Altman Contractors, Inc. v. Crum & Forster Specialty Insurance Company[1]

Florida’s Supreme Court recently held in a construction defect matter, an insurance carrier’s duty to defend may be triggered by a construction defect notice against its insured.  In this case, general contractor Altman Contractors, Inc. challenged a lower court ruling that its insurer, Crum & Forster, Inc. was not obligated to cover its defense against a slew of notices under the Florida Statute’s Chapter 558, which provides for a presuit proceeding through which a property owner can assert a claim for construction defects against a builder.  Specifically, the Court ruled that a Chapter 558 Notice is an “alternative dispute resolution proceeding” which fits the definition of a “suit” for purposes of triggering Crum & Forster’s defense obligations under the commercial general liability policy it had issued to Altman.  The Court also held under the relevant language of this policy (common in construction liability policies), the insurer must consent to the insured’s participation in a Chapter 558 proceeding.  However, insurers will likely be discouraged from withholding consent because with their participation, presuit resolutions are more likely to be reached. The effect of this holding may be to boost insurer participation in the presuit process for resolving construction defect disputes and may lead to more out-of-court settlements in construction defect cases across the state.

Joan Schoeff Spolzino v. R.J. Reynolds Tobacco Co. et al.[2]

In Florida’s Engle Progeny cases,[3] Florida’s comparative fault statute no longer applies when tobacco companies are found to be liable for intentional torts. This recent Florida Supreme Court holding should allow plaintiffs that have been injured by tobacco companies to keep more of their compensatory damage awards. In this case, the trial court reduced the jury’s award of compensatory damages to Plaintiff against R. J. Reynolds Tobacco Co. by 25% because of her husband’s comparative fault for the lung cancer that killed him. The Supreme Court reversed and said the comparative fault statute cannot apply where the same injuries can be both the result of negligence and intentional torts.  This is because any reduction in damages would necessarily be applied to damages stemming from the intentional torts, which is contrary to subsection (4) of the comparative fault statute.  The Court noted this is in line with the Legislature’s public policy that when a defendant intentionally defrauds a citizen and causes injury, it cannot blame the victim and have its liability reduced because the victim fell for the fraud.

Sherry Clemens v. Peter Namnum M. D., et al.[4]

In a recent medical malpractice/wrongful death suit against a physician staffing company, a lower court dismissed the suit due to a legal error the plaintiff’s attorney made when he admitted that his client was not suing the staffing company as the principal to its agent (the individual physician) for a claim of vicarious liability. The Plaintiff’s new counsel requested leave to amend the admission to reassert its theory the doctor was acting as an agent for the staffing company. The Court of Appeal revived the case to allow him to amend the admission and reassert the theory that the doctor was acting as an agent for the staffing company. The appellate court stated, despite a lack of definitive case law for the specific circumstances of this case, trial courts usually allow an attorney to correct a legal error made by a previous attorney if such a correction would allow for a resolution on the merits. The primary question was whether prejudice to the staffing company would outweigh the resolution of the case on the merits.  The court found at the time the new lawyer asked for permission to correct the previous attorney’s mistake, the pleadings were not closed, discovery was ongoing, no trial date had been set and Plaintiff was willing to allow additional depositions of its witnesses. Under those circumstances, the court said the staffing company could not establish that the amendment would result in undue prejudice.

Weaver v. Meyers, M.D.[5]

A recent Florida Supreme Court decision does away with certain requirements for plaintiffs in medical malpractice cases, making it easier for patients to file such cases and shut the door on coordination between accused doctors and other physicians who treated the patient. In Weaver v. Meyers, the Court struck down a 2013 law that allows defense counsel to meet with a patient’s other treating doctors without plaintiff’s attorneys present. The law allowed for potential defendants, once they received the required notice a patient or family member was planning to file a suit, to interview the patient’s treating health care providers without the patient’s attorneys present.  In striking down this law, the Court found that Florida citizens have a right to privacy after death.  The Court said the law as it stood effectively forced plaintiffs to choose between a lawsuit or their right to privacy. Experts are saying that this ruling could have a significant impact beyond the pre-filing requirements.  In effect, the decision will make it easier for plaintiffs to pursue medical malpractice cases by taking away a pre-filing tool used by the defense, and will require defense attorneys to significantly adjust their strategies.

[1] Altman Contractors, Inc. v. Crum & Forster Specialty Insurance Company, 2017 WL 6379535, December 14, 2017

[2] Joan Schoeff Spolzino v. R.J. Reynolds Tobacco Co. et al.[2], Case No. CACE08022608, December 14. 2017

[3] The Engle progeny cases stem from the Engle class action, named for Plaintiff and physician Howard Engle, who sued for injuries suffered because of the health effects of smoking. The class was decertified in 2006, allowing class plaintiffs to sue individually.

[4] Sherry Clemens v. Peter Namnum M. D., et al., Case No. 4D16-3558, Florida 4^th District Court of Appeal, December 14, 2017.

[5] Weavers v. Myers, M. D., 2017 WL 5185189, November 9, 2017.

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