered Ms. Francois’s hospital room without her family’s consent. He wrote a
   physician’s order pronouncing her brain dead (despite the fact that he was not a doctor), and
   ordered the removal of life support without her family’s consent, and despite the fact that she
   continued to exhibit spontaneous respiration. She died shortly after.

   Ms. Francois’ family filed a wrongful death action against Nurse Martinez, Medical Staffing, and the
   University of Miami. On January 5, 2010, she entered into a settlement agreement with the nurse
   and Medical Staffing. The settlement agreement read, in pertinent part, that Plaintiffs released
   Nurse Martinez and Medical Staffing from:

          Any and all claims, including bad faith claims, appellate claims, demands, damages,
          actions, causes of action, suits at law or in equity, or sum of money arising from any
          act or occurrence, or on account of any and all personal injury, death, disability,
          property damage, loss or damage of any kind whatsoever, known or unknown,
          already sustained or which may be hereafter sustained or allegedly sustained in
          consequence of any incidents, casualties, events, acts or omissions to act, from the
          beginning of time down to the date hereof, arising out of or resulting from the
          incidents occurring at the North Shore Medical Center, ….

   The University of Miami then filed a motion for summary judgment and argued that Nurse Martinez
   was the initial tortfeasor, and as such, was liable for all subsequent acts of negligence. It contended
   that Plaintiff’s action against it was barred because the settlement agreement did not clearly reserve a
   cause of action against the University.

   In response, the Plaintiff produced an Addendum to the Release and Settlement Agreement, dated
   April 27, 2010, which was over 45 days after the filing of the motion for summary judgment and
   more than 100 days after execution of the Release. The trial court initially granted the University’s
   motion. The Plaintiff filed a motion for rehearing and argued that the Addendum was a legally
   binding component of the original agreement, not parole evidence, and should have been
   considered. The court granted Plaintiff’s motion for reconsideration. This appeal followed.

                                                                                  Continued on page 8…

   Continued from page 7…
   The appellate court reversed the lower court’s ruling. It cited the general principle that when a
   person is injured by the wrongful act of one tortfeasor and that injury is subsequently aggravated by
   the wrongful act of another tortfeasor, the negligence of the initial tortfeasor is the proximate cause
   of the negligence of the subsequent tortfeasor. The rationale for this rule is to: 1) prevent the victim
   from receiving a double recovery, and 2) prevent the subsequent tortfeasor from being exposed to
   double liability to both the victim for damages and the initial totfeasor under the doctrine of

                                                                                                  Page 7 of 12
JANUARY / FEBRUARY 2012                                                            Case Law Update
   equitable subrogation. The injured party can elect to recover all of his damages from the initial
   tortfeasor or may pursue separate claims against each tortfeasor.

   If the injured party settles with the initial tortfeasor only and intends for the settlement to be limited
   to damages suffered as a result of the initial tort only, the settlement agreement and release should
   be carefully drafted so that it is clear that the victim is not receiving compensation from the initial
   tortfeasor for injuries resulting from the subsequent negligence. If the settlement agreement does
   not clearly reserve the victim’s cause of action against the subsequent tortfeasor, it will be presumed
   that the victim recovered from the initial tortfeasor for all injuries.

   The appellate court held that the Addendum, executed after the motion for summary judgment was
   filed, was parole evidence and should not be considered. It then held that the release and settlement
   agreement did not specifically state that the Plaintiff was not receiving compensation from the
   settling parties for injuries resulting from the negligence of the University. As such, the University’s
   motion for summary judgment should have been granted.

                                                                                  Berrios v. Spine,
   CHALLENGE TO MEDICAL EXPENSES SHOULD BE ASSERTED                               36 Fla. L.
   AS AN AFFIRMATIVE DEFENSE, NOT A COUNTERCLAIM                                  Weekly D2536
   AGAINST PLAINTIFF’S MEDICAL PROVIDER.                                          (Fla. 5th DCA
                                                                                  Nov. 18, 2011)
   In this case, the Defendant alleged that the bills submitted by Deuk
   Spine were not compensable, represented bills for services that were
   not performed, and represented an unreasonable and excessive fee for the service performed. The
   Defendant believes that neither Berrios nor Pennea should be responsible for any of the billed
   charges, or alternatively, that neither party should be responsible for the full amount of the billed

   The Plaintiff filed a Motion to Dismiss. In granting the motion, the trial court stated that “The
   extent of defendant's liability for plaintiffs medical expenses will be completely determined through
   Plaintiff's Complaint and no additional parties are required for a full adjudication of this issue or to
   grant complete relief to the parties.” The 5th DCA affirmed.

   In short, any challenge with respect to the reasonableness and necessity of medical expenses can be
   asserted as an affirmative defense to the plaintiff's negligence action. Allowing a personal injury
   defendant to sue the plaintiff's health care providers and join them to the litigation would undermine
   the physician/patient relationship and complicate the issues to be resolved in personal injury suit.
   SUMMARY OF FLORIDA SUPREME COURT CASES SHOTTS                                     AND GESSA .
   On November 23, 2011, the Florida Supreme Court issued two
   opinions that will affect the enforceability of certain nursing        Shotts v. OP Winter
   home arbitration agreements in Florida. The two companion              Haven, Inc., 36 Fla. L.
   opinions are Shotts v. OP Winter Haven, Inc., 2011 WL 5864830          Weekly S665 (Fla.
   (Fla. 2011) and Gessa v. Manor Care of Florida, Inc., 2011 WL          2011); Gessa v. Manor
   5864823 (Fla. 2011). Both cases addressed essentially the same
                                                                          Care of Fla. Inc., 36
                                                                          Fla. L. Weekly S676
                                                                          (Fla. 2011)
                                                                                                   Page 8 of 12
JANUARY / FEBRUARY 2012                                                           Case Law Update
   Under these rulings, provisions in nursing home arbitration agreements that cap noneconomic
   damages and prohibit punitive damages violate public policy. The Court concluded that “any
   arbitration agreement that substantially diminishes or circumvents [the remedies of Chapter 400]
   stands in violation of the public policy of the State of Florida and is unenforceable.”

   Most significantly, the Court held that these limitation-on-liability provisions were “nonseverable”
   because they “constitute the financial heart of the agreement.” In other words, the Court refused to
   allow these provisions to be removed from the agreement while enforcing the remainder of the
   agreement to arbitrate. The Court invalidated the entire agreement to arbitrate due to the presence
   of the limitation-on-liability provisions.

   Additionally, arbitration agreements that incorporate the Rules of Procedure for Arbitration of the
   American Health Lawyers Association (“AHLA”) (which requires clear and convincing evidence of
   intentional conduct, recklessness or fraud to recover certain damages) are likewise not enforceable.
   Again, the Court did not allow this provision to be severed to allow the remainder of the arbitration
   agreement to remain intact.

   Another primary issue decided was whether a Florida trial court versus an arbitrator is the proper
   forum to decide whether provisions of arbitration agreements violate public policy. The Court held
   that the trial court, not the arbitrator, determines whether an arbitration agreement is unenforceable
   on public policy grounds. Thus, these issues will be litigated in Court rather than taken up with the

   Based on these decisions, it will be extremely difficult to enforce nursing home or ALF arbitration
   agreements that contain limitations on liability, such as a cap on noneconomic damages or
   prohibition of punitive damages. Even prior to Shotts and Gessa, such provisions would likely be
   stricken as against public policy, but the agreement to arbitrate would otherwise be enforced. The
   difference now is that the entire arbitration agreement will most likely be invalidated if it contains
   these provisions.

   Based on the way the law has developed in Florida, provisions limiting damages in nursing home or
   ALF arbitration agreements serve little value because they are typically invalidated if the agreement is
   contested by the claimant. Now, they place the validity of the entire agreement at risk.
                                                                                  Continued on page 10…

   Continued from page 9…
   The arbitration agreements that will remain strongly enforceable after Shotts and Gessa are those that
   do not attempt to increase the burden of proof to clear and convincing evidence, and do not contain
   the common limitations on damages, such as a $250,000 cap on noneconomic damages or a
   prohibition on punitive damages.

                                                                             Chandler v. Geico
                                                                             Indem. Co., 36 Fla.
                                                                             L. Weekly S660 Page 9 of 12
                                                                    (Fla. 2011)
JANUARY / FEBRUARY 2012                                                            Case Law Update
   The issue on appeal was whether the insurer has a duty to indemnify where the insured rented a
   vehicle when her insured vehicle became disabled under a rental agreement which stated that no
   additional operators are authorized or permitted. The insured permitted the rental vehicle to be
   used by an unauthorized operator. That person in turn allowed the vehicle to be operated by another
   unauthorized operator who operated the vehicle in a negligent manner, resulting in serious injuries
   to some passengers and death of another passenger.

   The answer is “yes.” Under Florida’s Dangerous Instrumentality Doctrine, an owner's consent to
   use the vehicle cannot be vitiated by invocation of third-party agreements attempting to limit the
   scope of who may operate the vehicle.

   Geico filed a declaratory action seeking a determination that Geico had no duty under the policy to
   defend and indemnify. The trial court granted summary judgment in favor of the insured. The 1st
   DCA reversed on the grounds that the rental car provider defined the scope of permissible use of
   the subject vehicle to allow the insured permission to use the rental car so long as she was the only
   person who did so. Therefore, because the subject vehicle was used without permission, it was not a
   “temporary substitute auto” under the terms of the policy.

   The Supreme Court reversed again. It relied on two previous decisions, Susco and Roth, which held
   that under Florida's common law dangerous instrumentality doctrine, an owner's, bailee's, lessee's, or
   permittee's consent to the use of a vehicle cannot be vitiated by invocation of third-party agreements
   attempting to limit the scope of who may operate a vehicle. The Susco and Roth cases recognize that
   in the very nature of modern automobile use a lessee of a rental car often has to turn the car over to
   car park, garage, or filling station personnel and others for temporary operation and that it would be
   unreasonable to negate the rental car agency's liability and its insurance coverage in case of an
   accident because of the existence of a collateral or side agreement of the kind involved here. Often
   such permittees of rental car lessees temporarily driving rental cars would not be as fortunate as the
   permittee and have the protection of their own personal auto liability insurance coverage, rendering
   it even more difficult for injured members of the public to recover their losses arising from the
   negligence of drivers of rental cars.
                                                                                  Carden & Assoc.
                                                                                  Inc., v. C.O.D.
   The 5th DCA ordered appellate mediation in this matter. C.O.D.                 Trees P’ship, 37
   Trees Partnership filed a motion with this court seeking sanctions
   against Carden & Associates, Inc. (Carden), and Lenwood Hollister,
                                                                                  Fla. L. Weekly
   Jr., for their failure to appear at appellate mediation in violation of this   D104 (Fla. 5th
   court's order. See Fla. R. App. P. 9.720.                                      DCA Jan. 6, 2012)

   Neither Hollister nor a representative of Carden attended the mediation; only their insurance
   company representative and attorney appeared. No motion was filed with the court seeking to
   excuse the personal appearance of Carden and/or Hollister from the mediation. The law is clear
   that, absent being excused by the court, the party must appear at mediation and a representative of
   the insurance company cannot take the party's place. See, Carbino v. Ward, 801 So. 2d 1028 (Fla. 5th
   DCA 2001). The fact that Carbino involved a trial mediation, rather than an appellate mediation, is

                                                                                               Page 10 of 12
JANUARY / FEBRUARY 2012                                                          Case Law Update
   of no relevance since the appearance language in the applicable rules is identical. See Fla. R. Civ. P.
   1.720(b). See also, Harrelson v. Hensley, 891 So. 2d 635 (Fla. 5th DCA 2005).

   Motion for Sanctions granted. Carden and Hollister were ordered to pay the following amounts as
   sanctions: (1) all fees charged by the mediator in connection with this appellate mediation; and, (2)
   C.O.D.'s reasonable costs and attorneys' fees incurred in preparing for and attending the appellate
   mediation and filing the instant motion for sanctions.

                                                                                                Page 11 of 12
JANUARY / FEBRUARY 2012                                                       Case Law Update

                     W ICK ER S M ITH O’H ARA M C C OY & F ORD P.A.
       Founded in 1952, Wicker Smith O'Hara McCoy & Ford P.A., is a full-service trial firm
       deeply experienced in handling significant and complex litigation for a broad variety of
       clients, ranging from multinational corporations to individuals. Wicker Smith services its
       clients through a network of seven locations throughout the State of Florida in Miami,
       Fort Lauderdale, West Palm Beach, Orlando, Tampa, Naples and Jacksonville. Wicker
       Smith is a member of the USLAW NETWORK, an alliance of more than 60 AV-rated,
       independent law firms and over 4,000 attorneys across the U.S. and Mexico who are part
       of the Network by invitation only.

   Wicker Smith Office Locations:
   Miami:                                              Tampa:
   2800 Ponce de Leon Boulevard, Suite 800             100 North Tampa Street, Suite 1800
   Coral Gables, Florida 33134                         Tampa, Florida 33602
   305/448-3939                                        813/222-3939

   Fort Lauderdale:                                    Naples:
   SunTrust Center                                     Mercato
   515 E. Las Olas Boulevard, Suite 1400               9128 Strada Place, Suite 10200
   Fort Lauderdale, Florida 33301                      Naples, FL 34108
   954/847-4800                                        239/552-5300

   West Palm Beach:                                    Jacksonville:
   Northbridge Centre                                  50 North Laura Street, Suite 2700
   515 North Flagler Drive, Suite 1600                 Jacksonville, FL 32202
   West Palm Beach, Florida 33401                      904/355-0225
                                                       The content of this publication does not
   Orlando:                                            constitute legal advice. It is intended to
   Bank of America Center                              provide a summary of recent case law.
   390 North Orange Avenue, Suite 1000                 Readers should consult with counsel before
   Orlando, Florida 32802                              acting on the information.

   407/843-3939                                        Please feel free to share this publication with
                                                       your colleagues. To be added to the Wicker
                                                       Smith mailing list, please visit our website at

                                                                                            Page 12 of 12

To top