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Florida Case Law Update

Author: Emily Berman

Guest Editor: Jeremy Freedman

June 3, 2019 10:00am

Chapman et al. v. ACE American Insurance Company[1]

In this recent decision from the 11th Circuit, the Court ruled that ACE American Insurance Co. had no duty to defend or indemnify a man who pretended to be a licensed mental health counselor in a wrongful death suit. The insurance policy covers only legitimate professional services.

Plaintiffs were Mark and Barbara Chapman, whose 10-year-old son suffered from ADHD and a host of behavioral problems. After receiving a referral from a social services agency, the Chapmans took their son to see Defendant Robert Taylor for mental health and substance abuse counseling. Months later, the son committed suicide. Soon after, Taylor pled guilty to four state felony charges of organized fraud and 20 charges of grand theft in a scheme to provide and collect payment for unlicensed counseling services to patients. The Chapmans filed suit against Taylor and his business, Recovery Concepts, for wrongful death, unjust enrichment, unfair and deceptive trade practices and infliction of severe emotional distress. They alleged that their son’s mental health problems were aggravated by the treatment and this played a substantial role in their son’s suicide. During this time, Taylor was insured under an Allied Health Care Provider Professional and Supplemental Police, issued by ACE, but ACE refused to defend Taylor against the Chapman’s suit. ACE determined that no coverage existed under Taylor’s policy because the alleged injuries did not arise from covered “professional services,” and that coverage was precluded by the policy’s exclusion provisions.

The District Court granted summary judgment in favor of ACE, finding  the insurance company did not owe a duty to defend against the Chapman’s claims in state court because the alleged acts were not considered “professional services” under the policy. The Court reasoned, “the policy provides that Professional Liability Coverage is available only if the ‘injury or damage’ was ‘caused by a medical incident arising out of professional services by you.” The 11th Circuit panel agreed with the District Court, finding the Chapmans failed to allege fats bringing the suit within the definition of “professional services” under the policy.

Tabraue v. Doctors Hospital Inc. et al.[2]

The Supreme Court of Florida will soon issue a decision as to whether a hospital must remain a party to a lawsuit over a botched and fatal “butt lift” procedure performed at Doctors Hospital in Coral Gables. A 28-year-old woman received silicone injections from an unlicensed physician at an illegal clinic, and thereafter suffered a medical emergency. She was transported to Doctors Hospital via ambulance and subsequently passed away. The suit filed by her estate accuses the hospital’s ER doctors of failing to timely diagnose her blood clot and ignoring certain red flags appearing in blood test results, among other allegations.

The trial judge ruled the hospital could not be held liable because the woman’s father had signed a consent form recognizing the ER doctors were independent contractors. In Florida, hospitals are generally not liable for the negligence of a medical provider who is an independent contractor. On appeal, Tabraue argued, under state law the hospital had a nondelegable duty to provide the patient with emergency care. The Third Circuit Court of Appeal, however, disagreed. In this regard, the Court held  the law cited by Tabraue, Chapter 395 of the Florida Statutes, is a public health law that has to do with hospital licensing and operations rather than emergency room services.

Tabraue is now urging the Florida Supreme Court to reconsider this decision, absolving the hospital of negligence, arguing it directly conflicts with the Fourth District’s 1982 decision in Irving v. Doctors Hospital of Lake Worth, Inc. In Irving, that the Court held a hospital providing emergency room services has a nondelegable duty to provide competent treatment, because a patient in an emergency generally has no control over who will be the treating physician. Given the spilt in decisions, Floridians in Fort Lauderdale and elsewhere in the Fourth District will now operate under one standard, while Floridians in Miami, in the Third District, will operate under another, and those living elsewhere won’t know whether their negligence claims against a hospital can be dismissed because of the employment arrangement between the doctors and the hospital.

Ellis v. Trevino[3]

A Florida state jury recently awarded approximately $3.83 million to a motorcyclist who was T-boned by a Geico customer after the insurer refused to settle the claim within coverage limits. Plaintiff was 21-year-old Anthony Ellis, who was hit and thrown into a ditch after defendant Emily Trevion turned left in front of him. Ellis broke several bones and his left knee had to be surgically reconstructed.

The jury awarded Plaintiff roughly $208,000 for past medical costs, $115,000 for future medical costs, $9,300 for past lost earnings, $500,000 for past pain, suffering and mental anguish, and $3 million for future pain, suffering and mental anguish. Trevino had argued that his headlight was off, which would be negligent on his part. The jury, however, was not convinced and apportioned 100% of fault on Trevino.

 

[1] Chapman et al. v. ACE American Insurance Company, Case No. 18-12972, U.S. Court of Appeals for the Eleventh Circuit

[2] Tabraue v. Doctors Hospital Inc. et al., Case No. SC19-685, Supreme Court of Florida

[3] Ellis v. Trevino, Case No. 17-CA-003495, Thirteenth Judicial Circuit Court of the State of Florida.

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